Lawson v. United States of America Opening Brief for Appellant
Public Court Documents
January 1, 1948
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OPENING BRIEF FOR APPELLANT,
In the United States Court of Appeals
for the District of Columbia
No. 9872
J o h n H o w a r d L a w s o n , Appellant,
v.
U n i t e d S t a t e s o f A m e r i c a , Appellee.
Appeal from the District Court of the United States for the
District of Columbia.
KENNY AND COHN,
By ROBERT W. KENNY,
629 S. Hill Street,
Los Angeles 14, California;
BARTLEY C. CRUM,
San Francisco, California;
GALLAGHER, MARGOLIS, McTERNAN
AND TYRE,
By BEN MARGOLIS,
Los Angeles, California;
CHARLES J. KATZ,
Los Angeles, California;
WOLF, POPPER, ROSS & WOLF,
By MARTIN POPPER,
New York, N. Y., and
Washington, D. C .;
SAMUEL ROSENWEIN,
New York, N. Y.,
Attorneys for Appellant.
Parker & Company, Law Printers, Los Angeles. Phone TR. 5206.
TOPICAL INDEX
PAGE
Jurisdictional statement 1
Statement of the case. 1
Statutes involved 19
Summary o f argument................................
A rgum ent and Statem en t of P oints
19
I.
The particular questions put to the defendant and the ruling
of the court that the Committee could require defendant to
answer, and the conviction for failure to answer, violated
the rights reserved to the defendant under the First, Fourth,
Fifth, Ninth and Tenth Amendments of the Constitution to
be protected from official inquisition that can compel dis
closure of his private beliefs and associations (Point 1 )..... 26
A. The right of association is an extension of freedom of
speech and assembly............................................. ........ ........ 43
B. Freedom to speak and assemble includes the right to do
so privately .................. ........................................................... 45
C. An absolute privilege protect beliefs and associations.— 47
D. Political and trade union as well as religious beliefs
and associations are protected by the Constitution.......... 49
E. Under the facts of this case the freedom from unlaw
ful search and self-incrimination forbids inquiry into
membership in the Communist Party; it is not neces
sary that membership be punishable as a crime in order
to shield the individual from official inquisition into
the fact o f membership.................. ....................................... 50
F. Reaffirmance by the court of the right to privacy of
belief will not impede the lawful functions of Congress 55
II.
No immunity act can remove the right of freedom from-
compulsory disclosure of beliefs and associations, and,
even as to tangible acts, Congress may not now compel oral
testimony because it has not yet provided an immunity act
that is sufficient to meet the standards of completeness re
quired by the Constitution (Point 2 ) ......................................... 56
III.
The trial court erred in refusing to allow proof or to take
judicial notice of the facts showing that the defendant was
denied due process of law by the Committee and in refusing
to give defendant’s proposed instructions on the subject
(Point 3) .................................................. 62
A. The proof offered established that the defendant was
denied due process in that, without authorization of
any law, the Committee sought to and did so conduct
its hearings as to effectuate its purpose of preventing
defendant from continuing in his private employment
and depriving him of other valuable personal liberties
and property rights................................................................. 62
(1 ) The rights of defendant affected by the Commit
tee’s action are protected by the due process clause 62
(2 ) Any governmental action designed and calculated
to deprive a person of any property right or per
sonal liberty protected by the due process clause is
illegal and void, if such deprivation is not specifi
cally authorized by law............................................. 64
(3 ) Such governmental action is illegal and void, no
matter how subtle or indirect it may be, if it re
sults in injury to or invasion o f any right pro
tected by the due process clause................................. 65
ii.
PAGE
111.
B. The proof offered established that the defendant was
denied due process in that, while denying the require
ments of a fair hearing, the Committee so conducted its
hearings as to effectuate its purpose of preventing de
fendant from continuing in his employment and de
priving him of other valuable personal liberties and
property rights ...................................................... ................ 68
IV.
The trial court committed prejudicial error by denying to
the defendant the opportunity to show that this particular
legislative body, in this particular inquiry into alleged
“ subversive” influences in the Hollywood motion picture in
dustry and into the political affiliations o f employees of that
industry, acted in excess of the bounds of its lawful power
and that therefore the defendant could not be required to
answer the questions (Point 4 ) ................................. ................ 72
A. In a contempt proceeding such as this the defendant
may present evidence to establish whether the Com
mittee is pursuing a non-legislative purpose..... .............. 72
B. This particular inquiry into the Hollywood motion pic
ture industry lay entirely outside the lawful bounds
of the power of the House Committee on Un-American
Activities because it constituted an unwarranted inquiry
into the content of motion pictures and into private
employment relationships in a private industry................ 76
C. In this case the court erred in ruling that the Commit
tee had the right to compel defendant to answer ques
tions regarding his political affiliations, because in de
manding answers to those questions the Committee was
acting beyond the scope of any legislative power and
infringing upon the areas reserved to the people by the
Ninth and Tenth Amendments and delegated to the
judiciary by Article Three of the Constitution................ 78
PAGE
IV.
PAGE
V.
The statute creating the House Committee on Un-American
Activities on its face, and as construed and applied, is un
constitutional (Point 5 ) ...................................................—.......... 90
(This point has been left for consideration by this court
in the matter of Trumbo v. United States, No. 9873,
since in that case both political and trade union affilia
tions are involved.)
VI.
The court erred in instructing the jury that the question put
to the defendant, as recited in the indictment, was a perti
nent question (Point 6 ) ......-.........-.......... — .............. .......... ...... 90
A. The question was not pertinent because, for the pur
poses of the committee, it was cumulative...................... 90
B. The question was not pertinent because it was not ma
terially relevant to any inquiry within the scope of the
committee’s stated authority......................................... ........ 92
C. The question was not pertinent because, as framed, it
was not a legally proper question..................................... 93
V II.
The charge of the court that (A ) a non-responsive reply, or
(B ) a reply that seems unclear to the jury is per se con
clusive proof of a refusal to answer, was so erroneous as
to affect the substantial rights of the defendant and thereby
resulted in prejudicial error (Point 7 ) ..................................... 95
V III.
The court committed prejudicial error in invading the prov
ince of the jury by his comments during the course of the
defense argument to the jury (Point 8 ) ...................................100
V.
IX .
The trial court committed prejudicial error in refusing to
permit cross-examination of the principal prosecution wit
ness, J. Parnell Thomas, and in admitting hearsay evidence
to establish pertinency without affording any right of cross-
examination on that evidence (Point 9 ) ...................................103
X.
The trial court erroneously ruled and charged that there was
evidence upon which the jury could conclude that the
chairman of the House Committee on Un-American Activi
ties had inherent power and authority to appoint a validly
constituted subcommittee, and that such a subcommittee was
in attendance at the time that the defendant was sworn and
testified; and the trial court committed reversible error in
failing to charge that the government must prove beyond a
reasonable doubt that a validly constituted subcommittee
was in attendance at the time the defendant was sworn and
testified, and in quashing defendant’s subpoena duces tecum
for the written minutes of the committee, relating to this
issue (Point 10).............................................. ................ ............. 110
X I.
The court erred in excluding defendant’s evidence that the
committee failed to certify to the House of Representatives
all o f the facts relating to his alleged failure to answer an
allegedly pertinent question (Point 11).....................................118
X II.
The trial court erred in denying defendant’s challenge and
motion to dismiss the jury panel (Point 12)........................... 120
(1 ) The scope and purpose of the review herein is estab
lished by virtue of the Appellate Court’s power of
supervision over the administration of justice in the
trial court ...............................................................................124
PAGE
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TA B LE OF A U T H O R IT IE S CITED
Cases. page
Adamson v. California, 332 U. S. 46................................................. 33
Alford v. United States, 282 U. S. 687.......................................... 106
Allgeyer v. Louisiana, 165 U. S. 578.................................................. 63
Arine v. United States, 10 F. 2d 778.................................................. 105
Bailey v. Drexel Furniture Co., 259 U. S. 20, 66 L. Ed. 817....... 83
Ballenbach v. United States, 326 U. S. 613............98, 102, 105, 107
Bank of Columbia v. Okely, 4 Wheat. 233...................................... 64
Barnes, Matter of, 207 N. Y . 108..... ................................................. 74
Battelle, In re, 207 Cal. 227, 277 Pac. 725, 65 A. L. R. 1497.... 92
Bell v. State, 87 S. W . 1160, 48 Tex. Crim. App. 256.......... 93
Bi-Metallic Co. v. Colorado, 239 U. S. 441..................................... 69
Bihn v. United States, 328 U. S. 631................................................ 96
Blakeslee v. Carroll, 64 Conn. 223, 29 Atl. 473, 25 L. R. A. 106 76
Board of Education v. Barnette, 319 U. S. 624..... .........................147
Boyd v. United States, 116 U. S. 616.......................................... 5 1 , 9 1
Bridge Co. v. United States, 105 U. S. 470..............................79, 83
Bridges v. California, 314 U. S. 252.................................................. 35
Brown v. Dist. of Columbia, 127 U. S. 579..................... ........... ....114
Brown v. Walker, 161 U. S. 591........................................................ 60
Burdick v. United States, 236 U. S. 79.......... _................................ 52
Burnham v. Morrissey, 14 Gray (Mass.) 226............................ ....... 7 5
Carsten v. Pillsbury, 172 Cal. 572, 158 Pac. 218............................. 70
Catlette v. United States, 132 F. 2d 902.................................. ..66, 67
Chambers v. Florida, 309 U. S. 227............................................... ....149
Chapman, In re, 166 U. S. 661............................................. .....118, 120
City of Chicago v. Tribune Co., 139 N. E. 86, 28 A. L. R.
1368 ......................... .................................................... ........................ 86
Coffin v. United States, 156 U. S. 433........................ .................. 29
vii.
Colonial Sugar Refining Co. v. Attorney General, A. T. 237.... 83
&
Vlll.
Ccmnselman v. Hitchock, 142 U. S. 547....................................... 56, 60
Crawford v. United States, 212 U. S. 193..... ................................. 135
Culp v. United States, 131 F. 2d 93..... .............................................. 66
Cummings v. Missouri, 4 Wall. 277..................................... 39, 40, 52
Damon v. The Inhabitants of Granby, 2 Pick. (19 Mass.) 345....114
Daugherty’s case, 273 U. S. 175....................................................75, 90
District of Columbia v. Clawson, 300 U. S. 617................... 106
Dorsey v. Strand, 150 P. 2d 702, 21 Wash. 2d 217.....................114
Doyle, Matter of, 257 N. Y . 268-......................................................... 149
Edward’s case, 13 Rep. 9.................................................................31, 47
Entick v. Carrington, 19 How. St. Trials 1029............................... 50
Fay v. New York, 332 U. S. 261........................................................ 124
Fields case, 164 F. 2d 97, 82 U. S. App. D. C. 354........................ 99
Frazier v. United States, 92 L. Ed. (Adv. Op.) 758..................... 137
Gideon v. United States, 52 F. 2d 427......... 126
Gilchrist, Application of, 224 N. Y . Supp. 225................... ........... 74
Glasser v. United States, 315 U. S. 60........................... ,.128, 129, 130
Gouled v. United States, 255 U. S. 298....................................... 28, 48
Greenfield v. Russell, 292 111. 392.................. ................................76, 89
Grosjean v. American Trust Co., 297 U. S. 233............................. 79
Gunn, In re, 32 Pac. 470.................. ........ ........................................... 76
Hague, E x parte, 150 Atl. 322............................................................ 91
Harris v. United States, 331 U. S. 145............................................. 150
Harrison v. Evans, 1 English Reports, p. 1437............................... 34
Hill v. Wallace, 259 U. S. 44........................ ..................................... 67
Hirschfield v. Henley, 127 N. E. 252........................ ....................... 74
Humphries Executors v. United States, 295 U. S. 602................ 83
Hurd v. Hodge, 92 L. Ed. (Adv. Op.) 857..................................... 67
Jackson v. Jordan, 135 So. 138, 101 Fla. 616..... ............................. 128
Jones v. Securities and Exch. Com., 298 U. S. 1.......................... 28
PAGE
IX.
Kilbourn v. Thompson, 103 U. S. 182...................68, 71, 85, 89, 90
Kraus v. United States, 327 U. S. 614.... _....................................... 96
Lees v. United States, 150 U. S. 476................. .............................. 52
Local 309 U F W A (C IO ) v. Gates, Governor of Indiana, 75
Fed. Supp. 620............................................ ........................................ 46
Londoner v. Denver, 210 U. S. 373.................................................... 69
Lummus, J., Bowe v. Secretary of the Commonwealth, 320
Mass. 230 ............................................................................ ............... 44
Marsh v. Alabama, 326 U. S. 501..... ................................................ 67
Meyer v. Nebraska, 262 U. S. 390............... .................................... 52
Millar v. Taylor, 4 Burr 2370...... 1.................................................... 47
Mooney v. Holahan, 294 U. S. 103.................. 64
Morgan v. United States, 298 U. S. 486......................................... 69
Morgan v. United States, 304 U. S. 1.............................................. 69
O ’Donoghue v. United States, 289 U. S. 516............................ 82, 84
Oliver, In re, 92 L. Ed. (Adv. Op.) 503............... ,.....................71, 76
Olmstead v. United States, 277 U. S. 438.................................28, 91
Patton v. United States, 281 U. S. 276........................................... 101
Penn-Ken. Gas & Oil Co. v. Warfield Natural Gas, 137 F. 2d
871; cert. den. 320 U. S. 800............... .............................................116
Pennsylvania Co. v. Cole, 132 Fed. 668....................................... .....114
People v. Barnes, 204 N. Y. 125........................................................ 91
People v. Cleveland, 271 111. 226, 110 N. E. 843............................ 115
People v. Keeler, 99 N. Y. 482................................................... 74, 90
People v. Lovercamp, 165 111. App. 532........................................... 93
People v. Nathan, 139 Misc. 345, 249 N. Y. Supp. 395..............137
People v. Webb, 5 N. Y. Supp. 855, 23 N. Y. St. Rep. 324........
......................... ................................ -.....................— -...........73, 74, 91
Picking v. Pennsylvania Ry. Co., 151 F. 2d 240............................. 66
PAGE
X.
Powe v. United States, 109 F. 2d 147; cert. den. 309 U. S.
679 ....................................... ................................ ............................67, 79
Prentiss v. Atlantic Coast Lines, 211 U. S. 210............................. 88
Pullman Co. v. Vanderhoeven, 107 S. W . 147, 48 Tex. Civ.
App. 414 .............................................................................................. 94
Quarles, In re, 158 U. S. 532, 39 L. Ed. 1080......................... ....... 80
Quercia v. United States, 289 U. S. 469.................................101, 102
Respublica v. Gill, 3 Yeates 429, 161 U. S. 633............................ 39
Reynolds v. State, 199 Miss. 409, 24 So. 2d 781.............................128
Rogers v. State, 75 So. 997, 16 Ala. App. 58................................... 94
Ross v. Railway Commission of California, 271 U. S. 583, 70
L. Ed. 1101........................................................ .................. .............. 67
Screws v. United States, 325 U. S. 91, 89 L. Ed. 1495, 162
A. L. R. 1330.................... ................ ............................................66, 67
Shelley v. Kramer, 92 L. Ed. (Adv. Op.) 845............................. 67
Shepard v. United States, 290 U. S. 96........................................... 96
Sinclair v. United States, 279 U. S. 263...............................75, 90, 92
Smith v. Texas, 311 U. S. 128........................ ........................ ....128, 129
Spier v. Baker, 120 Cal. 370................ ................................ , ............... 84
St. Mary’s Church, 7 Serg. & Rawle (28 Pa.) 517....................114
State v. Dilworth, 80 Mont. I l l ........................................................116
State v. District Court, 86 Mont. 509, 284 Pac. 266....................127
State v. Guilbert, 78 N. E. 931...................... ...................................... 76
State v. Radon, 45 W yo. 383, 19 P. 2d 177....................................127
State ex rel. Johnson v. St. Louis etc. Ry., 286 S. W . 360,
315 Mo. 430..........................................................................................116
State ex rel. School District of Afton v. Smith, 336 Mo. 703,
80 S. W . 2d 858................................................................................... 115
Steele v. Louisville & National Ry. Co. & Brotherhood of Loco
motive Firemen, 323 U. S. 192................................................. 81, 82
Stewart Machine Co. v. Davin, 201 U. S. 548................................ 67
PAGE
Stockton v. Leddy, 55 Colo. 24................................................... ......... 76
Sullivan v. State, 161 N. E. 265, 200 Ind. 43........ ........................ 93
Summers, In re, 325 U. S. 561............................ .............................. . 35
Thiel v. Southern Pacific Co., 328 U. S. 217............... 124, 128, 130
Thomas v. Collins, 323 U. S. 516........................................... 44, 50, 86
Tot v. United States, 319 U. S. 463.................................................. 70
Truax v. Corrigan, 257 U. S. 312...................................................... 67
Trumbo v. United States, No. 9873.................................................... 90
United States v. Bell, 81 Fed. Rep. 830'....................... .............53, 61
United States v. Butler, 297 U. S. 1..................... ............. ............ 67
United States v. Classic, 313 U. S. 299............................. ,......66, 80
United States v. Constantine, 296 U. S. 287.......................... 67
United States v. Cruikshank, 92 U. S. 542............... 79
United States v. Hautau, 43 Fed. Supp. 507..................... ...... . 94
United States v. Kirschenblatt, 16 F. 2d 202, 51 A . L. R, 416.... 27
United .States v. Lovett, 328 U. S. 303..................... .........27, 63, 70
United States v. Murdock, 290 U. S. 389...............................99, 101
United States v. Owlett, 15 Fed. Supp. 736.............................83, 87
United States v. Paramount Pictures, 92 L. Ed. (Adv. Sheets)
903 ............. .......,.................................................. ........ .............. ........ ;. 76
United States v. Shapiro, No. 49, Oct. Term, 1947, decided
June 21, 1948........................................................................................ 56
United States v. Stone, 188 Fed. 836....................... 66
United States v. Trierweiler, 52 Fed. Supp. 4........................ 66
United States v. Waddell, 112 U. S. 80................. 67
United States v,. Woods, 299 U. S. 123..... ........ ...............................
..................................................... ....133, 134, 135, 136, 137, 138, 143
Wagner v. Supreme Lodge, 87 N. W . 903, 128 Mich. 660....... 94
Wells, etc. Counsel v. Littleton, 60 Atl. 22, 100 Md. 416.......... 94
West Virginia v. Barnette, 319 U. S. 6 2 4 . . ...................28, 40,. 52
Yarbrough, Ex parte, 110 U. S. 651, 28 L. Ed. 274.................... 80
Yick AYo v. Hopkins, 118 U. S. 356................................................. 79
x i .
PAGE
H oly B ible page
Deuteronomy 17:4, 24:10................. .................................... 29
Joshua 7:10-26 ......................................... 29
Matthew 26:63 ........................................................................................ 29
M iscellaneous
Bowers, Jefferson and Hamilton, p. 378........................................ . 49
Chaffee, Free Speech in the United States, pp. 234, 350-1,
550-63 .................................................................................................. 81
Chaffee, Free Speech in the United States, pp. 360-361................ 80
Clark, Speaker, May 18, 1918, p. 6689.............................................. 112
de Tocqueville Alexis, Democracy in America (N . Y .) , Vol.
I, p. 196.................................................................................................. 44
Ebeling, Congressional Investigations (N . Y., 1928), p. 339..... 60
Gillett, Speaker, June 17, 1922, p. 8928..........................................112
Horne, Mirrour of Justices (Washington, 1903), Sec. 108, p.
245, Subsec. 10, p. 246....................................................................... 30
Ickes, Harold L., syndicated column for June, 1947...................... 132
x i i .
Johns Hopkins Studies in Historical and Political Science, Se
ries 55, No. 2 (Lasson, The History and Development of the
Fourth Amendment to the United States Constitution, 1937,
pp. 13, 43-46).... .............. ..................................................... .........28, 37
Lea, A History of the Inquisition of the Middle Ages, I, p. 407.. 31
McCreary, The Developments of Congressional Investigative
Power (N . Y., 1940), pp. 80, 81.................................................. 68
1 Montesquieu, Spirit of Laves (Cincinnati, 1873), p. 10........ 85
Mott, Due Process of Law (1926), p. 9, notes 31, 33; p. 12,
note 37; pp. 86, 108, 115-16, 126, 132-3, 135, 142, 159-60..... 64
38 New Republic (M ay 21, 1924), pp. 329, 331, Frankfurter,
Hands Off the Investigations...................................................... 68
New York Times, March 20, 1948................................. ........ .............147
Patterson, Free Speech and a Free Press, pp. 6-7....... ............80, 81
Patterson, Free Speech and a Free Press, pp. 14, 228..... ............ 81
x i n
Patterson, Free Speech and a Free Press, p. 134............................ 81
President Thomas Jefferson’s letter to Benjamin Rush, April
21, 1803 ............................................ ................................................... ISO
Radin, Roman Law (St. Paul, 1927), pp. 475-476........................ 29
Random House (1948), Andrews, Washington Witch-Hunt........137
Report of the Joint Committee on the Organization of Con
gress— pursuant to House Cong. Res. 18— Rep. No. 1011,
Sec. I, subd. 6......................................................................................113
Woodley, Thaddeus Stevens, pp. 29, 38........................................ ..... 41
Wyler, Radio broadcast, October 26, 1947.................... ............... .....148
Statutes ..
Act of January 24, 1862, Chap. 11, 12 Stats. 833................ ......... 59
Act of June 22, 1938, Chap. 594, 54 Stats. 942........................ 59, 119
Act of Congress, 49 Stats, at L. 682.........:........................... ............ 134
District of Columbia Code, 1940 Ed., Sec. 11-306....................... 1
District of Columbia Code, 1940 Ed., Sec. 17-1.01........ 1
District of Columbia Code, Title 11, Sec. 1417......................120, 127
Federal Rules o f Criminal Procedure, Rule 2 1 (a )................131, 137
House Rules and Manual, 80th Congress, Sec. 407........................ 112
House Rules and Manual, 80th Congress, Sec. 409.................... 112
House Rules and Manual, 80th Congress, Sec. 943........................ 110
Legislative Reorganization Act of 1946, Sec. 133 (b )_____ 110, 115
Legislative Reorganization Act of 1946, Sec. 202c......................... 113
Legislative Reorganization Act of 1946, Sec. 202 (d )........ 115
Magna Carta, Sec. 39, Provisions in the Body of Liberties of
1641, Massachusetts Bay Colony................................................... 64
Public Law 601..... ............................................................................ .. 2
PAGE
XIV
Revised Statutes, Sec. 102, Act of June 22, 1938, Chap. 594, 52
Stat. 942, U. S. C„ Title 2. Par. 192.......................................... . 1
Revised Statutes, Sec. 104.................................................................. ...119
Revised Statutes, Sec. 859..... ............ .............................. ....... ............ 59
Revised Statutes, Sec. 5508................................................................... 66
Revised Statutes, Sec. 5510................................................................... 66
United States Code, Title 2, Sec. 192....... 96
United States Code, Title 2, Sec. 194............................... 119
United States Code, Title 18, Sec. 51.................. 66
United States Code, Title 18, Sec. 52............. 66
United States Code, Title 28, Sec. 24........................................ 144
United States Code, Title 28, Sec. 25...... 144
United States Code, Title 28, Sec. 634................................. .. 59
United States Code Annotated, Title 28, Sec. 391........................ 98
United States Constitution, Art. I, Sec. 6, clause 1......................... 85
United States Constitution, Art. I, Sec. 10... 40
United States Constitution, First Amendment............20, 23, 24, 77
United States Constitution, Fourth Amendment.............................
............................................................................... 20, 21, 23, 50, 51, 55
United States Constitution, Fifth Amendment.... .......................
..................................... ...20, 21, 23, 37, 39, 40, 50, 51, 54, 55, 78, 87
United States Constitution, Ninth Amendment.........20, 22, 78, 87
United States Constitution, Tenth Amendment.........20, 22, 78, 87
United States Criminal Code, Sec. 19................................................. 66
United States Criminal Code, Sec. 20............. 66
T extbooks and P eriodicals.
American Annotated Cases, 1916B, p. 1055.................... ................ 76
Author’s League Bulletin, March, 1948......................... ................... 148
Congressional Globe (29th Cong., 1st Sess.), 1845-1846, App.
p. 455 .................................................................................................. 43
Congressional Globe (34th Cong., 3d Sess.), pp. 404, 405-6, 432 57
PAGE
XV.
Congressional Globe (34th Cong., 3d Sess.), p. 427...................... 58
Congressional Globe (37th Cong., 2d Sess.), p. 431..... 58
Congressional Record (44th Cong., 1st Sess.), p. 1564................ 59
Congressional Record, Nov. 24, 1947, p. 10879............................... 91
Cooley, Constitutional Limitations, pp. 1375-7................................. 86
22 Corpus Juris, p. 982, note 89..................................................... ..116
70 Corpus Juris, p. 738................ ............ ............ ............................. 52
10 Debates, 23d Cong., 1st Sess., Pt. 4, App., p. 194................ 40
13 Debates, 24th Cong., 2d Sess., App., pp. 199, 200, 202........ 54
34 Edward III, Chap. 1....................................................................... 31
3 Elliott’s Debates, pp. 445-449...................................................... 39
Elsynge’s Method of Passing Bills, p. 11........................................... 112
5 Encyclopedia of Social Sciences, p. 114.................................... 60
6 Encyclopaedia of the Social Sciences, p. 449, Laski, Freedom
of Association ..................................................... 45
Gettysburg Compiler, May 7, 1839...................................................... 41
3 Greenleaf’s Evidence (16th Ed., Boston, 1899), p. 35,
note 4 .......................................... 29
4 Harvard Law Review, p. 193, Warren and Brandeis, The
Right to Privacy............................................................................. 47
172 Harper’s Magazine, p. 171, Friedrich, Professor of Govern
ment, Harvard (1936)............ 35
Harper’s Magazine (Sept., 1947), article by Prof. Commager.—146
15 Harvard Law Review, p. 615 (W igm ore)...................... ........ 30
3 Hines, Precedent, Sec. 1754..........................................................113
3 Hines, Precedent, Sec. 1757..........................................................113
3 Hines, Precedent, Sec. 1758......... 113
4 Hines, Precedent, Sec. 4577......................................................... 113
4 Hines, Precedent, p. 4586........................ 112
3 How. State Trials, p. 1315.................... 32
PAGE
XVI.
Lawyers’ Reports Annotated, 1917F..... ............................................. 76
Lawyers Reports Annotated, 1917F, p. 294....................................... 90
28 Ruling Case Law, p. 425, 75 Am. St. Rep. 322...................... 52
8 Wigmore on Evidence, 3rd Ed., p. 161..................................... 55
21 Virginia Law Review, p. 763 (Pittman)................................... 33
34 West Virginia Law Quarterly, No. 1, p. 2, W ood, The
Scope of the Constitutional Immunity..................................... 36
34 West Virginia Law Quarterly, No. 1, pp. 13-14, W ood, The
Scope o f the Constitutional Immunity.................. ............ ......... 51
25 W ho’s Who, 1948, p. 1436............................................................ 1
PAGE
IN D E X TO A P P E N D IX A.
PAGE
Statutes involved ............................................................. 1
Act of Congress of August 22, 1935, Chap. 605, 49 Stats, at
Large 682 ................................................................................. 2
District of Columbia Code, Title X I, Sec. 1417..... ..................... 2
Legislative Reorganization Act of 1946, Sec. 121(b), Public
Law 601, Chap. 753, 79 Cong., 2d Sess., 60 Stats. 828,
amends Rule X I (1 ) (2 ) o f Rules of the House of Repre
sentatives .................. 1
Revised Statutes, par. 102, as amended by Chap. 594, Act of
June 22, 1938, 52 Stats, 942; U. S. C. A., Title 2, par. 192 1
In the United States Court of Appeals
for the District of Columbia
No. 9872
J o h n H o w a r d L a w s o n , Appellant,
v.
U n i t e d S t a t e s o f A m e r i c a , Appellee.
Appeal from the District Court of the United States for the
District of Columbia.
OPENING BRIEF FOR APPELLANT.
Jurisdictional Statement.
This is an appeal from a judgment of the District Court
o f the United States for the District o f Columbia, con
victing John Howard Lawson of violating Rev. Stat. Sec.
102, as amended by C. 594, Act o f June 22, 1938, C. 594,
52 Stat. 942, U. S. C. Title 2, Par. 192.
Jurisdiction below was based on Section 11-306, D. C.
Code, 1940 Ed. Jurisdiction of this Court is conferred
by Section 17-101 D. C. Code, 1940 Ed.
Statement of the Case.
John Howard Lawson, a dramatist and screen writer
(Vol. 25 W ho’s Who, 1948, p. 1436) was convicted of
contempt o f Congress. The sentence imposed the maxi
mum penalty, imprisonment for a year and a fine of
$ 1,000.00.
The defendant challenged the indictment by motion to
dismiss on the ground, among others, that it did not state
an offense. (J. A. 11.) The motion was denied! (J. A .
6.) A motion to transfer the cause to another district for
trial was also denied. (J. A. 6.) The defendant entered
a plea of “ not guilty.”
On April 12, 1948, as the case was called for trial, the
defendant moved the trial justice, the Honorable Edward
M. Curran, to disqualify himself for bias and prejudice.
This motion was denied. (J. A. 56.) Another motion was
made to transfer the cause to another district for trial,
based on events which had occurred since the former mo
tion, coupled with earlier events; this motion was likewise
denied. (J. A. 57.)
The defendant then filed a Challenge and Motion to
Dismiss the jury panel on the ground that the panel had
not been selected in a manner designed to obtain a repre
sentative jury and on the further ground that, in view of
the nature of the case, the preponderance of government
employees on the panel prejudiced the defendant with re
spect to his right to an impartial jury. The Court took
evidence on the motion and denied it.
Thereupon a jury was impaneled. When the defendant
had exhausted his preemptory challenges he asked the
Court for additional challenges, but this request was de
nied. (J. A. 166.) Because the indictment was for con
tempt of Congress and concerned an alleged interference
with the orderly processes of government, the defendant
challenged for cause each government employee and each
near relative o f a government employee. These challenges
were denied. (J. A. 166.)
When the jury had been selected the cause proceeded to
trial. The evidence received established the following
facts.
The first session of the 79th Congress (in 1945) amend
ed Public Law 601 and made the House Commitee on Un-
American Activities a permanent committee. (J. A. 174,
Govt. Ex. 2.)
Between October 20 and October 30, 1947, members of
the House Committee, purporting to act as a sub-commit
tee, held hearings, in Washington, D. C., on the subject,
as designated by them, “ Communist Infiltration of the
Motion Picture Industry.” The defendant was not a
-3—
voluntary witness but appeared in response to subpoena
served upon him at his residence in California. He testi
fied on October 27, 1947. The Committee had never at
any time seen any o f the motion pictures written by the
defendant. (J. A. 236-7.)
During the course o f the chairman’s opening statement
on October 20, 1947, he said:
“ The question before this committee, therefore, and
the scope o f its present inquiry, will be to determine
the extent of communist infiltration in the Hollywood
motion picture industry. W e want to know what
strategic places in the industry have been captured
by these elements, whose loyalty is pledged in word
and deed to the interests o f a foreign power.” (See
p. 3 o f the printed transcript of the Committee Hearings.)
Twenty-four witnesses preceded the defendant. (J. A.
200.) Some of the witnesses attacked his character, in
tegrity, and reputation, and the prosecution relied upon
this testimony in its efforts to establish the pertinence of
questions addressed to the defendant. (J. A. 223-228,
230, 232.)
On the morning o f October 27, 1947, three members o f
the Committee 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.” Over defendant’s
objections, the Chairman of the Committee was allowed
to testify that as a matter o f law he had the authority to
appoint a sub-committee, and that he appointed a sub
committee at the outset o f the hearings by making the
statement set forth above. (J. A. 183-6, 197-8.)
At the outset of the defendant’s testimony before the
Committee, he asked leave to read a statement. The Chair
man said, “ The statement will not be read. I read the
first line.” (J. A. 188.)
