IN RE SAWYER

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Argument of John T. Mcternan

Chief Justice Earl Warren: Number 326, in the matter of disciplinary proceedings against Harriet Bouslog Sawyer, Petitioner.

Mr. McTernan.

Mr. John T. Mcternan: Mr. Chief Justice, may it please the Court.

We are hereby in certiorari to the Ninth Circuit which affirmed a judgment of the Territorial Supreme Court of Hawaii suspending petitioner, a lawyer, from the practice of law for a period of one year, by virtue of the rules of the local court that suspension is tantamount to disbarment because she cannot get back without taking another examination and passing the character test and I quote from the rule, "As an applicant for admission".

The conduct upon which the matter was tried in the Territorial Court involved two incidents, one was a public speech given in a little hamlet called Honokaa over on the Island of Hawaii.

And the second was a series of interviews of a trial juror after the case in which that juror had served -- had closed and the jury had been dismissed.

Let me -- I will discuss the facts in each of those --

Justice John M. Harlan: How long -- how long after the trial jurors (Inaudible) would take place?

Mr. John T. Mcternan: Five or six days, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. John T. Mcternan: Approximately that.

We contend that the findings of gross misconduct --

Justice William J. Brennan: What I ask is that -- there's no question the jury has been discharged.

Mr. John T. Mcternan: There is no question about that, Your Honor.

Justice William J. Brennan: Not waiting service with another -- another case.

Mr. John T. Mcternan: This juror had served 10 months, Your Honor, in one case and he was dismissed for good.

We contend that the findings with reference to the Honokaa speech are arbitrary and that the discipline imposed upon her involves an infringement of her rights under the First Amendment.

She was found to have impugned the integrity of the trial judge in the remarks that where attributed to her.

Before getting into the details of our argument on that, let me just give you this much background.

Counsel and her firm -- I mean petitioner and her firm were counsel for the ILWU, the dominant labor force in the island.

And the regional director of that organization along with six others was indicted for conspiracy to violate the Smith Act in a case called United States against Fujimoto.

Petitioner was a counsel of record in that case and had been from a day or two after the indictment had been returned.

She was counsel for this regional director whose name was Jack Hall.

The trial had been under way for approximately six weeks at the time of the speech.

And during those six weeks, the Court had her testimony from a witness named Paul Crouch, one of the three perjurious witnesses referred to in an opinion of this Court in Communist Party against SACB.

This man had told a story about galloping over the Russian steppes in 1927 at a time when defendant in the Fujimoto case, Jack Hall, was 14 years old and another defendant was four years old.

And there had been a series of objections and motions to strike with reference to that testimony, and the testimony had been admitted subject to connection and subject to later a motion.

They had also been contentions made to the Court in Fujimoto that the trial should not be held because of the adverse climate of public opinion and similar matters.

Now, the union had set out a defense committee which was doing the job of raising money for the defense, Jack Hall and other people who might be caught in the then political prosecutions that where going on both in Hawaii and elsewhere.

And this Committee called the Union Defense Committee sponsored the meeting at Honokaa at which petitioner gave her speech.

And it says in the record that this was kind of rapport back to this -- this union membership and some of their friends from the public who attended this meeting.

It should be pointed out that -- as I think I've indicated already, that Honokaa is a small rural hamlet over on another island about 182 air miles from Hawaii over open ocean.

It's a little town in the rural section there, the sugar plantation area.

Now, we -- as I say, we attacked the findings that in this speech, petitioner impugned the integrity of the trial judge as arbitrary.

The issue obviously is from the finding of the Court, and that will be found at page 117 of the record or rather at page 118, the paragraph beginning at the top of -- the continued paragraph at the top of the page.

Issue is, did the language, which he used, impugn the integrity of Judge Wiig?

Now, we concede at the outset, because much of it has made of this in appellant's brief, that this speech was largely all then concerning the Fujimoto trial.

Indeed, the speech was critical of the conduct of the Fujimoto trial.

And in one or two passages, it may reasonably be said that petitioner was critical of Judge Wiig.

Justice Felix Frankfurter: What was the stage of the trial?

Mr. John T. Mcternan: It was in progress, Mr. Justice Frankfurter.

Justice Felix Frankfurter: I mean what -- yes --

Mr. John T. Mcternan: There was taking evidence.

Justice Felix Frankfurter: -- I understand that, but -- but how far was the trial gotten?

What kind of issues was put?

Mr. John T. Mcternan: Well, the trial had been in progress for about six weeks.

The Government was putting on its case.

It was tendering the issue the Communist Party or at least some group within the party was engaged in the conspiracy to overthrow the Government by force and violence.

And as I recall the Fujimoto record, the evidence of this man, Crouch, was put on, remote as it was, back in 1927, speaking as of that date, to show the nature of the Communist Party and then apparently, the -- the burden still remained upon the Government to connect this up with the particular defendants who were standing trial there.

There was a --

Justice Felix Frankfurter: Was the case-in-chief of the --

Mr. John T. Mcternan: This was the Government's case-in-chief, yes --

Justice Felix Frankfurter: I understand.

Mr. John T. Mcternan: -- which went on for many months after.

Justice Felix Frankfurter: Cross-examination of Crouch had not yet began, is that it?

Mr. John T. Mcternan: Well, I think, the cross-examination of Crouch had -- may have been concluded by that time.

In any event, I'm -- I'm quite sure that there had been cross-examination of him by the time that this speech was given.

Justice John M. Harlan: What would Mrs. Sawyer's position in the --

Mr. John T. Mcternan: She was --

Justice John M. Harlan: (Inaudible) chief counsel or she --

Mr. John T. Mcternan: She was one of counsel, Your Honor.

Justice John M. Harlan: -- a principal counsel or what?

Mr. John T. Mcternan: The -- various of the defendants were represented by different counsels.

She and her partner, Mr. Simons, were of record for the defendant, Jack Hall.

Justice John M. Harlan: Did she take a lead in the trial?

Mr. John T. Mcternan: No, she was one of counsel.

She was in the trial court much of the time, much -- some of the time, she was out of court because she had, among the division of labors among counsel, a large responsibility for research work in the preparation of papers and motions, various things of that kind.

But she was an active counsel of record, there's no question about that.

Justice William J. Brennan: Well, but did she actually participate in the examination -- cross-examination of witnesses?

Mr. John T. Mcternan: Yes, sir.

Now, we say that the mere fact, and -- and this is an important aspect of appellants -- of -- if respondent's case, as I understand.

The mere fact that she spoke about this trial, the fact that she was critical of the conduct of the trial or that she was critical of Judge Wiig, do not, of themselves, prove that she impugned the integrity of Judge Wiig more than that is necessary to make out the findings which the trial court asserted at the place of the record I've already indicated.

Let me say and I will review the evidence in some detail in a moment by I do want to make the general observations about it, that I find and I think that the Court will look at that speech inveighed upon any direct or explicit evidence that petitioner impugned the -- the judge's integrity.

There was no casting of any reflection upon his honesty, no charge of corruption or political motivation or abuse of power or willful partiality nor is there any evidence of direct and explicit attack upon the District Court or upon the judiciary generally.

Indeed, the general burden of her -- of her talk is in quite a different direction.

The main thesis of her talk where that the Fujimoto trial was a trial of doctrine involving books and ideas, and that this was bad.

Then in a conspiracy case like Fujimoto, the prosecution is predicated upon an alleged agreement to do something not the actual doing of it that in a conspiracy case there is -- like Fujimoto, there is great latitude in the receipt of evidence of third party declarations and third party conduct, that this latitude was necessary for the Government to make its case, and that the Government was constantly pressing for greater latitude in these respects.

And these characteristics of Fujimoto are not found in prosecutions for the substantive offense and they raise grave questions of vicarious guilt and finally, the thesis that the Government's pretrial propaganda in the FBI methods of recruiting witnesses had cast a -- a heavy cloud of unfairness upon the trial.

Justice John M. Harlan: Am I right in thinking that the actual test of what you said in this meeting is not in the record but a dictated brief, in my recollection, is that it?

Mr. John T. Mcternan: Your Honor, I -- I'm hopefully happy you mentioned that.

I intended to mention that in my preliminary statement.

There is no verbatim account of this speech.

She spoke extemporaneously.

There was a newspaper reporter present who took longhand notes from which he wrote the news article which led to all the fuzz over this.

And there is a -- an enlarged version of his note, which I will come to in a moment.

In addition to that, there is petitioner's own version of what she had said which she gave to Judge Wiig when he asked her thereto after the event.

We -- we rest our position here upon an analysis of the notes of the newspaper reporter and the testimony of the witnesses because we feel that our attack here has to be predicated upon the evidence against us, and we don't ask this Court to resolve conflicts in the evidence.

So that this -- essentially, what I'm giving you now and what I will rest my argument on is the notes of this newspaper reporter which were appended to the opinion of the majority clause, Appendix B and begin at page 573 of the record.

Justice Felix Frankfurter: Well, were there accounts, news accounts of the -- this speech --

Mr. John T. Mcternan: There was --

Justice Felix Frankfurter: -- contemporaneously?

Mr. John T. Mcternan: -- there was a news account, Your Honor, given in the newspaper in Hilo, Hawaii the following day.

Justice Felix Frankfurter: Is that in the record?

Is that in the record?

Mr. John T. Mcternan: Well, the newspaper account is in the -- set out in the opinion of the court below.

It begins at page 559.

Justice Felix Frankfurter: Thank you.

Mr. John T. Mcternan: Incidentally, we attempted to -- to offer an analysis of the -- of the Matsuoka, that's the newspaper reporter's name, notes in our statement of the case and that being is at page 8 of our -- of our opening brief.

Justice William J. Brennan: (Inaudible)

Mr. John T. Mcternan: Yes.

Justice William J. Brennan: Is it not?

Mr. John T. Mcternan: That's right.

Justice William J. Brennan: I mean that's his newspaper account made up from his notes.

Mr. John T. Mcternan: That's his news story made up from his notes.

Justice William J. Brennan: Because --

Mr. John T. Mcternan: Yes.

Justice William J. Brennan: -- I understand that you're argument is going to be premised on accepting what's said in the notes, not in the news articles.

Mr. John T. Mcternan: Not in the news articles.

Justice William J. Brennan: Yes.

Mr. John T. Mcternan: We think that the news article had no place in the case as a matter of evidence.

Justice Felix Frankfurter: You think -- you think a contemporaneous news article by a lawyer in the case -- about the case has no place in the case?

Mr. John T. Mcternan: Well, I think that it does -- this is not evidence, Your Honor, of what she said.

I think that this is -- this is such a matter of interpretation and selection and it's a matter of -- of hearsay, it would seem to --

Justice Felix Frankfurter: I can well understand.

You're challenging the accuracy of that report, is that it?

Mr. John T. Mcternan: Indeed, we are because his own note show that she said many other things and then --

Justice Felix Frankfurter: Well, in addition, you mean additional -- that -- what is -- what is printed is what is printed.

What I want to know is whether you think a speech by a lawyer in litigation in a criminal case then before the jury meets three, printed in a reliable -- in a -- in a newspaper which circulates currently among the population of the people in what Justice Holmes called the impregnating atmosphere, you think that it's irrelevant?

Mr. John T. Mcternan: No, I think it's irrelevant to this case because she was not charged, Your Honor, with interfering with the fair administration of justice, and she wasn't found to have committed any such offense.

Justice Felix Frankfurter: I understand that.

She's up before the appropriate authorities whether she's a fit person to continue to practice without some discipline.

Mr. John T. Mcternan: On a charge that she impugned to the integrity of the trial judge, not on a charge that he -- said she interfered with the fair administration of justice.

I think it's a quite a difference.

Justice Felix Frankfurter: You mean the only -- the pleading -- we are restricted to the pleading that she impugned the integrity of the Court?

Mr. John T. Mcternan: Oh, Your Honor --

Justice Felix Frankfurter: Is that what she -- is that why she was suspended for a year?

Mr. John T. Mcternan: Precisely, precisely.

This is not only a matter of pleading, Your Honor, this is a matter of finding by the Territorial Court at page 118 of the record after looking at the remarks.

Justice Felix Frankfurter: But I -- I can understand the Court's finding that she was a lawyer who impugned the integrity of the Court is something -- the matter of it.

But I was wondering whether that was the charge, that is the complaint that there was any informal complaint against her on which -- to which she had to answer before the appropriate --

Mr. John T. Mcternan: Yes.

Justice Felix Frankfurter: -- bar committee.

Mr. John T. Mcternan: There was a complaint which charged her with impugning the integrity of the trial judge.

This was heard before a illegal ethics committee appointed by the Territorial Court which submitted its report based upon the testimony.

It found that she impugned the integrity of the trial judge.

The Court then issued an order to show cause based upon that report, and she responded to that by filing a return.

Justice Felix Frankfurter: Well, on this branch of your case issued then a -- a very simple one, namely -- as I see it, namely, a charge of impugning the integrity of the Court based on the speech, the speech not prepared or extemporaneously expressed notes thereof taken by a reporter.

Those notes are available.

The notes -- on the basis of the notes, she also printed something in the paper, and all -- one has to do is to read those notes in that paper and see whether that fairly makes out charge of impugning the integrity of a court, isn't that it?

Mr. John T. Mcternan: That's -- that's true.

Justice Felix Frankfurter: Just simple as that.

Mr. John T. Mcternan: That -- it's just simple as that.

Justice Felix Frankfurter: Just meaning a few -- a figure to a writing.

Mr. John T. Mcternan: Well, I -- I think it is reading them very carefully and seeing to what she was saying.

Justice Felix Frankfurter: Well, I -- I assume judges read carefully.

Is that too unfair to you?

Mr. John T. Mcternan: Well, I don't think its unfair assumption applied to this Court.

I think, if I may say so [Laughs] it applies to the courts below because they disagreed with me.

Justice Felix Frankfurter: I'm talking about all responsibility --

Mr. John T. Mcternan: Yes.

Yes, Your Honor.

Justice Felix Frankfurter: -- on that branch --

Mr. John T. Mcternan: Correct.

Justice Felix Frankfurter: -- of the case.

Mr. John T. Mcternan: Yes.

Justice Felix Frankfurter: A very simple one.

Mr. John T. Mcternan: I think so --

Justice Felix Frankfurter: And --

Mr. John T. Mcternan: That's right.

Justice Felix Frankfurter: -- reading these notes and as reported in the paper and comparing it whether it meets the test of the charge, namely, impugning the integrity --

Mr. John T. Mcternan: Well, Your -- I would disagree with your statement so far as reading the account in the paper because I don't think the account in the paper is fair evidence of what she said.

Justice Felix Frankfurter: Well, anyhow, for the -- for the moment suspending that, for myself, when the lawyer in a case, a particular case enmeshed in such emotional fact of this case was makes a speech which is bound to be reported, I think, for myself, I cannot leave out of consideration how she'd be reported the next day unless you made a nice idyllic speech and is then reported in a sanguinary tone.

I think the fact that a lawyer makes a speech, he must anticipate that he'll be reported in the meats of a trial.

Mr. John T. Mcternan: I would agree with Your Honor.

And I would say that we would have a different issue here if petitioner were charged with having interfered with the fair administration of justice in the District Court of Hawaii.

This, she was not charged.

Well then, she was not found guilty of, and she has not been suspended for that reason.

And there is no hint so far as I can find that this entire record that this kind of conduct was ever evaluated by any court below.

Justice Felix Frankfurter: I'm not assuming that --

Mr. John T. Mcternan: Yes.

Justice Felix Frankfurter: -- but I'm assuming that the -- that the way a reporter reports a speech for people to read while a case is on trial itself may be relevant in determining whether what she said was susceptible of being interpreted one way rather than another.

Mr. John T. Mcternan: Well, Your Honor, it seems to me that that embraces so many unknowns as to involve as an extremely serious First Amendment problem.

Justice Felix Frankfurter: Let me ask you this.

Is there a great discrepancy between what he reported in his notes?

Mr. John T. Mcternan: Oh, yes, there is.

Indeed, there is because the report, the report picks out four to five remarks, this is a newspaper article now, picks out four to five remarks just as the Territorial Court did and indeed, just as the court below did and treats them as if they had no context.

And by treating him that way gives them a meaning which, in the context, they do not have, and I want to get to that and -- and discuss that as though this is the heart of our case.

Justice Felix Frankfurter: That happens everyday in the most respectable of newspapers, that the limitations of space, of a -- of interpretation, of construction, of time lead to unsyncopated report of a long speech.

That happens everyday.

Mr. John T. Mcternan: That I -- that I understand but I don't think of --

Justice Felix Frankfurter: You say a lawyer has no responsibility for taking that fact into account.

Mr. John T. Mcternan: I don't think that a lawyer's license hangs by that, Your Honor.

When the charges that she called into question the judge's integrity, I think again becomes --

Justice Felix Frankfurter: You've just said that he left out, not that he put in.

He didn't put it -- did he -- let me ask you this, did he put into a mouth things she didn't say?

Mr. John T. Mcternan: I -- she -- I think that the treatment that her remarks got the picking of sentence here and picking of sentence there resulted in putting into her mouth things she did not say.

Justice Felix Frankfurter: I never thought I had a right to complain when -- when responsible newspapermen have done that to me for a lifetime.

Mr. John T. Mcternan: Your Honor, she is not making a complaint against the newspaper, she is trying to defend her life in -- on his evidentiary showing that's insufficient.

Justice Felix Frankfurter: Yes, I know but I'm saying that's -- it is to be expected that he make an hour speech that a newspaper would print an hour worthy.

Mr. John T. Mcternan: Quite true.

Justice Felix Frankfurter: And that then --

Mr. John T. Mcternan: But if --

Justice Felix Frankfurter: -- take out the hot stuff, that's regulation thing.

Mr. John T. Mcternan: But -- but if the finders of the fact are to determine what she did, they had to look at what she said not what the reporter selected from what she said in order to proof the offense charged against her.

Going back to the general survey of her speech, in addition to the thesis draft, which I have already outlined, let me point out what the subject matter of most of her sentences where, and I used language in quote, "Men in power", "The Government", "FBI Agents", "FBI", "The Government witnesses, Crouch and Johnson”.

Judge Wiig is not named and the District Court is not named.

There is no express assertion of any particular misconduct on the part of -- either the judge or the Court.

Now, there is one statement, and I refer to page 577 of the record which is part of the -- of the Matsuoka notes where she refers to a federal judge sitting on a federal bench permitting Crouch to testify about 27 years ago.

But I submit that this compares the operation of the hearsay rule and the substantive offense cases as against the operation of the hearsay rule and the conspiracy cases.

I think it maybe reasonable to criticize to -- to construed that as criticizing Judge Wiig's ruling, what it does not, it does not impugned his integrity.

It does not go on the question his honesty.

Therefore, in the absence of evidence directly or explicitly impugning Judge Wiig's integrity, it becomes necessary for respondent to rest upon interpretation of the evidence of the remarks attributed to petitioner and the implication is to be drawn from them and therefore, becomes necessary to examine the nature and the quality of that evidence very carefully.

And here, we come, I think, Mr. Justice Frankfurter, to the issue that we have just had.Wiig more and a thousand cases called attention to the untrustworthiness of oral evidence of oral declaration.

This is what we are dealing with here.

And Wiig more points out that the more complicated as the utterance, the more necessary is it to have the full context of what the speaker said and the remarks made with this great precision as possible.

Justice Felix Frankfurter: You don't expect me to disagree with you here.

Mr. John T. Mcternan: Of course not.

But I think that we have to understand the application of that to this case.

Now, there are eight witnesses who testified about this speech.

Their testimony is fragmentary.

It is confined to the remarks charged, which, as I said, were only four or five taken out of this speech as a whole.

They were given nearly two years after the event, and there is no evidence in that testimony to develop a remarkable position or in context.

We have now the notes of Matsuoka, the newspaper reporter, as already been referred to.

Remember if you will that he took original longhand notes from which he wrote his news story.

The news story called cause -- what he called a “to do in court”.

And his city editor then asked him to type up his notes which he did in a slightly expanded form.

Now, he says the slightly expanded form means that he was spelling out ellipses which crept in to his handwriting when he was writing in a hurry.

I do think, however, that the notes have a certain post litem motam quality about them and in any event, they are not verbatim.