The defendant protested this refusal and called attention
to the fact that executives of motion picture producing
4
companies, Mr. Jack Warner and Mr. Louis B. Mayer,
had been accorded the privilege of reading their state
ments. Nevertheless, the defendant was not permitted to
read his statement.
After the defendant had answered preliminary, identi
fying questions, the Committee asked whether he was a
member of the Screen Writers’ Guild. The defendant
stated, first, that he protested the question, that the Com
mittee had no power to ask it. He was interrupted numer
ous times in the course of his reply before he was able to
say that it was a matter of public record that he was a
member of the Guild. The Committee interrogated him
concerning his activities as a member and officer o f the
Screen Writers’ Guild. The defendant answered these
questions, protesting them, asserting they violated his
constitutional rights, and stating that the information
sought was a matter of public record, and that he was a
former President o f the Guild. Similar questions con
cerning his screen writing were answered in the same way,
by protests, by the assertion that the questions invaded his
right, and by the statement that his authorship of motion
pictures was a matter of public record.
The defendant was then asked: “ Are you now or have
you ever been a member of the Communist Party?” Again
the defendant replied by protesting, by saying that the
question violated his rights and exceeded the powers of
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. Members of
the Committee and its counsel, Mr. Stripling, repeatedly
interrupted the defendant’s reply. The testimony was
brought to a close by the Chairman in the following man
ner :
“ The Chairman (pounding gavel). W e are going
to get the answer to that question if we have to stay
here for a week.
“ Are you a member o f the Communist Party, or
ha've you ever been a member o f the Communist
Party?
“ Mr. Lawson. It is unfortunate and tragic that I
have to teach this committee the basic principles of
American—
“ The Chairman (pounding gavel). That is not
the question. That is not the question. The question
is : Have you ever been a member of the Communist
Party ?
“ Mr. Lawson. I am framing my answer in the
only way in which any American citizen can frame
his answer to a question which absolutely invades
his rights.
“ 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 wit
ness—
“ 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. 196-7.)
To meet the prosecution’s evidence concerning the per
tinence of the question which was the subject o f the in
dictment and concerning the status o f the Congressmen
who acted as a sub-committee, the defendant served sub
poenas duces tecum on the Committee’s chief investigator
and on the Clerk of the House. These subpoenas called
for specified records of the Committee; one covered the
period from May 26, 1938, to August 2, 1946, to the time
of the trial; they called for the production o f the Com
mittee’s records relating, among other things, to the Com
mittee’s investigation of the defendant, to the Commit
tee’s interpretation and application of the terms “ subversive
and Un-American propaganda.”
On the Government’s motion to quash the subpoenas,
the defense stated it expected to elicit by means of the
records which were the subject o f the subjoena the follow
ing: The Committee was authorized to conduct the in
vestigation only by full Committee; the hearings were not
held for any legislative purpose but were in fact held for
the purpose of seeking to control the subject and content
of motion pictures and to compel the discharge and black
listing o f named persons, including the defendant; that
before the hearing was commenced the Committee believed
it had all o f the information which could have been ob
tained by the hearing. On request o f the defendant the
Court considered separately each item called for by the
subpoenas and further acted on the motion to quash on the
basis that if the period o f time covered by any item was
deemed unreasonable the subpoenas would be amended to
cover a shorter period of time. The subpoenas in their
entirety were quashed. (J. A. 318-28.)
Thereafter, during the course of the trial, additional
subpoenas duces tecum were served on the Committee’s
chief investigator and on the Clerk of the House; these
subpoenas called for designated documents relating to the
period from January 1 to October 27, 1947, and referring
solely to the subject matter of the hearing, the investiga
tion o f the defendant, and the existence of the sub-com
mittee. On the Government’s motion to quash these sub
poenas, the defense told the Court that they expected to
establish the facts stated above. The Court quashed these
subpoenas. (J. A. 343-6.)
After the close of the evidence the Court told the jury:
“ There is nothing in the record to indicate that he (the
defendant) was trying to answer the question,” and that
the reasons given by the defendant in asserting his posi
tion were not in the case. (J. A. 349.)
During the course of the trial, the Court on motion of
the government cut off many lines of inquiries begun by
the defense. (J. A. 199, 202-8.) Accordingly, the de
fense, by means o f exhibits, given numbers for identifica
tion, made a number of offers o f proof. For the conven
ience of the Court, they are here summarized. They in
clude offers to prove that the primary purposes of the
hearing were to procure the discharge of the defendant,
to blacklist him from employment and to censor the motion
picture screen. The testimony offered to substantiate this
offer o f proof included the declarations, acts and conduct
o f each of the Congressmen who purported to sit as a sub
committee on October 27, 1947. The proffered evidence
included, among other things:
(1 ) A sub-committee of the House Committee on
Un-American Activities, with its chief investigator,
Stripling, went to Los Angeles in the Spring of 1947
and there examined a number of motion picture pro
ducers, including Jack Warner, and called upon them
to discharge and to suspend certain writers and di
rectors whom the Committee considered to be Com
munists, among whom was the defendant, Lawson.
The effect o f these hearings was recognized by a wit
ness called by the Committee, who said he could not
answer a question as to whether Communism was in
creasing or decreasing in Hollywood, because ‘Tt is
very difficult to say right now, within these last few
months, because it has become unpopular 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. Johnston, the head o f the Motion Picture
Producers’ Association, who stated that while Sena
tor Robert Taft need not worry about being called
a Communist, not every American was in that posi
tion. Charges o f this kind can take away everything
that a man has— “ his livelihood, his reputation, and
his personal dignity.” [Ex. 10 for ident.] (J. A.
542.)
(2 ) The producers at first rejected the demand of
the sub-committee that certain writers be discharged
and blacklisted and said that such conduct was un
lawful. (J. A . 545.)
(3 ) In the Summer of 1947 the Committee sent
two o f its investigators, Leckie and Smith, to Holly
wood, 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
m charge of production at RKO Radio Pictures.
These investigators urged the producers “ to clean out
their houses else there would be trouble in the industry
from the House Committee.”
(4 ) The Committee had since its inception main
tained records and files which now contain over a mil
lion names of persons and one thousand names of
associations deemed by the Committee to be un-
American, subversive or Communistic; these records
are growing; the files are made available to Federal
and State and other government agencies; names for
the records are obtained from various sources, includ
ing persons designated as subversive by individuals
whom the Committee deemed reliable; one of the
purposes o f the Hollywood hearings was to obtain
new names for this growing file. (J. A. 327-8.)
(5 ) During the hearings a member o f the Commit
tee urged the Motion Picture Producers Association
“ T o concern itself with cleaning house in its own in
dustry . . . 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 be traced.” The Committee’s counsel joined in the
demand that “ Communistic influences . . . and I
say Communist influences; I am not saying Com
munists” ; be eliminated from the industry by cutting
“ these people off the payroll.” (J. A. 517.)
(6 ) One o f the members of the Committee stated
the function of the Committee in this way: “ .
o f 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 execu
tives for each of those divisions.” (J. A. 518.) At
another point, the Chairman of the Committee stated
that four o f the unfriendly witnesses before the Com
mittee have been shown to have “ extensive Communist
and Communist-front records. Yet, this kind of
people are writing scripts in the moving* picture in
dustry.” (J. A. 521.) He then went on to state
that that is 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 any
body else, but you must have the will power, and we
hope that by spotlighting these Communists you will
acquire that will.” (J. A. 522.)
(7 ) The Chairman closed the hearings on October
30, 1947, with the following public appeal to the
producers:
“ The Chairman. * * * I want to emphasize
that the committee is not adjourning sine die, but will
resume hearings as soon as possible. The committee
hearings for the past two weeks have clearly shown
the need for this investigation. Ten prominent figures
in Hollywood whom the committee had evidence were
members o f the Communist Party were brought be
fore us and refused to deny that they were Com
munists. It is not necessary for the Chair to em
phasize the harm which the motion picture industry
suffers from the presence within its ranks o f known
Communists who do not have the best interests o f the
United States at heart. The industry should set about
immediately to clean its own house and not wait for
public opinion to force it to do so.” [Ex. 10 for
ident, J. A. 526.] (J. A. 257-60.)
(8 ) One of the purposes of the hearing was to
stop the production of pictures which depicted the
Negroes in a favorable light, and one of the reasons
why the defendant Lawson was called by the Com
— 9—
10—
mittee was because he wrote pictures which did this;
further, the purpose o f the hearing- was to control the
content of motion pictures in accordance with the
ideas of the Committee, and the function o f the Com
mittee in the Hollywood hearings was that of “ a
grand jury carrying on an' investigation.” (J A.
325-6.)
(9 ) One o f the purposes of the hearing and of
the questions put to the defendant was to compel the
motion picture industry to make only the kind of
pictures the Committee believes should be seen by the
American public. The Chairman asked one witness
whether he believed that these public hearings would
“ aid the industry in giving it the will to make these
pictures.” The Commitee attacked pictures the con
text o f which it disapproved. One of these was
“ Mission to Moscow,” written by former Ambassador
Davies. [Ex. 10 for ident.j (J. A. 489-90.)
(10) The Committee called on the motion picture
industry to eliminate from pictures anything which
the Committee considered Communistic or un-Amer
ican or subversive propaganda. The Committee chair
man and other Congressmen, members of the Com
mittee, 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
government by force or violence,” found un-American
propaganda 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,
lay an inflection, by a chang-e in the voice.” (J. A.
505.) Among the subversive manifestations in mo
tion pictures specified by the Committee were refer
ence to some crooked members o f Congress, to dis
honest bankers or senators, to a minister shown as
the tool o f his richest parishioner, and to presenta-
ion o f bankers as unsympathetic men. (J. A. 506-10.)
(11) In November, 1947, following the close o f the
Washington hearing, the industry complied with the
Committee’s demand for a blacklist affecting the
—11
defendant and others named by the Committee.
Unexpired contracts of other so-called 'unfriendly”
witnesses were abruptly terminated and further em
ployment in any branch of the industry was denied to
them. (J. A. 263 and 167 F. 2d 241, 254, note 8.)
(12) Thereafter, the Committee in its request for
contempt citations claimed “ the credit for these dis
charges and this blacklist.” [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 Century-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 o f this
corporation be and they are hereby directed, to the
extent that the same is lawful, to dispense with the
services 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 o f 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.”
On various occasions the Committee has considered the
meaning of the phrase, “ un-American activities” and the
phrase “ un-American propaganda,” but it has never ex
pressly adopted any definition or standard for said phrases.
(J. A. 254-6.)
The defendant maintained that the statute and resolu
tions establishing the committee were not free from am
biguity; that, therefore, it was proper and necessary to
consider the manner in which said statute and resolutions
1 2
had been interpreted and applied by the Committee;
that only from such construction and interpretation was
it possible to determine whether the existence of the Com
mittee offended the Constitution, whether it had acted in
excess o f its powers and whether the question asked was
pertinent.
Accordingly the defendant offered to prove the Com
mittee’s interpretation and application of the critical lan
guage of the statute; and further offered to prove that in
asking the question which was the subject of the indict
ment the Committee had acted in accordance with the
meaning attributed to those words by the Committee.
The defendant therefore submitted a detailed offer o f
proof relating to the Committee’s past activities prior to
October 20, 1947 [marked Deft. Ex. 9 for ident., j . A.
420]. The Court excluded this offer in its entirety.
(J. A. 249-53.) By this offer, the defendant sought to
prove that:
(a ) During its entire existence the Committee has
considered its authority under Public Law 601 and
preceding resolutions, identical in language, to be
sufficiently broad in scope to permit investigation and
examination, including the summoning of witnesses
and subpoenaing of records, of every kind of organi
zation, whether fraternal, social, political, economic,
or otherwise, and of every kind of propaganda includ
ing unrestricted inquiry into any and all ideas,
opinions and beliefs held or promulgated and the
association of any individuals.
(b ) Although the Committee has never been able
to agree upon a specific definition of the terms, “ un-
American propaganda that . . . attack the prin
ciple o f the form of government as guaranteed by our
Constitution,” it has conducted its hearings, drawn its
finds and conclusions, determined the pertinency of
questions and inquiry, summoned witnesses and con
ducted investigations, upon the assumption and basis
that the said terms included the following ideas and
beliefs:
— 1 3
1. Political opinions generally called “ new deal” be
cause of their advocacy by the late President
Roosevelt. On one occasion Chairman Thomas
speaking for the entire Committee, said that the
propaganda being disseminated by agencies o f
our national government is “ just as un-American
as the propaganda that is being spread by those
so-called un-American groups.” [Ex. 9 for
ident.] (J. A. 427.) Numerous other examples
appear in the exhibit (pp. 3-7, inch). (J. A.
422-7.)
2. The opinion that the Committee on un-American
Activities is undesirable. [Ex. 9 for ident.]
(J. A. 427-31.)
3. The opinion that incumbent members of Congress
should be defeated and others elected in their
place. [Ex. 9 for ident.] (J. A. 431.) The
Committee in one of its reports states that “ the
essence of totalitarianism is the destruction of the
parliamentary or legislative branch o f govern
ment” and that through “ criticizing individual
members o f Congress” there exists a “ widespread
movement to discredit the legislative branch of
our government.” [Ex. 9 for ident., J. A. 433.]
Time magazine was declared to have been en
gaged in un-American activities because it “ gives
a two-page spread to the attack made upon
Congress by the Union for Democratic Action.”
[Ex. 9 for ident., J. A. 434, 444.]
4. The following ideas and beliefs concerning eco
nomics :
(a ) To be in favor of a planned economy ;
(b ) To oppose monopoly;
(c ) To attack “ the Standard Oil Company of
New Jersey and other responsible industrial
organizations” ;
(d ) T o “ viciously attack cartels” ;
(e ) To say that landlords have highpowered
lawyers while tenants do not;
— 14—-
( f ) T o attack private ownership;
(g ) T o believe in the abolition o f inheritance;
(h ) Skepticism as to advertising;
( i ) To defend sit-down strikes. [Ex. 9 for
ident, J. A . 438-41.]
5. The following political opinions:
(a ) Opposition to the present system of checks
and balances in the Constitution;
(b ) Opposition to the method o f choosing mem
bers of the legislature in New Jersey;
(c ) Advocacy of the formation of a national
farmer labor party;
(d ) Advocacy o f the Geyer anti-poll tax bill.
[Ex. 9 for ident., J. A. 453.]
6. The following opinions on foreign policy:
(a ) Advocacy of withdrawal of American troops
from China;
(b ) Belief in the desirability of the dissolution
o f the British Empire;
(c ) Calling for civilian use of atomic energy
and criticising- its military use;
(d ) Advocacy of the plan advanced by former
Secretary o f the Treasury Henry Morgen -
thau, Jr., with respect to our policy in
Germany;
(e) The belief that the cause of the Spanish
Loyalist Government was just and that the
government o f Franco Spain is not demo
cratic. (J. A. 454.)
7. Opposition to universal military training. [Ex.
9 for ident., J. A. 461.]
8. The following ideas and beliefs with respect to
our society:
(a ) Absolute racial and social equality;
(b ) Opposition to a belief in the divine origin
o f the rights of man;
1 5
(c ) Unity regardless of race, creed, and color
for a common goal o f peace and prosperity.
[Ex. 9 for ident, J. A. 461.]
9. Ideas and beliefs favorable to the defense of
civil liberties:
(a ) Acting as counsel for the Communist Party
in civil liberty cases;
(b ) Protesting the denial of a meeting place
for a speech by Henry A. Wallace;
(c ) Protesting the denial o f the right o f Paul
Robeson to speak in Albany and Peoria;
(d ) Signing an open letter for Harry Bridges;
(e ) Supporting the Scottsboro, and Sacco and
Vanzetti cases;
( f ) Joining in a resolution signed by such per
sons as President Woolley of Mount Hol
yoke, Professor Chafee of Harvard, Pro
fessor Fairchild of New York University,
Bishop McConnell of the Methodist Church,
and Dean Fleming James of the Divinity
School o f the University of the South, which
opposed outlawing the Communist Party.
[Ex. 9 for ident., J. A. 461-6.]
10. The promulgation o f any and all ideas whatso
ever in books or newspapers or by radio are
considered by the Committee as within its scope;
it has condemned books and newspapers with
which it disagreed, and it has threatened radio
networks with legislation establishing censor
ship because of utilization by such networks of
radio commentators who expressed verboten
ideas. [Ex. 9 for ident., J. A. 441-53.]
11. Out of 207 names sent by the Committee to the
Department of Justice as subversive, 7 were in
cluded solely because their names were carried
in the files o f the “ Washington Committee for
Aid to China,” 42 solely because they were
listed as members of the “ Washington Book
Shop,” 33 solely because they were at one time
1 6 -
members of the “ League for Peace and Democ
racy,” and 73 for the sole reason that their names
were on a list o f the “ Washington Committee
for Democratic Action.” [Ex. 9 for ident., J. A.
474-5.]
12. The Committee has proceeded upon the theory
that an idea approved by Communists is, ipso
facto, Communistic and un-American. Anyone
who supports such an idea is either a Com
munist or a supporter. Thus, the head of the
Communistic Party urged labor political action
in the 1944 election. The fact that such action
was afterward taken by labor unions was proof
that the unions were Communistic and un-Amer
ican. One of the Committee’s methods has been
to proclaim guilt by association; it designates
as a Communist organization any organization
to which Communists belong; then it designates
as Communists all persons who belong to that
organization, regardless of the purposes of the
organization. Thus, in its 1944 P. A. C. report,
Julius Emspak, key official o f United Electrical,
Radio and Machine Workers of America is con
demned as un-American because of statements
made by one James Carey, a former official of
the same union. On the other hand, the Political
Action Committee is in turn condemned as a
Communist-front organization because the same
James Carey, who was active in it, is said to
have been a member o f several Communist-front
organizations. [Ex. 9 for ident., J. A. 477-9.]
It was because of this history o f the Committee that the
defense was able to offer to prove through the testimony
of Representative Eberharter that the Committee had not
been engaged in obtaining information for any legislative
purposes but that it had engaged in attacking ideas with
which it disagreed, and which could not be considered
subversive, and that it was a conscious political instru
mentality directed against the New Deal. (J. A. 307-9.)
Although the government was allowed to and did intro
duce evidence with respect to testimony given before the
1 7 -
Committee during the first week o f the Washington hear
ings, ̂for the purpose o f establishing the pertinence of
questions put to Mr. Lawson, the Court on the motion of
the Government prevented the defense from putting in
other portions of that same testimony. The defendant
moved to strike the direct testimony of Congressman
Thomas on the grounds that the Court should either rule
that the question was pertinent as a matter o f law or should
permit cross-examination. The motion was denied. ( J. A.
234-44.)
The defense offered to prove that there was nothing in
American motion pictures which could be considered sub
versive or un-American or which would otherwise justify
inquiry by the Committee. Richard Griffith, a reviewer,
critic and executive director o f the National Board of
Review, was offered as a witness. Mr. Griffith has re
viewed many thousands o f films as a critic and on behalf
o f his organization, whose purpose it is to organize
audience support for meritorious pictures. Its seal is
placed on approved film. The organization has two to
three hundred community councils consisting o f represent
atives of civic, religious, educational, and cultural organi
zations. The governing body is composed o f delegates
from such organizations as the Boy Scouts of America, the
American Bar Association, the Association of American
Colleges, the National Association of Better Business
Bureaus, the Daughters of the American Revolution, the
Y. M. C. A., etc. (J. A. 266-70.) Through Mr. Griffith
the defense offered to establish that no film has ever been
produced which by any standards could be considered sub
versive. (J. A. 270-1.)
This rejected offer included review of the defendant
Lawson’s pictures. “ Action on the North Atlantic,” as
one example not only received the seal o f approval but was
classified by the organization as desirable for family or
mature audiences; it received a star as a picture especially
worth seeing and as one which had done a great service
for the American Merchant Marine. (J. A. 272.) Simi
lar offers o f proof were made with respect to all o f the
other pictures written in part or in toto by the defendant
Lawson, and particularly tô establish that in none o f
said pictures was there any single phrase or word o f
- 18-
scene which could be deemed by any standard to be sub
versive. (J. A. 273-80.)
Through producers of long standing and high repute,
through heads o f great studios, including the largest studio
in the world, through prominent writers, story analysts, and
drama critics, the defense offered to establish that there was
nothing subversive in any American motion picture.
Through the same witnesses the defense offered to estab
lish that as a matter o f 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; that the content o f motion pictures is
controlled exclusively by producers; that every word, scene
situation, 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 o f every
motion picture is determined by the producer; and that all
o f these facts were matters of common knowledge when
defendant Lawson was subpoenaed by the House Com
mittee.
An offer to exhibit each o f the motion pictures which
the defendant Lawson had written to the Court and to
the jury was also rejected by the Court. (J. A. 309-12.)
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
the defendant Lawson was put on the stand that he was
a Communist and that nothing he could have said would
change their minds. (J. A. 262-6.) [Ex. 11 for ident.,
J. A. 546.]
No part o f Lawson’s statement, which had been offered
to the Committee during the hearing, was read, given or
submitted to Congress before or during the debate on the
citation for contempt. Similarly, the defendant’s various
motions before the Committee to quash and for cross-
examination were not submitted to Congress either before
or during the debate. (J. A. 301-9.)
1 9 -
Statutes Involved.
(See Appendix A .)
Summary of Argument.
W e respectfully submit that the precise questions pre
sented by the case below, though long decided in principle
in favor of petitioner’s contentions, have never within
the framework of the facts o f this case, or any other
contempt matter, been presented to this Court and have
never been authoritatively settled.
W e urge that the questions presented are among the
most important to reach this Court in a generation. Con
scious of the breadth o f such a statement, we nevertheless
believe that the decision to be rendered in this case will
largely influence, if not determine, the course of our Re
public.
Stated in its simplest terms, the case involves inquisi
tion by means o f compulsory disclosure, carried on by a
Congressional Committee for the purpose o f ferreting
out political dissenters, and the imposition by the Com
mittee of severe penalties for dissent. On the decision in
this case may well depend the nature of our future society;
it may determine whether the time has come to abandon
principles long established or whether the time is now
here to reassert those principles.
The Committee which carries on this practice purports
to do so under color o f authority, an’ authority which, it
urges, is given to it by the Constitution. It is this con
tention that poses the question for the Court. I f this
Constitution, written by men acutely sensitive to the
iniquities o f the writs o f assistance and of test-oaths,
should contain authority for such procedure it would in
deed be a self-annihilating document. But, as the conten
tion is made on behalf of one o f the great branches of
our Government, it must and should be examined by this
Court.
The inquisitorial procedures inflicted by the Committee
were only a part o f the whole. In the very hearing cham
— 20—
bers, members of the Committee, purporting to sit as an
official body of the United States Government, directed
private employers to discharge and blacklist witnesses
whom the Committee had subpoenaed. The standards
for determination, the trial, and the punishment came
from that one body, without opportunity for intervention
by any other authority. No organ of our Government,
unless perhaps a military tribunal within sound of battle,
has laid claim to such powers. And this Court has not
determined the question before.
It is true that the powers of this Committee to issue
subpoenas and to swear witnesses has been passed on
by this Court. But this Court has yet to declare whether
this Committee in this particular hearing acted for legis
lative ends; whether it has a right to compel disclosure
o f political affiliation when in the same hearing it employs
the full resources o f its power to inflict disaster, on the
basis o f the information requested; and whether that
ultimate sanctuary, the mind o f a man, may lawfully be
invaded by temporal writ to expose dissent.
Briefly the argument on the merits may be summarized:
One of the purposes of the First, Fourth, Fifth, Ninth
and Tenth Amendments was to establish an absolute
privilege in the individual to form and hold private beliefs,
political and religious.
Because the right to hold beliefs is meaningless unless
the beliefs held can be expressed through association, the
privilege against governmental inquisition into belief is
also protected by the right o f freedom of association.
Being absolutely privileged, an individual’s beliefs, as
well as his associations for the purpose of expressing them,
are immune from compulsory disclosure. This immunity
means complete immunity, not merely exemption from
punishment by fine or imprisonment.
The Committee, by insisting that the petitioner dis
close his political affiliation, invaded this prvileged area,
and, therefore, its inquisitorial efforts may not be sanc
tioned by a court o f law.
— 21—
Just as courts have functioned effectively within the
framework of our democratic tradition and the limita
tions of the Fourth and Fifth Amendments, without
requiring defendants to testify against themselves or
using evidence unlawfully obtained, so legislative com
mittees can obtain the information necessary for legisla
tive purposes without compelling individuals to disclose
their political beliefs and affiliations and to subject them
selves to penalties because o f such testimony, particu
larly inasmuch as the legislature has the additional ad
vantage o f being able to use secondary evidence for its
purposes.
This encroachment upon individual rights is magnified
by the fact that Congress has not provided, for witnesses
before Congressional committees, immunity sufficient to
meet the pre-requisites necessary to compel a witness to
testify even as to tangible acts and facts, a much more
tangible field of inquiry than one into beliefs and associa
tions.
Without any provision of law authorizing it, the Com
mittee utilized its powers to have the petitioner dis
charged from his employment and blacklisted in the in
dustry in which he earned an enviable, worldwide reputa
tion, and to deprive him of other valuable rights protected
by the due process clause of the Fifth Amendment.
Moreover, the very question which is the basis o f the
proceedings herein was designated to assist the Committee
in achieving its illegal objectives. No man may be held
in contempt for refusing to testify in a proceeding in
which, without authorization of law, his most valuable
property rights and personal liberties are being attacked
and taken away from him.
To this is added the fact that the most elementary
requirements of fair play essential to due process were
denied to petitioner in those proceedings, which were
calculated to cause, and actually resulted in, such great
and irreparable injury to him. The conclusion is thus
reinforced that the proceedings, in which the petitioner
was charged with having refused to answer a question,
-22
so invaded his constitutional liberties as to render them
void, and void proceedings may not constitute a valid
basis for a contempt charge.
Thus, far, there has been summarized the respects in
which the Committee’s conduct invaded the constitutional
rights of petitioner. That the Committee’s conduct was
illegal is also apparent when it is considered from the
standpoint of the powers of legislative committees.
The blacklisting and discharging o f individuals, the
imposition of censorship upon the screen, and the dicta
tion to the motion picture industry of the political quali
fications o f personnel employed therein were the purposes
of the Committee in conducting its hearings. These ob
jectives were effectuated under the guise of a legislative
inquiry and by means o f an unwarranted invasion o f the
private rights of private individuals and private institu
tions. Thus, the Committee pursued non-legislative pur
poses. Refusal to answer a question in a proceeding in
which legislative power is so exceeded cannot be contempt.
The conduct o f this Committee undermines the very
foundations o f this nation’s democratic institution o f
self government. Ours is a government o f delegated
powers, with the people reserving and exercising the pow
ers of the sovereign under the Ninth and Tenth Amend
ments. The delegated powers are conferred upon the
three distinct branches of the federal government, with
each independent of the others. Under the doctrine o f
separation o f powers, which arises out o f the central
premise that each branch of government is independent,
no branch of the government may directly or indirectly
attempt to control or interfere with the exercise o f powers
delegated to other branches.
If the people are to retain their sovereign power of self-
government as reserved by the Ninth and Tenth Amend
ments— their independence as a part and as the source of
all government— then the principles underlying the doc
trine o f separation of powers must be applied to strike
down any attempt to control or interfere with the exercise
by the people of their governmental functions. The
-2 3 -
primary function o f the people with relation to govern
ment is that o f expressing their political views, which
includes, o f necessity, their banding together for political
activity, and a free opportunity to hear the views of
others, so that the people, as rulers, may decide justly.
What the Committee has done is not only to step out
of the area o f power delegated to it, but to step into the
domain reserved to the people. If this is allowed to con
tinue, the principle o f popular self-government will be
no more; government by the people, for the people, o f
the people, will become only an historical phrase.
The fact that the Committee sought to judge and to
impose penalties upon petitioner, among which were the
destruction o f his means of living and of his way of life,
brought it into thes area o f adjudication, an assumption
o f power delegated exclusively to the judiciary.
The statute creating the House Committee on Un-
American Activities, on its face, and as construed and
applied, invades the domain o f conscience, beliefs and
free discussion of the general welfare which the Bill of
Rights rendered completely free from governmental in
tervention. Such a trespass cannot be permitted if the
concept that ours is a government of limited powers, is
to be upheld.
Such a statute, so construed and applied, so impinges
on the area of the First Amendment that it violates that
amendment regardless of any possible narrow application
o f the statute in a particular case.
The salient terms of the said statute, “ subversive” and
“ un-American,” are so ambiguous as to render it void
as a penal statute.
The statute, as applied and construed to require com
pulsory disclosure, under oath, o f an individual’s political
affiliation, violates the First Amendment, as well as the
Fourth and Fifth.
It is the petitioner’s position that because the Committee
trespassed into the area of freedom o f public discussion
and of political association, there can be no justification
therefor. Even those who reject that position have never
— 24—
openly contended that there is no limitation upon Con
gress when it deals with these fundamental rights. What
ever test is applied— whether it be clear and present
danger rule, or the really dangerous test of potential
danger, it has not been met here. There never has been
and there is not now anything in the content of motion
pictures which by any reasonable definition could be
deemed “ un-American” or “ subversive.” Unless the First
Amendment no longer is the slightest barrier to the
exercise of legislative power, the Committee has exceeded
its powers.
Even if the Committee were carrying on an “ investi
gation” concerning private conduct, not protected at all
by the First Amendment, the questioning would be perti
nent only if it related to information which the Committee
did not have. The Court erroneously instructed the jury
that the question concerning petitioner’s political beliefs
was pertinent, despite the fact that the Committee be
lieved it had complete information on this subject and
that it would not have believed petitioner if his answer
had contradicted such information.
Although the petitioner was charged with refusing to
answer a question, the Court erroneously instructed the
jury that a non-responsive answer or an unclear answer
was sufficient for a finding of guilt. Moreover, while the
petitioner contended that there had been no refusal to
answer, the Judge made several prejudicial comments to
the effect that the witness was not trying to answer the
question.
The Government failed to establish that the “ subcom
mittee” before which the petitioner testified was a legally
constituted body. By the admission, over objection, of
conclusions o f law as the only evidence on the subject
and by the Court’s instructions that there was testimony
from which the jury would find that there was a validly
constituted subcommittee, the trial judge determined, as
a matter o f law and contrary to the law, this question o f
fact.
In determining whether a citation for contempt of one
o f its committees should be approved, Congress exercises
- 25-
a broad discretion. For that reason it is required that all
o f the facts relating to the contempt be submitted to
Congress. The Court erroneously excluded petitioner’s
evidence that the Committee had not furnished all o f
the facts to the House preliminary to its vote on the
citation.
The defendant was denied a fair trial by reason o f the
manner of selection and composition o f the jury. A test
o f political orthodoxy, i.e., whether or not the prospective
juror had any views opposed to the American form of
government, which test is not authorized by statute, was
made a condition o f jury service.
The jury commissioners arbitrarily and capriciously
established standards of “ intelligence” other than those
provided by law, and applied them in such a manner as
to discriminate against those in the lower economic cate
gories. The result was selection of a jury in a manner
contrary to law and not calculated to achieve a representa
tive cross-section o f the community.
With the impact o f the Committee’s hearings and activ
ities upon government employees, particularly in the light
of such highly publicized inquisitions as the Condon affair,
it would seem clear that government employees, whose
very livelihood might be endangered by incurring the
enmity of the Committee, could not sit in this case un
afraid, unbiased, and uncoerced. Nevertheless the trial
court denied a motion for change o f venue, based on the
fact that government employees constituted a large per
centage o f the population and of all juries in the District
o f Columbia and that, therefore, a fair trial could not
be had.
Congressman Thomas, the sole witness for the prose
cution, testified on direct examination as to the purpose
of the Committee and the pertinency o f questions put by
it. As to the first matter, the Court cut off cross-exami
nation after only a few questions had been asked; and,
as to the second, it cut off cross-examination after a few
questions and answers, thus committing prejudicial error.
Other errors are related and incidental to those referred
to above.