Incidentally, the original note that was testified, they were turned over to the FBI when it conducted an investigation which Judge Wiig ordered, and the original notes were never produced in the hearing and the FBI certified that it couldn't find them.

These notes which are in evidence then are sort of two steps removed from the original event having been put together after the to do was (Inaudible) in court, they are not verbatim and they were -- reflect a layman's understanding of fairly complex legal subject matter.

Chief Justice Earl Warren: But these that we do have are the ones of the Bar Association used, is that correct?

Mr. John T. Mcternan: That's correct, Your Honor.

They are in evidence as far as -- so far as the Bar Association's case.

Chief Justice Earl Warren: Yes.

And the one that the FBI did not return were not used by the Association either?

Mr. John T. Mcternan: That's right.

They are gone.

Chief Justice Earl Warren: Yes.

Mr. John T. Mcternan: They -- they disappear.

Let me just say this one more thing about those notes.

On their face, they are not petitioner's words.

They are an interpretation, if you will, a rendering of petitioner's words.

In any attempt to determine what petitioner actually said, the words which she used is in turn an interpretation of an interpretation and therefore, constitutes a weak basis for extending very far beyond what appears on the face of the document.

Now, we get down to those notes themselves.

The core of respondent's case turns on four sentences which it is taken out of context, out of a 30-minute speech and hatch together as if they where a single excerpt.

If the Court will follow me on page 577 of the record, we find that the first paragraph breaks the words “There is no such thing as a fair trial in a Smith Act case.

All rules of evidence have to be scrapped or the Government can make a case.”

Then we go down what represents the page in the original document to another paragraph that says, “There is no fair trial in the case, they just make up the rules as they go along.”

Now, those four sentences do not belong together, they are separated by important contextual material.

They are preceded and they are followed by important contextual material.

Let's take the first sentence, “There is no such thing as a fair trial in a Smith Act case.”

The whole page of the notes preceding that deals with what the -- the notes refer to as a barrage of Government propaganda carried on by the Government prior to this trial making the climate of public opinion unfair to these defendants.

It talks about FBI tactics in recruiting and coercing witnesses not only the service witnesses but to say what the Government once said.

It seems to me, if the Court please, that this constitutes a rational explanation of her statement, “There is no fair trial in a Smith Act case.”

And it doesn't -- and it, at least, is rational as -- saying that she is charging Judge Wiig with deliberately and perhaps dishonestly causing the trial to be unfair.

Justice John M. Harlan: Could I ask you a question?

What is the (Inaudible) notes with reference to the constitutional question (Inaudible) findings of fact --

Mr. John T. Mcternan: We're raising two constitutional questions.

Justice John M. Harlan: (Inaudible)

Mr. John T. Mcternan: We're -- we're raising two constitutional questions, Your Honor.

We claim that the findings that she impugned the integrity of the trial judge are so arbitrary that it constitute a violation of due process.

Justice John M. Harlan: (Inaudible) to review the evidence.

Mr. John T. Mcternan: In -- in the way that that's required, yes, and secondly, that -- to discipline her for this speech infringes her rights under the First Amendment.

Justice John M. Harlan: Assuming that what -- the finding supported (Inaudible)

Mr. John T. Mcternan: Taking this evidence, there is no clear danger to a public respect for the courts made out.

That's our -- that's our position, on -- on the First Amendment, that's our position.

Justice John M. Harlan: (Inaudible)

Mr. John T. Mcternan: I -- I think that -- I -- I think that when we deal with -- well, that I -- I think that -- that we -- we deal here with the -- with the social interest in free speech.

We deal with the social interest in respect for the Court.

We have two weigh this competing interest.

And I think that given this evidence, the balance does not make out a -- a case of interference or -- or reflection upon the public respect and confidence in the Court.

Justice Potter Stewart: Mr. McTernan, I understood you say that your claim is to discipline her for this speech violates her First Amendment freedom.

Mr. John T. Mcternan: Yes, sir.

Justice Potter Stewart: Is your claim as broad as that?

What if the discipline had been imposed because she interfered with the fair administration of justice by getting this speech?

Mr. John T. Mcternan: Well, the -- of course the issue is not here.

Justice Potter Stewart: I know it's not.

Mr. John T. Mcternan: And if I were to argue that issue, I would say that -- that this speech does not constitute an interference with the fair administration of justice and nothing that flowed from it could be reasonably said to what appear with the fair administration of justice.

Justice Potter Stewart: Surely, your lawyer can't -- he's not protected by the First Amendment, is he, from unfairly and improperly and unethically trying his case in the newspapers?

Mr. John T. Mcternan: Well, the question is someone weighted by those adverbs.

Let me --

Justice Potter Stewart: I know -- I know the issue isn't here but --

Mr. John T. Mcternan: But I -- it presents a problem which the case at least suggest if it doesn't actually raised.

I -- I think this, Mr. Justice Stewart, that -- that there are two categories of limitations on the lawyer's right of free speech.

I think that he operates under the same restriction or lay down or indicated in Bridges, Pennekamp and Craig as applicable to laymen as a whole.

I think that in addition, he must -- he must not indulge in speech which causes loss of public respect and confidence in the court, the so-called Canon 1 offense that we referred to the -- the Code of Ethics prescribed by the American Bar Association.

There is another canon that might be involved, Canon 20 which is actually a fair administration of justice situation, the so-called leaking of essential information to the newspaper.

Now, so far as I can find in -- in my research and we've given a considerable attention to this and we wrote our brief in such a way that -- to challenge our adversary to find authorities.

We could find no authorities which say that the limitations imposed upon the lawyer are any greater than this.

Now, I recognize that in weighing all the factors in either one of those situations, there would be additional factors operating where the lawyer's speeches involved on the fair administration of justice cases for example.

It would mean a lot more in the public principles, the lawyer in the case to say that the witness testifying on the stand is a lair.

And that we're prepared to show that he has committed to all kinds of public events and so on.

But I -- I think that we have essentially the same question of law although, the -- the questions of fact could be weighed would be somewhat difficult.

So also, in the -- in the public respect and confidence in the Court, the case has recognized and when a lawyer speaks, casting reflections upon a judge or upon a court, his words weigh more than those of the laymen's.

But again, we're dealing with the -- the same question of law that is slightly different questions of fact.

Now, getting back to this -- to this analysis of the evidence because I think context is all important here with reference to that first sentence about no such thing is a fair trial in a Smith Act case.

Let me suggest also that the paragraphing in those notes is of significant.

If the -- the statement, “There is no such thing as a fair trial on a Smith Act case” were written in Matsuoka's notes as a part of the paragraphs that preceded it, its relationship to that context and the meaning it gets from it would be considerably different.

And this paragraphing is Matsuoka's paragraphing not petitioners.

Now, we come to the second sentence, “All rules of evidence have to be scrapped or the Government can make a case.”

Incidentally, the court below did not find that that remark had been made.

But in any event, the context that follows shows that what she was talking about was the disuse, if you will, of the hearsay rule in conspiracy cases as compared with substantive offense cases.

And therefore, I think that while this may have been in exact language, it may have been fully chosen language, what she was saying is that the conspiracy technique results in depriving people of the protection of the hearsay rule.

And if you go back early in the speech, you'll find that this is the theme that she's struck in various forms through out the speech.

Now, we go down to the next two sentences, “There's no fair trial in the case, they just make up the rules as they go along.”

The context which precedes that, that which I have discussed and the context which follows it again refers to the hearsay rule in the conspiracy cases and also to the problem of remoteness and the Government's pressure in these Smith Act cases to enlarge this scope particularly with reference to remote evidence from case to case.

And this again strikes the theme struck earlier with reference to Crouch in Russia in 1927 when Paul was 13 and Fujimoto was four.

It also, it seems to me, indicates or finds support from or my reading of evidence in this respect finds support in the testimony of one of the witnesses, he was a labor relations manager for one of the plantations who said that the way he understood the significance of the speech, he had tied in to any Smith Act case whether in New York or Honolulu or whatever.

Now, if the Court please, we get down by virtue of the treatment of the evidence in the court below to a pretty fine hair, that pronoun “they”.

The court below, if you'll look at page 561, in setting forth its findings as to what she said puts -- as to paragraph 3, puts the pronoun “they” in quotation mark.

Justice Potter Stewart: What page you on now?

Mr. John T. Mcternan: 561, Your Honor.

Justice Potter Stewart: 561.

Mr. John T. Mcternan: And respondent in its brief says that they meant Judge Wiig because who else was applying the rules of evidence?

Who else was deciding admissibility?

But again, if the Court please, let us look at the context.

We're back at page 577 now.

The context about making up the rules as they go along is one in which he is talking about the pressure of government lawyers in successive Smith Act cases to expand the limits of remoteness in the -- in the receipt of evidence.

And the subject of the next sentence is the word "attorney" and the subject of the sentence which follows is “government” and she's talking about exactly the same subject matter.

But even more, if the Court please, let us look at the testimony of the witnesses who dealt with this remark.

And these were the witnesses now whose testimony was focused just on the remark and not on the context as a whole.

Six witnesses dealt with this remark in their testimony.

Four of them said that the subject of the sentence about scrapping the rules was government, and two of them said “they”.

And I submit that respondent's position and the position of the court below that “they” equals Judge Wiig is bad grammar torn out of context, contrary to the evidence.

Now, respondent's case next rest upon an excerpt which appears on the same page 577, the next paragraph which reads, “Unless we stop this mistrial trial in its tracks here, there will be a new crime.

People will be charged with knowing what is included in books' idea.”

Now, I think that the meaning of this is perfectly obvious that what she was saying is that Smith Act prosecutions continue.

We're going to define as a crime of reading books and having ideas.

The Smith Act will be so applied.

And as a matter of fact, I don't think that's too remote from the conclusion to which these courts reach in the Yates case.

But in any event, I think that it -- this is the only reasonable, rational conclusion that can be drawn from the sentence.

And I think that respondent's construction of it is utterly tortured and unsound.

They say that this sentence means or these two sentences mean that Judge Wiig's conduct of the trial was a crime.

Now, the only way, if the Court please, that that construction could possibly be supported.

It's in the excerpt with the words “unless we stop the Smith trial in its tracks here, there will be a new crime.

And that's cropping the evidence, if the Court please.

Somewhat similar to the irresponsible cropping of the evidence that is conducted by a certain late senator in a hearing conducted across the street a few years ago.

This evidence, if the Court please, does not rationally justify the finding that petitioner impugned Judge Wiig's integrity.

Neither the lower court in its opinion nor the Territorial Court in its opinion attempted to examine these remarks in context or try to ascertain precisely what petitioner said.

Neither evaluated the remarks in the context of the trial in which she was speaking.

Those courts and especially respondent here gloss on to the remarks, words and ideas which are not found in the evidence and which are contrary to the evidence.

And if I may pick out what I think is a -- an agriedous example of this, I refer the Court to pages 57 and 58 of respondent's brief, where these very words, not put in quotes, are treated this way, right from the bottom of page 57 that there could be no fair trial in the Smith Act case because all of the rules of evidence have to be scrapped so the Government can make its case and so on.

Now, there is nothing in the evidence from which the word “because” can reasonably be interpolated in to her remark.

It's not there in the Matsuoka notes, it's not there in the testimony of the witnesses and it's contrary to the context in which she made the statement.

There is nothing in the evidence which says or attributes to her the remark that the scrapping of the rules was so, that is for the purpose of enabling the Government to make its case.

And it's simply a -- a matter of interpretation by interpolation, if you will, which constitutes, it seems to me, an evidentiary force.It's just not there and it -- and it doesn't belong.

I submit that here, the burden upon petitioners' accuses was to establish the charges by clear and convincing evidence, the charge that she had impugned the integrity of the judge.

I submit that under the evidence here, the remarks are at best dubious as an attack upon integrity and in context there as an obvious and rational construction of them quite the other way.

And I submit that the free speech aspect of this case alone require the acceptance of the rational explanation of her remarks when the evidence afford such (Inaudible).

Now, addressing myself to the First Amendment aspect of the case for the moment and again, we're dealing only with the Honokaa speech.

Central to the lower court's disposition of this aspect of the case were these two factors, first, that the speech was given during the pendency of the trial and secondly, by a lawyer of record in the trial.

And our positions for reasons which I've indicated to Mr. Justice Stewart earlier are that these two considerations have no application.

The value of public discussion during the course of the trial has been pretty well spelled out by this Court in the Bridges, Pennekamp and Craig cases.

I would think that a lawyer, given his training and his ability to articulate and to expound, could be a particularly valuable contributor to public discussion when the discussion deals with law and the operation of law, law enforcement technique and so on.

Now, I recognize that there are risks here, and I think Mr. Justice Frankfurter has already indicated them that what is done with the speech in public, in the public prints may resolve in their being some impact upon the fair administration of justice.

But I think that this calls for an even nicer discrimination of the evidence, if the Court please.

That it become --

Justice Potter Stewart: Bridges and -- the Bridges and the Pennekamp cases both involved contempt, didn't they?

Mr. John T. Mcternan: That's right.

Justice Potter Stewart: This case --

Mr. John T. Mcternan: Involving --

Justice Potter Stewart: -- involves a disciplinary procedure --

Mr. John T. Mcternan: Yes.

Justice Potter Stewart: -- of a lawyer, of a --

Mr. John T. Mcternan: Of a lawyer.

Justice Potter Stewart: -- or professional.

Mr. John T. Mcternan: And I don't -- I don't contend that the cases apply foursquare.

I think that they have important lessons to be drawn for purposes of this case that by no means control.

But I think that we should, in -- in approaching this -- the First Amendment aspect of this case, have fully in mind the importance to public enlightenment of discussion during the pendency of the case and the contribution which a lawyer was his -- inform the judgment can make to this public discussion.

Justice Felix Frankfurter: (Voice Overlap) just a lawyer.

This is an informed lawyer during the things that lawyers have done in this country over the beginning, namely, try to enlighten the public.

This is a fellow in a case --

Mr. John T. Mcternan: I understand --

Justice Felix Frankfurter: -- trying a case.

Mr. John T. Mcternan: -- I understand that.

Justice Felix Frankfurter: (Inaudible) of assuming he is just a citizen

Mr. John T. Mcternan: I -- I never assume that in this --

Justice Felix Frankfurter: No, but I --

Mr. John T. Mcternan: -- argument, Mr. Justice Frankfurter.

I --

Justice Felix Frankfurter: (Voice Overlap) you said it.

When I think of this dissenting opinion, the lawyer is just a citizen, and free speech had been formed --

Mr. John T. Mcternan: Well, Judge Pope --

Justice Felix Frankfurter: -- dead files are also important.

They are the basis of our civilization.

Mr. John T. Mcternan: I -- I agree with that, but I don't think that that consideration embargoes the trial lawyer in -- who is in the case from public comment upon the case in which he is engaged.

Justice Felix Frankfurter: All -- so far as I'm concerned, in making features affecting the credibility, the words, the weight, the reliability of what is going on in court while it's going, almost, for me.

Mr. John T. Mcternan: Well, I -- I can understand why lawyers' comment could -- the -- the comment of the -- of the lawyer of record in the pending case could have the kind of impact upon the administration of justice which you described.

Justice Felix Frankfurter: I know in regards to trial by newspapers as an inherent ingredient, as an important course in this country that said the American way of life, for myself, I repudiate it completely and regretfully and sadly that it should be said but that's a part of the American way of life.

Mr. John T. Mcternan: Well, I don't -- I don't find my -- necessary to reach that proposition at all here because I think that a lawyer has the right to go out and talk to members of the public about a case in which he is engaged to point out the serious, social and legal problems which that case posses to --

Justice Felix Frankfurter: And deal the witnesses and their reliability as the weight to be attached and the way the context of the trial is going?

That's what the court rule is for.

Mr. John T. Mcternan: Your Honor, in that, as the evidence clearly shows, whatever he said in those respects were things which he had already been said to the Court were matters which had already been urged to the Court.

Justice Felix Frankfurter: The courtroom is a place from her urging.

Mr. John T. Mcternan: But in any event, as I -- as I said before --

Justice Felix Frankfurter: (Inaudible)

Mr. John T. Mcternan: -- this is not the issue here.

Justice Felix Frankfurter: What is possibly issue here because you go about speaking just speech apart the way answering fixed apart, the way one who speak apart answering speech in the sum total would be that he said some very nice thing about Bouslog.

Mr. John T. Mcternan: Your Honor, I have not fixed the speech apart.

What has been done by my opponents is to pick the speech apart, they take five sentences out of 30-minute speech and say that she attack the -- the integrity of the trial judge.

If you put those five sentences in the context, she didn't attack any judge.

Justice Felix Frankfurter: She didn't say I attack him neither did -- neither did answer the happen in word.

There is skill in speech that may convey the -- the intent as much though as explicit and literal language.

Mr. John T. Mcternan: Your Honor, I think it relies within the right of the lawyer to say that certain rules operate badly and certain rules caused unjust results.

Justice Felix Frankfurter: I think it's his duty to do so far as the public is concerned but not on lawyer in a case, while case is on.

Mr. John T. Mcternan: Well, I -- I understand that position.

All I can say to you is what I have said before that we would face a different case here if that issue had ever been tendered in this case.

It has never been --

Justice Felix Frankfurter: But the complaint isn't as restricted as you say it is.

I've just read the complaint.

Mr. John T. Mcternan: Well, the findings of the court below are -- are as restricted as I say they were.

Justice Felix Frankfurter: The findings of the Committee aren't even as restricted as to that.

I looked at the complaint.

One would suppose the complaint was she impugned the integrity of the Court.

That is not the complaint.

Mr. John T. Mcternan: Well, there's another -- there's another element to the case, this jury -- juror --

Justice Felix Frankfurter: Well, I'm talking about -- I'm talking about this matter, page 3, the complaint doesn't -- isn't restricted of that.

Mr. John T. Mcternan: Well, as Your Honor look at page 118, the findings of the Territorial Court, beginning at the top of the page, the finding is she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein.

There's other formal language but that's the essence of the finding and that is all that she was suspended for.

Justice Felix Frankfurter: But she certainly attacked the administration of justice in and by the District Court, didn't she?

Mr. John T. Mcternan: No, sir.

I don't think she did.

Justice Felix Frankfurter: You don't think she did.

Mr. John T. Mcternan: No, sir.

I --

Justice Felix Frankfurter: She talked about this case -- she talked about what was going on but that was having an attack upon the administration of justice in that case.

I don't see how you make that up.

Mr. John T. Mcternan: Your Honor --

Justice Felix Frankfurter: What was she talking about, Mr. McTernan?

Mr. John T. Mcternan: I am trying to outline to you --

Justice Felix Frankfurter: Is she talking about this case?

Mr. John T. Mcternan: She was talking about this case and she was saying that there were things about this case that were unfair.

There were things about this case that were contrary to our constitutional guarantees, and I think this, she had a right to say including her comments upon operation and conspiracy hearsay rule.

Justice Felix Frankfurter: (Voice Overlap) right to.

I don't see how you can say when a lawyer in a case said, “I'm talking about the case against Commonwealth -- in Commonwealth against Jones.

And I say that the conduct of that face is unfair, unjust, violates the law of the Constitution.”

If that is an attack on the administration of justice, please tell me what it is.

Mr. John T. Mcternan: I think it lies within the right of the lawyer to say that a trial or doctrine violates the First Amendment.

Justice Felix Frankfurter: I understand.

Mr. John T. Mcternan: It lies in the mouth of the lawyer to say that the judges' honest straight forward interpretation and application to the conspiracy rules result in injustice in a -- in a given case.

Justice Felix Frankfurter: I understand --

Mr. John T. Mcternan: It has been said many times by higher authority, Your Honor.

Justice Felix Frankfurter: I understand that, and relucent mutation and scrupulous attention and care to what you're saying impending that prohibition of law, what I cannot understand is that the charge of the Committee of a trial now going on as violative of law and fairness and justice in the Constitution is not being an attack on administration of justice in that court.

Mr. John T. Mcternan: Because --

Justice Felix Frankfurter: That I cannot understand.

Mr. John T. Mcternan: -- I don't think, Your Honor, that the administration of justice is no tender issue that it cannot accept criticism even while the trial is going on.

Justice Felix Frankfurter: I will listen to your proposition of law if that's allowable indeed, authorize -- required by the Constitution.

That's the proposition of law.