- 2 6 -
ARGUM ENT.
I.
The Particular Question Put to the Defendant and the
Ruling of the Court That the Committee Could
Require Defendant to Answer, and the Convic
tion for Failure to Answer, Violated the Rights
Reserved to the Defendant Under the First,
Fourth, Fifth, Ninth and Tenth Amendments of
the Constitution to Be Protected From Official
Inquisition That Can Compel Disclosure of His
Private Beliefs and Associations.
From mankind’s earliest writings, there is evidence that
the privacy o f the individual was at first a sacred right
and later a secular one as well.
(a ) The tents of the tribes of Israel, no less than
the Englishman’s home, were their castles. The
private belongings contained therein were protected.
(b ) The privately-held ideas, thoughts, and opin
ions of the individual were anciently respected as
inviolate against prying inquisitors.
(c ) As the concept of freedom of expression of
ideas developed, it emphasized and strengthened the
more ancient right to keep private those ideas which
the individual did not choose to express publicly.
Invasion o f privacy of belief tended to destroy free
expression o f belief.
History is replete with accounts of the many strategems
created by tyrants to violate the individual’s privacy. But
it is also replete with accounts o f man’s constant warfare
against these devices and victories won by courageous
judges, legislators, administrators, lawyers, and citizens.
In 1787, the founders o f this nation assumed that they
had settled these matters for all time when they drew upon
the lessons of history and wrote a Bill o f Rights to assure
the individual permanent freedom from official tyranny,
and the right freely to participation in the process o f self-
government.
This History Is Part of the Constitution.
“ Such constitutional limitations arise from griev
ances, real or fancied, which their makers have suf
fered, and should go pari passu with the supposed
evil. They withstand the winds of logic by the depth
and toughness o f their roots in the past. Nor should
we forget that what seems fair enough against a
squalid huckster o f bad liquor may take on a very
different fact, if used by a government determined to
suppress political opposition under the guise o f sedi
tion.” (Learned Hand, J., in United States v. Kir-
schenblatt (C. C. A. 2d), 16 F. 2d 202, 203, 51 A. L.
R. 416.
“ These specific grievances and the safeguards
against their recurrence were not defined by the
Constitution. They were defined by history. Their
meaning was so settled by history that definition was
superfluous. * * * ‘Upon this point a page of
history is worth a volume of logic.’ New York Trust
Co. v. Eisner, 256 U. S. 345, 349.” (Frankfurter,
J., U. S. v. Lovett (1945), 328 U. S. 303, 321, 323.)
“ It would not be possible to add to the emphasis
with which the framers o f our Constitution and this
court (in Boyd v. United States, 116 U. S. 616, in
Weeks v. United States, 232 U. S. 383, and in Sil-
verthorne Lumber Co. v. United States, 251 U. S.
385) have declared the importance to political liberty
and to the welfare o f our country o f the due observ
ance of the rights guaranteed under the Constitution
by these two amendments. The effect o f the deci
sions cited is: That such rights are declared to be
indispensable to the Tull enjoyment of personal se
curity, personal liberty, and private property;’ that
they are to be regarded as of the very essence of
constitutional liberty; and that the guaranty of them
is as important and as imperative as are the guar
anties to the other fundamental rights of the indi
vidual citizen;— the right to trial by jury, to the writ
of habeas corpus, and to due process of law. It has
— 27—
— 28—
been repeatedly decided that these Amendments should
receive a liberal construction, so as to prevent stealthy
encroachment upon or ‘gradual depreciation’ of the
rights secured by them, by imperceptible practice o f
courts, or by well-intentioned but mistakenly over-
zealous executive officers.” ( Gouled v. United States
(1920), 255 U. S. 298, 303, Clarke, J.) (Emphasis
supplied.)
See also: Brandeis, J. dissenting, Olmstead v. United
States (1927), 277 U. S. 438, 476, 478, and Jones v.
Securities and, Exch. Com. (1935), 298 U. S. 1, 28.
“ If there is one fixed star in our Constitutional
constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, national
ism, religion, or other matters o f opinion or force
citizens to confess by word or act their faith therein.”
(Jackson, J., in W est Virginia v. Barnette (1943),
319 U. S. 624, 642.) (Emphasis supplied.)
Pre-Constitutional History of the Right of Privacy.
Respect for the rights and privacy o f the individual is
not the product o f recent history. The maxim, “ a man’s
house is his castle,” was not an invention o f English
jurisprudence.
“ Even in ancient times there were evidences of that
same concept in custom and law, partly as a result of
the natural desire for privacy, partly an outgrowth,
in all probability, o f the emphasis placed by the
ancients upon the home as a place o f hospitality,
shelter, and protection.”
(See: “ The History and Development of the Fourth
Amendment to the United States Constitution,” by Nelson
B. Lasson (1937), page 13. Johns Hopkins Studies in
Historical and Political Science, Series 55, No. 2.)
Strong respect has long existed for the dwelling as a
place not subject to arbitrary visitation, even on the part
of official authority. Joshua did not send his messengers
— 29-
to search for and seize the prohibited articles in Achan’s
tent, even after his detection, until the latter has first
confessed both his deed and the place where the articles
were concealed. (Joshua 7: 10-26.)
By Biblical law, a creditor is forbidden to enter his
debtor’s house to get security for his debt but must wait
outside for the bringing forth o f the pledge, Deuteron
omy 24: 10.
As evidence o f the ancient consideration given indi
vidual rights, Greenleaf’s “ Evidence” (16th Ed. Boston,
1899) Vol. I l l , page 35, note 4, points out that guilt of
idolatry could only be established by diligent inquiry and
“ the thing certain” (beyond a reasonable doubt). Deu
teronomy 1 7 :4 .
“ The famous maxim ‘every man’s house is his
castle’ cited by Coke, 5 Rep. 92, and generally re
garded as a peculiarly English privilege, comes di
rectly from the Roman Law. Nemo de domo sua
extrahi debet.” Max Radin, Roman Law (St. Paul,
1927) pp. 475-476.
The antiquity of the presumption of innocence was
related by Chief Justice White in Coffin v. United States,
156 U. S. 433, 465 (1894):
“ Numerius, the governor o f Narbonensis, was on
trial before the Emperor, and . . . contented him
self with denying his guilt, and there was not suffi
cient proof against him. His adversary, Delphidius,
‘a passionate man,’ seeing that the failure of the
accusation was inevitable, could not restrain himself,
and exclaimed, ‘Oh, illustrious Caesar! if it is suffi
cient to deny, what hereafter will become of the
guilty?’ To which Julian replied, ‘I f it suffices to
accuse, what will become of the innocent?’ Rerum
Gestarum, lib. X V III, c. 1.”
The New Testament reports that the right to remain
silent before one’s accusers was relied upon by Jesus
Christ in His trial. (Matthew 26:63.)
-30—
As early as 890 A.D., Alfred the Great respected the
individual’s right against inquisitions.
“ 108. It is abuse that justices and their officers,
who kill people by false judgment, be not destroyed
as other murderers, which king Alfred caused to be
done, which caused forty-four justices in one year to
be hanged as murderers for their false judgment.
“ 10. He hanged Seafaule because he judged
Olding to death for not a n s w e r i n g (Emphasis
supplied.) ( “ Mirrour of Justices” — Horne (W ash
ington 1903) Sec. 108 (p. 245) Subsec. 10 (p. 246).)
The story of the rise and fall o f the oath ex-officio
needs to be retold. The Court will recall that the early
1200’s were marked by the adoption o f this procedural
device in the ecclesiastical courts. In this period the
inquisitional oath began to take the place of the trial by
compurgation oaths in the ecclesiastical courts. The
compurgation trials conducted with the device of “ oath
helpers” had become little better than a farce. The new
method o f the oath ex-officio was one which pledged the
accused to answer truly and was followed by a rational
process o f judicial probing by questions on the specific
details o f the affair. In a footnote by John H. Wigmore
in 15 Harvard Law Review 615, it is stated that by the
middle of the 13th century “ the new oath became the
customary instrument in the papal inquisition of heresy;
which, indeed, owed its effectiveness largely to the new
methods.”
Liberals in the church courts insisted that the oath
could only be imposed if the court had a rational hypoth
esis for proceeding against the suspect. Such rational
hypothesis could either be fama publica or clamosa insin-
natio. However, this was too mild for those who wanted
a more vigorous pursuit o f heretics and schismatics, and
they finally prevailed in establishing the doctrine that the
oath could be imposed by the church official ex-officio
without any antecedent foundation. This extreme posi
tion, however, directly resulted in the downfall of the
-3 1 -
power o f the ecclesiastical courts because o f the public
indignation it aroused.
The ordinary course o f trial by the Inquisition was this.
A man would be reported to the inquisitor as of ill-repute
for heresy, or his name would occur in the confessions o f
some other prisoners. A secret inquisition would be made
and all accessible evidence against him would be collected.
When the mass o f surmises and gossip, exaggerated and
distorted by the natural fear o f the witnesses, eager to
save themselves from the suspicion of favoring heretics,
grew sufficient for action, the blow would fall. The
accused was then prejudged. He was assumed to be
guilty, or he would not have been put on trial, and virtu
ally his only mode of escape was by confessing the charges
against him, abjuring heresy, and accepting whatever pun
ishment might be imposed on him in the shape of penance.
Persistent denial o f guilt and assertion o f orthodoxy,
when there was evidence against him, rendered him an
impenitent, obstinate heretic, to be abandoned to the
secular arm and consigned to the stake. (See Henry
Charles Lea, A History o f the Inquisition o f the Middle
A ges, I, p. 407.)
However, the English people early registered their re
sistance to general inquisitorial methods and their attend
ant abuses. A statute passed in 1360 in the reign of
Edward III, provided,
“ that all general inquiries before this time granted
within any seignories, for the mischiefs and oppres
sion which have been done to the people by such in
quiries, shall utterly cease and be repealed.” (34
Edw. I ll , ch. 1.)
But in 1583 the Court o f High Commission in Causes
Ecclesiastical, under the leadership of Archbishop Whit-
gift, started a crusade against heresy wherever it could
be found, examining suspected persons under oath in most
extreme ex-officio style.
In 1609 Sir Edward Coke, as Chief Justice of Common
Pleas, granted prohibition against the High Court of
Ecclesiastical Causes in Edward's case. (13 Rep. 9.)
— 32—
Edward had been charged wih libel and the church court
put him under the ex-officio oath to compel him to state
his meaning of the libelous words he was accused of utter
ing. The common law court took jurisdiction away from
the church court upon the ground, among others, that
“ in cases where a man is to be examined upon his
oath, he ought to be examined upon acts or words,
and not of the intentions or thought of his heart; and
if any man should be examined upon his oath of the
opinion he holdeth concerning any point o f religion,
he is not bound to answer the same.”
But the oath ex-officio persisted and the Court of the
Star Chamber began during James’ reign to use the ex-
officio oath in stamping out sedition. Here the common
law courts were powerless to prevent employment o f the
oath procedure because they lacked jurisdiction over the
Court of the Star Chamber.
In 1639 the Court of the Star Chamber examined John
Lilburn, “ Freeborn John,” an opponent of the Stuarts, on
a charge o f printing or importing certain heretical and
seditious books. Lilburn refused to answer questions
“ concerning other men, to insnare me, and to get further
matter against me.” The Council o f the Star Chamber
condemned him to be whipped and pilloried and his “ bold
ness in refusing to take a legal oath,” without which many
offenses might go “ undiscovered and unpunished.” (See
3 How. State Trials 1315, et seq.)
The whip that lashed “ Freeborn John” smashed the
Court o f the Star Chamber as well. In July, 1641, Parlia
ment abolished the Court of the Star Chamber, the Court
o f High Commission for Ecclesiastical Causes, and pro
vided by statute that no ecclesiastical court could there
after administer an ex-officio oath on penal matters. In
1645 the House of Lords set aside Lilburn’s sentence and
in 1648 Lilburn was granted £3000 reparation for the
whipping which he had received.
— 33
Meanwhile, the scene o f struggle against oaths ex-officio
was carried to colonial America. The story is well told by
R. Carter Pittman in 21 Virginia Law Rev. 763 from
which the following quotations are taken:
“ The settlement of the English colonials in the
new world took place at a time in English History
when opposition to the ex-officio oath of the ecclesias
tical courts was most pronounced, and at the period
when the insistence upon the privilege against self
incrimination in the courts o f common law had begun
to have decided effect. * * * The ex-officio oath,
as employed in the ecclesiastical courts, which regu
lated the most intimate details o f men’s daily life,
and more particularly by the Court of High Commis
sion, was possibly the most hated instrument employed
to create the unhappy plight of these Puritans and
Separatists. * * *
“ About getting out o f England there was much
‘red tape’ and it consisted in the most part o f taking
oaths— the oath of Supremacy and the oath o f Allegf-
ance, etc. For days and weeks thousands waited
aboard ship in the river Thames until this oath ordeal
was over and after that they were forced with a re
fined cruelty to say the prayers in the Anglican
prayer books twice a day at sea. * * *”
The trial of Mrs. Ann Hiitchinson before Governor
Winthrop o f Massachusetts in the year 1627 was recalled
by Mr. Justice Black in Adamson v. California, 332 U. S.
46, when he commented at page 88:
“ Mrs. Hutchinson was tried, if trial it can be called,
for holding unorthodox religious views. People with
a consuming belief that their religious convictions
must be forced on others rarely ever believe that the
unorthodox have any rights which should or can be
rightfully respected. As a result o f her trial and
compelled admissions, Mrs. Hutchinson was found
guilty of unorthodoxy and banished from Massa
chusetts. The lamentable experience of Mrs. Hutchin
son and others, contributed to the over-whelming
sentiment that demanded adoption of the Constitu
- —34—
tional Bill o f Rights. The founders of this Govern
ment wanted no more such ‘trials’ and punishments
as Mrs. Hutchinson had to undergo. They wanted
to erect barriers that would bar legislators from
passing laws that encroached on the domain of belief,
and that would, among other things, strip courts and
all public officers o f a power to compel people to
testify against themselves.” (Emphasis supplied.)
But the ingenuity o f those who would use the oath
against the unorthodox was undaunted.
See Harrison v. Evans, 1 English Reports 1437, de
cided by the House of Lords in 1767. Evans was a
Protestant Dissenter and this fact was known to the Lord
Mayor of London. Nevertheless, the Mayor appointed
Evans to fill a vacancy as sheriff, despite the existence of
an act providing that no person should be admitted to any
office who had not, within the twelve preceding months
“ received the sacrament o f the Lord’s Supper according
to the rites o f the Church of England.” Because of this
statute Evans could not take the oath of office or assume
it, and he was assessed for a statutory penalty of £600
which was made applicable to any citizen who refused to
assume an office after being appointed thereto.
The House of Lords, by a 6 to 1 vote, ruled with the
dissenting Evans, overturned the judgments o f the lower
courts and returned to him his £600.
“ It is depressing to realize that the oath has always
cropped up as a political device when the political
order was crumbling. In the period of religious dis
sensions the oath o f allegiance made its appearance
in England as an instrument of intolerance and, a
little later, o f royal oppression. James Stuart, the
tiresome pedant on the throne, sought refuge in an
oath required of all ministers and the like (most
teaching then being religious). At that time the
imperial pretensions o f the ‘reformed’ papacy, the
right o f the Pope claimed by the Jesuits to absolve the
subjects of an heretical king from their allegiance,
made the king desirous of testing the loyalty o f his
more influential subjects. Yet not many years later
his son’s head rolled into the sand.” (Carl Joachim
—35
Friedrich, Professor o f Government, Harvard, Har
per’s, Vol. 172 at p. 171 (1936.)
“ Test oaths, designed to impose civil disabilities
upon men for their beliefs rather than for unlawful
conduct were an abomination to the founders of this
nation. This feeling was made manifest in Article
V I of the Constitution which provides that no re
ligious test shall ever be required as a qualification
to any office or public trust under the United States.”
(Black, J., dissenting In re Summers (1945), 325
U. S. 561, 576.
“ No purpose in ratifying- the Bill o f Rights was
clearer than that of securing for the people of the
United States much greater freedom of religion, ex
pression, 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 restric
tions upon assembly then prevalent in England would
have been regarded as measures which the Constitu
tion prohibited the American Congress from pass
ing.” (Emphasis supplied.) ( Bridges v. California
(1941), 314 U. S. 252 at 265.)
W e turn now from the use o f oath procedures to the
use of its adjective counterpart, the general search war
rant as a device to invade the privacy o f those suspected
of dissent.
“ The use of search warrants can be traced in
English history to about the beginning of the seven
teenth century. In the early part o f that century
they were declared illegal by Lord Coke. * * *
The Crown saw in these new devices a most effective
means of ferreting out seditious matter and of bring
ing the offenders to justice. Hence arose the practice
o f issuing warrants whereby the King’s messengers
were ordered to search out disloyal writings. * * *
In 1634, just six years after he had written that all
search warrants were unlawful, Lord Coke, then on
his death bed, was visited by the Secretary o f State
armed with a warrant to search for seditious papers.
Every room in the house, save that in which the
- 3 6 -
former Chief Justice lay, was ransacked and papers
of every description seized.” ( The Scope of the
Constitutional Immunity, John E. F. W ood, West
Virginia Law Quarterly, Vol. 34, No. 1, (Dec.
1947), p. 2.)
In 1762 John Wilkes, then a member o f Parliament,
began to publish anonymously his famous series of
pamphlets called the North Briton, deriding the ministers
and criticizing the policies o f the government.
A warrant was issued by Lord Halifax, the Secretary
of State, to four messengers, ordering them “ to make
strict and diligent search for the authors, printers, and
publishers of a seditious and treasonable paper, entitled
The North Briton, No. 45.” The messengers made one
search on the following information:
“ Mr. Carrington, the messenger told three other
messengers who executed the warrant, that he had
been told by a gentleman, who had been told by
another gentleman, that Leach’s people printed the
paper in question.
“ Finally, they apprehended the actual printer of
Number 45 and from him they learned that Wilkes
was the author o f the pamphlet. Wilkes * * *
pronounced the messengers’ authority ‘a ridiculous
warrant against the whole English nation’ and re
fused to obey it. The messengers thereupon took him
up in a chair and conveyed him in that manner to the
office o f the secretary of state. * * *. Wilkes
afterwards was committed to the Tower by the sec
retary of state upon his refusal to answer questions
but was released a few days later upon habeas corpus
by reason o f his privilege as a member o f Parliament.
“ All the printers, upon the suggestion and with
the support o f opponents of the government, brought
suit against the messengers for false imprisonment.
Chief Justice Pratt held the warrant to be illegal.
‘To enter a man’s house by virtue of a nameless
warrant,’ said the Chief Justice, ‘in order to pro
cure evidence, is worse than the Spanish Inquisition;
— 37-
a law under which no Englishman would wish to
live an hour.’ * * *
“ These decisions were greeted with the wildest
acclaim all over England. ‘Wilkes and Liberty’ be
came the byword of the times, even in far-away
America.” (Lasson, supra, pp. 43-46.)
At the same time, the American colonists were strug
gling to protect the privacy of their homes against the
royal customs offices, armed with the notorious writs o f
assistance. A lawyer, James Otis, Jr., led this fight. John
Adams described this struggle in these oft-quoted words:
“ I do say in the most solemn manner, that Mr.
Otis’s oration against the Writs of Assistance
breathed into this nation the breath of life. He was
a flame of fire! Every man of a crowded audience
appeared to me to go away, as I did, ready to take
arms against Writs o f Assistance. Then and there
was the first scene of opposition to the arbitrary
claims of Great Britain. Then and there the child
Independence was born. In IS years, namely, in
1776, he grew to manhood, and declared himself
free.”
The immediate causes for the adoption o f the Fifth
Amendment are revealed in detail by Mr. Pittman, supra,
at page 783, as follows:
“ The real reason for the American insistance that
the privilege against self incrimination be made a
constitutional privilege may possibly be traced to the
proceedings of the prerogative courts o f Governor
and Council, which constituted the supreme colonial
courts, and the proceedings instituted to enforce the
laws o f trade in the colonies.
“ As fast as the separate colonies became royal
provinces, they seemed to lose the instruments of con
trol over the administration of justice, and when at
the mere will of the royal Governor, an accused was
called before the Governor and his council, which,
without right, often sat as a court of inquiry, their
— 3 8 -
proceedings were very inquisitional and ofttimes over
bearing. * * *
“ They (the colonists) saw in the trials before pre
rogative judges without juries threatened depriva
tion of all their rights as Englishmen among which
was the right not to be dragged into an ‘Inquisitional
Court’ for examination.”
With this background the framers o f the Bill o f Rights
were determined to prevent the new Federal government
from assuming any inquisitorial powers.
Patrick Henry gave expression to his views on the
questions as follows: Under what constitutional restraint
would Congress be in this regard ? On the question of
torture and punishment, why might not Congress introduce
the practice o f the civil law, where torture to procure a
confession is permissible, instead o f that o f the common
law.
“ They will say that they might as well draw ex
amples from those countries (France, Spain, Ger
many) as from Great Britain, and they will tell you
that there is such a necessity o f strengthening the arm
of government, that they must have a criminal equity,
and extort confession by torture, in order to punish
with still more relentless severity * * * being in
a state o f uncertainty, they will assume rather than
give up power by implication. * * * In the present
Constitution (o f Virginia) they (the authorities) are
restrained from issuing general warrants to search
suspected places, or seize persons not named, without
evidence of the commission of a fact, etc. There was
certainly some celestial influence governing those who
deliberated on that Constitution; for they have, with
the most cautious and enlightened circumspection,
guarded those indefeasible rights which ought ever to
be held sacred! The officers o f Congress may come
upon you now, fortified with all the terrors of para
mount federal authority. Excisemen may come in
multitudes; for the limitation o f their numbers no
-3 9 -
man knows. They may, unless the general govern
ment be restrained by a bill o f rights, or some similar
restriction, go into your cellars and rooms, and search,
ransack, and measure everything you eat, drink, or
wear. They ought to be restrained within proper
bounds!” ( Elliott’s Debates, III, pp. 445-449.)
History of the Right Since the Adoption of the
Constitution.
Despite many attempts by officials to invade their rights,
the American people and the Courts stoutly refused to for
get their heritage from those who had earned for them
the privileges o f privacy at such expense.
However, in times of postwar agitations, various offi
cials and local governments attempted to evade the Con
stitutional provisions respecting the rights of privacy and
penalties o f various sorts were sought to be imposed upon
individuals who refused to disclose their past conduct and
beliefs.
Thus, in 1803, Pennsylvania election officials tried to
compel suspected Tories to give oaths respecting their past
allegiance to the Revolutionary cause as a condition pre
cedent to voting. This requirement was held illegal by the
Supreme Court of that state on the basis o f language in
the State Constitution similar to that in the Fifth Amend
ment. ( Respublica v. Gill, 3 Yeates 429, discussed at 161
U. S. 633.)
Alexander Hamilton thundered against a New York
proposal to require an expurgatory oath which, if not
taken, would deprive former Tories of their property, and
his language was quoted copiously by Mr. Justice Field
in Cummings v. Missouri, 4 Wall. 277, at 330.
In 1832, John Quincy Adams signed a minority report
which stated:
“ It cannot be within the competence o f a committee
of the House to institute a general search and compel
the citizens on oath to purge themselves if innocent
and criminate themselves if guilty, and bring with
—4 0 —
them their papers to be ransacked in a roving hunt
for unspecified crimes.” (23d Cong., 1st Sess.,
Debates, Vol. X , Pt. 4, App,, p. 194.)
State action compelling the giving of oaths did not come
before the United States Supreme Court until immediately
after the Civil W ar when Father Cummings, a Catholic
priest, was prohibited from carrying out his priestly duties
because he refused to take an oath required by the new
Missouri Constitution respecting his past allegiance to the
Union. Since the Fifth Amendment only applied to the
Federal government and the Fourteenth Amendment had
not yet been adopted, the Supreme Court relied upon Sec
tion 10 o f Article I to strike down Missouri’s oath re
quirement. ( Cummings v. Missouri, supra.)
Finally, in 1943, when West Virginia sought to compel
a flag salute by children professing a contrary faith, the
requirement was also stricken down by the Supreme Court,
relying upon the Fourteenth Amendment. ( W est Virginia
v. Barnette, supra.)
The issue as to the right of a legislature to compel the
disclosure of a person’s political belief or membership in
an organization has arisen in State legislatures, and in the
House of Representatives itself. On each occasion when
this problem arose, it was always resolved by a decision
that there was no power in government to compel the dis
closure of a citizen’s political, social or religious affiliations.
For example, in 1835, Tbaddeus Stevens, then a member
of the Pennsylvania State Legislature, introduced a bill
“ for the suppression of secret societies bound together by
secret and unlawful oaths.” The bill was directed against
the Masonic Order. Stevens was appointed chairman of
a legislative committee to investigate the need for such
legislation. He issued subpoenas directed to prominent
Masons, among them the ex-Governor of the State of
Pennsylvania, and to a minister, Rev. Dr. Sproal. (W ood-
ley. T. F., Thaddeus Stevens (Pennsylvania 1934).)
— 41
Ex-Governor W olfe refused to appear or testify. In
stead he sent a letter:
“ * * * I have yet to learn that an inquisition at
whose shrine the rights and liberties o f the citizens
are to be invaded is authorized by the principles of
our institutions; or that any power exists by which
citizens can be coerced to give testimony before any
tribunal or for any object other than the investigation
of matters at issue affecting the rights of persons or
of things. * * * If no law has been violated, why
call upon an individual to give evidence touching a
lawful association? If unlawful, why call upon him
to criminate himself?” (Gettysburg Compiler, May
7, 1839.)
Dr. Sproal, when called, refused to take the oath “ on the
grounds that it would wound his conscience as a Chris
tian” and “ violate his Constitutional rights as a man.”
Stevens applied to the House to hold the witnesses for
contempt. Although his party, together with the Whigs,
enjoyed a majority in the House, the legislature refused
to hold the witnesses in contempt and they were discharged.
(Woodley, T. F., supra, p. 29.)
In 1836, Stevens wrote to William Henry Harrison to
inquire if he would use all “ Constitutional, fair and hon
orable means for the final and effectual suppression” of
the Masons. Harrison, later to become President, replied
that he “ was certain that there exists no such power,
either in the whole Government of the United States or
in any of its Departments, and that the attempt to exercise
it would constitute a usurpation of power, pregnant, if
tolerated by the people, with mischiefs infinitely more
fatal than those which it was intended to remedy.” (W ood-
ley, T. F., supra, p. 38.)
There are also precedents of the House of Representa
tives holding compulsory disclosure of citizens’ beliefs and
affiliations not to be permissible. On a number o f occa
sions, the House of Representatives in contested election
cases has had before it the problem of determining how a
-4 2 -
citizen voted. In these cases, o f course, the issue was
clearly presented: Has the legislature the power to com
pel a citizen to disclose his vote? Has it the power to
compel him to disclose his political affiliations? The an
swer has uniformly been in the negative.
At the general election in 1844 an incumbent W hig Con
gressman in New Jersey was elected by a bare majority
of sixteen votes over his Democratic opponent. However,
thirty non-resident students were shown to have voted in
this election and they were subpoenaed by the House Com
mittee on Elections and examined as to how they had voted.
Fourteen o f these students refused to disclose how they
had voted. Instead o f citing them for contempt to compel
this disclosure the Elections Committee took secondary
evidence as to their extra judicial declarations concerning
their political affiliations. Representative Jenkins reported
to the House as follows:
“ I am of opinion that this species o f evidence is
admissible. Where, as in New Jersey, the law allows
of voting by ballot, thus intending to enable the elec
tor to withhold 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
o f evidence, less direct, but which may be, and often
is, no less certain than the oath o f 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 fol
lowing rule as their guide. ‘Although in numerous
instances the voter, being examined as a witness,
voluntarily disclosed the character o f his vote, yet in
many cases he did not appear, or, appearing chose to
avail himself o f his legal right to refuse an answer
on that point/ In such cases, proof o f general repu
tation as to the political character of the voter, and as
— 43—
to the party to which he belonged at the time of the
election, has been sufficiently demonstrative of the
complexion o f his vote.” ( Congressional Globe, 29th
Cong., 1st sess., 1845-1846, App. p. 455.) (Empha
sis supplied.)
Rights made secure by the Constitution must be so
read as to give to each citizen on the one hand a life
as a private citizen, tranquillity, and freedom from all but
the most necessary interference by government, and on the
other hand, the right and opportunity to do his part effec
tively as the root o f government itself.
This branch o f the argument will show, it is submitted,
that the rulings o f the trial court made in this case and the
conviction subvert the Constitution. Not only do they de
stroy one of the most precious o f all individual rights,—
the right to hold secret the content o f one’s mind,— but
they also interfere with the duty of a citizen, equal with
if not paramount to the duty of Congress, effectively to
participate in government.
A. T he R ight o f Association Is an E xtension o f Freedom
o f Speech and Assem bly.
Properly to understand the weight which government
must accord to this right requires an understanding of
the function o f association in a democracy.
The powers of our government rest in a majority. Iso
lated opinion and purpose is not merely ineffective; it is a
political zero; it does not have any existence. Even large
minorities can act only by means of influencing representa
tives chosen by a majority.
The essence of the democratic spirit, in our society, is
the opportunity for any one or more, unrestrained by
government, to become a majority. An agency of govern
ment which limits this opportunity is violating a major
premise of the Constitution.
The right to speak and to assemble are of course some
of the means by which a man or an idea can win a con
stituency, perhaps a majority. These rights are secured,
44
as has been said, not only because they are valued by man
as a beneficiary of government but also because they are
the means by which the individual can do his share o f the
work o f government.
“ It was not by accident or coincidence that the
rights to freedom in speech and press were coupled
in a single guaranty with the rights o f the people
peaceably to assemble and to petition for redress of
grievances. All these, though not identical, are in
separable. They are cognate rights, cf. DeJonge v.
Oregon, 299 U. S. 353, 364; and therefore are united
in the First Article’s assurance.” ( Thomas v. Collins
(1944), 323 U. S. 516, 530.)
“ One of the chief reasons for freedom of the press
is to insure freedom, on the part of individuals at
least, o f political discussion o f men and measures, in
order that the electorate at the polls may express the
genuine and informed will o f the people. Brandeis, J.,
in Whitney v. California, 274 U. S. 357, 375. Hughes,
C. J., in Stromherg v. California, 283 U. S. 358, 369.
Individuals seldom impress their views upon the elec
torate without organization. They have a right to
organize into parties, and even into what are called
‘pressure groups,’ for the purpose o f advancing causes
in which they believe.” ( Lummus, J., Bowe v. Secre
tary o f the Commonwealth (1946), 320 Mass 230,
252.)
“ The most natural privilege of man, next to the
right of acting for himself, is that o f combining his
exertions with those of his fellow creatures and of
acting in common with them. The right of associa
tion therefore appears to me almost as inalienable in
its nature as is the right o f personal liberty. No
legislator can attack it without impairing the founda
tions of society.” (de Tocqueville Alexis, Democracy
in America (N . Y., 1946), Vol. I, p. 196.)
Association is not different from assembly. In party
organization, association is the accepted pattern for politi
cal action in this country. No one would suggest that we
— 45-
should tolerate even slight interference by some citizens
with the rights of others to form a political party. An
agent of the sovereign, that is, a House Committee, has
even less right.
Association of the kind here under discussion is a way
point between thinking and political action; it is little more
than the right to have and to be an audience. It is only an
exercise of speech, and it is as fully protected by the
Constitution.*
B. Freedom to Speak and Assem ble Includes the R ight to
D o so Privately.
Whether considered as a right o f the individual bene
ficiary of government or as a right o f the individual agent
of government, the right to Ipeak and to assemble would
lose half its value if it could be exercised only in public.
Ideas formerly unpopular have in time won majorities.
Premature publicity or disclosure at a time chosen by op
ponents who constitute the majority may kill the fruit
while it is yet in the seed. “ One may be in possession of
truth as o f a citadel and yet be unable to defend it” if the
enemy may choose the time for attack.
*“ It is difficult in the light of history to see that anything has
been gained in the long run by multiplying prohibitions upon the
right of association. Where men feel passionately upon some object
they will combine to promote i t ; and any prohibition upon their
effort to do so only serves to drive their activities into secret chan
nels where their discovery is more difficult. It may well be argued,
for example, that much of the violence of the French and Russian
history in the nineteenth century was due to exaggerated suppres
sion of the right to form political associations; for men who can
not persuade a government to accept their view will seek sooner or
later to impose it upon that government. Prohibitions did not seem
to have any long run effect save that of exacerbating the temper of
the disputants. For while it may be true that more cautious spirits
will be driven by fear of the law to accept its prohibitions, that
only leaves the association outlawed in the possession of more dar
ing and desperate minds. ■ The history of the revolutionary move
ment in Russia is a sufficient commentary upon this thesis.” {E n c y
clopaedia o j the Social S ciences, Vol. VI, p. 449, “ Freedom of Asso
ciation” (Harold J. Laski).
46-
No democratic value is saved and many would be lost by
lending the aid o f government to efforts to suppress minori
ties, to “ expose” unpopular political apostles.
“ The right to speak freely and to assemble peace
ably for any lawful purpose without interference by
either state or federal officials ordinarily is thought of
in connection with speaking and assembling in a
public forum. However, there is nothing in the Con
stitution or in the cases decided under the First
Amendment which limit these rights to such circum
stances. The freedom and liberty to express our
selves privately and to hold private assemblies for law
ful purposes and in a lawful manner is protected as
much by the First Amendment as the right to do so
publicly. Limitation in this regard would be such a
serious encroachment upon our liberties and freedom
as to render the preeminent rights guaranteed by the
First Amendment nugatory in large areas o f legiti
mate action.” (Swygert, D. J., on January 6, 1948,
in granting union injunction against police invasion
of private meetings. Local 309 U F W A ( CIO) v.
Gates, Governor o f Indiana, 75 Fed. Supp. 620.)
W e submit, therefore, that any act of government which
interferes with the right of political association cannot be
justified. Compulsory disclosure of affiliation with an un
popular political cause, particularly when coupled with a
demand for discharge and blacklisting, is certainly such an
interference. To require, under pain of prosecution, an
answer to a question which might reveal membership in
the Communist Party is, of course, to require the witness
at a time and place not chosen by him to confront the world
with an unpopular philosophy and to expose him, against
his will, to the cruelty and vindictiveness which majorities
have often wreaked on the dissenter.
The time and occasion for challenging society by means
of an unpopular opinion should be chosen by him who
holds it, not by government. The dissenter may prefer
— 47-
perpetual silence or he may prefer the drama and risk of
martyrdom. But the choice should be his, not the govern
ment’s. To compel the choice is to impose as punishment
for silent dissent the consequences of impious public chal
lenge.
C. A n Absolute P rivilege Protects Private B elie fs and
Associations.
Authorization by Congress to conduct an investigation
is not an open sesame to all the information a witness may
possess. Even if it were pertinent, the content of a wit
ness’ mind is his own. I f it has already been expressed, it
is available in the earlier expression. If it has not yet been
uttered it is absolutely privileged.
Defendant has previously cited Sir Edward Coke’s de
cision in Edward’s case, in which he held that an inquisi
tion, though still permissible in 1609, could only go into
acts or words and not into thoughts or opinion.
Following this, in Millar v. Taylor, 4 Burr 2379 (1769),
Mr. Justice Yates said:
“ Ideas are free. But while the author confines them
to his study, they are like birds in a cage, which none
but he can have a right to let fly: for, till he thinks
proper to emancipate them, they are under his own
dominion.
“ It is certain every man has right to keep his own
sentiments, if he pleases: he has certainly a right to
judge whether he will make them public, or commit
them only to the sight of his friends.”
Samuel D. Warren and Louis D. Brandeis in their
famous article “ The Right to Privacy,” 4 Harv. L. Rev.
193, at 196 et seq., said:
“ The intensity and complexity o f life, attendant
upon advancing civilization, have rendered necessary
some retreat from the world, and man, under the re
fining- influence of culture, has become more sensitive
to publicity, so that solitude and privacy have become
48-
more essential to the individual; but modern enter
prise and invention have, through invasions upon his
privacy, subject him to mental pain and distress, far
greater than could be inflicted by mere bodily injury.”
Attention is directed to the rule under the search and
seizure clause. A warrant is not a universal key. Not
everything may be hunted or seized, no matter how perti
nent or necessary to the prosecution.
“ But with or without a warrant, specified or un
specified, there is certain property which may not be
searched for and seized at all. It was early laid down
in the Boyd case that only that class of property to
which the government is otherwise entitled or to which
the possessor is not entitled, as stolen goods, counter
feit money, implements used to commit a crime, etc.,
is seizable under a search warrant, whereas a person’s
private books and papers cannot be so taken, in order
merely to get information from them or to be used in
evidence against him. In other words, the court there
drew a distinction between ‘contraband’ property and
property o f merely ‘evidential’ value. . . . W ar
rants are allowed only where the primary right to
such a search and seizure is in the interest which the
public or complainant may have in the property
seized.* (Lasson, supra.) See Goided v. U. S., 255
U. S. 598.)
The conviction in this case, if allowed to stand, would
destroy the last sanctuary, the ultimate refuge o f every
man. To compare the House Committee with Thought
Police would then be more than an angry epithet. If a
citizen could not keep secret his differences with public
officers, who would be safe, and what life would be wrorth
living ?
Edward Livingstone’s impassioned argument in the last
day of debate on the Alien and Sedition Bill speaks for
1948 as well:
“ The country will swarm with informers, spies re
lators, and all the odious reptile tribe. . . . The
49-
h.ours of the most unsuspected confidence, the intima
cies of friendship, or the recesses o f domestic retire
ment, afford no security. The companion whom you
must trust, the friend in whom you must confide, the
domestic who waits in your chamber, are all tempted
to betray your imprudent or unguarded follies; to
misrepresent your words; to convey them, distorted
by calumny, to the secret tribunal where fear officiates
as accuser, and suspicion is the only evidence that is
heard.”
And, finally,
“ do not let us be told that we are to excite a fervor
against a foreign aggression to establish a tyranny at
home. . . .” (Bowers, Jefferson and Hamilton,
378 (1928).)
The act o f joining with others to make political opinion
effective is not any more subject to compulsory disclosure
than is opinion itself. W e submit that the privilege which
protects opinion extends to party affiliation.
D. Political as W ell as R eligious B eliefs and A ssociations
A re Protected by the Constitution.
It is revealing to note that test oaths and the struggle
against them arose at a time when the division between
church and state was in its early stages, when the separa
tion was far from complete. The immunity from compul
sory disclosure which ultimately developed affected not
only the right o f the individual to worship as he pleased
but also his right, notwithstanding his place or mode of
worship, to hold political office. The protection accorded
religious belief developed hand in hand with non-sectarian
ism in government.
This policy has been recognized in the United States.
While the original purpose behind the abolition o f the test
oath may have been to further religious liberty, the effect
has been to extend political liberty. The following state
ment is illustrative:
“ This conjunction of liberties is not peculiar to
religious activity and institutions alone. The First
■ 50-
Amendment gives freedom of mind the same security
as freedom o f conscience. Cf. Pierce v. Society o f
Sisters, 268 U. S. 158. Great secular causes, with
small ones, are guarded. The grievances for redress
of which the right o f petition was insured, and with
it the right of assembly, are not solely religious or
political ones. And the rights of free speech and a
free press are not confined to any field of human
interest.” ( Thomas v. Collins, 323 U. S. 516, 531.)
E. The Freedom From U nlaw ful Search and Self-incrim ina-
tion Forbids Inquiry into Mem bership in the Communist
P arty ; It Is N ot Necessary That Mem bership Be Pun
ishable as a Crime in O rder to Shield the Individual
From Official Inquisition into the Fact o f Membership.
It is submitted that the defendant had a right to stand
on his immunity against self-incrimination, that he could
not be compelled to answer concerning the fact o f his mem
bership in the Communist Party. The historical discussion
shows that all o f the essentials necessary to invoke the
immunity reserved by the Fifth Amendment were present
in the case at bar. Here was a tribunal acting under color
of authority, issuing subpoenas and purporting to require
an answer relating to membership in the Communist Party.
Reference has been made in other branches o f the argu
ment to analogies with the search and seizure clause under
the Fourth Amendment. That both amendments often
serve the same immunity has been noted by our Supreme
Court.
In the famous case o f Entick v. Carrington, 19 How. St.
Trials 1029, indeed, Lord Camden in denouncing the gen
eral warrant to search for papers, tied up the search for
such evidence with the privilege against self-incrimination,
holding that the latter was another reason why such search
was illegal.
— 51
The principles laid down in this case, said Mr. Justice
Bradley in Boyd v. U. S., 116 U. S. 616, 630, apply broadly
to all invasions, on the part o f the government and its
employees, o f the sanctity o f a man’s home and the priva
cies o f life.
“ It is not the breaking of his doors and the rum
maging o f his drawers that constitute the essence of
the offense; but it is the invasion o f his indefeasible
right of personal security, personal liberty, and private
property, where that right has never been forfeited
by his conviction o f some public offense.”
Thus, the Fourth and Fifth Amendments are intimately
connected and throw great light upon each other. Mr.
Justice Bradley continued to say:
“ For the unreasonable searches and seizures con
demned in the Fourth Amendment are almost always
made for the purpose of compelling a man to give
evidence against himself, which in criminal cases is
condemned in the Fifth Amendment; and compelling
a man ‘in a criminal case to be a witness against him
self’ which is condemned in the Fifth Amendment,
throws light on the question as to what is an ‘unrea
sonable search and seizure’ within the meaning o f the
Fourth Amendment. And we have been unable to
perceive that the seizure of a man’s private books and
papers to be used in evidence against him is substan
tially different from compelling him to be a witness
against himself. W e think it is the clear intent and
meaning o f those terms.” (P . 633.)
See also the article “ The Scope o f the Constitutional
Immunity,” John E. F. W ood, 34 W . Va. Law Quarterly,
pp. 13-14 (1947).
— 52—
Any question the answer to which may deprive the wit
ness of the opportunity to compete on equal grounds with
others is one to which the Fifth Amendment relates.
The Supreme Court struck down the flag salute require
ment in the Barnette case, although the only “ punishment”
inflicted was to deprive young Barnette of the right to
attend public school. And in Cummings v. Missouri, supra,
the Supreme Court struck down the test oath as an im
pediment to the right to practice a profession.
The liberty guaranteed by the Constitution “ denotes not
merely freedom from bodily restraint, but also the right
of the individual to contract, to engage in any o f the com
mon occupations o f life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at com
mon law as essential to the orderly pursuit o f happiness by
free men.” (Emphasis supplied.) ( M eyer v. Nebraska
(1922), 262 U. S. 390, 399.)
“ A t some titne, the date of which is uncertain, it
became a settled principle o f the common law that no
one should be compelled to answer any question as a
witness which would tend to subject him to a penalty
or forfeiture.” (70 C. J. 738.) See also: 28 R. C. L.
425, 75 Am. St. Rep. 322; Lees v. U. S., 150 U. S.
476; Burdick v, U. S., 236 U. S. 79.
“ In Boyd v. U. S., 116 U. S. 616, it was distinctly
held that it is sufficient compulsion to bring a case
within the prohibition o f the Fifth Amendment to the
Constitution of the United States that a rule o f evi
dence prescribed by a statute would operate disadvan
tageousiy to him in the event the citizen refused to
obey an unlawful order to produce evidence against
■53—
himself, it being held that it is equivalent to the com
pulsory production of papers to make the nonproduc
tion of them a confession of the allegations which it
is pretended they will prove; and in the concurring
opinion Mr. Justice Miller says:
“ ‘Though the penalty for the witness5 failure to ap
pear in court with the criminating papers is not fine
and imprisonment, it is one which may be more severe,
namely, to have charge against him of a criminal
nature taken for confessed, and made the foundation
of a judgment of the court. That this is within the
protection which the constitution intended against
compelling a person to be a witness against himself,
is, I think, quite clear.5
“ And he placed the decision in that case upon the
ground that it was a violation of the Fifth Amend
ment to the constitution of the United States, that no
person shall be compelled in any criminal case to be
a witness against himself, and that it was not a case
of the unlawful seizure and search o f private papers,
in violation o f the Fourth Amendment. The Chief
Justice agreed in this view, while the other members
of the court thought it was a violation of both of
these amendments. Whatever may be thought of this
difference of opinion, the case established beyond
doubt that the compulsion prohibited by the Fifth
Amendment is not alone physical or mental duress,
such as come from unlawful commands and authorita
tive orders by those engaged in extorting testimony,
but comprehends also that lesser degree of compulsion
which subjects the citizen to some important disadvan
tage by the use of means to procure the evidence
which it is desired should be extracted from him.55
(Emphasis supplied.) ( U. S. v. Bell (1897), 81 Fed.
Rep. 830 at 836 et seq.)
— 54—
Andrew Jackson did not believe that a threat o f fine or
imprisonment was required in order to rely upon the Fifth
Amendment. As President of the United States he was
called upon by a Committee of the House of Representa
tives to examine into the condition of the executive depart
ments. On January 27, 1837, he wrote a letter to the
House giving his reasons for not complying with the
request:
“The first proceeding of the investigating committee
is to pass a series of resolutions, which, though
amended in their passage, were, as understood, intro
duced by you, calling on the President and the Heads
of Departments, not to answer to any specific charge,
not to explain any alleged abuse, not to give informa
tion as to any particular transaction, but assuming
that they have been guilty of the. charge alleged, calls
upon them to furnish evidence against themselves.
In open violation of the Constitution, and o f that well
established and wise maxim, that all men are pre
sumed to be innocent until proven guilty; according
to the established rules of law, you request myself and
the Heads of Departments to become our own ac
cusers and to furnish the evidence to convict our
selves; and this call purports to be founded on the
authority o f that body, in which alone by the Con
stitution, the power o f impeachment is vested. For
myself, I shall repel all such attempts as an invasion
of the principles of justice, as well as o f the Constitu
tion; and I shall esteem it my sacred duty to the
people of the United States to resist them as I would
the establishment of a Spanish inquisition.” (24th
Cong., 2d Sess., Debates, vol. xiii, app., pp. 199, 200,
202.)
■55—
F. Reaffirmance by the Court o f the R ight to Privacy o f
B elie f W ill N ot Impede the Law ful Functions o f Con
gress.
It needs only to be added that broad avenues exist a f
fording Congress access to information necessary for legis
lative purposes and which do not involve violation of pri
vate constitutional rights. Such an avenue was followed
by the Elections Committee in the case of non-resident
New Jersey students (supra) who refused to disclose how
they voted.
“ The tenor of a man’s opinions can usually be suffi
ciently ascertained from his voluntary extrajudicial
profession, without putting him to his oath in court.”
(W igmore on Evidence, 3rd Ed., Vol. 8, p. 161.)
Courts have been able to proceed with their functions
even though the Constitution permits the defendant’s lips
to be sealed in court and prohibits the use o f evidence
obtained by confessions and unlawful searches.
Certainly the evidentiary needs of Congressional Com
mittees can equally be met without violation of the Fourth
and Fifth Amendments.
The fact that the proper purposes of investigation can
be accomplished without compulsory disclosure further
serves to substantiate the argument made in other branches
of this brief that the purposes of the question directed to
the defendant were not legislative.
Defendant’s proposed instructions setting forth the law
with respect to the rights of privacy were denied by the
court. (Proposed Instructions Nos. 31-35, inch, J. A.
371-2.)
— 56—
II.
N o Immunity A ct Can Rem ove the Right o f Freedom
From Com pulsory Disclosure of Beliefs and A sso
ciations, and, Even as to Tangible Acts, Congress
M ay N ot N ow Compel Oral Testim ony Because
It Has N ot Yet Provided an Immunity A ct That
Is Sufficient to Meet the Standards of Complete
ness Required by the Constitution.
Complete immunity must be furnished ( Counselman v.
Hitchcock, 142 U. S. 547) to compensate for the removal
o f the privilege. Obviously, with the invasion of the
sacred domain of the mind and conscience the damage is
complete at that instant. The damage resulting from such
a trespass is irreparable.
A free conscience, once violated, has lost its existence.
The right to privacy of opinion is either enjoyed or lost.
It cannot be retained in part, and seized in part.
But even as to tangible acts and facts there exists today
no immunity act broad enough to protect Congressional
witnesses against loss o f their Constitutional privileges.
“ O f course, all oral testimony by individuals can
properly be compelled only by exchange of immunity
in return for privilege.” (Emphasis supplied.) (V in
son, C. J., in U. S. v. Shapiro, No. 49, Oct. Term,
1947, decided June 21, 1948.)
Until 1857 Congress had no machinery for the punish
ment for contempt. There was, and still is, a coercion
procedure whereby contumacious witnesses were hailed
before the bar o f the House or Senate, questions put to
them, and upon refusal to answer they were held in jail
until they answered. Congress’ power to hold the witness
in jail expired when its session expired.
On January 9, 1857, the New York Times carried an
editorial article charging that land lobbies had corrupted
certain Congressmen to hand over much of the territory
o f Minnesota to speculators. A House committee of five
members was appointed. Ten days later Representative
- 57-
Orr, of South Carolina, one o f the members of the com
mittee, reported that a witness, J. W . Simonton, the New
York Times correspondent, when asked to reveal his
sources o f information, had responded: “ I cannot with
out a violation of confidence, than which I would rather
suffer anything.” Simonton was brought before the bar
of the House, persisted in his refusal and was jailed. As
a result of this incident, Representative Orr introduced a
bill “more effectually to enforce the attendance o f wit
nesses on the summons o f either House o f Congress, and
to compel them to discover testimony.” (34th Cong., 3d
Sess., Cong. Globe, p. 404.) The bill had two purposes
according to Representative Orr; first, to assure punish
ment of a contumacious witness after adjournment of
Congress (that body lacking power to continue confine
ment of a witness when not in session), and, second, to
provide a legislative amnesty for witnesses who would
otherwise suffer injury, as a result of testimony. (Ibid.
405-6.)
After debate, Representative Davis offered a substitute
bill which, with a significant exception which occurred as
the result of a deletion in 1862, is the law today. (Ibid.
432.)
To accomplish the second purpose of the bill the substi
tute measure provided:
(a ) That no witness examined before a Congres
sional committee should be held to answer criminally
in any court, or subject to any penalty or forfeiture
for any fact or act touching which he was required to
testify upon, and
(b ) That no statement made or paper produced by
any witness shall be competent testimony in any crim
inal proceeding against such witness in any court of
justice.
In speaking for the second section of the bill, Mr. Davis
said:
“ The first portion of the second section is intended
to grant a parliamentary pardon beforehand to every
witness, who, on summons o f the House or a com
— 58—
mittee, shall appear before them and testify to any
fact o f which he may have been guilty, otherwise there
is no mode by which a pardon can be granted.”
(Ibid. 427.)
Representative Davis followed this with a statement:
“ The purity, dignity, and existence of the Republic,
demand that every fear should be taken away from
the mind of the witness, in order that he may honestly
and freely explain and disclose everything touching
himself as well as any other person.”
The substitute bill was passed by an overwhelming vote
in the House and also in the Senate.
On January 16, 1862, Representative Wilson introduced
a bill which struck out the first provision o f the second
section above denoted as “ (a ) ,” saying:
“ The defendants in the case of the government
versus Russell and Floyd were discharged from all
liability concerning the embezzlement of the Indian
trust bonds, and all other witnesses who may testify
concerning any act, no matter how criminal, before
an investigating committee of Congress, are dis
charged in like manner. It is for the purpose of
remedying this evil that this amendment of the law is
proposed.
“ I may say further, that I understand that almost
every day persons are offering to testify before the
investigating committees of the House in order to
bring themselves within the pardoning power o f the
Act of 1857, and it is to prevent any more of such
cases o f pardon that we ask the House to pass this
bill.” (37th Cong., 2d Sess., Globe, p. 431.)
■59—
This bill was passed (A ct o f Jan. 24, 1862, Chap. 11, 12
Stats. 833) and became the law under which Congressional
committees operated at the time of the present hearing and
trial. (R . S., Sec. 859, June 22, 1938, Chap. 594, 52 Stat.
943; U. S. C., Title 28, Sec. 634.)
That Congress recognized the fact that the amendment
o f 1862 imposed a substantial limitation upon its power to
compel testimony is evidenced by events occurring in 1876
during the investigation for impeachment of Secretary of
W ar Belknap. The investigating committee reported to
the House that, for this purpose, they needed the evidence
of one Caleb P. Marsh, who had fled to Canada.
The committee on Judiciary therefore introduced a bill
which was a substantial re-enactment of the law of 1857
providing that a witness compelled to give incriminating
testimony would “ be forever free from any liability to
answer criminally in any court of justice and secure from
any forfeiture or penalty of any kind on account of the
act or fact to which he shall be required to testify.” (Em
phasis supplied.) (44th Cong., 1st Sess., Record, p. 1564.)
The bill passed the House by a vote of 206 to 8.
However, this 1876 restoration of a complete legislative
pardon was refused passage by the Senate on the ground
that the experience Congress had had with the Statute of
1857 indicated the deleterious character of such legislation.
“ The enactment by Congress of the Act o f 1862
and this subsequent demand for a return to the orig
inal terms of the statute of 1857 represents the in
herent difficulty Congress has in adjusting its claims
for inquisitorial power with the rights of the citizen
as found in the Constitution. There is no doubt that
the full immunity granted witnesses under the original
law was clearly within the requirements of the Fifth
Amendment. Yet, as has already been shown, it led
to disastrous results. On the other hand, there is
— 6 0 -
grave doubt as to the constitutionality o f the Act of
1862, and as previously stated, Senate Committees
have hesitated to use their power of compelling testi
mony where a witness claimed immunity under the
Fifth Amendment from the demand for criminating
testimony. Everhart, Fall’s son-in-law, twice refused
to testify to the Senate Committee on Public Lands
during the ‘oil investigations’ of 1924, claiming im
munity under the Fifth Amendment. The Committee
did not press their demand for testimony, preferring
to take no chances on a ruling by the courts that the
statute o f 1862 and its subsequent revisions were vio
lative of the constitutional guarantee.” (Ebeling,
“ Congressional Investigations” (New York, 1928), p.
339.) (See also Encyclopedia o f Social Sciences, Vol.
5, p. 114.)
The original Interstate Commerce Commission Act had
a limited immunity clause modeled after the 1862 amend
ment as then applied to Congressional committee wit
nesses. In 1890, one Counselman, under investigation for
violation of the Interstate Commerce Commission Act, re
fused to testify before a grand jury upon constitutional
grounds, and the Supreme Court set aside a conviction for
contempt because of the inadequcy of the immunity pro
visions of the Interstate Commerce Commission Act.
( Counselman v. Hitchcock, supra.) After the decision in
the Counselman case, the Interstate Commerce Commission
Act was amended in 1893 to provide complete immunity.
The Supreme Court then held that the new act met its re
quirements of complete immunity and affirmed the contempt
conviction of a recusant witness. (Brown v. Walker
(1896), 161 U. S. 591.)
—61
It is therefore obvious that Congress may solve its
dilemma in one o f two ways :
(a ) Return to the 1857 law with full immunity for
witnesses, or
(b ) Obtain an amendment of the Fifth Amendment.
This was pointed out by Hammond, D. J., in United
States v. Bell (1897), 81 Fed. Rep. 830, in commenting
upon a similar limited immunity situation existing in the
law as pertaining to investigations by pension examiners.
“ * * * until Congress does for the other tribunals
appointed to make these administrative examinations
what it has done for the Interstate Commerce Com
mission in this regard, the courts cannot be expected
to neglect the duty which Mr. Justice Bradley says,
in the Boyd case, supra, belongs to them, of watching
against any stealthy encroaching upon the constitu
tional rights o f the citizen. * * *
“ W e must get along as best we can without break
ing down the constitutional privilege, no matter what
inconvenience or loss may result, or else change the
constitution. It is precisely this kind o f constitutional
restriction which is tolerable as against governmental
supremacy.
“ Finally, it seems quite plain that additional legis
lation is needed by congress to conform this system
of administrative examinations in aid o f the pension
and other executive btireaus to the guaranty of the
fifth amendment that no person shall be compelled to
give evidence against himself in any criminal case, as
has been done by the legislation in aid of the Inter
state Commerce Commission, as a result o f the re
sistance in practice to the exercise o f their unconstitu
tional demands for the testimony of witnesses who
might incriminate themselves.” (Emphasis supplied.)
— 62—
III.
The Trial Court Erred in Refusing to A llow Proof or
to Take Judicial Notice of the Facts Showing
That the Defendant W as Denied Due Process of
Law by the Committee.
This subdivision of the brief is based upon the applica
tion to the facts o f this case o f two elementary proposi
tions, which will be considered separately.
First, in the absence of a law providing therefor, and
regardless o f the procedure followed, no governmental
agency, be it part o f the legislative, judicial, or executive
branch o f the government, may impose punishment upon
an individual or deprive him of his rights protected by the
reqiiirement o f due process.
Second, even if there is a law providing for punishment
or deprivation of individual rights protected by due proc
ess, such punishment or deprivation may not be exacted by
any agency or branch o f our government without first
affording the individual a procedure which conforms to
established concepts o f fair play and due process.
Any proceeding which violates either o f these basic
requirements is void and may not constitute the basis for a
contempt conviction. Both requirements are absent here.
A. The proof offered established that the defendant
was denied due process in that, without authorisa
tion of any law, the Committee sought to and did so
conduct its hearings as to effectuate its purpose of
preventing defendant from continuing in his private
employment and depriving him of other valuable
personal liberties and property rights.
(1 ) The rights o f defendant affected by the Com
mittee’s action are protected by the due process
clause.
—63—
The right to follow one’s chosen profession,
the right to seek gainful private employment,
and the right to remain in such employment
are all valuable constitutional rights embraced
within the concept o f “ liberty” as well as
“property” and are protected by the due process
clause of the Fifth Amendment. The rejected
offer of proof established that the members of
the Committee knowingly and intentionally
combined to deprive defendant and others of
these rights and liberties, under the pretext of
conducting a legislative inquiry. (See State
ment o f the Case, pp. 7 to 11.)
“ The liberty mentioned in the Fourteenth
Amendment . . . is deemed to embrace the
right of the citizen to be free in the enjoyment
of all his faculties; to be free and to use them
in all lawful ways; to live and work where he
will; to earn his livelihood or avocation; and
for that purpose to enter into all contracts
which may be proper, necessary, and essential
to his carrying out to a successful conclusion
the purposes above mentioned.” ( Allgeyer v.
Louisiana, 165 U. S. 578.) Cf. U. S. v.
Lovett, 328 U. S. 303.
Mott, in his treatise “ Due Process of Law”
examines the historical development o f this
concept and concludes that due process is “a
catch-all phrase for human rights” (p. 142).
Here the Committee was attacking the basic
right without which all other human freedom
becomes meaningless, i. e., the right to work, to
earn a living, and to function as a self-support
ing citizen in the community.
64
(2 ) Any governmental action designed and calcu
lated to deprive a person of any property right
or personal liberty protected by the due process
clause is illegal and void, if such deprivation
is not specifically authorized by law.
The question here is not whether Congress
might pass a law providing that persons with
certain political opinions and affiliations should
be deprived of the right to work and otherwise
punished.* Rather it is whether, without any
law so p ro v id in g a congressional committee
may assume the prerogative of depriving per
sons of such rights. Punishment or any depri
vation of rights, not specifically authorized by
law, by any governmental agency, violates due
process.
“ No man’s life shall be taken away, no man’s
honor or good name shall he stayned', no man’s
person shall be arrested . . . nor in any
wayes punished . . . nor any way indam-
maged under the Coulor of law, or Counte
nance o f authoritie, unless it be by vertue of
equitie or som expresse law of the Court zvar-
ranting the same, established by a generall
Court and sufficiently published. . . .”
(Emphasis added.) (Provisions in the Body
o f Liberties of 1641, Massachusetts Bay
Colony, intended as a paraphrase of 39th Sec.,
Magna Carta.)
“ Due Process o f Law” (1926), p. 9, n. 31;
see also Mott, p. 9, n. 33; p. 12, n. 37; pp. 86,
108, 115-16, 126, 132-3, 135, 142, 159-60;
39th Sec. o f Magna Carta (sometimes mis-
cited as 29th Sec.); Bank o f Columbia v.
Okely, 4 Wheat. 233; Mooney v. Holahan, 294
U. S. 103.
*That such a law would be unconstitutional seems hardly subject
to doubt.
— 65
The use of any governmental power to in
jure or destroy rights secured by the Federal
Constitution, or to oppress, threaten, or in
timidate any person in the exercise of such
rights is a criminal offense under the laws of
the United States. (18 U. S., Secs. 51 and
52; R. S. 5508 and 5510; Criminal Code,
Secs. 19 and 20.) Therefore, the fact that the
Committee deprived defendant of his property
and liberty, without sanction of law, because of
his alleged political beliefs and affiliations,
which are themselves protected by the Federal
Constitution, renders it more, rather than less,
odious.
(3 ) Such governmental action is illegal and void,
no matter how subtle or indirect it may be, if it
results in injury to or invasion o f any right
protected by the due process clause.
Defendant offered to prove that one of the purposes of
the hearing was to cut off the defendant’s livelihood. The
members of the Committee, acting under color o f their
authority, used all of the powers at their disposal to ac
complish this end. With former and prospective employers
of the defendant on the witness stand, during a hearing
called pursuant to their authority as members of the Com-
mitee, with all of the indicia of their office and the panoply
of their prestige as conspicuous as they could make them,
the Committee called upon the motion picture industry to
refuse employment to the defendant. The efforts of the
Committee were successful.
A proceeding which violates the Constitution is a nullity.
It has no existence; no further proceedings under the law
may be founded upon it. For a court to punish a witness
for allegedly refusing to answer a question in such a pro
ceeding is to give that proceeding judicial sanction and to
aid it in achieving its illegal objectives.
When, as here, government officers, acting under color
of their authority, employing government facilities and
carrying on a hearing which they assert is an official pro
— 66—
ceeding, designedly use the proceedings to bring about a
loss o f property right secured by the Constitution, this is
a denial of due process. Neither novelty o f method, nor
subtlety in effectuation, save the procedure from condemna
tion by the Constitution.
The case of United States v. Trierweiler (1943, E. D.
111.), 52 Fed. Supp. 4, arose out of an indictment under 18
U. S. C , Sec. 52 RS 5510 U. S. Criminal Code, Sec. 20,
making it a criminal offense to injure or destroy rights
secured by the Constitution. It was charged that state
officers formed and led a posse of civilians in pursuit of
a Negro, without process or lawful cause, and “ requested
and directed” the civilians to shoot to kill said Negro,
which they did. The claim that “ the acts complained of
are not shown to be those o f the state or o f its agents”
was overruled by the court. It was held that the fact that
the officers acted under color of law and that they “ re
quested and directed” the wrongful acts was sufficient to
render it governmental action, and that the law applied
regardless of the “ instrument” or the “mode” utilized in
achieving the result and regardless of whether it was done
“ by legislative, executive or judicial authority.” U. S. v.
Classic (1941), 313 U. S. 299; Catlette v. U. S. (C. C. A.
4th 1943), 132 F. 2d 902; Culp v. U. S. (C. C. A. 8th
1942), 131 F. 2d 93; Picking v. Pennsylvania Ry. Co. (C.
C. A. 3rd, 1945), 151 F. 2d 240; Screws v. U. S. (1945),
325 U. S. 91, 89 L. Ed. 1495, 162 A. L. R. 1330.
In the case of United States v. Stone (1911, D. C. M d.),
188 Fed. 836, it was held that the fraudulent deprivation
of the right to vote was an injury covered by 18 U. S. C.