But let's agree what you've started with the discussing.

We are discussing now whether she did in fact impugn the fairness and justice of the administration of justice in that case.

Mr. John T. Mcternan: And I would submit to you that the problems of the administration of justice in a given case are broader than what occurs in a courtroom and these are legitimate subject to comment by lawyers including the lawyer in the case so long as she does not dosing with or he does not dosing which interfere with the fair administration of justice, add to the scale's weight to don't belong in the interlocutory process.

Justice Felix Frankfurter: (Inaudible) simply that we will make a distinction.

I make a distinction between what she did and whether a right under the Constitution to be allowed to do it.

The latter, I can see is a serious question of law to which I shall I attend, I hope, for an open and eager mind.

But the other thing, what it is she did is, to me, just a question of fact.Did she talk about this case?

You said she did.

Did she talk about it condemnatorily?

She did.

Mr. John T. Mcternan: Well, Your Honor, it -- it seems to me that it -- it's proper to speak condemnatorily about a case where the responsibility of that pending case lies not with the trial judge but with the prosecutors in the case or where the responsibility lies with the law which the judge is peacefully administering, and I don't see that how a lawyer looses his -- his right to practice because he called these things to public attention while they are going on, what better time to have the public know in -- in then -- at the time the case is going on and particularly a case which is attracted so much public attention is one (Voice Overlap)

Justice Felix Frankfurter: My point is -- my conviction is it's none of the public's business to hear it out of the lawyer's mouth who's contemporaneously engaged in trying a case before a jury and before a judge.

Mr. John T. Mcternan: Your Honor, I should think that it would certainly lie within the -- within the power of an attorney who was not in the case and -- to -- to say these things during the pendency of the trial.

Justice Felix Frankfurter: That isn't this case.

Mr. John T. Mcternan: That's not this case.

Now, therefore, we have to address ourselves to what it is about the lawyer's connection with the case which -- which places the disability upon him.

This, I can find no authority here.

Anything in the cases would say that his connection with the case disables him from saying this.

Now, on -- I -- I do agree, as I told Mr. Justice Stewart before that I think his position creates an easier risk of interfering with the fair administration of justice but I find nothing which inhibits his right to speak in the case merely because of his -- his connection with the case.

And if you read Judge Pope's opinion, he, too, addressed himself to this question --

Justice Felix Frankfurter: This is --

Mr. John T. Mcternan: -- and he could bind those (Inaudible)

Justice Felix Frankfurter: This is a constitutional problem and I shall remain irreconcilable as long as I live to the notion that the right of talking by anybody under any circumstances is greater than the right and the duty and the necessity of conducting trials under the only conditions under which trials can fairly be conducted --

Mr. John T. Mcternan: But --

Justice Felix Frankfurter: I shall remain irreconcilable on that proposition.

Mr. John T. Mcternan: Your Honor --

Justice Felix Frankfurter: That's the question of constitutional law.

And on that, I do not have to (Inaudible)

Mr. John T. Mcternan: Your Honor, it doesn't -- doesn't your last statement assume that the lawyer in making this comment ipso facto by his very position has an effect upon the administration of justice?

It seems to me that it does.

And I -- I would say to you that I think that the lawyer in the case, and this is a problem which is indicated in the opinion below that the lawyer in the case does not owe a duty to protect that court.

He owes a duty to see one that his clients are protected and he owes a duty to see that there is public enlightenment on matters of public concern.

And --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John T. Mcternan: -- I cannot remove from the area of public concern attention to the specific evils which a particular trial may -- may illustrate.

Justice Felix Frankfurter: I think I've taken up of your time, Mr. McTernan.

Mr. John T. Mcternan: Sir, excuse me.

Perhaps, I've taken all of my time.

How about that, Mr. Chief Justice?

Chief Justice Earl Warren: No, I think -- I think he left you little.[Laughter]

Mr. John T. Mcternan: Oh, I -- I intended to reserve a few --

Chief Justice Earl Warren: You --

Mr. John T. Mcternan: -- moments.

Chief Justice Earl Warren: -- you may take --

Mr. John T. Mcternan: May I reserve the rest of my time?

Chief Justice Earl Warren: Yes, you may reserve the rest.

Mr. Barlow.

Argument of A. William Barlow

Mr. A. William Barlow: Mr. Chief Justice, may it please the Court.

I think that Mr. McTernan has lost over the evidence very lightly.

I --

Justice Hugo L. Black: May I ask if you are asking us to overrule the Bridges and Pennekamp cases?t

Mr. A. William Barlow: Am I asking you to overrule it, sir?

Justice Hugo L. Black: Yes.

Mr. A. William Barlow: No, sir, because I don't think it hasn't any application here.

I subscribed to Justice Frankfurter's remarks about how a lawyer should conduct himself during the pendency of a case in which he is advocating day in and day out before court.

Justice Potter Stewart: Now, was he -- was this lawyer -- was this lawyer charged with any such impropriety as that as -- as interfering with the fair trial that was going on?

Mr. A. William Barlow: This lawyer was charged, may it please, Justice, with conducting a willful and oral attack upon the administration of justice in a federal court.

She was charged with having made these statements and she was also charged contrary to Mr. McTernan's statement to the Court.

She was charged with impugning the integrity of the Court, and I think that if the Court will read Matsuoka's notes, if the Court will read the story that appeared in the newspaper, the Court will come to the conclusion and you can't come into any other conclusion but that the Government and Judge Wiig were conspiring to frame the clients that she was representing in a courtroom.

She started out her what --

Justice Hugo L. Black: What was the date of the speech?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: What was the date of the speech?

Mr. A. William Barlow: I think it was either December 14th or 15th.

But it was on a Sunday morning.

Justice Hugo L. Black: Of what -- of what year?

Mr. A. William Barlow: 1952.

Justice Hugo L. Black: What was the date of the charge?

Mr. A. William Barlow: The charge --

Justice Hugo L. Black: Against the lawyer.

Mr. A. William Barlow: I think it was either a year or two later, sir, but July 8, 1954 of the trial in which she was engaged at the time had not terminated until June of 1953.

And subsequent to the trial, the federal judge had summoned the President of the Bar Association and asked the President of the Bar Association to look in, to the behavior of the petitioner in this case and that --

Justice Hugo L. Black: What about the Attorney General?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Did you ask the Attorney General?

Mr. A. William Barlow: No, he asked the President of the Bar Association.

The record so indicates, I think, with Mr. Sam King of which the President of the Bar Association at the time and Judge Wiig sent for the President of Bar Association and indicated to him that he would suggest to the President that the Bar Association investigate the behavior of Mrs. Bouslog during the Fujimoto trial.

And at that time, this case started.

Justice Hugo L. Black: Did the Bar Association have authority to start the proceeding then?

Mr. A. William Barlow: At that time, the Bar Association did not have an authority under the then existing court rules to file a complaint.

The Attorney General did not file a complaint so that the Court --

Justice Hugo L. Black: Did he have -- did he have authority?

Mr. A. William Barlow: He had the authority, yes, sir.

So that the Court amended its rules of procedure in order it allow the Bar Association to file a complaint.

Chief Justice Earl Warren: As I understand, the judge asked the Bar Association sometime in July 1954 to make the investigation.

Mr. A. William Barlow: Sometimes subsequent to the termination of the Smith Act which was in June of 1953.

Chief Justice Earl Warren: And -- then when -- when was the report of the -- when did they charge him?

I'm speaking to the Bar Association.

Mr. A. William Barlow: The complaint of the Bar Association is filed on July 8th, 1954 and the hearings had sometime in November and December of 1954.

Justice William O. Douglas: What is -- what is the relevancy of this pamphlet in the back of your brief?

Mr. A. William Barlow: The relevancy of the pamphlet in the back of the brief --

Justice William O. Douglas: That seems too technical.

The speech -- a speech three years before this episode, isn't it?

Mr. A. William Barlow: No.

That speech was made two days after the indictment was returned in the Fujimoto case.

And we offered that pamphlet --

Justice William O. Douglas: That's on 1951.

Mr. A. William Barlow: 1951.

The indictment was returned sometime in August of 1951.

And two or three days after that, she made her a Labor Day speech which is incorporated into the pamphlet here.

Justice William O. Douglas: Was that part of the grounds for her disbarment here?

Mr. A. William Barlow: The Court took in a consideration of fact that this was not a spontaneous utterance or a thought that probably was born at the moment that she was making her speech that this was part of a well-conceived plan on the part of the petitioner.

Justice William J. Brennan: Well, was this -- was this pamphlet in evidence before (Voice Overlap) --

Mr. A. William Barlow: Yes, sir, that pamphlet was in evidence before the Hearing Committee, it was in evidence before the Supreme Court and it was in evidence before the Ninth Circuit Court of Appeal.

And if the justices will read that pamphlet carefully, you'll find out that she does attack judges.

She makes a statement in there to the effect that judges to stay in power, join in the witch-hunt.

Chief Justice Earl Warren: Do what?

Mr. A. William Barlow: They joined in the witch-hunt.

She had referred to the Smith Act trial at that time as a witch-hunter.

And in that pamphlet, I might say to the Court that that speech was made, if you take into consideration the fact that a lawyer enters his appearance on a certain day that that speech also was made during the pendency of this course of action.

It was made two days or three subsequent to the return of the indictment and it was made subsequent to the time that she entered her name, its counsel of record for Jack Hall in the trial.

And this pamphlet was introduced to show to the Committee and also showed to the Supreme Court that this was not an accident on the part of the petitioner, that this was a well devised scheme, it was a well devised plan whereby she was going around making speeches.

And if the Court will look at the record, the record will indicate that Jack Hall, who was on the stand, testifying in behalf of Mrs.Bouslog, stated that after she made this Honokaa speech, she no longer was part of the speaking entourage for the ILWU.

Now, who saw the light of day?

I don't know, whether she did, whether the ILWU did, we have no information.

Justice Potter Stewart: Now, Mr. Barlow, it would you concede that apart from the pendency of this criminal litigation, the Smith Act's trial, apart from that, apart from the pendency of that, wouldn't you -- wouldn't you agree that Mrs. Sawyer, under the First Amendment, had all the freedom on the world to say that judges were engaging in a witch-hunt?

Mr. A. William Barlow: I agree with Your Honor.

Justice Potter Stewart: That's not impugning anybody.

Mr. A. William Barlow: Oh --

Justice Potter Stewart: (Voice Overlap) isn't it?

That's -- that's just ordinary criticism I -- and a point of view shared by a good many people.

As a matter of fact, whether or not it is, whether it was her sole point of view, doesn't the First Amendment protect her in saying that?

Mr. A. William Barlow: I'm sorry.

I did not give to the Court the full tender of her speech when I say that she was impugning the integrity of the Court.

As I see your question, you may -- you are isolating that one remark.

Justice Potter Stewart: Because that's the only -- only thing you pointed out.

Mr. A. William Barlow: And I -- I had not intended to isolate that remark.

I think if you read her speech, she started the speech, and I think that the Court should put itself in the climate, the atmosphere where this speech was being made.

The speech had been advertised by the ILWU.

We're going to have a public discussion on Sunday morning in this theater.

This is the town by 180 miles from Oahu.

It has a population of approximately 1000 people.

Justice William J. Brennan: You're talking about the speech during the trial on this (Voice Overlap) --

Mr. A. William Barlow: I'm not talking about that speech, no, sir.

I'm talking about the speech that she was charged with, the Honokaa speech.

She was advertised as one of the principal speakers.

She came over there, and she made her speech.

The reporter's notes indicate what the tender of her speech was, to be --

Justice Potter Stewart: I --

Mr. A. William Barlow: -- started out --

Justice Potter Stewart: -- may I ask you a factual question?

I don't know much about anything about the geography of Hawaii -- the -- of our new State except that it's an archipelago and consisted of several islands.

The trial was going on in Honolulu?

Mr. A. William Barlow: The trial was going on in the Island of Oahu in Honolulu.

Justice Potter Stewart: And the speech was made on a different island.

Mr. A. William Barlow: It was made on the Island of Hawaii which is approximately 180 miles over international waters.

Justice Potter Stewart: 180 miles away.

Mr. A. William Barlow: That's right, sir.

Justice Potter Stewart: And the newspaper report of the speech, the contemporaneous newspaper report was published in Honolulu or not?

Mr. A. William Barlow: It was published in Honolulu and it was also published in the Hilo Herald-Tribune or whatever they call it.

Justice Potter Stewart: On the -- on the island on which the speech was given.

Mr. A. William Barlow: On the Island of Oahu.

And subsequent to the speech, Judge Wiig summoned Mrs. Bouslog and the colloquy that Judge Bouslog or Judge Wiig and Mrs. Bouslog had is part of the record.

And if you look at that record, you will indicate that Mrs. Bouslog stated that the first half of the speech was devoted to a general discussion of Smith Act trials and that the second half of her speech was devoted to the then existing trial in Honolulu.

And if you notice further in the colloquy, Judge Wiig indicated that he certainly was not satisfied with the right explanation, and he ordered me to make an investigation of the speech to find out whether he could properly charge her under Rule 42(b).

Justice William J. Brennan: Were you connected with the file?

Mr. A. William Barlow: I was the United States Attorney in charge of the case.

Chief Justice Earl Warren: What -- what was your finding that he could or could not --

Mr. A. William Barlow: He could not.

Chief Justice Earl Warren: -- charge her.

Mr. A. William Barlow: And I also looked into the possibility of charging her under Title 18 Section 401 and because of the Court's rulings on geographical nearness, we could not charge her under 401 either because his speech had been made 180 miles away.

And because of those factors, Judge Wiig then referred this matter to the Hawaii Bar Association.

And Hawaii Bar Association referred the matter to the Supreme Court.

They filed a complaint against her.

They had a hiring.

And I might say, and Mr. McTernan talks about fragmentary evidence, prodding of witnesses, leading of witnesses, and Mrs. Bouslog had very capable counsel during the secret hearings.

Mrs. Bouslog counsel was afforded at all times the opportunity of examination and cross-examination.

And subsequent to the finding of the Committee and subsequent to the finding by the -- subsequent to the finding of the Committee, Mrs. Bouslog was entitled to a trial de novo.

If she wasn't satisfied with the fragmentary evidence that was developed at the hearing before the Committee, she could have asked for a trial de novo before the Supreme Court.

And right after the secret hearings had ended, Mr. Anthony, who was our counsel in the secret hearings, for -- for reasons best known to himself withdrew and that was present counsel, Mr. McTernan who had the opportunity if he felt that the evidence was fragmentary, if he felt that there was any deficiency in the evidence, he had the opportunity of asking the Supreme Court for trial de novo, and I might say to the Court that it was the petitioner's suggestion that the matter be submitted to the Supreme Court on a record made before the Committee in which the Bar Association acquiesced.

We had no desire to air this thing in public.

We were perfectly willing to submit the matter to the Supreme Court on the evidence that was developed at the hearing.

Now --

Justice Hugo L. Black: Supposed a committee of lawyers -- lawyers or judges had passed resolutions containing this precise language after the case was over, would you say they could be disbarred?

Mr. A. William Barlow: After the case was over?

Justice Hugo L. Black: Yes.

Mr. A. William Barlow: No.

Justice Hugo L. Black: Suppose --

Mr. A. William Barlow: I --

Justice Hugo L. Black: -- suppose she had made the same remarks at San Francisco instead of the -- the island an 180 miles away?

Mr. A. William Barlow: It was made during the course of the trial, I would say, that she --

Justice Hugo L. Black: It all depends on that.

Mr. A. William Barlow: That's right.

I think that if a lawyer is appearing before a court, advocating certain proposition, she shouldn't go out at night telling the public that I think that the Court is conspiring with the Government.

No matter what we produce to the Court, we can't seem to get in to the evidence.

And if the Government is conspiring with the federal judge in order to widen, in order to give the Government more latitude, Mr. McTernan puts a very innocent gloss on the testimony.

And the testimony, I might say, is not restricted to Matsuoka's notes.It's not restricted to the newspaper report.

And while we are talking about Matsuoka's notes, Mr. McTernan refers to him has being expanded.

The reporter was asked what he meant by his expanded notes, and the reporter said, in answer to the committee member who asked him the question, and he says, “Well, do your name is Dodge?

In -- in my notes, I put down Dodge.”

By expanding on the notes, when I write my story, I say, “Robert G. Dodge.”

That's the only way I expand.

I do not add anything to it.

So that there is no significance in McTernan's statement that the -- that the reporter indicated that he expanded on the notes.

There was no expansion on the notes insofar as changing the meaning.

Justice Hugo L. Black: What was the -- what was the difference in the space occupied by the printing?

Mr. A. William Barlow: By the printer?

Justice Hugo L. Black: By -- by the printing.

I -- I am interested as much as you say that.

The notes were how long and how long was the newspaper article?

Mr. A. William Barlow: Well, I honestly can't say to the Court how many pages the notes took.

The notes are in the record, may it please the Court.

Justice Hugo L. Black: And is the newspaper article in the record?

Mr. A. William Barlow: The newspaper article in and of itself is not in exhibit but it is recited verbatim in the majority opinion of the Ninth Circuit Court.

Justice Potter Stewart: You say this meeting of which this speech was given was well advertised in advance or --

Mr. A. William Barlow: According to the testimony of the witnesses, and according to Matsuoka, the reporter -- they stated that the meeting was advertised in advance.

Justice Potter Stewart: Did the reporter say why he'd gone and he'd been --

Mr. A. William Barlow: The reporter --

Justice Potter Stewart: (Voice Overlap) --

Mr. A. William Barlow: -- had been instructed to cover the meeting because they felt that something interesting might develop.

Justice Potter Stewart: Instructed by his paper, right?

Mr. A. William Barlow: That's right.

Justice Potter Stewart: Is there any -- is there any showing when the -- showing of facts in which an inference could be drawn that the -- that the petitioner knew the reporter would be there and -- and knew and have reason to believe that there would be a reporter of this in the -- in the newspapers?

Mr. A. William Barlow: Well, I'll answer it this way, may it please the Court, that there is no doubt in my mind that the petitioner was aware of the fact that there was a reporter present.

Justice Potter Stewart: Was that shown in the record?

Mr. A. William Barlow: I think it is.

Justice William J. Brennan: Was that meeting open to the public?

Mr. A. William Barlow: It was a public meeting.

It was advertised in the public meeting.

Chief Justice Earl Warren: Where was it advertised?

In Honolulu or in Hilo or in this --

Mr. A. William Barlow: No, it was advertised --

Chief Justice Earl Warren: -- or in this little town of 1000 people?

Mr. A. William Barlow: It was advertised in a little town of 1000 people.

It's a small --

Chief Justice Earl Warren: 180 --

Mr. A. William Barlow: Sir?

Chief Justice Earl Warren: 180 miles.

That's 180 --

Mr. A. William Barlow: That's right.

Chief Justice Earl Warren: -- miles away.

Mr. A. William Barlow: It was not advertised in the City of Honolulu.

It was not advertised in the City of Honolulu.

Justice Potter Stewart: Was there any showing during the trial that the members of the -- of the jury in the Smith Act case had seen this newspaper article?

Mr. A. William Barlow: There was no attempt made to show that anyone of the jurors had seen the article or read it or that they had been influenced by --

Justice Potter Stewart: No suggestion along those lines --

Mr. A. William Barlow: No, sir.

Justice Potter Stewart: -- during the trial.

Mr. A. William Barlow: No, sir.

Justice Hugo L. Black: Was the meeting held under the auspices of any defense association or what was it?

Mr. A. William Barlow: It was a meeting sponsored by the Defense Committee which was collecting money or had already collected money to deprave the cost of expenses of Smith Act trial especially the one that was been in progress in Honolulu.

And she was making a report to the people that had, no doubt, contributed.

And when she was making a report, they had contributed to the defense of Jack Hall who was their original ILWU Director, and I am certain they were not in to --

Justice Hugo L. Black: Regional -- regional what director?

Mr. A. William Barlow: He was Regional Director for the ILWU.

Justice Hugo L. Black: What is that?

Mr. A. William Barlow: International Longshoremen's and Warehousemen's Union.

Justice Hugo L. Black: Was that the defense club?

Mr. A. William Barlow: That was the Defense Committee, Jack Hall being part of the ILWU.

They banded together and paid his legal expenses.

And this was the Committee that was -- sir?