51 R. S. 5508, U. S. Criminal Code, Section 19, declaring
it a felony “ if two or more persons conspire to injure,
oppress, threaten or intimidate any citizen in the free exer
cise or enjoyment of any right or privilege secured to him
by the Constitution or laws of the United States, or be
cause of his having so exercised the same . . The
court said that the statute applied to “ any conspiracy to
prevent the exercise of any of the rights protected by it,
or to throw obstruction in the way of exercising such right,
or for the purpose or with intent to prevent its exercise”
(Emphasis ours.) See also U. S. v. Waddell, 112 U. S.
80; Powe v. U. S. (C. C. A. 5th, 1940), 109 F. 2d 147.
As the last cited cases indicate, the fact that penalties
are imposed otherwise than through such direct action as
imprisonment or the imposition of a fine renders it no less
constitutionally obnoxious. For example, the use o f the
tax power as an indirect means of accomplishing uncon
stitutional objectives has been condemned. Hill v. Wal
lace, 259 U. S. 44; U. S. v. Butler, 297 U. S. 1; Stewart
Machine Co. v. Bavin, 201 U. S. 548; U. S. v. Constantine,
296 U. S. 287.
Even with withholding of a privilege for the purpose of
accomplishing the surrender or destruction of a constitu
tional right constitutes a denial of due process. Ross v.
Railivay Commission o f California, 271 U. S. 583, 70 L.
Ed. 1101. See also Truax v. Corrigan, 257 U. S. 312;
Catlet v. U. S. (C. C. A. 4th, 1943), 132 F. 2d 902; Shel
ley v. Kramer, 92 L. Ed. Adv. Op. 845; Hurd v. Hodge,
92 L. Ed Adv. Op. 857; Marsh v. Alabama, 326 U. S. 501.
Thus it appears that for any branch o f the government
to deprive a person of basic rights without authority of
law violates due process, no mater how indirect the injury
may be and no matter what form the governmental action
may take. This is true with respect to any agency “ the
state might invest with its power capable of inflicting the
deprivation.” Screws v. U. S., 325 U. S. 91, supra; Rut
ledge, J., concurring.
A Congressional Committee does not stand above the
Constitution and the law. Just as is the case with any
other governmental agency, it may not utilize its power
directly or indirectly to inflict penalties not provided for
by law.
“ O f course, neither branch of Congress, when act
ing separately, can lawfully exercise more power than
is conferred by the Constitution on the whole body,
except in the few instances whre authority is con
ferred on either house separately as in the case of
impeachments. No general power of inflicting punish
ment by the Congress of the United States is found in
— 68™
that instrument. It contains in the provision that no
person shall be deprived of life, liberty, or property
without due process of law the strongest implication
against punishment by order of the legislative body.”
Kilbourn v. Thompson, 103 U. S. at p. 182.
B. The proof offered established that the defendant
was denied due process in that, while denying the
requirements o f a fair hearing, the Committee so
conducted its hearings as to effectuate its purpose
of preventing defendant from continuing in his
employment and depriving him of other valuable
personal liberties and property rights.
It has long been urged that the basic concepts of fair
play should be applied in hearings conducted by legislative
committees where private rights are affected or involved.
“ O f course the essential decencies must be observed,
namely opportunity for cross-examination must be
afforded to those who are investigated or to those
representing issues under investigation. Despite
Daugherty’s statement to the contrary, that oppor
tunity has been scrupulously given by the Brookhart
Committee.” Frankfurter “ Hands Off the Investiga
tions,” 38 New Republic 329, 331— May 21, 1924; see
also McCreary “ The Developments of Congressional
Investigative Power” (1940 New Y ork), pp. 80, 81.
It is clear that in this case, where the Committee sought
to deprive defendant of his liberty and property, a denial
o f a fair procedure by the Committee is a denial of due
process.
Therefore, it was error to deny defendant’s offer of
proof that the Committee refused to allow defendant ef
fective aid o f counsel, the right o f confrontation and
cross-examination, and the right to produce evidence; that
the Committee adopted the doctrine of “ guilt by associa
tion” ; and that it established the requirement that citizens
deny or affirm the accusations of the Committee and its
witnesses. Assuming that the Committee was acting with
in its powers as a legislative committee, it was nevertheless
— 69—
performing an adjudicative function when it undertook to
judge individuals and to impose penalties upon them. Even
where a body performing adjudicative functions is a legis
lative agency, it must afford due process to the individuals
affected.
In Bi-Metallic Co. v. Colorado, 239 U. S. 441, it was
held that taxpayers did not have the right to a hearing be
fore a general tax increase was put into effect, because
where a rule o f conduct applies to the general public, the
Constitution does not require any hearing. However, the
court went on to distinguish the case o f Londoner v. Den
ver, 210 U. S. 373, which holds that a hearing is essential
before a street paving tax is imposed. With respect to the
Londoner case, the court said:
“ A relatively small number o f persons was con
cerned, who were exceptionally affected, in each case
upon individual grounds, and it was held that they
had a right to a hearing.”
In the case of Morgan v. United States, 298 U. S. 486,
in a rate-fixing proceeding, i. e., a part of the legislative
process, the Secretary of Agriculture failed to read the
argument which had been presented to his subordinates
before issuing his order. This was held a denial o f due
process.
In the second Morgan case, Morgan v. U. S., 304 U. S.
1, involving the same rate order, findings o f fact were
made by the Secretary of Agriculture without affording
the plaintiffs an opportunity to argue against them. In
holding that the procedure was void, it was pointed out by
Chief Justice Hughes that these legislative rate-fixing
powers were of a qmA-judicial nature, because they af
fected individual rights and that, therefore, a fair hearing
was required as a part o f due process, which looks to sub
stance and not to form.
“ The answer that the proceeding before the Secre
tary was not of an adversary character, as it was not
upon complaint but was initiated as a general inquiry,
is futile. It has regard to the mere form of the pro
70—
ceedings and ignores reality. In all the substantial
respects the government acting through the Bureau
of Animal Industry was prosecuting the proceedings
against the owners of the market agency.”
Then the court went on to point out that the proceedings
affected the owners of the stockyard “ at a vital spot” be
cause they set forth the rates for services upon which the
owners “ depended for their livelihood.” See also Tot v.
U. S., 319 U. S. 463, 473; Carsten v. Pillsbury, 172 Cal.
572, 577 (158 Pac. 218).
So here, the very livelihood of the defendant Lawson
was affected by the proceeding, as his blacklisting in the
motion picture industry indicates. The nature o f the pro
cedural defects in this Committee’s hearings were far more
serious than those in the cited case.
The case of United States v. Lovett, 328 U. S. 303, 310-
316, involved government employees. Yet, in that case, it
was noted several times that Lovett was denied procedural
due process before the congressional committee which
“ tried” him. The court observed among other things the
denial of the right of counsel, the vagueness of the charge
and the fact that the evidence consisted in large part of
secret, unrevealed F. B. I. reports. It noted that in the
proceedings there were none of the safeguards of the
judicial process, clearly suggesting that procedural due
process was required before any deprivation of the indivi
dual rights of a government employee could be achieved.
The court said:
“ Section 304, thus clearly accomplishes the punish
ment of named individuals without a judicial trial.
The fact that the punishment is inflicted through the
instrumentality of an Act specifically cutting off the
pay of certain named individuals found guilty of dis
—71
loyalty, makes it no less galling or effective than if it
had been done by an Act which designated the con
duct as criminal. No one would think that Congress
could have passed a valid law, stating that after in
vestigation it had found Lovett, Dodd, and Watson
‘guilty’ o f the crime of engaging in ‘subversive activi
ties’ defined the term for the first time, and sentenced
them to perpetual exclusion from any government
employment. Section 304, while it does not use that
language accomplishes that result. The effect was to
inflict punishment without the safeguards 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.”
Can any reasonable person maintain that it is any “ less
galling” that the defendant here has been excluded from
private employment in his life’s calling by this “ legislative
inquiry” designed and carried out to achieve this odious
result? If this court were to uphold the imposition o f a
further penalty upon a witness who allegedly refused to
answer a question, and particularly that question which
generated the ensuing penalty, it would be assisting the
Committee in violating the constitutional rights o f the
defendant. It would nullify the concept that due process
represents “ fundamental ideas of fair play and justice in
civilized society.” Mr. Justice Rutledge in In re Oliver,
92 L. Ed. Adv. Op. 503, 505. Cf. Kilbourne v. Thompson,
103 U. S. 168, 182.
The court refused all of the defendant’s requested in
structions on this point based on his theory of the law
that he could not be punished for contempt in a proceeding
designed to deprive him of his liberty and property with
out due process of law. (Defendant’s requested instruc
tions Nos. 15, 16, 17, 21, 22, 23, 24, and 25, J. A. 367-9.)
■72—
IV.
The Trial Court Committed Prejudicial Error by De
nying to the Defendant the Opportunity to Show
That This Particular Legislative Body, in This
Particular Inquiry Into Alleged “ Subversive” In
fluences in the H ollyw ood M otion Picture Indus
try and Into the Political Affiliations of Employees
of That Industry Acted in Excess of the Bounds
of Its Lawful Pow er and That Therefore the De
fendant Could N ot Be Required to Answer the
Question.
A. In a Contempt Proceeding Such as This the Defendant
M ay Present Evidence to Establish W hether the Com
mittee Is Pursuing a N on-Legislative Purpose.
At the trial, the defendant sought to show that the sub
ject matter of the investigation was beyond the Commit
tee’s power; that the Committee at this particular inquiry
and as to him and witnesses similarly situated, was acting
in excess of its lawful power; that in fact the primary pur
pose of said inquiry was to blacklist him from said indus
try, to cause his discharge, to expose, “ spotlight” and cen
sure him for his alleged affiliations and beliefs, and to effect
a censorship of the screen by dictating to the owners o f
the motion picture industry the kind and quality of films
to be made by them and the political qualifications o f the
personnel to be employed by them in the production of
motion pictures. The court refused to permit the defend
ant to make any such showing at all, ruling instead that
there was a conclusive presumption of a valid legislative
purpose to support said hearing; and, that if the Commit
tee had acted in excess of its powers, the remedy therefor
lay with the Congress as a whole, or with the electorate,
but not in any event with the courts.
Defendant submitted several prayers for instructions, all
of which were refused by the trial court. (J. A. 347.)
Proposed Instructions No. 7 (J. A. 366) and No. 19
(J. A. 368) set forth the proposition that there should be
—73
a verdict of not guilty unless the questioning was on mat
ters within the Committee’s jurisdiction; Nos. 8 and 9
(J. A. 366) state that the jurisdiction of the Committee is
limited (aside from respects which are immaterial here)
to matters in aid of legislation; other proposed instructions
on this subject which were erroneously denied are Nos.
10, 11, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 51 and
63. (J. A. 367-376.)
These rulings and instructions of the court constituted
and are reversible error because:
The presumption of regularity of a Congressional in
vestigation is not conclusive; a defendant may show that
the Committee has exceeded its powers. Whether it has in
fact done so is a judicial question; if the court finds that
it has, the court must so declare, and the defendant must
be acquitted. This judicial task may be delicate and diffi
cult; but neither delicacy nor difficulty should become ef
fective barriers to the proper exercise of the judicial func
tion.
The nature of the judicial task in determining whether
a legislative committee has acted in excess of its power is
discussed in People v. Webb, 5 N. Y. Supp. 855, 23 N. Y.
St. R. 324:
“ Assuming therefore, as we must under the authori
ties that the legislature has no general judicial powers,
and that it can confer none upon its committees, and
that its power to punish contumacious witnesses is
confined strictly to examination for legislative pur
poses, we are forced in this case to the consideration
of the question, was the investigation in which the
special committee of the House was engaged, when
the relator refused to answer and produce papers, for
legislative purposes?
“ As we have seen, a legislative committee may sum
mon and examine witnesses in legislative matters; but
when they seek to enforce obedience by proceedings
for contempt, they must be acting strictly within the
limitations of their delegated authority.”
■74——■
In the Webb case, the resolution o f the investigating com
mittee declared that the investigation was “ for the purpose
of remedial legislation.” To the assertion that this de
claration established conclusively the lawlessness o f this
Committee’s purpose, the court replied (at p. 861) :
“ * * * But such declaration alone, unsupported
by any fact, could not confer jurisdiction. I f it could,
then, by incorporating such a declaration in a reso
lution, a legislative committee could invade private
rights, and thus inquisitorially proceed to investigate
all the transactions o f an individual or a community,
under the delusive pretense of remedial legislation
* * * . The rule is elementary that the mere asser
tion o f jurisdiction does not confer it upon a tribunal
of special and limited authority.” (Emphasis sup
plied.)
“ W ho is to decide,” asked the court in Application of
Gilchrist, 224 N. Y. Supp. 225.
“ whether the question is legal and pertinent? If a
legislative committee or its counsel are to be the final
arbiters upon this important limitation, it is an idle
ceremony to apply to the courts * * * when he
(the witness) challenges the legality and pertinency
of the information sought from him, it presents a
question of law for the courts to decide.” (Cited
with approval from Matter o f Barnes, 207 N. Y. 108,
125.)
“ * * * The courts should and will be quick and
firm in halting the exercise o f those powrers for irre
levant, illegitimate or oppressive examinations or
purposes
Hirschfield v. Henley, 127 N. E. 252.
The power to compel the disclosure of information
needed by the legislature and possessed by the private
citizen is a limited power, and should be kept within its
proper bounds; and when they are exceeded, a jurisdiction
al question is presented which is recognizable in the courts.
(.People v. Keeler, 99 N. Y. p. 482.)
-75—
Burnham v. Morrissey, 14 Gray (Mass. 226), a leading
case, held:
“ The house of representatives is not the final judge
of its own powers and privileges in cases in which the
rights and liberties o f the subject are concerned; but
the legality o f its action may be examined and de
termined by the Court. * * * Especially is it com
petent and proper for this court to consider whether
its proceedings are in conformity with the Constitu
tion and laws, because living under a written consti
tution no branch or department of the government
is supreme; and it is the province and duty of the
judicial department to determine, in cases regularly
brought before them, whether the power of any branch
of government and even those of the legislature in tire
enactment o f laws, have been exercised in conformity
to the Constitution; and if they have not, to treat their
acts as null and void.”
In Daugherty’s case, 273 U. S. at 175:
“ W e must assume, for present purposes, that
neither house will be disposed to exert the power
beyond its proper bounds, or without due regard to
the rights of witnesses. But, if contrary to this as
sumption, controlling limitations or restrictions are
disregarded, the decisions in Kilbourne v. Thompson
and Marshall v. Gordon, point to admissible measures
of relief. And it is a necessary deduction from the
decisions in Kilbourne v. Thompson and In re Chap
man, that a witness may refuse to answer where the
bounds of the power are exceeded; or the questions
are not pertinent to the matter under inquiry.” (Em
phasis supplied.)
In Sinclair v. U. S ., 279 U. S. 263:
“While the power of inquiry is an essential and
appropriate auxiliary to the legislative function, it
must be exerted with due regard for the rights of
witnesses, and that a witness rightfully may refuse to
answer where the bounds o f the power are exceeded
or where the questions are not pertinent to the matter
under inquiry.”
— 76—
See In re Gunn, 32 Pac. 470; State v. Guilbert, 78 N. E.
931; Greenfield v. Russell, 292 111. 392; Stockton v. Leddy,
55 Colo. 24; and cases collated in American Annotated
Cases, 1916-B in the note entitled “ General Powers and
Privileges of Investigating Committees, at p. 1055. See,
also, L. R. A. 1917-F and the cases there collated; Blakes-
lee v. Carroll, 64 Conn. 223, 29 Atl. 473; 25 L. R. A. 106.
In In re Oliver, 92 L. Ed. ( Adv. Op. p. 491):
“ An opportunity to meet a charge o f criminal con
tempt must be a fair opportunity. It would not be
fair, if in the court in which the accused can contest
for the first time the validity of the charge against
him, he comes handicapped with a finding against
him which he did not have an adequate opportunity of
resisting.”
In the present case the court committed error by hold
ing that it could not and would not consider the question
whether the Committee acted in excess o f the bounds of
its power nor would it admit any of the proffered evidence
either before it alone or before the jury.
B. This Particular Inquiry Into the H ollyw ood M otion P ic
ture Industry Lay E ntirely Outside the Lawful Bounds
o f the Pow er o f the House Committee on Un-American
A ctivities Because It Constituted an Unwarranted In
quiry Into the Content o f M otion Pictures, a Medium
o f Public Expression.
The motion picture industry is one of the principal
media of contemporary expression. Very recently in the
case of U. S. v. Paramount Pictures (Oct. Term, 1947,
92 L. Ed. Adv. Sheets, p. 903), the Supreme Court said:
“ W e have no doubts that moving pictures, like
newspapers and radio, are included in the press whose
freedom is guaranteed by the First Amendment.”
It is thus a business which is entitled to the maximum
judicial protection insofar as the content of its films, and
the ideas of those employed to produce them, are con
cerned.
— 7 7 -
Congress concededly has certain powers which reach
to the motion picture business, as well as to the newspaper,
radio and kindred businesses. Thus it may investigate
and then regulate the maximum hours and the minimum
wages of film workers; and it may act to prevent monopoly
in the distribution and exhibition of films. And it may, in
ways not here directly or indirectly involved, otherwise
regulate this industry, notwithstanding its proximity to the
First Amendment.
But in the area o f the content o f the film (as in the area
of the content of the newspaper) and in the area o f the
kind o f ideas held by those who produce such films, quali
tatively dififerent legal problems arise; for, if the power
here asserted by the House Committee is found to exist
under enabling resolution H. R. 5, then the concept o f a
free press, a free radio, a free screen, loses all meaning.
Then every newspaper editor in America can be dragooned
to Washington to answer for the content o f his editorials,
every book publisher for the kind of book he publishes,
then every reporter, writing of public affairs, does so in
the fear that any expression o f unorthodoxy must subject
him to the certain pain o f compulsory public disclosure
of his political views and associations.
So drastic an investigational power cannot lightly be
presumed to have been lodged in this House Committee by
H. R. 5, nor should it be read by implication into that
resolution, for to do so raises grave constitutional ques
tions. Yet this was the precise power which the House
Committee exercised here; for the subject matter o f this
particular investigation o f the motion picture industry was
publicly declared to be the determination by this Committee
of the kind of films which had been made by the industry
(i. e., whether sufficiently “ anti-Communist” ) and the kind
of political ideas and association (i. e., whether pro- or
anti-Communist) held by certain persons employed there.
Despite the willingness of courts to construe liberally
the sweep of the Congressional investigatorial power,
they have not yet approved so dangerous an extension of
that legislative prerogative.
— 78-—
C. In This Case the Court Erred in Ruling That the Com
mittee Had the R ight to Compel Defendant to Answ er a
Question Regarding His Political Affiliation, Because in
Demanding an Answer to That Question the Committee
W as A cting Beyond the Scope o f A n y Legislative Pow er
and In fringing Upon the Areas Fundamentally Possessed
by a Self-governing People and Reserved to Them by
the Ninth and Tenth Amendments and A lso Upon Areas
Delegated to the Judiciary by A rticle Three o f the Con
stitution.
The Court instructed the jury that the question pro
pounded as to whether defendant was or had been a mem
ber of the Communist Party was pertinent to the inquiry
and that it was defendant’s duty to answer it. (J. A. 355.)
The Court refused defendant’s requests to charge the jury
either that as a matter of fact it might find, or that as a
matter of law it was instructed, that the question was not
pertinent, and that the Committee exceeded its powers in
asking the question and therefore the defendant was under
no duty to answer it. (Defendant’s Proposed Instructions,
Nos. 28, 31, 32, 33, 34, and 35; J. A. 370-2.)
( 1 ) T h e C o m m i t t e e I n v a d e d t h e A r e a o f G o v e r n
m e n t R e s e r v e d to t h e P e o p l e b y t h e N i n t h a n d
T e n t h A m e n d m e n t s , W h e n I t S o u g h t t o C o m
p e l D e f e n d a n t t o T e s t i f y C o n c e r n i n g H is
P o l i t i c a l A f f i l i a t i o n .
Under the Constitution, the federal government exer
cises certain delegated powers only; the remaining gov
ernmental powers are reserved to the states and the people.
Ninth and Tenth Amendments to the Constitution of the
United States.
The people hold a two-fold position. They are the
sovereign, the source o f all delegated governmental powers;
at the same time they, as the sovereign, perform essential
and separate governmental functions.
Among the governmental functions reserved to and ex
ercised by the people is participation in the myriad forms
•79-
of action, including political discussion and association,
embraced within the electoral and legislative processes. As
the Supreme Court said in Yick W o v. Hopkins, 118 U. S.
356, “ Sovereignity remains with the people,” as the “ ulti
mate tribunal o f public judgment,” acting either through
“ the pressure o f opinion or by means o f suffrage” and
exercising the most fundamental governmental functions,
because they are “ preservative of all rights.” Just as the
courts interpret and apply the law in judicial proceedings,
so the people exercise their governmental powers of vot
ing, o f speech, o f petition, and of assembly and associa
tion, to bring about such changes in the law and its ad
ministration as they deem necessary, wise, or just. Bridge
Co. v. U. S., 105 U. S. 470, 482.
As the sovereign, the people reserved to themselves and
to the states the powers not delegated to the federal gov
ernment; the Ninth and Tenth Amendments were adopted
to make explicit what was already implicit. So, too, free
dom o f speech, press, and association, those indispensable
corollaries of the powers reserved to the people were spelled
out by the Bill of Rights. Grosjean v. American Trust
Co., 297 U. S. 233; Powe v. U. S. (C. C. A. 5th), 109 F.
2d 147 (cert. den. 309 U. S. 679).
In United States v. Cruikshank, 92 U. S. 542, the court
said:
“ The government thus established and defined is
to some extent a government o f the States in their
political capacity. It is, also, for certain purposes, a
government of the people . . . The right of the
people peaceably to assemble for lawful purposes ex
isted long before the adoption o f the Constitution of
the United States. In fact, it is and always has been
one o f the attributes of citizenship under a free gov
ernment . . . It was not, therefore, a right granted
to the people by the Constitution. The Government
of the United States, when established, found it in
existence, with the obligation on the part o f the States
to afford it protection . . . The right was not
created by the (First) Amendment; neither was its
— 80-
continuance guaranteed, except as against congres
sional interference . . . the right of the people
peaceably to assemble for the purpose of petitioning
Congress for a redress o f grievances, or for anything
else connected with the powers or duties o f the Na
tional Government is an attribute of national citizen
ship and, as such, under the protection of and guaran
teed by, the United States.” (See also U. S. v. Classic,
313 U. S. 299, 85 L. Ed. 1368; E x Parte Yarbrough,
110 U. S. 651, 28 L. Ed. 274; In re Quarles, 158 U.
S. 532, 39 L. Ed. 1080.)
“ In a system of popular government the existence
of this liberty (freedom of speech and of press) is
imperative; because, when people frame their consti
tutions and lazvs they necessarily reserve to themselves
the power to alter or amend them and to change their
representatives and officials and even their government
at will. Where individual citizens participate in the
framing of laws and the selection o f officials, they
must necessarily be permitted to express their opinion;
in order to formulate opinions, they must know the
facts and circumstances which justify or fail to justi
fy the enactment or repeal o f statutes or constitutional
provisions, and the merits and demerits of those who
aspire to political office . . . Government by the
people is utterly inconsistent with a press not free
and universal suffrage becomes a farce unless speech
is free. The conception o f lese majeste and of the
Divine Right of Kings has long since disappeared
and we must not make the mistake of substituting
therefor a Divine Right o f the Majority.” Patterson,
“ Free Speech and a Free Press,” pp. 6-7. (Emphasis
added.)
“ These judges know that statutes, to be sound and
effective, must be preceded by abundant printed and
oral controversy. Discussion is merely legislation in
the soft. Hence drastic restrictions on speeches and
pamphlets are comparable to rigid constitutional limi
tations on law making.” Chaffee, pp. 360-361. (Em
phasis added.)
—81
A hundred and fifty years ago in a period of history
remarkably similar to the present in its fear of ideas
and its justification for their suppression, Madison’s V ir
ginia Resolution opposed the American Sedition Act of
1798 because under it Congress would exercise powers
which the people did not delegate to it and which were
expressly forbidden by the First Amendment. The reso
lution stated “ that such powers more than any other ought
to produce universal alarm because it was leveled against
that right of freely examining public characters and meas
ures, and all free communication thereof, which has ever
been justly deemed the only effectual guardian o f every
other right.” Patterson, in his “ Free Speech and Free
Press” (p. 134), calls attention to the fact that Madison
was chairman of the committee of Congress that drafted
the first ten amendments and the preamble to the statute
proposing them, and that, therefore, “ his argument as
sumed more than usual importance.” See also Patterson’s
“ Free Speech and Free Press,” pp. 6-7, 14, 228; Chaffee,
“ Free Speech in the United States,” pp. 234, 350-1, 550-
63.
The critical balance between limitless power, which is
tyranny, and a constitutional democracy can be maintained
by constant popular supervision, and then only if the
people can exercise their governmental powers without ob
struction or interference by the agencies supervised.
The power of Congress to represent the people cannot
be used to invade the power of the people over their own
representatives. If any one o f the branches exercising
delegated powers oversteps its authority, the power of,
and opportunity for, correction remain in the people; but
if the power of the people as the sovereign is invaded,
democracy disappears.
In the case o f Steele v. Louisville & National Ry. Co.
& Brotherhood o f Locomotive Firemen, 323 U. S. 192, a
Negro fireman sued a railway company and a union,
charging that the union, acting as his statutory agent,
had wrongfully entered into a contract deliberately de
signed to discriminate against Negroes. The court held
that the union was a statutory “ representative” of all em
— 82-
ployees in the unit, including the plaintiff; as such repre
sentative, the union was forbidden to use its powers to
deprive Negroes of their rights as employees.
In the motion picture industry hearings, the Committee
sought to have discharged and blacklisted, and thereby to
destroy, voters whom it disliked, and to deprive them of
their freedom as citizens, i. e., freedom o f speech and polit
ical association. In the Steele case, the union violated its
agency under a statute by depriving one o f its principals
o f his rights as an employee; in this case the Committee
violated its delegated powers under the Constitution by-
depriving citizens of their sovereign rights.
The heart of our constitutional system is found in the
proposition that each branch o f the government must be
free from the domination, control, or interference of any
other branch of the government. Out of this concept has
developed the doctrine of separation of powers.
This doctrine has been applied to the three delegated
branches of government in order to insure the independ
ence of each branch. The “ checks and balances” to be
exercised by each branch against the other, which were
so much relied on by the framers o f our Constitution, could
only be accomplished by independent agencies; a subju
gated executive could scarcely check a dominating Con
gress, and a frightened judiciary could not resist an ag
gressive President. Genuine independence requires not
only economic independence, but, at a minimum, freedom
from invasion by other agencies.
In the case of O’Donoghue v. United States, 289 U. S.
516, holding that the legislature could not reduce judicial
salaries because such power would provide the means for
its control of the judiciary, the court said:
“ If it be important thus to separate the several de
partments of government and restrict them to the ex
ercise of their appointed powers, it follows, as a logical
corollary, equally important, that each department
should be kept completely independent o f the others—
independent not in the sense that they shall not co
operate to the common end of carrying into effect the
-8 3 -
purposes of the Constitution, but in the sense that
the acts o f each shall never he controlled by, or sub
jected, directly or indirectly, to tire coercive influence
of either o f the other departments.” (Humphries
Executors v. United States, 295 U. S. 602. )
The same principles apply where the federal government
interferes in matters reserved to the state governments.
Bailey v. Drexel Furniture Co., 259 U. S. 20, 66 L. Ed.
817. Similarly, it is established that a state may not in
vade the area delegated to the federal government. In the
case of United States v. Owlett (D . C. Pa., 1936), 15
Fed Supp. 736, the state legislature was enjoined when it
began an investigation of the functioning of the federal
Works Project Administration. The court held that an
attempt in any manner to “ impede or obstruct” the federal
government in the exercise of a federal power is uncon
stitutional. It stated that the attempt of the State Com
mittee “ to investigate a purely federal agency is an inva
sion of the sovereign powers of the United States of
America,” and that such assertion of power “ is in contra
vention of our dual form of government and in derogation
of the powers of the federal province.” An Australian
case to the same effect is Colonial Sugar Refining Co. v.
Attorney General (1914), A. T. 237.
Although the doctrine o f separation o f powers has most
generally been enunciated in controversies involving dele
gated branches of government, the principles underlying
it are all pervasive and must be applied wherever govern
mental power is to be found.
The Constitution protects the governmental powers of
citizens, including the right of association in a political
party; accordingly the legislature may not prescribe politi
cal orthodoxy, and may not condemn any political philoso
phy. just as the judiciary may not interfere in the exercise
by the legislature of the powers conferred upon it. Even
an attempt to interfere must be stricken down.
“ It would be an abuse of judicial power for the
court to attempt to interfere with the constitutional
discretion of the legislature.” ( Bridge Co. v. U S
105 U. S. 470, 482.)
— 84—
The California 1987 Direct Primary Act permitted
political parties to require persons, as a condition o f voting
at the primary, to give an oath that they would thereafter
support the nominees of that party. That statute was de
clared unconstitutional and the Supreme Court, in Spier v.
Baker (1898), 120 Cal. 370, said at page 379:
“ . . . And the moment you recognize the existence
of power in the legislature to create tests in these pri
mary elections, you recognize the right of the legis
lature to create any test which to that body may seem
proper. While the test prescribed in this act may be
said to be a most reasonable one, yet the right to make
it carries with it the right to make tests most unrea
sonable. If the power rests in the legislature to create
a test, then the power is found in a Democratic legis
lature to make the test at a primary election a belief
in the free coinage o f silver at the ratio o f sixteen to
one, and the same power is found in a Republican
legislature to make the test a belief in the protective
tariff. If such a power may be sustained under the
constitution, then the life and death of political parties
are held in the hollow of the hand by a state legisla
ture.”
In O’Donoughue v. United States, 289 U. S. 516, 531,
the court said:
“ In framing the Constitution, therefore, the power
to diminish the compensation of the federal judges
was explicitly denied in order that their judgment or
action might never be szuayed in the slightest degree
by the temptation to cultivate the favor or avoid the
displeasure of that department zuhich, as master o f the
purse, would otherwise hold the power to reduce their
means of support."
The court then quotes Alexander Hamilton as follows:
“ Next to permanency in office, nothing can con
tribute more to the independence of the judges than a
fixed provision for their support. In the general
course of human nature, a power over a man's sub
sistence amounts to a power over his will.” (Court’s
emphasis.)
— 85—
The legislature may no more exercise power over a citi
zen’s subsistence in order to require him to disclose his
political affiliations than it may exercise such authority to
compel a judge to give his opinion concerning a case pend
ing before him.
“ Libanius says, that at ‘Athens a stranger, who
intermeddled in the assemblies o f the people, was pun
ished with death.’ This is because such a man usurped
the rights of sovereignty.” (Montesquieu, Spirit of
Laws (Cincinnati, 1873), Vol. I, p. 10.)
When exercising governmental functions, the people
enjoy an immunity which can be compared to that con
ferred upon legislators, and for similar reasons. Article
I, Section 6, clause 1, o f the Constitution states with re
spect to congressmen: “ . . . for any speech or debate
in either house, they shall not be questioned in any other
place.” This protection stems from a deep public interest
in encouraging congressmen to participate freely and with
out limitation in their legislative function. The Constitu
tion protects legislators even against their own misconduct,
for fear that otherwise they might fail to conduct them
selves with courage on proper occasion. Kilbourne v.
Thompson, 103 U. S. 168.
The people, too, need this protection. If a citizen may
be compelled under pain of criminal punishment to answer
questions concerning his political activity, that is, his politi
cal association, political speech, political ideas, this in itself
is a direct interference with the free exercise o f that asso
ciation, that speech, and those ideas. Just as the congress
men must select for themselves what they will rely upon
in statements made by their fellow congressmen, so the
people must select for themselves what they will accept in
the marketplace of ideas.
“ But it cannot be the duty, because it is not the
right of the state to protect the public against false
doctrine. The very purpose of the First Amendment
is to foreclose public authority from assuming a
guardianship of the public mind through regulating
the press, speech, and religion. In this field every
——86—~
person must be his own watchman for truth, because
the forefathers did not trust any government to sepa
rate the true from the false for us.” ( Thomas v.