Justice Charles E. Whittaker: She was his counsel?

Mr. A. William Barlow: She was his counsel at the time.

She was his counsel of record.

He was there, and she was there, and they both made speech as critical of the typed evidence that was being introduced.

And I think that the Court -- all the Court has to do is look at Matsuoka's notes, and the Court can easily come to the conclusion that Mrs. Bouslog had banded the Government into one little group, the Government being the federal judge, the prosecutors, the FBI.

Everybody was part of the Government in a role engaged in a conspiracy to do no good for her clients.

Chief Justice Earl Warren: We'll recess now, Mr. --

Print this transcript Transcript: 

Argument of A. William Barlow

Chief Justice Earl Warren: Number 326, in the Matter of Disciplinary Proceedings against Harriet Bouslog Sawyer.

Mr. Barlow, you may continue your argument.

Mr. A. William Barlow: Mr. Chief Justice, may it please the Court.

Perhaps some of the Court may be wondering why a speech that was made in 1952 is before the Court in 1959.

I may be facetious, yet, I am sincere when I say that the reason for the long delay is the fact that the petitioner has been accorded due process all the way along the line.

In 1952, December 14, she made this talk at Honokaa on the Island of Hawaii.

The case in which she was engaged as counsel terminated sometime in June of 1953.

Subsequent to the termination of the trial, Federal Judge John Wiig, who presided at the trial, referred the behavior of the petitioner to the Bar Association.

The matter was then referred to the Ethics Committee in July of 1954.

In September of 1954, the petitioner requested a bill of particulars, which, were supplied to her.

In November of 1954, the Ethics Committee conducted a full-scale hearing.

At which time, the petitioner was represented by a very able counsel and at which time, she had the opportunity of presenting on her behalf any and all witnesses that she thought were people who could testify to what she had said at the time of the incident related to in the complaint.

The hearing consumed 468 pages and ended on December the 8th, 1954.

The Ethics Committee Report which found Mrs. Bouslog guilty of impugning the integrity of the Court, of interfering with the administration of justice, and creating disrespect for the courts on the first complaint, and on the second complaint, with conducting a studied interrogation of a sick juror immediately after the trial in violation of Canon 23, the American Bar Association Opinion 109, and the rulings in the Rakes and Millie cases.

Subsequent to that report by the Bar Association Ethics Committee, the Supreme Court issued an order to show cause.

That order was issued July 8th, 1955.

The petitioner was granted an extension of time to September of 1955, within which, to file an answer.

Instead of the return of the order to show cause, she filed a motion to dismiss the order to show cause on October 19, 1955.

More time for filing petitioner's return to the order to show cause was requested and petitioner was granted to December.

And finally, the argument was set for January of 1956.

On January 7th, 1955, petitioner filed a motion for reconsideration of the order, denying the motion to dismiss the order to show cause.

This motion was extensively argued and denied by order filed November 29, 1955.

A return to the order to show cause was finally filed by the petitioner on December 2, 1955.

Another motion for continuance by petitioner followed, and another hearing was held.On a date set for trial, which was January 9, 1956, a pretrial conference was held with counsel for the Bar Association, counsel for the Attorney General and counsel for the petitioner being present.

Two days later, another delay was occasioned by the petitioner filing a suggestion of disqualification of Associate Justices Stainback and Rice of the Supreme Court.

Extensive argument on this motion was again held by the Territorial Supreme Court.

The Territorial Supreme Court, incidentally, held that neither Justice was disqualified.

However, Justice Stainback withdrew on his own motion.

At the pretrial conference, it was determined that under Rule 19, the petitioner could avail herself of a trial de novo.

However, the petitioner, through her counsel, and counsel for the Bar Association, and the Attorney General, and the Court stipulated that instead of a trial de novo, the matter would proceed upon a record submitted before the Committee.

The opinion of the Court was filed April 6, 1956.

The Court found that the complaint was sustained by convincing proof, by credible evidence of more than a mere preponderance.

The Court found that the charges under both complaints were proven and found that the petitioner was guilty of gross misconduct on both counts.

The petitioner then appealed to the Ninth Circuit Court of Appeals under Section 1293, alleging that there was a constitutional question involved and also alleging that her right to practice law had a money tag or a value attached to it that by virtue of the fact that she was suspended for one year, the matter in controversy or the value in controversy was the amount of money that she had earned in previous years.

The Bar Association took the position that this was a simple matter of discipline involving the Canons of Ethics, that there was no First Amendment constitutional question involved.

The Bar Association took the position that insofar as the license to practice law was concerned, it was priceless and you could not attach a price tag to it.

The petitioner filed her affidavit, stating that she made an excess of $5000 and the Court, on the first hearing, granted her a stay pending the determination of the case on its merits.

Two Justices Justice concurring, and Justice Lemmon wrote a dissenting opinion in which he indicated that as far as he was concerned, that it was a very simple disciplinary matter.

There was no constitutional question involved and that insofar as he was concerned, you could not attach a price tag to the practice of law.

Justice Potter Stewart: In that connection, Mr. Barlow --

Mr. A. William Barlow: Yes, sir?

Justice Potter Stewart: It seems to be that petitioners -- it seems to have been and continue to be the petitioner's position throughout these proceedings that how the penalty imposed was purportedly a suspension of practice for one year, in actual practical effect, it was disbarment.

What do you have to say about the matter?

I don't want to interrupt your presentation, but I was --

Mr. A. William Barlow: Well --

Justice Potter Stewart: -- need to know.

Mr. A. William Barlow: -- the only thing I can say about that Mr. Justice Stewart, is that under our rules that if you are suspended for a period in excess of six months, that you then have to take a written examination and you again have to pass a character test.

We, in the Territory of Hawaii, at the present time, have no reciprocity with any other state insofar as admission by a motion is concerned.

When I went there, 13, 14 years ago, I had to take a bar examination that lasted five days.

I had to pass a character test.

So --

Justice Potter Stewart: And somebody suspended for more than six months has to do the same.

Mr. A. William Barlow: That's right.

Justice Potter Stewart: And presumably, I suppose that these very proceedings would make it difficult, if not impossible, to pass the character test if that were true.

Mr. A. William Barlow: I don't know why, sir.

Justice Potter Stewart: No.

Mr. A. William Barlow: It --

Justice Potter Stewart: To get some answer on it --

Mr. A. William Barlow: It depends on what the -- possibly, if it ever came back into the Supreme Court, it's what this Court would consider good moral character.

Maybe our Court might decide that based on these proceedings, she doesn't possess good moral character.

It may very well be that this Court on review, as they did in the Schwerin and Cunningsburgh case, stated “In our opinion, your finding is arbitrary.

You're dogmatic, and we think that this one little incident doesn't -- shouldn't deprive the present from her right to practice law.

Justice Potter Stewart: But you're not here today characterizing this as one little incident, are you?

Mr. A. William Barlow: No, sir.

Now, insofar as the Bar Association of the Territory of Hawaii is concerned, we consider this a very serious breach of the Canons of Ethics and that's all we do consider, as a breach of the Canons of Ethics.

Justice Felix Frankfurter: Who -- who determined -- who would determine in Hawaii qualifications to be readmitted to the Bar?

Mr. A. William Barlow: The Supreme Court itself, sir.

Justice Felix Frankfurter: And the Supreme Court suspended this member of the Bar for a year.

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: I should think it would be a very hard time.

I should think any court or tribunal would have a hard time suspending misconducts or violations of the Code of Ethics of a lawyer for a year and then say that because he suspended you for a year, which means, a year thereafter, you never can be admitted again.

That they will ask -- indeed, wasn't there one member who thought she should be disbarred?

Mr. A. William Barlow: One member of the Court --

Justice Felix Frankfurter: The Court refused --

Mr. A. William Barlow: -- felt --

Justice Felix Frankfurter: -- to disbar her.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: Well, they can't subsequently disbar under the pretense that they won't allow her to take the examination if she doesn't satisfy the requirement.

I should think --

Mr. A. William Barlow: It's very possible, sir.

Justice Felix Frankfurter: Well, I -- I don't know anything about it, but I should have a hard time finding that the Court was justified when it found that the appropriate punishment is a year -- to be suspended for a year then say, "Oh well, that meant -- that year meant that you'll forever have to disqualify.”

Mr. A. William Barlow: Of course, the --

Justice Felix Frankfurter: That seems to me to be playing tricks for its own determination.

Mr. A. William Barlow: It may very well be, sir, but the possibility arises at something, maybe the young lady could never pass a written test again, --

Justice Felix Frankfurter: Well, that's a different --

Mr. A. William Barlow: -- may --

Justice Felix Frankfurter: -- I'm not talking about that but that's a different story.

If fair questions were put and the intellectual test isn't met, I'm merely suggesting that the Court that said a year's suspension is appropriate response to the misconduct that they've found, they couldn't, afterwards, say the year's suspension meant light suspension.

Mr. A. William Barlow: That's right.

Justice Hugo L. Black: They could say it passed a very heavy burden on her, couldn't they, one that's very difficult to get over?

Mr. A. William Barlow: Well, they could say that “it's up to you to carry the ball,” so to speak, “to prove to us that you're a person of good moral character” but as Justice Frankfurter indicates, that they suspended her for a year.

Justice Felix Frankfurter: Anyhow, we took a case that didn't have -- that was, I should think, less clear than this and we thought we could review a determination.

I think your Court that solemnly said “you are to be suspended for a year” can, on the same basis, say, “All we meant was that meant life.”

Justice Hugo L. Black: That would depend on the feelings and beliefs of those who presided in the Supreme Court of Hawaii and those who passed on the case here as it came back at the time it came here, wouldn't it?

Mr. A. William Barlow: I might say for the Court's benefit that as soon as we become a state, we'll have a new Supreme Court and the people that participated in this proceeding more likely will not be members of the Supreme Court.

Justice Hugo L. Black: Why is that?

Mr. A. William Barlow: Because of age considerations.

Under our constitution, there's an age limitation and two of the Judges would be automatically disqualified because of age.

Justice Felix Frankfurter: I'm merely suggesting that I thought we had decided the Court can't be or a state court can't be arbitrary even as to admission or continuance at the Bar, and I can't imagine anything more arbitrary than for a court, a predecessor court, if you will, who said a year would be appropriate response to wrong doings then saying a year meant life.