Collins, 323 U. S. 516, 545.)
In City of Chicago v. Tribune Co. (111., 1923), 139 N. E.
86, 28 A. L. R. 1368, the Chicago Tribune attacked the city
administration editorially, claiming that officers were guilty
of fraud and mismanagement. The city filed suit for libel,
asserting that the editorials were false and malicious and
injured the business credit of the city and its ability to sell
its bonds to the public. A demurrer was sustained, the
court saying:
“ . . . The American system of government is
founded upon the fundamental principle that the citi
zen is the fountain of all authority. . . . For the
same reason that members of the legislature, judges
of the courts, and other persons engaged in certain
fields of the public service or in the administration of
justice, are absolutely immune from actions, civil or
criminal, for libel for words published in the discharge
of such public duties, the individual citizen must be
given a like privilege when he is acting in his sover
eign capacity. This action is out o f tune with the
American spirit, and has no place in American juris
prudence.” (Pp. 1375-7; emphasis added.) ( C f.
Cooley, “ Constitutional Limitations.” )
In the last cited case, it was pointed out that a civil action
affords the citizen fewer procedural safeguards than does
a criminal action, and that therefore to permit the latter
would be even more dangerous than the allowance of the
former. When it is considered how much less adequate
the procedure is before a legislative committee, and par
ticularly before the House Committee on un-American
Activities, than it is in either a criminal or a civil action,
it becomes clear that the proceedings of such a committee
are more dangerous to basic constitutional rights than any
other form of proceeding, civil or criminal. In the cited
case, the court recognized that jeopardy of “ economic sub
jugation,” just as jeopardy of criminal imprisonment, does
■—87-
constitute intimidation which impinges unlawfully upon
the rights reserved to the people by the Ninth and Tenth
Amendments. The Committee here used the weapon of
“ economic subjugation” in its successful demands that the
defendant and others be fired and blacklisted.
The case of United States v. Owlett, 15 Fed. Supp. 736,
recognizes the same principle:
“ The investigation (o f W P A by a state committee)
is an interference with the proper governmental func
tion of the United States of America. The complete
immunity of a federal agency from state interference
is well established.” (Emphasis added.)
The immunity of the federal agency there is no greater
than the immunity of the private citizen here, for all citi
zens have complete immunity in the exercise of their gov
ernmental functions (including political association), from
any interference by any branch of the government exercis
ing delegated powers.
If it is necessary that the branches of the government,
having only delegated authority, remain independent (doc
trine of separation of powers), can it be doubted that it is
essential that the people exercising reserved sovereign
powers retain complete independence ? Otherwise, the dele
gated authority would be free to suppress the sovereign
power of the people.
Care should be exercised to distinguish between the
people as individuals governed by Congress and the people
as instruments of government sharing with Congress the
powers recognized by the Constitution, including those
reserved to the people. The authority of the people as
participants in government includes at least the right of
assembly, association, and political affiliation. It is these
subjects, and these only, which were the object o f the
Committee’s questioning and which were beyond its powers
because to permit inquiry would constitute an invasion of
the powers reserved to the people by the Ninth and Tenth
Amendments to the Constitution of the United States.
( 2 ) B y S e e k i n g to D e t e r m i n e t h e F a c t s C o n c e r n i n g
P o l i t i c a l A f f i l i a t i o n o f t h e D e f e n d a n t a n d t o
P e n a l i z e H i m f o r S u c h P o l i t i c a l A f f i l i a t i o n ,
t h e C o m m i t t e e I n v a d e d t h e A r e a o f G o v e r n
m e n t R e s e r v e d t o t h e J u d i c i a r y b y A r t i c l e III
o f t h e C o n s t i t u t i o n .
The defendant offered to prove that, before he took the
stand, the Committee had determined standards of politi
cal speech and association which it deemed evil. The pur
pose of the investigation was to apply those standards to
individuals, including the defendant, and to blacklist and
otherwise penalize those found “guilty.”
Even if such a procedure were otherwise constitutional,
its execution would be a judicial— not a legislative— func
tion. Legislative action concerns itself with the establish
ment for the future of general standards. Adjudication
deals with the application of those standards to specific
individuals and the imposition of penalties for past con
duct.
In determining the character of particular governmental
action, the courts will look through form to substance and
to the function performed rather than to the classification
of the agency involved. The case of Prentiss v. Atlantic
Coast Lines, 211 U. S. 210, dealt with rate-fixing by the
State Corporation Commission. It was claimed that the
Corporation Commission was exercising a judicial function
because a judicial body exercised the power of review' over
its rulings. In overruling this contention, the Supreme
Court held that rate-making is a legislative, not a judicial,
function and that therefore both the Corporation Commis
sioner and the State Supreme Court when they dealt with
the setting of rates, were exercising legislative functions.
The court said:
“ While we think it is equally plain that the proceed
ings drawn in question here are legislative in their
nature, and nonetheless so that they have taken place
with a body which at another moment, or in its prin
cipal or dominant aspect, is a court.”
— 89—
The Committee here had no judicial function delegated
to it; it usurped these functions. In Kilbourne v. Thomp
son, 103 U. S. 168, supra, it was held that a legislative
investigation was illegal, because in that case there was
interference in a judicial matter in violation of the doctrine
of separation of powers.
The declared purpose of the entire investigation here
was to “ determine the extent of Communist infiltration in
the Hollywood motion picture industry” and to ascertain
“ what strategic” jobs in that industry were held by per
sons described as Communists. In this respect the case
is closely analogous with Greenfield v. Russell, 292 111.
393, 127 N. E. 102, 9 A. L. R. 1334, which case involved
the propriety of a legislative investigation into a purported
religious organization which was allegedly taking money
and property from citizens under fictitious religious rep
resentations. The legislative committee was directed to
investigate these past activities and report. A taxpayer’s
suit to enjoin the investigation as an unlawful exercise of
judicial power was sustained.
“ . . . it (the legislative committee) cannot vio
late the constitutional rights of any institution or of
any individual by conducting a public and judicial
investigation of any charges made against such per
son or institution under the pretense or cloak of its
power to investigate for the purpose of legislation.
This is true no matter whether the investigation be
for the purpose of instituting prosecutions, for the
aid and benefit of a grand jury in finding indict
ments, or for the purpose of intentionally injurying or
vindicating any institution or individual. All such
investigations, when judicial in character, made by
the general assembly, are absolutely without authority
and in violation of the constitutional rights of the
parties whose conduct is so publicly investigated.”
— 90—
V.
That Statute Creating the House Committee on Un-
American Activities, on Its Face and as Con
strued and Applied, Is Unconstitutional.
Point V is discussed under the same heading in the
Opening Brief in Trumbo v. United States, No. 9873, De
fendant, Lawson, hereby refers to and relies on said dis
cussion.
VI.
The Court Erred in Instructing the Jury That the
Question Put to the Defendant, as Recited in the
Indictment, Was a Pertinent Question.
A. The Question W as Not Pertinent Because, for the Pur
poses o f the Committee, It W as Cumulative.
The reason for, and the historic development of, the
rule permitting a legislative committee acting within the
lawful bounds of its power and having jurisdiction of the
subject matter before it, to compel the private citizen to
disclose information to such Committee is traced by the
courts in the Daugherty, Keeler.:, Kilbourne, Sinclair and
Chapman cases, supra, among others. The underlying
principle is stated in the Daugherty case:
“ A legislative body cannot legislate wisely or ef
fectively in the absence of information respecting the
conditions which the legislation is intended to affect
or change; and where the legislative body does not
itself possess the requisite information— which not
infrequently is true— recourse must be had to others
who do possess it.” (273 U. S. 135, 175.)
It is summarized in L. R. A. 1917-F at page 294:
“ And here it may be said that in general an Ameri
can legislative committee has power to enforce its
commands to a contumacious witness, when the in
vestigation in which he was called is carried on in good
faith for the purpose o f getting information with a
view to future legislation.” (Emphasis supplied.)
— 91—
And so, in certain cases, the public interest in the pro-
curance o f necessary information may outweigh the public
concern that private citizens be left alone, undisturbed by
governmental investigation.
And this point is crucially important—-for the otherwise
existing right to be let alone (U . S. v. Olmstead, 277 U. S.
438, 471— separate opinion of Mr. Justice Brandeis) and
the right to be free from inquisition into private affairs
( U. S. v. Boyd, 116 U. S. 616) is confessedly so great a
right in a democracy that it yields only to the right of
legislative inquiry in proper cases where the legislative
body does not itself already possess the information re
quested by it from the private citizen.
But where the reason for the rule ceases, the rule itself
o f course ceases. And this is the case at bar, for here
the Committee itself had taken the position that it already
possessed the very information it sought to elicit from the
defendant, John Howard Lawson, when it asked him the
question:
“ Are you now, or have you ever been, a member
of the Communist Party?”
And the Committee (as distinguished from an isolated
member thereof) not only itself declared that it had this
information to its complete satisfaction before it asked
the question of the defendant, but declared further (1 )
that it would not believe any disavowal thereof by Lawson
under oath, and (2 ) that it considered, for its own pur
poses, the very failure to answer the question proof o f the
fact o f membership, as thus already possessed by it.
(See Congressional Record, Nov. 24, 1947, p. 10879 et
seq.— Debate re citation for contempt; see J. A. 260-6.)
Under these circumstances the rule laid down in People
v. Barnes, 204 N. Y. at 125, and in E x Parte Hague, 150
Atl. 322, and in People v. Webb, 5 N. Y. Supp. 855, among
others, prevails, for here the information demanded of
the private citizen cannot be said to be “ necessary” or
“not already possessed by the investigating body itself” ;
— 92—
it is then merely cumulative; the hearing must be deemed
to have other purposes; then the public interest which in
the procurance of information demands the yielding of
the public interest in every citizen’s “ right to be let alone”
does not in fact itself exist.
Defendant’s requested Instructions 54 and 55 (J. A.
376) stated that if the Committee already possessed the
information requested in the question, defendant should
be found not guilty. These were refused by the trial
court. (J. A. 347.)
B. The Question W as Not Pertinent Because It W as Not
M aterially Relevant to A ny Inquiry W ith in the Scope o f
the Committee’s Stated Authority.
W e apprehend that the word pertinent as used in the
statute involved means “ materially relevant,” according to
the decision in Sinclair’s case. Sometimes, as in Black’s
Law Dictionary, it is defined as follows:
“ Evidence is called pertinent when it is directed
to the issue or matters in dispute and legitimately
tends to prove the allegations of the party offering
it; otherwise it is called impertinent” ;
But to determine whether the particular question here
legitimately tended to prove the matter here involved, that
matter itself must first be shown to fall within the scope
of H. R. 5. For as said in the concurring opinion of Mr.
Justice Preston of the California Supreme Court In re
Battelle, 207 Cal. 227 at 259, 277 Pac. 725, 65 A. L. R.
1497, unless the subject matter which the particular legisla
tive committee is investigating is itself within the sweep
of the enabling resolution, then no question may be said
to be “ materially relevant.”
W e have already dwelt at length with the reasons why
this Committee’s inquiry lay outside the proper bounds of
-9 3 -
the legislative power. H. R. 5 has been limited by this
Court to embrace only “ propaganda that attacks the
principle of the form of government as guaranteed by
the Constitution.” Certainly the Hollywood motion pic
ture industry lies outside the field occupied by those who
may be said to be interested in disseminating propaganda
attacking this principle. This is self-evident to all. No
pertinent question, as that phrase is defined in law, could
then have been put to the witness at this particular inquiry.
C. The Question W as Not Pertinent Because, as Framed,
It W as N ot a Legally Proper Question.
One of the protections afforded a witness at a Congres
sional investigation from an “ improper” question must be
found in the rule that a question that is not pertinent need
not be answered. Therefore, to protect the witness against
improper interrogations, the words “ a pertinent question”
must also be read to mean “ a legitimate question,” or “ a
legally proper question.”
Compound questions, however, are not legally proper
questions. And questions which called for a legal conclu
sion are likewise not legally proper questions. Here the
particular question involved— “ Are you now, or have you
ever been, a member of the Communist Party?” is pat
ent!)7 compound, and is patently one calling for a legal
conclusion.
See:
People v. Lovercamp, 165 111. App. 532;
Sullivan v. State, 161 N. E. 265, 200 Ind. 43.
Bell v. State, 87 S. W . 1160, 48 Texas Crim. Appeals
256, holds that a compound question one part of which in
cludes a conclusion of the witness, was properly excluded
by the trial court.
— 94—
Rogers v. State, 75 So. 997, 16 Ala. App. 58, holds
that a question containing more than a single proposition
is improper. To the same effect is Pullman Co. v. Vander-
hoeven, 107 S. W . 147, 48 Texas Civil App. 414.
The foregoing citations are relevent to the following
point: the question referred to in the indictment is not
capable o f a categorical answer; unless both parts of the
question propounded lend themselves to the same reply, a
yes or no answer would have subjected the witness to a
charge of perjury.
Bases of exclusion of such questions in ordinary pro
ceedings are:
(1 ) It is unfair to the witness, since it requires
analysis and separate treatment of each of its parts;
and
(2 ) It does not facilitate the presentation of facts,
but on the contrary impedes a clear presentation of
the facts.
The following cases hold that a question which asks
whether one is a member in a lodge or association, calls
for a conclusion of law and it is proper in a civil proceed
ing to sustain objections to such a question:
U. S. v. Hautau, 43 Fed. Supp. 507;
Wagner v. Supreme Lodge, 87 N. W . 903, 128
Mich. 660;
Wells, etc. Counsel v. Littleton, 60 Atl. 22, 100
Md. 416 (Ct. of Appeals Md. 1905).
For these reasons, the instruction o f the Court to the
jury (J. A. 355) that the particular question was perti
nent, was reversible error, as was the refusal to give
defendant’s requested instruction number 58 (J. A. 377)
which would have advised the jury that if the question
was compound, the defendant was not required to answer
it. (J. A. 347.)
— 95—
VII.
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 o f a Refusal to
Answer, W as So Erroneous as to A ffect the Sub
stantial Rights of the Defendant and Thereby
Resulted in Prejudicial Error.
As indicated, the central issue o f fact for the exclusive
determination of the jury was whether there was proof of
a refusal to answer. In its charge the Court said:
(a ) “ If you believe, and believe beyond a reason
able doubt that the defendant appeared before the
Committee . . . 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 is not controverted
. . . and that he refused to answer questions, it
is your duty under the law to return a verdict of
guilty.
“ Now, when I use the words ‘refuse to answer’ I
mean this: When you ask a question you are asking
something to be answered and an answer means a
responsive reply. An answer as far as this case is
concerned, does not mean any kind o f a reply that
a person desires to give, but it means responsive to
the question put. So that, as I say, if 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.)
(b ) . . The nature of the activities of the
defendant 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 defendant
is or was not a member of the Communist Party
actually is not relevant to this case.” (J. A. 356.)
(c ) “ Now in testing whether or not you believe
from the evidence that the defendant answered the
— 9 6 —
question propounded by the Committee, you must
decide for yourself whether or not the answers given
by the defendant satisfy you now as to whether or not
he ever was or is a member o f the Communist Party.
I f you can come to a conclusion by the replies the
defendant gave to those questions . . . if you can-
answer by those replies . . . as to whether or not
he ever was or is now a member o f the Communist
Party, then, o f course it is your duty to return a ver
dict o f not guilty. If- you cannot, you must return a
verdict o f guilty.” (J. A. 359.)
These charges are confusing, equivocal and misleading.
As such they are prejudicially erroneous under the doctrine
laid down by the cases of Kraus v. U. S., 327 U. S. 614:
Shepard v. U. S., 290 U. S. 96, and Bihn v. U. S., 328
U. S. 631. In one breath the jury was told that whether
Mr. Lawson was or was not a Communist was not
relevant. In the next breath it was told that if the jury
did not know whether he was a Communist then it must
find the defendant guilty!
And this confusion is aggravated by the fact that the
Court charged the jury on that portion of Title 2, Section
192, o f the U. S. Code, which deals with wilful defaults
in appearance, rather than charging the jury on that
portion of the same statute dealing with a refusal to
answer after appearance, which is the offense here charged
in the indictment. (J. A. 352.) And when this error
was called to its attention, the Court refused to correct
it. (J. A. 361-2.)
But these charges are not only confusing, misleading
and equivocal. They completely misstate the substantive
law. They are tantamount to a directed verdict o f guilt,
for they involve, in effect, the ultimate (and adverse)
determination by the Court, and not by the jury, o f the
only issue of fact submitted by the Court to the jury— vis.,
did, or did not, the responses of Mr. Lawson constitute a
deliberate and intentional refusal to answer the question—
by instructing the jury that as a matter o f law it must
find defendant guilty if his responses were unclear to
them.
— 97—
The crime defined by the statute is the refusal to answer
a pertinent question; and such refusal must be shown to
be intentional and deliberate.
In determining whether there had in fact been a refusal
to answer— and in determining whether that refusal was
deliberate and intentional— the jury had to consider the
question whether under all the circumstances shown there
was such a refusal; here, however, it was directed by the
Court to consider only one circumstance— the responsive
ness or non-responsiveness of the replies.
Now the evidence which was before the jury showed
that as part o f his responses, Mr. Lawson, while on the
witness stand, had made the following, among other,
requests and statements:
(1 ) A request to be allowed to read to the Com
mittee a full statement of his position, just as other
witnesses who had preceded him had been allowed
to read their statements.
(2 ) A request that witnesses be called back to prove
that they had perjured themselves when maligning
him and calling for his discharge.
(3 ) A request for the right to cross-examine these
witnesses to show what the Committee really was
seeking to do.
(4 ) A statement that the questions were in viola
tion of his constitutional rights.
And the record shows that while in the middle o f 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.” And it further appeared that these questions
were asked of Mr. Lawson in one of the huge hearing
rooms of the Congress, under the pitiless glare of nation
— 98—
wide publicity, with news reels grinding and with cross
country radio microphones hooked up near the witness,
and with a huge crowd in attendance. In any and all
events the Court should have directed the jury to weigh
these circumstances in determining whether in truth and
in fact there had been an intentional refusal.
But the Court in one sweep directed the jury to ignore
all of these circumstances. It told the jury to find the
defendant guilty unless it determined his answers to be so
responsive as to put it in the position of knowing pre
cisely what the fact o f defendant’s affiliation was.
The offense defined by the statute, however, is the re
fusal to answer a pertinent question. Perhaps an unclear
answer under certain circumstances may be some evidence
of a deliberate refusal to answer; and perhaps the Court
might have so instructed. But certainly the fact that the
jury might be unable to attribute a completely responsive
meaning to a reply given cannot be accepted as conclusive
proof of a refusal to answer. And not every non-
responsive reply is necessarily criminally 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 rea
sonable doubt respecting the quality of a reply to a ques
tion; customarily such reasonable doubt demands a verdict
of not guilty. Here, however, this doubt becomes para
doxically the compulsory hallmark of guilt!
This misdirection is not a mere technical error to be
disregarded under 28 U. S. C. A. 391. The issue was
whether the defendant had deliberately refused to answer.
The instruction misstated the law on this critical issue and
suggested an entirely erroneous standard for the jury’s
determination of guilt (see Ballenbach v. U. S., 326 U. S.
at p. 613 ); for, by no conceivable test of contempt for
- 9 9 -
failure of a witness to respond to a question interposed by
Congressional investigators . . . whether it be the test
laid down in the Fields case, 164 F. 2d 97, 82 U. S. App.
D. C. 354, which requires the government to show the
failure to be deliberate, or the test o f the Murdock case,
290 U. S. 392, which requires the government to show
evil motive or bad purpose, as well as the deliberate char
acter of the refusal . . . has it ever before been sug
gested that a person is guilty of criminal contempt merely
because the witness gives an answer a jury may conclude
is not entirely clear, or merely because the witness gives
a non-responsive reply.
The defendant was entitled to charges in the language
proposed by him in defendant’s prayers numbers 61
and 66:
“ Prayer # 6 1 — The jury are instructed as a matter
of law that an answer which is not responsive to a
question propounded to a witness is not necessarily
a refusal to answer within the meaning- o f the
statute.”
“ Prayer # 6 6 — The jury are instructed that if upon
all the evidence they find that the defendant in good
faith was attempting to answer the question pro
pounded to him as alleged in the indictment, that he
was interrupted during the course of said answer
and removed from the witness stand by order o f the
Chairman of the Committee before he could complete
his answer, then the jury should find the defendant
not guilty.”
These instructions were refused by the Court. (J. A.
347.)
And the failure for the same reasons to give any one
of the defendant’s proposed prayers numbered 49, 50, 52,
59, 60, 62, 63, 64, 65 and 66, constituted prejudicial
error. (J. A. 375-8.)
— 100—
V III.
The Court Committed Prejudicial Error in Invading
the Province of the Jury by His Comments Dur
ing the Course of the Defense Argument to the
Jury.
The cause was argued to the jury for the defense, after
the evidence was closed, by Robert W . Kenny, Esq. Dur
ing- the course of his argument, the following occurred:
“ Here is a man, John Howard Lawson, cited for
contempt for talking about the rights of an American
citizen, and who went on talking about his rights
when he was told to stop by the chairman, when he
was told, ‘N o / when he was trying to answer in his
own way—
* * * * * * * *
“ Mr. Hitz: 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
indicate that he was trying to answer the question.
Yon can refer to the record.” (J. A. 348-9.)
* * * * * * * *
“ 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 piece
meal— he said the right of immunity of American
citizens will be prejudiced, Jews, Catholics, Republi
cans, 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 de
stroy . . . ,’ 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. 349.)
101
That this is crucial appears from the Court’s charge at
page J. A. 357:
“ The defendant takes the position, through his
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 ; . .
But although advising the jury o f the defense position,
the Court did not instruct the jury to disregard the Court’s
earlier and highly damaging statements. 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.
In the case at bar, the defendant was charged with
refusing to answer. The record shows that he made
responses to the questions put to him; that he was re
peatedly interrupted by the Chairman of the House Com
mittee; that while making a response to the Chairman
and Chief Investigator he was ordered off the witness
stand by the command of the Chairman:
“ The Chairman: Officers, take this man away from
the stand. . . .” (J. A. 197.)
The defendant had the right to have the jury’s decision
whether there had been a refusal to answer, unfettered by
the Judge’s declaration “ there was nothing in the evidence
to indicate he was trying to answer,” for this in effect
directed the jury to find the defendant guilty. Certainly
the Court did not here follow the rule of the Supreme
Court that “ the decision of issues of fact must be fairly
left to the jury.” Again, in Quercia v. United States,
289 U. S., at p. 469, etc., the Supreme Court said:
“ In commenting upon testimony (i. e., the trial
judge), he may not assume the role o f a zvitness. He
may analyse and direct the evidence, but he may not
either distort it or add to it. (Emphasis ours.) His
privilege of comment in order to give appropriate
- 102-
assistance to the jury is too important to be left with
out safeguards against abuses. The influence of
the trial judge on the jury ‘is necessarily and properly
of great weight’ and ‘his lightest word or intimation
is received with deference, and may prove controlling.’
This Court has accordingly emphasized the duty of the
trial judge to use great care that an expression of
opinion upon the evidence should be so given as not
to mislead, and especially that it should not he one
sided; . . .
“ Nor do we think that the error was cured by the
statement of the trial judge that his opinion of the
evidence was not binding on the jury and that if they
did not agree with it, they should find the defendant
not guilty.”
So here. While it is true that at one point in his charge,
the Court did say (J. A. 355-6):
“ You are not to concern yourselves with evidence
that has been ruled out by the Court, nor are you
to consider colloquy between opposing counsel, or
between the Court and counsel, as this is not evi
dence.”
nevertheless this' admonition was made long after, and
without the slightest reference to the Court’s prejudiced
comments. By its comments, the trial court did, within
the meaning of the Quercia case, “ distort” the evidence,
for, contrary to its statement, the record shows, at a
minimum, repeated responses by the defendant while before
the Committee, repeated attempts on his part to secure a
fair hearing and to protect his constitutional rights and
it shows repeated interruptions by the Chairman and
Chief Investigator o f the Committee, ending with the
defendant’s forcible ejection from the witness stand while
in the middle of a sentence. The defendant was entitled
to have the question of this alleged deliberate and inten
tional refusal to answer left fairly to the jury, without
distortion or addition by the Judge.
See, also, Ballenbach v. United States, 326 U. S. 606,
where the Quercia case is followed with approval.
— 103—
IX.
The Trial Court Committed Prejudicial Error in Re
fusing to Permit Cross-Examination o f the Prin
cipal Prosecution W itness, J. Parnell Thomas,
and in Adm itting Hearsay Evidence to Establish
Pertinency W ithout Affording Any Right of
Cross-Examination on That Evidence.
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. ] ) Congressman J. Parnell Thomas was the only
prosecution witness. He testified to the questions put to
the defendant before the Committee, and he testified con
cerning the alleged refusal of the defendant 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
(J. A. 197) itself asked the witness the following ques
tion :
“ 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.”
Then the efforts o f the defense to cross-examine the
witness on this answer were likewise denied by the Court.
(J. A. 202-3.)
It should be noted that the Court itself had asked the
question before the jury. The Court had invited this
answer as to purpose. But a motion o f the defense to
strike the answer was denied. Efforts o f the defense to
cross-examine as to its truth, and offers of evidence on the
subject of what the Committee was investigating, were
unsuccessful.
■104
If the testimony were not admissible, it should have been
stricken by the Court; if it were admissible, cross-examina
tion should have been allowed. By its inconsistency, the
Court committed 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
of communism in the motion picture industry
* * (J. A. 355.)
If cross-examination had been allowed, we contend the
evidence would have tended to show that the Committee
was not actually investigating anything, but on the con
trary was carrying on a proceeding designed to blacklist
the defendant and to censor the screen. Fair play de
manded either that the answer go out, or that cross-
examination be allowed, or that defendant be permitted a
chance to rebut the answer.
(b ) The same government witness testified on direct
examination only to some o f the matters which happened
while the defendant was on the stand on October 27,
1947. The defense by cross-examination attempted to
show other things that had happened at the same time;
it tried through cross-examination to allude to the written
statement which the defendant had tried to present to the
Committee while he was before it (J. A. 199) ; the defense
also tried to cross-examine Mr. Thomas respecting the
efforts of the defendant (made at the time o f the alleged
contempt) to be allowed to question those Committee
witnesses who had testified against him during that same
hearing and prior to defendant’s taking the witness chair.
(J. A. 214-6.)
The issue before the jury was whether Mr. Lawson
had refused to answer. It is not contended there was an
- 1 0 5 -
express refusal. I f a refusal was to be found, it could
only be spelled out o f all o f the conduct and statements of
the defendant while a witness. Properly to understand any
single excerpt from the transcript it was essential to have
in mind everything that happened at the same time and
place. The defendant’s request to cross-examine was no
more than an effort to get before the jury the whole o f a
conversation after a part of it had been introduced.
Without an understanding of the circumstances, the
defendant’s responses might have been considered non-
responsive to the questions, perhaps even offensive; on
the other hand, had they been considered as part o f the
whole, part o f the events which directly affected the
defendant, they would have had a different meaning.
So to deny cross-examination is prejudicial error. (See
Arine v. U. S. (C. C. A. 9th), 10 F. 2d 778.)
On this phase o f the case, in view of the exclusion by
the Court of the offered evidence, it does not matter that
this tribunal may now conclude, from a reading of the
transcript of the hearing before the Committee, that there
was evidence to support the jury finding. (See the Balien-
bach case, 326 U. S. 615) :
“In view of the place of importance that trial by
jury has in our Bill of Rights, it is not to be sup
posed that Congress intended to substitute the belief
o f appellate judges in the guilt o f an accused, how
ever justifiably engendered by the dead record, for
ascertainment of guilt by a jury under appropriate
judicial guidance, however cumbersome that process
may be. Judgment reversed.”
Under our system, the accused is entitled to the jury’s
determination of this issue, aided by all the light that may
be brought to it through cross-examination.
106—
(c ) The government called Congressman Thomas as
its only witness on the question of pertinency. On direct
examination the Congressman read into the record certain
of the testimony relating to the defendant Lawson given
at the Committee hearings prior to the time that Lawson
testified before the Committee. (J. A. 188-97.) On cross-
examination the defense sought to introduce other portions
of the testimony given at the hearing on the same subject
matter. These attempts were cut short, apparently on
the theory that the question put to Lawson was pertinent
as a matter of law. (J. A. 207.) Accordingly, the
defense moved to strike the evidence offered by the
government on the question of pertinency, but this motion
was denied. (J. A. 243-4.)
In so doing the Court committed prejudicial error and
permitted government testimony on the question of per
tinency to stand; nevertheless it refused to permit full
cross-examination. The Court thus determined the ques
tion of pertinency on the basis o f the evidence the govern
ment offered and on only a small part of the evidence
which the defense desired to offer on the same subject
matter, equally as relevant as that offered by the govern
ment. (J. A. 219-44.)
To establish pertinency it was necessary to show at
least a rational hypothesis justifying the questioning o f
this citizen. The defendant wanted to show the absence
of any rational hypothesis. The Court’s rulings prevented
this.
The rule is clear that while the Court has a discretion
in confining cross-examination, the accused should be
permitted the widest latitude on cross-examination particu
larly against the principal witness for the prosecution.
Alford v. United States, 282 U. S. 687;
District of Columbia v. Clawson, 300 U. S. 617.
107—
During- the course of its charge the trial court did
properly advise the jury (J. A. 354) :
“ You are the sole judges of the credibility o f the
witnesses, and it is for you to decide how much
weight you are going to give the evidence, both from
the lips o f the witnesses on the stand and the docu
mentary evidence that has been introduced during
the trial. You should of course analyze it, sift it,
separate it, and give it that weight to which you think
it is entitled,” (Emphasis supplied.)
But nevertheless during trial the primary shield of the
accused, cross-examination, by which the jury could be
afforded an opportunity to test the credibility of the
evidence given by the witness, was denied by the Court’s
ruling. By so doing, prejudicial error was committed.
Ballenbach case, 362 U. S. 615.
(d ) On the issue of the asserted pertinence o f the
question, the Government’s case against defendant Law-
son consisted solely of the following evidence: The
prosecution asked Congressman Thomas, to read from the
printed transcript o f the Congressional investigation
selected portions of the testimony there given by three
witnesses, Messrs. W ood, Rushmore and Moffitt (J. A.
220-8); over the objections o f the defendant that this
was piling hearsay upon hearsay, Congressman Thomas
was allowed by the Court to place in evidence in this
criminal proceeding those chosen extracts of the testimony
so given by these three men. Each of these men was
admittedly hostile toward defendant; each was bitterly
opposed to his views, his politics, his associations. Based
upon their alleged observation of Mr. Lawson and their
asserted familiarity with his speeches and writings, each
testified that Mr. Lawson participated in “ Communistic”
activities in the motion picture industry.
— 108-
The defense by its objection asserted that the privilege
of cross-examining these three witnesses when they testified
before the Congressional investigation had been denied
to them; that to allow their unchecked testimony to be
used to establish pertinence in this criminal proceeding
without any opportunity even in Court to cross-examine
them, was to multiply the original sin. The defense con
tended (and contends) that in truth and in fact these
witnesses deliberately perjured themselves, and did so
with the knowledge of representatives of the House Com
mittee; and, that their testimony was given as part of the
larger plan to drive defendant and others like him from
their jobs in the motion picture industry, in order to have
those jobs filled by men like the witnesses themselves who
held political views acceptable to the House Committee.
Upon the theory that the question “ Are you now or have
you ever been a member of the Communist Party?” '—-
itself revealed its own pertinence, the Court overruled the
defense objection (J. A . 242) :
“ The Court: Suppose they did not have any testi
mony. Suppose they decided to investigate the in
filtration of Communists in the motion picture indus
try 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
. call 140,000,000 Americans to the stand and ask
them if they are members of the Communist Party.
The Court: I think I have had enough. I will
rule. I will rule that the question is pertinent.”
It is conceded on all sides that it is necessary, in order
to establish pertinence, to show at least a rational hypo
thesis justifying the conclusion by reasonable men that
109-
there was some justification for the investigation of the
defendant, Lawson, and some reasonable nexus between
the lawful powers of the House Committee on the one
hand, and the Hollywood motion picture industry and
the defendant’s activities therein, on the other.
Now if three four year old infants had scrawled notes
to the House Committee assailing defendant Lawson, and
if in reliance thereupon, that Committee had subpoenaed
him and sought to put any question to him, it would be
apparent that no rational hypothesis justifying any ques
tions would have been established. And at one point in
the trial, the Court below in passing on the objection so
conceded. (J. A. 222-3.) But the presence or absence
of such a rational hypothesis cannot be the subject of
speculation in a criminal proceeding, as it was here. It
must be found judicially to exist as other matters are
found to exist by a court.
The defendant sought to show that the three named
witnesses had in fact been acting collusively with the Com
mittee for the purpose of driving Lawson and others
from the industry and replacing them by writers whose
views parallel those of the Committee. This would
assuredly affect the existence of the requisite rational
hypothesis justifying the inquiry. This opportunity was
denied.
This situation is even more shocking that that which
obtained during the Congressional investigation. There
at least the three hostile witnesses spoke through their
own lips; here the words were theirs, but the voice was
that o f Congressman Thomas. What meaningful oppor
tunity was thereby accorded the defendant to show by
cross-examination the absence of the necessary rational
hypothesis supporting the alleged pertinence of the ques
tion? None, we say.
— 110—-
X.
The Trial Court Erroneously Ruled and Charged That
There W as Evidence Upon W hich the Jury Could
Conclude That the Chairman of the House Com
mittee on Un-American Activities Had Inherent
Power and Authority to Appoint a Validly Con
stituted Subcommittee, and That Such a Sub
committee W as in Attendance at the Time That
the Defendant W as Sworn and Testified; and
the Trial Court Committed Reversible Error in
Failing to Charge That the Government Must
Prove Beyond a Reasonable Doubt That a Validly
Constituted Subcommittee W as in Attendance at
the Time the Defendant W as Sworn and Testified
and in Quashing Defendant’s Subpoena Duces
Tecum for the W ritten Minutes o f the Committee,
Relating to This Issue.
At all stages of the trial, as on this appeal, the appellant
has contended that the government must prove as an
essential part of its case that the body before which the
appellant testified was a competent tribunal— i. e., a law
fully constituted subcommittee of the House Committee on
Un-American Activities. To sustain this burden, the
government must prove beyond a reasonable doubt that the
House of Representatives duly elected the Committee on
Un-American Activities; that the Committee on Un-Amer
ican Activities, acting at least by quorum, created or
authorized the creation of a subcommittee to conduct the
investigation of the appellant; and that at least a quorum
of such a subcommittee was in attendance at the time
the appellant was sworn and testified. Furthermore, the
alleged action of the Committee on Un-American Activi
ties, in appointing the subcommittee, must be shown by
the written records of the full committee. Section 409 of
the House Rules and Manual, 80th Congress; Section
133 (b ) of Legislative Reorganization Act o f 1946; Sec
tion 943, House Rules and Manual, 80th Congress,
I l l
A. A n Analysis o f the Evidence Reveals That There W as
No E vidence U pon W h ich the Jury Could Conclude That
a V alid ly Constituted Subcommittee W as in Attendance
at the Tim e the Appellant W as Sworn and Testified.
The government introduced evidence showing that the
House of Representatives created the Committee on Un-
American Activities, consisting of nine members, and
elected certain members to serve on this committee. This
was done through the introduction o f certificates showing
the action taken by the House of Representatives in this
regard. (J. A. 173-4.)
There is no evidence in the record to show any act of
the Committee authorizing the establishment of a sub
committee, or authorizing the Chairman of the Committee
to establish or to select the members o f a subcommittee,
or authorizing any subcommittee whatever to carry on the
hearing at which the appellant appeared and testified.
The government’s only effort to show the existence of a
subcommittee is in the testimony of Congressman J. Par
nell Thomas. That testimony consists o f a reading into
the trial record by Congressman Thomas of the following
statement made by him at the opening of the hearing at
which the appellant testified.
“ The record will show that a subcommittee is
present, consisting of Mr. Vail, Mr. McDowell and
Mr. Thomas.” (J. A. 183.)
On a motion to strike out the statement as a conclusion,
the trial court said:
“ All that is being presented by the District Attorney
is Congressman Thomas’ statement. I will rule upon
that question when it is reached.” (J. A. 184.)
Again over the objections o f the appellant, Congressman
Thomas testified that he designated the subcommittee on
the morning of October 27, the date upon which the
appellant testified, and that the designation was the state
ment above quoted which Mr. Thomas had made at the
opening o f the hearing at which the appellant appeared.
(J. A. 186.) (Emphasis added.)
— 112—
Thus, there is no evidence in the record, other than
Congressman Thomas’ conclusion of law, to prove the
appointment of a subcommittee.
But the gap in the necessary chain of authority is made
even more apparent by the failure of the government to
show in any way that Mr. Thomas, the Chairman of the
Committee, had any power or authority to appoint any
subcommittee to conduct the hearing at which the appellant
testified. On this point, Mr. Thomas, over the objection
of the appellant, was permitted to answer the following
question in the following w ay:
“ Q. You say the Chairman has that power to
appoint a subcommittee? A. That is correct.”
(J. A . 185.)
No other evidence of any kind was introduced by the
government with respect to the power of the Chairman
of the Committee to appoint the subcommittee.
Upon that record the government’s case is fatally de
fective.
The Legislative Reorganization Act, the Rules o f the
House, and such precedents as exist, abundantly establish
the foregoing.
The classic statement of the House Rules which has
remained unaltered from the time when Thomas Jefferson
wrote the original manual is :
“ A majority of the committee constitutes a quorum
for business.” (Elsynge’s Method of Passing Bills,
11.) (Sec. 409, House Rules and Manual, 80th
Cong.)
From time to time the Speakers of the House have
reaffirmed the basic intent of the rule.
“ A quorum of the committee may transact busi
ness” (Hines Precedent, Vol. 4, 4586); “ but an
actual quorum of the committee must be present to
take action to be valid.” (Speaker Clark, May 18,
1918, p. 6689; Speaker Gillett, June 17, 1922, p.
8928.)
■113—
The appointment of a subcommittee is, o f course, a
very important kind of committee action.1 That is indi
cated by the many precedents which from the earliest
sessions o f Congress consistently indicate that the appoint
ment o f /o r authorization for the appointment of sub
committees are acts o f the Committee. Thus, for in
stance, we find the following language:
“ The House authorized a subcommittee o f the
Committee of Elections to be appointed by the Com
mittee. . . (Hines Precedent, Vol. 3, Sec.
1754.) (See also Hines Precedent, Vol. 3, Secs.
1757 and 1758; Vol. 4, Sec. 4577.) (Emphasis
ours.)
Consistent with these precedents, there can be no clearer
indication that the chairman of a committee has only that
authority which is expressly given to him by the commit
tee itself, than the language in so recent a document as
the Report of the Joint Committee on the Organization of
Congress— pursuant to House Cong. Res. 18— Rep. No.
1011 in Section I, subdivision 6 thereof.
“ 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.”
The appointment of a subcommittee can therefore be,
in any event, only the act of the committee as a whole.
Even if the committee may delegate to its chairman the
power to establish a subcommittee and to select its per
sonnel, that delegation of power must be the act o f the
committee as a whole. No law, no House rule, and no
precedent can be found which would, in the absence of
express authority by the House of Representatives itself,
1Surely, the qualitative and substantive character in the act of
appointing a subcommittee is greater than the appointment of a
clerical staff. Yet the latter appointment can be made only by a
majority vote of the Committee. (Sec. 202c, Legislative Reorgani
zation Act of 1946.)
— 114-
permit a member of a committee, even if he be its chair
man, to act for the committee in establishing and selecting
a subcommittee.
In the record here there is no evidence of any act by
the Committee. Congressman Thomas’ statement, re
ferred to above, that he had the authority to appoint a sub
committee, is, of course, a conclusion of law and cannot
substitute for evidence showing a meeting o f the full
committee duly called, attended by at least a quorum, and
authorizing the chairman to establish and select a sub
committee for the specific purpose of holding the hearing
at which the defendant John Howard Lawson testified.
The reasoning behind the rules referred to is discussed
in cases involving committees, some of which were public
in nature, some quasi-public, and some private. Reference
is made to these authorities solely to illustrate the principle
that authority granted to a body requires joint action,
that individual action is not a substitute for joint action,
and that the delegating body has the right to expect the
fruit of joint consideration by not less than a majority
of those to whom the subject is committed.
Pennsylvania Co. v. Cole, 132 Fed. 668;
Damon v. The Inhabitants of Granby, 2 Pick. (19
Mass.) 345;
The case of St. Mary’s Church, 7 Serg. & Rawle
(28 Pa.) 517: “ The rule is based on the idea
that the nature of the act to be done or the busi
ness to be transacted is such that the principal
desires to have the benefit of the combined ex
perience, judgment, discretion or ability of all
of the agents” ;
Dorsey v. Strand, 150 P. 2d 702, 705, 21 Wash.
2d 217;
Brown v. Dist. o f Columbia, 127 U. S. 579.
115—
B. It W as Error for the Trial Court to Permit the Govern
ment to Introduce Oral Evidence in an Effort to Prove
the Appointment of a Subcommittee.
Section 133(b) o f the Legislative Reorganization Act
provides:
“ Each such committee shall keep a complete record
o f all committee action. Such record shall include
a record of the votes on any question on which a
record vote is demanded * * *”
It is important to note that the Legislative Reorganiza
tion Act carefully distinguishes committee records from
records kept by the member serving as chairman. Sec
tion 202(d) provides:
“ All committee hearings’ records, data, charts, and
files shall be kept separate and distinct from the con
gressional office records o f the member serving as
chairman of the committee, and such records shall be
the property of the Congress and all members o f the
committee and the respective Houses shall have access
to such records. * * *”
Where the law requires that records shall be kept by a
public body, oral testimony of its action is not admissible.
The effect o f the foregoing rule has been differently
construed by different courts. One line of authorities holds
that where a public body is required by law to keep rec
ords, it can only act by means o f making a record.
( State ex. rel. School District o f A fton v. Smith, 336
Mo. 703, 80 S. W . 2d 858; People v. Cleveland, 271 111.
226, 110 N. E. 843.) Consequently, if the record does not
exist, the body has not acted at all; and the question of
alternate forms of proof is not presented. The other line
of authorities holds that where it is required by law that
records shall be kept, oral evidence o f the action of the
— 116-
public body is admissible only after the absences of the
official records has been satisfactorily explained. E x
amples of this line o f authorities are collected at 22 Corpus
Juris p. 982, note 89, and include State v. Dilworth, 80
Mont. I l l , Penn-Ken. Gas & Oil Co. v. Warfield Natural
Gas, 137 F. 2d 871, cert. den. 320 U. S. 800; also State
ex rel. Johnson v. St. Louis etc. Ry., 286 S. W . 360, 315
Mo. 430. In either event, whether the one line or the
other of authorities is followed, oral evidence in the first
instance of action by a public body required by law to
keep records is inadmissible.
The purpose of the rule requiring records would, of
course, be frustrated if action of the committee could be
shown by oral testimony.
C. The Trial Court Committed Reversible Error in Failing
to Charge That the Government Must Prove Beyond a
Reasonable Doubt as an Essential Element of the Prose
cution That a Validly Constituted Subcommittee Was in
Attendance at the Time the Appellant Was Sworn and
Testified.
The Court denied (J. A. 347) the defendant’s request
that the jury be instructed to this effect. (Proposed In
structions 37 to 48, inclusive, J. A. 372-5.) Instead the
Court charged the jury as to the issues submitted to it, in
which charge the Court did not refer to the matter of the
designation of the subcommittee. This section of the
charge concluded:
“ Now, those are the elements in this case, and the
only elements in this case— the committee met, there
was an appearance by the defendant, a question asked,
and he wilfully refused to answerJ’ (J. A. 357.)
(Emphasis supplied.)
■117—
The error committed by the Court is even more serious
in view of the fact that the Court further charged that:
“ 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 is not
controverted— and that he refused to answer ques
tions, it is your duty under the law to return a verdict
of guilty.” (J. A. 358.)
The appellant’s exception to the above quoted portions
of the trial court’s charge to the jury was overruled.
(J. A. 361.)
D. The Court Erred in Quashing Defendant’s Subpoena
Duces Tecum for Production of the Committee’s Minutes
Containing the Written Record, if Any, of Action by
the Committee as to the Creation of the Subcommittee
Before Which the Defendant Appeared.
The defendant offered to show by the Committee’s
minutes, if they were produced under the subpoena, that
the subcommittee was not a lawfully constituted tribunal.
'(J- A. 344.)
The Court stated:
“ I cannot conceive that there are minutes in their
possession that would show this committee authorized
this subcommittee, in view of Public Law 601” [R
515],
and granted the motion to quash the subpoena directed to
their production. (J. A. 346.)
118-
XI.
The Court Erred in Excluding Defendant’s Evidence
That the Committee Failed to Certify to the
House of Representatives All of the Facts Relat
ing to His Alleged Failure to Answer an Allegedly
Pertinent Question.
The certification f rom the Committee to the House of
Representatives [Govt. Ex. No. 5, J. A. 382] was admitted
for the limited purpose of proving the fact of certification.
(J. A. 175-6.) Defendant’s Exhibit 4 for identification
(J. A. 394), consisting of a telegraphic notice by his coun
sel to the committee that a motion to quash would be made
at the opening o f the hearing; Defendant’s Exhibit 5 for
identification (J. A. 395), consisting of the motion to
quash; Defendant’s Exhibit 6 for identification (J. A.
406), consisting of a renewal of the motion to quash, and
Defendant’s Exhibit 7 for identification (J. A. 409), con
sisting of defendant’s application to recall certain witnesses
for the purpose of cross-examination, were excluded by the
Court. (J. A . 216.)
The defendant’s prepared statement which the Com
mittee rejected, and which was examined by the Committee
at the time of defendant’s testimony, was not submitted by
the Committee to Congress. (J. A. 310.) The Court also
excluded defendant’s offer to show that Exhibits for
Identification 4, 5, 6 and 7 were not presented to or con
sidered by the House of Representatives. (J. A. 215,
303-5.)
The congressional procedures for bringing a recusant
witness before a court for punishment for contempt were
first discussed by the Supreme Court in In re Chapman,
166 U. S. 661 at 667. There the Court said:
“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.”
— 119—
The procedures required are set forth in the Act of
June 22, 1938, Chap. 594, 54 Stats. 942, Rev. Stats., Sec.
104; U. S. C., Title 2, Sec. 194. The statute provides for
the reporting of the “ fact of such failure” of the witness to
either House when Congress is in session.
The purpose of the statute is plain. The House, not
the Committee, is to determine whether a witness is to be
prosecuted. Furthermore, the witness has no right to
appear before the House. He is denied the opportunity to
challenge the report. The House must, therefore, have all
of the facts, not a selection edited by members of the
Committee.
It is no answer to this defect in the government’s case
to say that the certificate of the House may not be chal
lenged in court.
In view of the fact that the witness has no right to
appear before the House, his only opportunity to challenge
the report is in the prosecution for contempt. The statute
would be meaningless, it could be wholly eliminated from
consideration and be supplanted by a House resolution un
less it were intended to be something more than a House
rule. Its purpose could only have been to afford protection
to a witness. That protection can be invoked only in the
court.
In this case the Committee suppressed from the House
as a whole the statement which Mr. Lawson offered and
likewise suppressed evidence of the efforts of his counsel
to require the Committee to extend to the defendant due
process in the matter of cross-examination and to have the
Committee consider his legal objections to the hearings.
These exclusions were substantial. Even apart from
the proffered statement, the Committee’s rejection of the
defendant’s request to cross-examine was so offensive to
the commonly held sense of fair play and the denial o f a
right so essential to a fair hearing that the House, had it
been in possession of this information, might well have
refused to certify.
But regardless of what the impact of these omitted facts
might have been the Committee was required to include all
/
of the facts in its certification to the House of Representa
tives. When it failed to do so, it failed to comply with the
necessary statutory procedures for bringing this indict
ment.
The Chapman case, supra, expressly recognized that the
failure of the Committee to submit to the House a report
of the matters before the Committee, was a matter o f de
fense for the witness when made a defendant in a separate
criminal prosecution. (See p. 667.)
X II.
The Trial Court Erred in Denying Defendant’s Chal
lenge and Motion to Dismiss the Jury Panel.
A. The Statute.
Title 11, Section 1417, o f the Code for the District of
Columbia, relating to qualifications for jurors, provides:
“ No person shall be competent to act as a juror
unless he be a citizen of the United States, a resident
of the District of 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.”
B. The Facts.
In the District of Columbia names o f prospective jurors
are selected from the city directory, and questionnaires are
sent out to the persons so selected. (J. A. 58-60.) Ques
tionnaires with any question unanswered are returned to
prospective jurors for completion. The jury commissioner
having no subpoena power, the return o f the questionnaires
depends on the voluntary action o f the persons to whom
they are sent. Some questionnaires are not returned.
(J. A. 62.)
Question No. IS on the questionnaire reads as follows:
“ Have you any views opposed to the American form of
government?” This question, said one of the present Com
missioners, Colonel Bliss, was handed down from former
— 120—
- 121-
jury commissions and has never been considered by the
present membership o f the three-man jury commission. If
the commissioners were considering it now “ we might put
it on there as one indicating whether a person was a good
and lawful citizen.” (J. A. 87.)
The defense subpoenaed the questionnaires from which
the jury panel utilized in the Lawson case was selected,
including questionnaires of persons who were disqualified.
The jury commissioner reported that it was impossible to
bring in all of such questionnaires because there were one
hundred twenty thousand of them. (J. A. 59.) He stated,
however, that he had selected and set aside in his office
questionnaires of five hundred and seventy-five, being
those for the persons certified to the District Court.
Nevertheless, the trial judge refused to permit the jury
commissioner to bring them into court or to allow defense
counsel to examine them. (J. A. 59.) However, the jury
commissioner presented in court a group of consecutive
rejected questionnaires which antedated the drawing of the
jury venire utilized in this case. Defense counsel were
allowed to examine these questionnaires and to question the
jury commissioner concerning them. (J. A. 65-6, Deft.
E x ' 1.)
The jury commissioner testified that the examination of
a percentage of the disqualified questionnaires would give
a pretty fair picture o f the causes for rejection and that
the same general test had been applied to all the question
naires as were applied to those which he brought into court.
(J. A. 64.)
The examination o f Commissioner Bliss showed: That
prospective jurors are rejected because of lack of intelli
gence as determined by the manner in which the question
naire is filled out. Thus, if the prospective juror’s hand
writing is not good, he may be rejected. (J. A. 65, 76,
81. 83-5. 86-7.) In one instance a juror was rejected
because the handwriting was rounded and uniform “ like a
child.” (J. A. 84.) Mentality is also judged by the fact
that words are stricken out, that there is an incomplete
date, that a date is not given, or that a person incorrectly
stated his age, erring by a few months. (J. A. 74-5.)
— 122—
One prospective juror was rejected because he put the
answer “ Yes” in after a part of the questionnaire reading
“ If a naturalized citizen,” which part the jury commis
sioner "said did not call for an answer, thereby demonstrat
ing “ the general intelligence” of the juror and disqualify
ing him. (J. A. 75-6.) Yet, in another instance, where
the question was “ If your answer to question 19 is yes,
give city, county and state,” the failure of the prospective
juror to say “ not applicable” constituted a basis for dis
qualification because of lack of intelligence, according to
the jury commissioner. (J. A. 80-1.)
Misspelling was another basis for disqualification. (J. A.
76-8, 79-80.)* In other instances questionnaires were
rejected because they were messy or there were blots on
them (J. A. 78), or because they were typewritten and
the signatures did not appear to be well formed. (J. A.
79, 84-6.) And in one instance the disqualification was
based on the fact that the prospective juror had written the
date “January 26” and then written an 8 over the 6. (J. A.
82.) The witness explained all o f the foregoing by say
ing, “ 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, except
one man whose handwriting indicated he had palsy and
who was therefore physically disqualified. (J. A. 89-90.)
When it was pointed out to the jury commissioner that all
the persons disqualified because o f the jury commissioner’s
interpretation of a form “ as to intelligence and ability to
serve on a jury” were in the lower economic brackets, he
*Thus, one prospective juror was disqualified for saying he
worked for the “ Everredy Electrical Shop,” the first word of the
name of the shop being misspelled, according to the jury commis
sioner (J. A. 85). An examination of the Washington, D. C.,
telephone book shows that there is an “ Everredy Electrical Shop”
doing business in the City of Washington.
said the fact that a man is a “ cafeteria worker” or a
“ houseman” would affect the disqualification only “ inci
dentally” and “ only indirectly” (J. A. 82-4) ; that when
eligibility was 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.)
On cross-examination by the government, it was shown
that a number of persons in lower economic classifications
were on the jury panel then being utilized. (J. A. 92-6.)
On redirect, the defense requested the production o f the
questionnaires for those persons in order to prove that
persons in the lower economic categories and of foreign
birth were treated differently from persons in the higher
economic categories o f American birth, where both had
poor handwriting or otherwise allegedly exhibited some
lack o f intelligence by the manner in which they filled out
the questionnaires. The Court refused counsel’s request.
(J. A. 97-8.)
The jury commissioner also testified that jurors are
selected for both the Municipal Court and the United
States District Court in the District o f Columbia at the
same time and through the same process. Persons are
disqualified who have been charged with misdemeanors
because that might affect their eligibility as jurors in the
Municipal Court. (J. A. 70-1, 82-3.) Thus, being ar
rested and fined $5.00 for passing a stop sign or for fail
ing to give the right of way constitutes a basis for dis
qualification of jurors in the United States District Court
as well as the Municipal Court. (J. A. 85-6.)
Defendant’s motion and challenge being denied, the de
fense exhausted its peremptory challenges upon the selec
tion of the jury and asked for additional challenges, which
were denied. (J. A. 166.)
C. The Law.
( 1 ) T h e S c o p e a n d P u r p o s e o f t h e R e v i e w H e r e in
I s E s t a b l is h e d b y V i r t u e o f t h e A p p e l l a t e
C o u r t ’ s P o w e r o f S u p e r v i s i o n O v e r t h e A d m i n
i s t r a t i o n o f J u s t i c e i n t h e T r i a l C o u r t .
It is now established that the method of selection of
jury panels and jurors by the District Court is subject to
supervision on appeal as . one aspect of the Appellate
Court’s power o f supervision over the administration of
justice by the trial court.
Thiel v. Southern Pacific Co., 328 U. S. 217, 225.
Referring to the Thiel case and other cases involving
appeals from Federal District Courts, the Supreme Court
in the case of Fay v. New York, 332 TJ. S. 261, said:
_ “ Over federal proceedings we may exert a super
visory power with greater freedom to reflect our no
tions of good policy than we may constitutionally
exert over proceedings in state courts, and these ex
pressions o f policy are not necessarily embodied in the
concept o f due process.”
Inasmuch as those matters which are embodied in the
concept of due process must of necessity be included in
any notions of “ good policy,” the cases originating in both
the state courts and the federal courts are applicable here;
the broadest rule to be drawn from these cases constitutes
the measure to be applied to the selection of jurors in this
case.
( 2 ) T h e U s e o f t h e Q u e s t i o n n a i r e s C o n t a i n i n g t h e
Q u e s t io n W h e t h e r t h e P r o s p e c t iv e J u r o r H o ld s
A n y “ V i e w s O p p o s e d to t h e A m e r i c a n F o r m o f
G o v e r n m e n t ” W a s I m p r o p e r a n d I n v a l id a t e d
t h e J u r y P a n e l , P a r t i c u l a r l y i n t h e P r e s e n t
C a s e .
The jury questionnaire sent to all jurors contained the
question, “ Have you any views opposed to the American
form of government?” Any prospective juror who failed
— 124—
— 125
to return the questionnaire was, of course, not considered
for jury service. Likewise, any prospective juror who did
not answer this question had the questionnaire returned to
him and if he then did not return the jury questionnaire,
he was not considered for jury service. Thus, a reply to
this question, in effect, became a requirement for jury
service.
Nowhere in the statute establishing the qualifications
for jury service is there any reference to a person’s views,
unless it be deemed that the phrase “ good and lawful per
son” found in the statute refers to a person’s ideas or
beliefs. It is submitted that this phrase is intended 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. Can it be said that
any person who has some view opposed to the American
form of government is not a good and lawful person?
What are “ views opposed to the American form of gov
ernment?” There are those who will argue that any per
son who challenges the doctrine o f “ state’s rights” is op
posed to the American form of government; others would
contend that individuals who support the allegedly in
violable right of a state to discriminate against Negroes
in voting, are in turn opposed to the American form of
government.
It can hardly be doubted that in the City of Washington
there are many persons who would hesitate to answer this
question, and who therefore would either not answer it in
the first instance or would fail to return the questionnaire
because o f the presence of this question. The fact that the
question is apparently made a test for jury service in
evitably instills in the minds of the prospective juror the
concept that it is his responsibility not merely to sustain,
as of course every juror must, the Constitution, in ac
cordance with the instructions o f the Court, but that there
is something very wrong with the person who does not
believe that the present form of government should con
tinue completely unchanged. The prejudicial effect of this
— 126—
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 member of the Communist Party,
cannot be doubted.
The case of Gideon v. U. S. (C. C. A. 8th, 1931), 52 F.
2d 427, is a Volstead Act case in which a challenge was
made to the jury panel on the ground that a questionnaire
was used which contained the following questions : “ Ques
tion : Are you a member o f any church, and, if so, what
denomination?” “ Question: Are you in favor of prohibi
tion?” The trial court denied the challenge. In reversing
the trial court the Circuit Court said:
“ The effect o f the questionnaire upon the jurors
must have been baneful; they must have been led to
believe that the government had some purpose in
asking questions about their beliefs, and was keeping
a record of the answers for future use; they doubt
less were led to believe also that, in the minds of
government officials, at least, their usefulness as
jurors was in some way affected by the beliefs about
which inquiry was made; and it is not impossible that
they were led to think that the government intended
to influence them in their beliefs. Had such a ques
tionnaire been sent out by attorneys for some of the
defendants awaiting trial, we cannot doubt that the
proceeding would have been open to severe criticism.
W e cannot escape the conviction that the sending of
the questionnaire under the guise o f governmental
authority was equally reprehensible.
“ The qualifications of a juror should be ascertained
by questioning in open court in the presence o f the
parties interested and while the juror is under oath.
Secret preliminary questioning is unauthorized, and,
in our opinion, should not be encouraged. It is open
to the danger of many and serious abuses, and
trenches upon the broad ground of fair trial.” (P
429.)
Membership in the Communist Party is generally con
sidered as involving the holding of some views opposed to
the American form of government. The defendant here
127—
was charged with having refused to answer a question as
to his membership in the Community Party, and the evi
dence showed that in responding to the question, the de
fendant had asserted that the Committee had no right to
ask it. Yet he was forced to trial before a jury whose
members had been required, as a condition of becoming
jurors, to state that they had no views opposed to the
American form of government. The jurors thus selected
were likely to be among those most prejudiced against the
position taken before the Committee by the defendant.
Furthermore, by reason of the fact that they had been
questioned concerning their views, the jurors had been
indoctrinated with the concepts that such a question would
not be considered objectionable and that a negative answer
to the question was required. Such a jury was not an
impartial jury within the meaning of the law.
( 3 ) T h e D e f e n d a n t ’ s R i g h t t o a n I m p a r t i a l J u r y
D r a w n F r o m a C r o s s - S e c t i o n o f t h e C o m m u n i t y
W a s A b r o g a t e d b y t h e E s t a b l i s h m e n t o f Q u a l i
f i c a t i o n s f o r J u r y S e r v ic e O t h e r T h a n T h o s e
R e q u ir e d b y S t a t u t e a n d W h i c h L i m i t e d t h e
R e p r e s e n t a t i v e C h a r a c t e r o f t h e J u r y .
Title 11, Section 1417, of the District o f Columbia Code
sets forth the requirements for jury service. The only
intelligence requirement is the ability “ to read and write
and to understand the English language.” Yet persons
who were obviously able to read, write, and understand
were disqualified because they had not met the alleged
intelligence standards arbitrarily applied by the Jury Com
mission.
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 must not be
allowed.
State v. District Court, 86 Mont. 509, 284 Pac. 266 ;
State v. Radon, 45 Wyo. 383, 19 P. 2d 177.
128-
In the case of Reynolds v. State, 199 Miss. 409, 24 So.
2d 781, jurors were eliminated on the basis of “ trying to
select men who would make good jurors.” For example,
there were eliminated “ some who, on account of old age,
or being out of the county on some kind of job, or maybe
some who were sick or had sickness in their home, maybe
some in the service, in order to keep so many from being-
served who would have to be excused.” In holding that
the panel was illegally selected, the Court said:
“ It will be seen that in effect this action by these
officers was a purging or revision o f the supervisor’s
list regularly selected and for which action by the
officers there is no sanction of law.”
Here, too, there was a purging of the list of eligible
jurors rather than an examination of the questionnaires
for the purpose of determining whether the jurors had the
qualifications required by statute. Cf. Jackson v. Jordan,
135 So. 138 (101 Fla. 616).
Our notions “ of what a proper jury is has become in
extricably intertwined with the idea of jury trial” and
“ . . . have developed in harmony with our basic con
cepts of a democratic society and a representative govern
ment.”
Glasser v. U. S., 315 U. S. 60, 85.
No hidebound approach can appropriately deal with such
an issue. What may once have received long and uncriti
cal acceptance, must meet anew the ever-present challenge
of the “ basic concepts of a democratic society.” If the
system used for selection of jury panels falls short of this
test, its use may not be permitted.
A jury must be “ a body fully representative of the
community.” ( Smith v. Texas, 311 U. S. 128.) The test
is not whether the jury panel or the jury contains, or does
not contain, representatives from all groups in the com
munity; rather it is whether there has been discrimination
against any group whatsoever. It is the duty of those
charged with the selection of jury panels to see to it that
discrimination does not exist.
Thiel v. Southern Pacific Co., 328 U. S. 217.
■129—
Obviously, officials charged with choosing jurors may
exercise some discretion to the end that competent jurors
may be called. But they must not allow the desire for
competent jurors to lead them into selections which do not
comport with the concepts of the jury as a cross-section
of the community.” ( Glasser v. U. S., 315 U. S. 60, 85-6,
86 L. Ed. 680, 707.) What is it that must be avoided?
“ Tendencies, no matter how slight, toward the selec
tion of jurors by any method other than a process
which will insure a trial by a representative group are
undermining processes weakening the institution of
jury trial, and should be sturdily resisted. That the
motives influencing such tendencies may be of the
best must not blind us to the dangers of allowing any
encroachment whatsoever on this essential right.
Steps innocently taken may one by one lead to the
irretrievable impairment of substantial liberties.”
Glasser v. U. S., supra.
Likewise, in Smith v. Texas, 311 U. S. 128, the Court
said:
“ 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. Persons in the latter category
were disqualified because of poor handwriting or the man
ner in which questionnaires were filled out; those in the
higher economic classifications were not so disqualified.
Regardless of motive and whether the system o f selection
be denominated ingenuous or ingenious, the result is the
same— discrimination against those in the lower economic
groups— a method of selection contrary to statute and not
130—
calculated to obtain a jury truly representative of the com
munity— a method of selection not consistent with our
concepts of the democratic process.
As the Supreme Court said in the Thiel case, were the
Court to allow such a system to stand, it would “ encourage
whatever desires those responsible for the selection of jury
panels may have to discriminate against persons of low
economic and social status. W e (the court) would breathe
life into any latent tendencies to establish the jury as the
instrument of the economically and socially privileged.”
( 4 ) T h e C o u r t E r r e d i n R e f u s i n g t o R e q u i r e t h e
J u r y C o m m i s s i o n e r t o C o m p l y W i t h t h e S u b
p o e n a D u c e s T e c u m I s s u e d b y t h e D e f e n d a n t ,
a n d i n O r d e r in g t h e C o m m i s s i o n e r N o t t o C o m
p l y W i t h t h e P o r t i o n T h e r e o f W i t h W h i c h
t h e C o m m i s s i o n e r W a s D e s ir o u s o f C o m p l y i n g .
The defense subpoenaed all of the questionnaires, includ
ing those of disqualified jurors, from which the panel in
the case had been chosen and later requested that at least
certain selected representative questionnaires be made
available in the trial. The Court quashed the subpoena
and denied defendant’s request. This was clear error. As
is stated in the case of Glasser v. U. S., supra, 315 U. S.
6 0 , 8 7 :
“ . . . it is error to refuse to hear evidence offered
in support o f allegations that a jury was improperly
constituted.”
It would seem equally clear that it is error to refuse to
require the jury commissioner to produce the evidence upon
which the defense of necessity must rely in establishing
that a jury was improperly constituted.
131—-
X III.
The Court Committed Prejudicial Error in Denying
Defendant’s Motion to Transfer the Trial From
the District of Columbia.
The defendant seasonably filed two motions under Rule
21(a) of the Federal Rules of Criminal Procedure to
transfer the cause from the District o f Columbia. The
first motion, supported by the affidavit of Robert W.
Kenny, was filed in January, 1948 (J. A. 13-14), con
currently with the filing o f the motions to dismiss the
indictment. The motion to transfer was denied. There
after and prior to the commencement o f trial and prior to
the impanelment of any juror, the motion was renewed
(J. A. 19) upon the basis o f a second and supplemental
affidavit of Robert W . Kenny. (J. A. 20.) This second
and supplemental affidavit was not controverted by counter
affidavits o f the government. The second motion for
transfer was likewise denied.
In support of the motion for transfer the defendant
showed:
1. The overwhelming majority of all men and women
called to jury duty (grand or trial) in the District of
Columbia are employees of the Federal Government or
closely related to such employees.
2. The principal prosecuting agency in this case was
the House Committee on Un-American Activities, with
contempt of which the defendant was charged.
3. The Committee had by press dispatches, radio an
nouncements, published statements, and other widely cir
culated charges, announced that it would seek the dis
charge of any Federal employee whose loyalty was in
doubt; and the Committee publicly asserted that any
Federal employee who expressed sympathetic association
— 132—
with any members o f any one o f a long list o f organiza
tions, or who were members of such organizations, were
persons of doubtful loyalty who should thus be discharged.
4. The organizations of which the defendant was an
alleged member or with which he maintained sympathetic
association, were all made public to the world by the
Committee via the press, over the radio, in newsreels, and
official publications and were o f the class so widely de
nounced by the committee.
5. The Committee had called publicly for the discharge
and impeachment even of the highest Government officials
who allegedly had refused to perform any request of the
Committee for information on government employees, and
that among such officials whose right to further govern
ment employment was thus challenged were Attorney
General Clark and Secretary of Commerce Harriman.
6. The existence of fear and terror among government
employees as a result o f this Committee’s activities and the
dangers besetting any such employee who might not agree
with the Committee in every respect, was a fact of wide
spread and common knowledge in Washington; and, in
support thereof the statement of a noted commentator who
wrote about this prevailing fear among government em
ployees as follows:
“ This committee has been used to frighten and
smear Americans who really believe in the Constitu
tion and do their honest best to live up to it. It has
been used as political blackmail. It has been used to
endanger fear in the minds of candidates for public
office. It has terrorised government employees, more
particularly those depending upon the will, too often
erratic, of the Congress. Their security and tenure
of office can be endangered by the ruthless exercise
of power by an irresponsible witch-hunting commit
tee that has no understanding of the phrase, self-
restraint.” (Emphasis supplied.) (Harold L. Ickes,
writing from Washington, in a syndicated column for
June, 1947.)
133
7. That in addition to the impact o f the activities of
this Committee upon the lives of Federal employees, dur
ing 1947 and 1948 and when this cause was tried, there
was in effect an Executive Order No. 9835, which sub
jected any Federal employee to discharge who evidenced
“ sympathetic association” with any organization among
which were many organizations publicly supported by this
defendant for many years.
8. That support for the position o f the defendant in
this contempt proceeding instigated by this House Com
mittee, would necessarily be evidence of some sympathetic
association with the defendant and with those organiza
tions the defendant supported; it would at least be such
evidence, (nay, even stronger than most evidence used by
this Committee) as to provoke the reasonable fear of re
prisal at the hand of the Committee which on much more
tenuous grounds had pilloried Doctor Ernest Condon,
Attorney General Clark, Secretary of Commerce Harri-
man, and Mrs. Franklin D. Roosevelt.
The foregoing matters summarize the unchallenged
supplementary affidavit in support o f the motion for trans
fer. But the motion was denied on the strength of the
Woods case, 299 U. S. 123.
The great majority of all persons on the jury panel
from which the trial jury in the case at bar was chosen,
were either government employees, or very close relatives
o f such employees. Each of the government employees
was challenged by the defendant for cause; the challenge
was denied by the Court. (J. A. 166.) A like challenge
to each juror having a close relative in government em
ployment was likewise denied. (J. A. 166.)
Having exhausted its three peremptory challenges be
cause o f the large number o f persons on the panel who
were government employees, or near relatives of govern
ment employees, the defendant asked for additional per
emptory challenges which were denied. (J. A. 166.)
The defendant contends that he was denied the protec
tion of the Sixth Amendment to the Federal Constitution
in that the trial jury consisting as it did o f government
- 134-
employees, and close relatives of such employees, was not
in truth and in fact, an impartial jury, in the light of the
nature and character o f this particular criminal case, and
in the light o f the matters set out in the affidavits in sup
port of the motion to transfer.
The government relies upon the case of U. S. v. Woods,
299 U. S. 123. There the Supreme Court upheld the
validity o f the Act o f Congress (49 Stat. at Large 682),
rendering government employees no longer legally in
eligible for jury service in the District. But careful con
sideration of the case is essential to its proper understand
ing, and serves to distinguish it from the case at bar.
There the respondent was convicted o f petty larceny; the
larceny was from a store of a private corporation (p.
148.) The Court went on to state:
“What possible interest in such a case has a govern
mental employee different from that o f any citizen
who wishes to see crime punished but is free from any
bias against the alleged offender?”
Then the Court says:
“ It is said that particular crimes might be o f special
interest to employees in certain governmental depart
ments, as for example, the crime of counterfeiting, to
employees of the Treasury. But when we consider
the range of offense and the general run of criminal
prosecutions, it is apparent that such cases of special
interest would be exceptional.” (Emphasis supplied.)
W e submit that this case, under the circumstances dis
closed, is of special interest and is the exceptional case re
ferred to by the majority in the Woods decision. The
injured or aggrieved party in this prosecution is not a
private corporation victimized by larceny, but a Committee
of the Congress, which at the very time of this trial was
establishing conditions for government employment, and
which had established widely published standards describ
ing as disloyal and unworthy of further employment, any
Federal employee who might express sympathetic associa
tion with any one of the class of persons to which defend
135-
ant allegedly belonged. The result o f any jury vote by
such Federal employee must necessarily constitute either
censure of, or approbation of that Committee and of its
activities; and such a vote could scarcely be taken freely
and impartially in Washington, D. C. by government em
ployees before whose eyes stood the resolution promulgated
by this same House Committee on January 2, 1947, con
taining this warning to these employees:
“ Resolved that the Congress create an independent
Commission with authority to investigate and to order
the discharge of any employee or official of the Fed
eral government whose loyalty to the United States
is found to be in doubt.”
Discharge through the action of this Committee was
threatened for any government employee whose loyalty
was “ in doubt” — whether actually disloyal or not. In
such a strained setting can it be argued that government
employees could dispassionately and impartially 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 challenged the standards set up by this Com
mittee and who had repeatedly criticized the Committee in
his testimony before it on October 27, 1947, when he was
a subpoenaed witness, and which testimony was the heart
o f this criminal contempt case which the government em
ployee-juror was to pass upon? The rule of the Crawford
case, 212 U. S. at p. 193-6, is the rule we believe should
be applied to this exceptional case (incidentally, the Woods
case does not reverse the Crawford case; the sweep of the
Crawford case is there confined to “ exceptional cases, but
not to all criminal cases).
Crawford v. U. S., 212 U. S. at p. 193-6:
“ A jury composed o f government employees where
the government was a party to the case on trial would
not in the least conduce to respect for, or belief in,
the fairness of the system of trial by jury. To main-
-1 3 6 -
tain that system in the respect and affection of the
citizens of this country it is requisite that the jurors
chosen should not only in fact be fair and impartial,
but that they should not occupy such relation to either
side as to lead, on that account to any doubt on that
subject. . . .
“ Bias or prejudice is such an elusive condition of
the mind that it is most difficult, if not impossible, to
always recognize its existence, and it might exist in
the mind o f one (on account o f his relations with one
of the parties) who was quite positive that he has
no bias, and said that he was perfectly able to decide
the question wholly uninfluenced by anything but the
evidence. The law, therefore, most wisely says that,
with regard to some o f the relations which may exist
between the juror and one o f the parties, bias, is im
plied, and evidence o f its actual existence need not be
given.
“ The position of the juror in this case is a good
instance o f the wisdom of the rule. His position was
that of an employee who received a salary from the
United States, and his employment was valuable to
him, not so much for the salary as for the prospect
such employment held out for an increase in his busi
ness from the people who might at first come to his
store for the purchase o f stamps, etc. It need not be
assumed that any cessation o f that employment would
actually follow a verdict against the government. It
is enough that it m i g h t p o s s ib l y b e t h e c a s e ; and
the juror ought not to occupy a position of that na
ture to the possible injury of a defendant on trial,
even though he should swear he would not be in
fluenced by his relation to one o f the parties to the
suit in giving a verdict. It was error to overrule the
defendant’s challenge to the juror.” (Emphasis sup
plied. )
The effect o f the Woods case upon the decision in the
case at bar is further conditioned by the grant o f a writ
of certiorari by the Supreme Court on April 19, 1948, in
137—
the case of Frasier v. U. S. (No. 213, Misc. 92 L. Ed.
Adv. Op. 758), in which case there is involved again the
question o f the qualification o f a Federal employee to sit
as a trial juror in a criminal proceeding affecting directly
one o f the departments o f government. The case is as yet
undetermined, but indicates that the problem has not been
laid at rest forever by the Woods case.
In any event there was no showing in the Woods case
o f the very probable existence of bias or prejudice on the
part of the government employees, as against the particular
defendant; such a showing was made in the case at bar by
the affidavits filed in support o f the motion, portions of
which are quoted above. (See statement Ickes cited above;
and see “ Washington Witch-Hunt,” by Bert Andrews,
published by Random House 1948.)
The showing here made directly invokes the principle
underlying Rule 21(a) of the Federal Rules o f Criminal
Procedure, and renders apposite the rule of People v.
Nathan, 139 Misc. (N . Y .) 345, 249 N. Y. Supp. 395.
“ Obviously, it is not within the realm of possibility
to determine, with mathematical accuracy, the ex
istence of prejudice or the extent thereof. It has been
held, therefore, that the true test is not the mere pos
sibility of selecting an apparently unprejudiced jury,
but whether from the circumstances of a particular
case, there is a strong probability that bias exists in
the community where the indictments are pending.”
Certainly there was a strong probability o f the existence
of such bias on the part o f government employees, caused
by the activities o f the very Congressional Committee
whose conduct was drawn into question in this particular
case where the issue was whether defendant had inten
tionally and deliberately refused to answer a question put
to him by that Committee.
— 138—
X IV .
The Court Committed Prejudicial Error as a Result
of (A ) the Method Employed in Impanelling the
Trial Jury, and (B ) the Denial o f Defendant’s
Challenges to Government Employees for Cause,
and (C ) the Refusal to Grant the Defendant A d
ditional Perem ptory Challenges, and (D ) the Re
fusal to A llow Defendant to Put Certain Material
Questions on V oir Dire to Proposed Jurors.
Even if it be contended that government employment
did not operate in this particular case as a disqualification
as a matter of law, nevertheless under the Woods case,
the Court owed the duty to the defendant to allow the
fullest possible inquiry as to actual bias because of such
government employment. As the Supreme Court there
said:
“W e repeat that we are not dealing with actual
bias, and, until the contrary appears, we must assume
that the Courts of the District, with power fully ade
quate to the occasion, will be most careful in those
special instances, where circumstances suggest that
any partiality may exist, to safeguard the just in
terests of the accused . . . In dealing with an
employee of the government, the Court would prop
erly be solicitous to discover whether in view of the
nature or the circumstance o f his employment, or of
the relation o f the particular governmental activity
to the matters involved in the prosecution or other
wise, he had actual bias, and, if he had, to disqualify
him.”
Here the Court was neither “ careful to safeguard the
just interests o f the accused,” nor “ solicitous to discover
whether in yiew of the nature or circumstances pf his em
■139—
ployment or o f the relationship to the particular govern
mental activity he had actual bias” because:
(1 ) The Court carefully screened every single
question on voir dire which the defense was allowed
to put to a proposed juror; every proposed question
was first submitted to the Court by the defense in
writing, and the slightest deviation from the written
question brought censure before the jury upon de
fense counsel; but the government was permitted to
put its questions directly to the proposed jury without
first submitting them in writing either to the Court
or the other side:
(a ) See J. A. 100-18 showing the “ fine-tooth-comb”
manner in which the Court scrutinized every
word in every question which the defense pro
posed to ask each prospective juror, changing
many questions and refusing to allow the de
fendant to put to the venire proposed questions
on voir dire numbers 12, 13, 15, 18, 19, 20, 21,
22, 23, 24, 40, 42, 43, 44, 45, 46, 47, 48, 58, 61,
65, 66, 67, 68, 69, 77, 78, 79, 80, 81, 82, 83, 85,
86, 87, 88, 89, 90, 91 and 92. (J. A. 32-42.)
But the prosecution was allowed to put its ques
tions directly to the proposed jurors without first
submitting them in writing. (J. A. 100, 119-29,
130.)
(b ) The slightest deviation from the written form
of the defense question brought censure.
“ Mr. Kenny: Do you believe that a man, who,
it is claimed, is a member of the Communist
Party has any lesser right with respect to his
political affiliation than a man who, it is claimed,
is a member of any political party?
(N o response).
“ The Court: Mr. Kenny, I must insist that
you ask the question and not repeat it in other
l a n g u a g e ( J . A. 138.)
(c ) Nor could a question be repeated by the defense
— even though the venireman asked that the ques
tion be repeated:
“ ‘Are you now, or have you ever been, a
member of the Communist Party?’
Each o f you individually think that over.
Would it make any difference in your frame of
mind in judging a man who refused to answer
the question:
‘Are you now, or have you ever been, a mem
ber of the Democratic or Republican Party?’
A Venireman: Would you repeat that entire
question ?
Mr. Kenny: Thank you. I thank you for
your attention to that question. I will concede
that it is a long, involved question, but it is a
critical one.
Supposing that a man were charged with con
tempt of Congress for allegedly refusing to an
swer the question:
‘Are you now, or have you ever been, a member
of the Republican or Democratic Party?’
Now, would your attitude or frame of mind
toward such a defendant be any different than
your attitude or frame of mind toward Mr. Law-
son, who is here charg-ed with refusing to answer
the question:
‘Are you now, or have you ever been, a mem
ber of the Communist Party?’
The Court: Let us not repeat that question.
It has been repeated.
Mr. Kenny: I shall not, your Honor.” (J.
A. 137-8.)
— 140—
■141—
(2 ) The defense desired to have the proposed
jurors in the box so that it could see them, their re
sponses and their demeanor, while answering. (J. A.
121-2 .)
The following transpired:
“ Mr. Kenny: Your Honor, I understand the
procedure was that we would have the jurors in
the box.
The Court: I don’t do that. I qualify the
panel as it is and not go through it two or three
times. If you get 12 in the box and six are
excused for cause, you have to bring up six more
and go through it all again.
Mr. Kenny: I accede to Your Honor’s rul
ing, but I respectfully object to it because we
think the defendant’s rights are not protected
unless the jurors are individually in the box so
that we may identify the jurors and speak with
them and know what jurors we are addressing
ourselves to.
The Court: Well, they are right back there;
you can talk to them and take a look at them.
Proceed.”
The defense tried to show the difficulty in selecting the
jury with them sitting “ right back there” by describ
ing the physical condition o f the courtroom; this ef
fort brought sharp criticism from the Court (J. A.
130-2):
“ Mr. Katz: W e want the record to show our
objection to the process by which Mr. Hitz pro
posed questions orally to the panel without our
having had an opportunity in advance to inter
pose objections to those questions, in the manner
in which the defense proceeded— that is, submit
ting an outline list o f proposed questions to the
1 4 2 -
Government, the Court permitting the Govern
ment to be heard, and the Court ruling on the
precise questions which the counsel for the de
fense could ask, before any questions were put
to the jury.
The Court: Very well.
Mr. Katz: W e should like the record, fur
ther, Judge Curran, if you will be kind enough to
do so, to contain some graphic depiction of the
physical surroundings of the courtroom, showing
where the defendant sat while Mr. Hitz interro
gated the panel and where the panel itself sat,
so that our record, if there is an appeal, may be
presented in the form of giving the reviewing
court as visually as possible the picturization of
the setting. W e should like to have the record
show, Mr. Hitz, if you will agree that this is the
physical setup, that the panel—-proposed jurors—
sat in the rear o f this courtroom, which is the
Department No. 3; that between the panel of
proposed jurors and the defendant there was a
row, and there is a row, o f seats occupied by
ladies and gentlemen of the press; that between
the panel— proposed jurors— and the ladies and
gentlemen of the press there is an aisle; that
there is then an aisle between the ladies and
gentlemen of the press and the counsel table, at
which the defendant and his counsel sit; and that
for the defendant to see the panel o f jurors, he
must look past this row of newspaper men and
women.
The record should show our request that the
impanelment of the jury take place in the form
as follows: of having the proposed jurymen take
the box and be seated—
143—
The Court: Now, look, I am conducting this
trial.
Mr. Katz: I am not suggesting that you are
not.
The Court: I do not want any more reference
to that. I run this court in the way I deem
proper.
Mr. Katz: I do not want to imply that you
do not.
The Court: I do not want any more reference
to the courtroom, the jurors, or where the de
fendant sat.
Mr. K atz: With that ruling, I shall, of course,
refrain from making the statement which I should
otherwise wish to make to complete the record.
The Court: Very well. Let us proceed.”
Following such a circumscribed process o f jury selection,
the Court denied the defendant’s challenge to the Govern
ment employee jurors (J. A. 166), and denied the defense
request for additional peremptory challenges so that it
might attempt to get non-government employees into the
jury box. (J. A. 166.)
This was a far cry from that solicitous district trial
judge envisioned by our Supreme Court in the Woods case
— “ careful to safeguard the just interest o f the accused”
and “ solicitous to discover” whether the government em
ployee did in fact have actual bias. It is difficult enough
ordinarily to ferret out that elusive and subjective condi
tion— bias— ; it became impossible to do so under the proc
ess directed and the rulings made in the case at bar.
— 144
X V .
It W as Error for the Trial Court to Refuse to Dis
qualify Himself Following the Filing of the Ap
pellant’s Affidavit of Bias and Prejudice.
Immediately after the cause was transferred for trial by
the presiding judg'e to Mr. Justice Curran, defendant filed
an affidavit of bias and prejudice, asserting that the said
judge had, immediately prior to his elevation to the bench,
been the United States Attorney for the District o f Colum
bia, and as such had represented the House Committee on
Un-American Activities and had given advice to that Com
mittee in connection with certain prosecutions for contempt
of said Committee; the appellant contended that since this
case involved that same House Committee and involved
charges not substantially dissimilar from earlier contempts
which had been prosecuted by the office headed by the then
District Attorney, the present Mr. Justice Curran, that
under 28 U. S. C. 24 and 25, the said trial judge should
have disqualified himself.
On April 13, 1948, and immediately after the said ruling
of the trial judge, appellant filed a petition for mandamus
and for leave to file petition for writ o f prohibition in this
Court (Miscellaneous No. 142, U. S. App. D. C., April
13, 1948) ; the petitions were denied by this Court without
written opinion. This point will not be argued herein at
length. Appellant does assert, however, that a disqualify
ing interest exists on the part o f a trial judge in a criminal
prosecution where that trial judge has represented the
very governmental agency involved before him and where
the subject matter is one as to which he has advised that
agency concerning its powers and the nature of the rights
of witnesses before it.
Finally, it is to be noted that the answering affidavit
filed in opposition to the petition for mandamus did not
deny that said Justice Curran had prosecuted similar cases
involving the same agency, but merely asserted that the
prosecution was not actually managed and handled by Mr.
Justice Curran, having been managed and handled instead
by one of his subordinates. This was, of course, complete
ly insufficient to reach the point of “interest.”
— 145—
XV I.
Defendant’s Motion to Dismiss the Indictment (J. A.
6, 11), Motions for Acquittal (J. A. 296-300, 341-
2), and Motion for a New Trial (J. A. 44) Were
Erroneously Denied.
The errors committed by the Court in denying the afore
said motions are fully covered in the other points in this
brief and will not be repeated here. The motion for new
trial should have been granted for the reason, if no other,
that the verdict was not supported by substantial evidence.
X V II.
The Trial Court Committed Prejudicial Error in
Quashing Defendant’s Subpoenas Duces Tecum
(J. A. 318-28, 345-6).
The materiality of the evidence called for by defendant’s
subpoenas duces tecum is fully covered in the various points
o f this brief and need not be repeated here.
Conclusion.
I.
American democracy is no accident; it is the majestic
product of a vigorous, experimental and passionate his
tory. This nation came into existence as the result of a
purposeful struggle against governmental tyranny. The
heritage of Thomas Jefferson— “ Rebellion to Tyrants is
obedience to God”— remains with us, embodied in our in
stitutions and traditions. The spirit o f Inquisition, which
was abjured in the Declaration of Independence, has al
ways been obnoxious to our political and social life. Equal
ly, it has found no tolerance in our legal codes, our legal
traditions, our juridical morality. Due process has meant
a fair, legal process. Liberty has meant genuine, concrete
liberty for the individual citizen— his right to freedom
from search and seizure, his right to privacy, his right to
be free of persecutory inquisition on ground of race, color
creed, political opinion or association.
This traditional, tolerant, flexible democracy must not
be sapped, calcified or corrupted. A few men, temporarily
in the seat of government, have promulgated the validity
of inquisitorial procedures into the lives and beliefs of
citizens. Armed with their own prejudices, with their
own rules of procedure, with the power and dignity of
Congress, they tried to become the censors o f the nation’s
thought. That which the sobriety of our law, the majesty
o f our Constitution, the heart-blood o f our tradition, all
reject— was practiced with impunity in the stifling at
mosphere o f a fomented hysteria.
The daily newspapers attest to the resurrection in
America of the infamous Star Chambers o f England. The
House Committee on Un-American Activities o f the
Eightieth Congress sat in judgment upon the conduct and
opinions of all citizens, assuming the license to conduct
trials by headline, to render verdicts without evidence or
cross-examination, to prosecute, vilify and promote the
economic blacklist of individuals in its disfavor— and all
o f this under the guise of an inquiry for the purpose of
proposing legislation.
This public infamy is neither capricious nor the acci
dental by-product o f other effort. The conduct o f this
committee over years reveals a sober, calculated and sinis
ter purpose, namely: to frighten and coerce the citizenry
into a new concept o f loyalty to the state. The nature o f
this new, demanded loyalty has been well described:
“ What is the new loyalty? It is, above all, con
formity. It is the uncritical and unquestioning ac
ceptance of America as it is— the political institutions,
the social relationships, the economic practices.”
(Prof. Henry Steele Commager, Harper’s Magazine,
Sept., 1947.)
The bitter price of these inquisitorial activities, if left
uncurbed, will be paid by the entire nation. The current
— 146—
- 1 4 7 -
victims o f this Committee (and o f its increasing number
o f emulators in city, county and state), are only the first,
minor casualties o f a vaster tragedy to come. The latter
has already been envisioned by the Supreme Court:
“ Those who begin coercive elimination of dissent
soon find themselves eliminating dissenters. Com
pulsory unification o f opinion achieves only the uni
fication of the graveyard.” ( Board o f Education v.
Barnette, 319 U. S. 624, 641-642 (1943).)
The impact o f these inquisitorial procedures, and o f the
atmosphere they engender, is already seriously destructive
to the national fabric. Tolerance yields before suspicion,
mob violence, consorship. In Philadelphia the police raid
book-stores without warrant; in New York hitherto ac
ceptable volumes are suddenly removed from school li
braries; in a dozen universities learned men are dismissed
for holding “ wrong” opinions; radio commentators in
imical to the House Committee are dropped from net
works. These are but a few examples o f the plague
spots now visible on the body of the community.
Particularly in the fields of ideas, o f scientific investiga
tion, o f cultural and literary production, our traditional
free exchange and free creation are rapidly giving way to
suspicion, fear, silence, withdrawal. This situation is
attested to by the leading professionals within those fields.
“ Atlantic City, N. J., Mar. 19, 1948.
“ Five of America’s leading scientific societies, meet
ing here as constituent members o f the Federation
of American Societies for Experimental Biology,
adopted resolutions at membership meetings today
‘deploring the actions and procedures’ o f the Con
gressional Committee on un-American Activities as
‘inimical to the nation’s good’ . . . ‘The effective
use of scientific manpower in Government positions
is endangered . . (N . Y . Times, March 20,
1948.)
■148—
This calamitous impact in the field o f science has its
counterpart in literature and the arts:
Statement by 132 members of the National Insti
tute of Arts and Letters, Feb., 1948.
“ To the Speaker o f the House o f Representatives.
Sir:
We, the undersigned, a group o f members o f the
National Institute of Arts and Letters, an honorary
organization of American writers, artists and musi
cians, protest against the methods employed by the
Committee on un-American Activities in its examina
tion o f certain writers recently summoned before it
. . . The right of any American to think as he
pleases and to say what he thinks is a right of par
ticular importance to us because upon it rests the
freedom of the creative artist and, by consequence, the
vitality of the creative arts. The methods employed
by the Committee on Un-American Activities result
in an indirect form of censorship. This is proved by
the recent action o f the motion picture industry in
blacklisting the writers who defied the committee.
Such censorship, even in the case o f those whose
political beliefs we vigorously oppose, endangers the
very structure of our traditional free art and free
literature in the United States.” (Author’s League
Bulletin, March, 1948.)
Sentiments similar to the above have been vigorously
expressed by the Authors League of America, by assembled
professionals in the arts all over the nation. The concrete
result o f this intimidation and indirect censorship by the
House Committee has best been expressed by William
Wyler, distinguished motion picture director, winner o f
the 1946 Academy Award for direction of the film, “ The
Best Years of Our Lives” : “ I wouldn’t be allowed to
make The Best Years of Our Lives in Hollywood today.”
(Radio broadcast, October 26, 1947.)
*
II.
A t this truly grave moment in our nation’s growth it is
in the power of this Court to speak forthrightly in the
language of Coke, Camden, and Bradley, in the language
o f the many illustrious jurists for whom the frenzy of the
political market place never blurred the meaning of free
dom.
“ Under our constitutional system courts stand
against any winds that blow as havens of refuge for
those who might otherwise suffer because they are
helpless, weak, outnumbered, or because they are non-
conforming victims of prejudice and public excite
ment. * * * No higher duty, nor more solemn
responsibility, rests upon this Court, than that of
translating into living law and maintaining this con
stitutional shield deliberately planned and inscribed
for the benefit of every human being subject to our
Constitution— of whatever race, creed or persuasion.”
oChambers v. Florida, 309 U. S. 227, 241 (1940).)
What is required at this moment of this Court is not
innovation, but rather a restatement of the glowing prin
ciples by which the history of the western world has given
dignity to its citizens:
“ Historical liberties and privileges are not to bend
from day to day because o f some accident o f imme
diate overwhelming interest which appeals to the feel
ings and distorts the judgment. A community whose
judges would be willing to give it whatever law might
gratify the impulse of the moment would find in the
end that it had paid too high a price.” (Cardozo, J.,
Matter o f Doyle, 257 N. Y. 268.)
The issue is momentous, o f far-reaching implication,
and the ruling of the Court will be a categorical impera
tive whose cumulative effect will be seen only in the full
ness of time.
“ Nothing less is involved than that which makes
for an atmosphere of freedom as against a feeling o f
— 149—
- 150-
fear and repression for society as a whole. The
dangers are not fanciful. W e too readily forget
them. Recollection may be refreshed as to the hap
penings after the first World W ar by the ‘Report
Upon the Illegal Practices of the United States De
partment of Justice,’ which aroused the public concern
of Chief Justice Hughes (then at the bar), and by
the little book entitled ‘The Deportations Delirium of
Nineteen-Twenty’ by Louis F. Post, who spoke with
the authoritative knowledge o f an Assistant Secretary
of Labor.” (Frankfurter, J., dissenting, Harris v.
U. S. (1947), 331 U. S. 145, 173.)
Devotion to Americanism often calls for something
other than conformity. The defendant in the present case
knew that to protect the Constitution, indeed merely to
invoke its protection for all Americans, required courage,
and that hardihood to challenge a wrong done under color
o f authority was as indispensable to good citizenship as
would be, in other circumstances, unquestioning obedience.
President Thomas Jefferson wrote to Benjamin Rush in
a letter dated April 21, 1803:
“ It behooves every man who values liberty of con
science for himself, to resist invasions of it in the case
of others; or their case may, by change o f circum
stances, become his own. It behooves him, too, in
his own case to give no example o f concession, be
traying the common right o f independent opinion, by
answering questions of faith which the laws have left
between God and himself.” (Emphasis supplied.)
In the last analysis, when the moment o f decision comes,
to the private citizen as well as to the judge, it is in the
quiet o f his own mind and in the glow of his own courage
that Americanism thrives. And it is in the cumulative
decision of millions, citizen as well as official, that Ameri
canism is reborn each moment.
■151—
The judgment of the trial court should be reversed with
directions to dismiss the indictment.
Respectfully submitted,
K e n n y and Co h n ,
By R obert W . K e n n y ,
629 S. Hill Street,
Los Angeles 14, California;
Bartley C. Cr u m ,
San Francisco, California;
Gallagher , M argolis, M cT ernan
and T yre,
By Ben M argolis,
Los Angeles, California;
C harles J. K a tz ,
Los Angeles, California;
W olf, P opper, R oss & W olf,
By M artin P opper,
New York, N. Y., and
Washington, D .C .;
Sam uel R osenw ein ,
New York, N. Y.,
Attorneys for Appellant.
A PPEN D IX A.
Statute 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 of 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 of 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.”
(2 ) Sec. 121(b), Legislative Reorganization Act of
1946, 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 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 o f government
as guaranteed by our Constitution, and
“ (iff) all other questions in relation thereto that
would aid Congress in any necessary remedial legisla
tion.
•2-
“ 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 o f 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 Xil, Section 1417 of 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 of the United States, a resident
o f the District of 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 of 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 police
and fire departments of the United States and of the
District of Columbia, counselors and attorneys of law
in actual practice, ministers o f the gospel and clergy
men of every denomination, practicing physicians and
surgeons, keepers of hospitals, asylums, almshouses,
or other charitable institutions created by or under
the laws relating to the District of Columbia, captains
and masters and other persons employed on vessels
navigating the waters of the District o f 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 Colum
bia, all officers and enlisted men of the National
Guard of the District o f Columbia, both active and
retired, all officers and enlisted men of the Military,
Naval, Marine, and Coast Guard Reserve Corps of
the United States, all notaries public, all postmasters
and those who are the recipients or beneficiaries of a
pension or other gratuity from the Federal or District
Government or who have contracts with the United
States or the District of Columbia, shall be qualified
to serve as jurors in the District of Columbia and
shall not be exempt from such service: Provided,
That employees o f 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 de
ducted from any leave of absence authorized by law.”