I can't imagine anything more arbitrary than that.

Justice Hugo L. Black: What do your rules require with reference to the burden that one has to meet who has been suspended for a year?

Justice Felix Frankfurter: We have no rules on that sir.

The only --

Justice Hugo L. Black: No rules of any kind?

Mr. A. William Barlow: No, that's right, sir.

The only rule we have is that a person who has been suspended for a period in excess of six months must satisfy the character qualifications and take a written test, --

Justice Potter Stewart: Like any due applicant.

Mr. A. William Barlow: -- the same as she was --

Justice Potter Stewart: Like anyone who has never been admitted to the Bar.

Mr. A. William Barlow: That's right.

The same as if you were applying for admission de novo.

Justice William J. Brennan: Take the same questions.

Mr. A. William Barlow: The same examination, sir.

It isn't a special examination.

You take the same examination that a law student takes.

Justice William J. Brennan: This suspension is not -- has not been properly set off.

Mr. A. William Barlow: It has not.

There is a stay order that was issued by the Ninth Circuit Court, so that she has been practicing and carrying on her profession since the hearings.

Justice William J. Brennan: Now, what has to be the size of your new Supreme Court?

Mr. A. William Barlow: Five Judges, sir.

Justice William J. Brennan: Presently on the Bar?

Mr. A. William Barlow: Three.

When -- when we got to the Ninth Circuit Court of Appeals, may it please the Court, we contended, initially, that the Ninth Circuit Court had no jurisdiction to accept this case under Title 28 Section 1293.

The Court ruled against us two-to-one, Justice Lennon dissenting.

Then, the matter was set down for a hearing, a full-scale hearing, before another three-man panel.

We argued the case, we argued the merits of the case before this panel, and the panel never came up with a decision.

Either by hearsay or through the grapevine, we found out that that panel did not agree with the first panel.

Insofar as jurisdiction was concerned, they felt that the Ninth Circuit Court did not have jurisdiction, so they set the matter down for a full- scale hearing before a nine-man court.

And we then argued the matter before a nine-man court.

The opinion reflects seven members four-for, and three-against.

Justice Denman, who was the Chief Justice at that time, retired after the case was argued and Justice Lemmon died, leaving seven Judges to participate.

That Court found that the Bar Association had sustained its burden.

That Court found that the petitioner was guilty of the conduct that was charged in the complaint.

That Court indicated in its decision that they thought that they held jurisdiction by the very narrowest of threads insofar as the first count of the complaint involving her claim of freedom of speech was concerned.

Insofar as count 2, involving the incident with the juror pool was concerned, they indicated that if we weren't -- if the petitioner wasn't in Court on count 1, she certainly wouldn't be in Court on count 2.

Justice John M. Harlan: Was there any expressed finding that the leave had embarrassed the conduct of the trial?

Mr. A. William Barlow: The Ninth Circuit Court did so find, sir, the majority opinion, that --

Justice John M. Harlan: Expressed by the rules?

Mr. A. William Barlow: -- that the burden was sustained by clear and convincing evidence that she did attack the integrity of the Judge.

Justice John M. Harlan: Now, that isn't the question.

My question was the expression was or wasn't that the findings of the fact that her conduct had embarrassed the conduct of the trial.

Mr. A. William Barlow: No, sir.

There was no finding that in fact, her conduct had embarrassed the Court or the trial.

Justice William J. Brennan: So, there was a finding of guilty in that trial?

Mr. A. William Barlow: There was a finding of guilty insofar as the defendants were concerned --

Justice William J. Brennan: That's right.

Mr. A. William Barlow: -- at the trial, yes sir.

Justice John M. Harlan: The essence of the trial really is an unprofessional conduct of a lawyer throughout talking about a case while it, perhaps, progressed.

Do you say it went that far?

Mr. A. William Barlow: I would say it went that far because the majority opinion by Justice Chambers says that it is a serious violation and a breach to the Canons of Ethics for a lawyer to litigate by day and castigate by night.

Justice Hugo L. Black: Publicly.

Mr. A. William Barlow: Publicly, that's right.

And as the Court will be familiarized with the tone and tenor of her remarks, as reflected in the appendix to our brief, in that speech entitled “Fear,” which she made two days or three days, I think the indictment was returned on August 29th or 28th, 1951.

The day following that she and Mr. Symonds entered their names as attorney of record, and two days later, on Labor Day, or three days later, she made that speech that is appended to our --

Justice John M. Harlan: How many --

Mr. A. William Barlow: -- brief.

Justice John M. Harlan: -- Smith Act trials had there been in Hawaii?

Mr. A. William Barlow: One, sir.

Justice John M. Harlan: This is the only one?

Mr. A. William Barlow: This was the only one.

That's right, sir.

Justice Potter Stewart: So, this Labor Day speech was made before there was any trial, a couple of days after the indictment in this case.

Mr. A. William Barlow: That's right.

Justice Potter Stewart: And how long before the trial in this case was ended?

Mr. A. William Barlow: Well, the trial actually started the day after election in 1952.

Justice Potter Stewart: So, this was 14 --

Mr. A. William Barlow: So, this --

Justice Potter Stewart: -- 15 months before, right?

Mr. A. William Barlow: This was made approximately --

Justice Potter Stewart: More than a year before.

Mr. A. William Barlow: -- 14 months before.

Justice William O. Douglas: And you said, yesterday, that that speech that's relevant here is showing it, what?

Mr. A. William Barlow: A pattern.

The reason that we introduced the pamphlet “Fear” and some of the other speeches that she had made was to show the Committee and the Court that this was not a spontaneous exclamation or a spontaneous suggestion on her part, that it was part of a program, part of a plan and design to bring discredit upon the Judges and discredit upon the courts and to show the community in which she resided that Smith Act trials were, in effect, a conspiracy.

If the Court will read very carefully the notes, Matsuoka's notes, the thoughts contained in Matsuoka's notes, the testimony of all the witnesses that testified at the hearing, I think the Court can very easily come to the conclusion that she was preaching to the community at large that the Government and the Court were conspiring.

She talked --

Justice William J. Brennan: Is that a crime in Hawaii?

Mr. A. William Barlow: During the litigation, sir?

Justice William J. Brennan: I'm talking about this pretrial speech.

It would -- would that be seditious libel or --

Mr. A. William Barlow: Not insofar as the Fear pamphlet is concerned, sir.

But when you take that speech, you can come to the conclusion that this was not a spontaneous declaration on her part, that she knew what she was talking about, that she wasn't excited or agitated or probably, for that moment, mad about something, that this was part of a program and whether the --

Chief Justice Earl Warren: You mean that she held those dues consistently, is that what you mean?

Mr. A. William Barlow: That's right, sir.

Justice William O. Douglas: You mean you can't be against the Smith Act and --

Mr. A. William Barlow: Yes.

I know that there are a lot of people against the Smith Act and I think that you can be legitimately against anything under our constitution.

Chief Justice Earl Warren: Can you say it?

Can you say it if you aren't?

Mr. A. William Barlow: Sir?

You can say it if you -- if you aren't?

Chief Justice Earl Warren: If you are, that opinion, --

Mr. A. William Barlow: If you are, you --

Chief Justice Earl Warren: -- can you say --

Mr. A. William Barlow: Under the First Amendment, you can express yourself insofar as the Smith Act is concerned, but that's not our problem here.

Our problem here is that she not only held these views, but expressed them during the pendency of a case in which she was one of the very active counsels.

And if the Court will read the colloquy between Judge Wiig and a petitioner, the Court will find out that the petitioner, apparently, was a little aggravated because the Judge was allowing certain kinds of testimony into the record because when the Judge asked her, “Did you make the statement that rather, horrible and shocking things go on in this trial?”

She said, and this is only two days later, “I have no recollection of making that statement,” she says, “but I want it clearly understood.”

And I would like to invite the Court's attention to page 29 of the record.

This is Exhibit A, the colloquy between a petitioner and Judge Wiig.

“As the Court can see, my remarks were directly toward the conduct of the prosecution and were not directed toward the Court.”

And this is the part that I want to invite the Court's attention to, “By that I do not mean to say that the defense counsel, in any way, received from the position that was taken in the brief filed in connection with the Crouch's testimony in which we believe we have cited authorities showing that Your Honor has admitted evidence which is not admissible even in ordinary conspiracy cases.

Justice Hugo L. Black: What's wrong with that?

Mr. A. William Barlow: There's nothing wrong with it except that it corroborates Matsuoka's notes, it corroborates the witness' testimony that she did say that the Government and the Court were engaged in a conspiracy whereby they were widening the rules of evidence, whereby the rules of evidence were being scrapped so that the Government could make out a case.

And in one --

Justice Hugo L. Black: Is the complaint that she used the word “conspiracy”?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Is the complaint that she used the word “conspiracy” or is it what she said?

Mr. A. William Barlow: No, the complaint is in what she said.

She did not, in so many words, or she did not use the word “conspiracy”.

She did not say that the Government conspired with --

Justice Hugo L. Black: I understood you to say, several times, that she accused the Government of conspiring to do this.

Mr. A. William Barlow: Well, that's my own --

Justice Hugo L. Black: I thought you did.

Mr. A. William Barlow: That's my own language.

I am not quoting from --

Justice Hugo L. Black: Did she say that at any time?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Did she say that at any time, that she doesn't have anything --

Mr. A. William Barlow: She did not say it at anytime, using the word “conspiracy,” but I think that when you read the speech as a whole, you can rationally infer that she was alleging a conspiracy between the Government and the Judge in widening the rules of evidence --

Justice Hugo L. Black: Suppose she had made --

Mr. A. William Barlow: -- in --

Justice Hugo L. Black: Suppose she had made this identical speech at the identical time in the identical place and had not been a lawyer in the case.

Would that make any difference?

Mr. A. William Barlow: Under the Canons of Ethics, I would say she had violated Canon 1, yes, sir.

Justice Hugo L. Black: You would say that any lawyer who had made this speech should be disbarred just -- suspended just as she has been?

Mr. A. William Barlow: Yes, sir.

Justice Hugo L. Black: So, it doesn't depend of the fact that she was counsel of the law.

Mr. A. William Barlow: It aggravates the situation by virtue of the fact that she was counsel in the pending case.

When --

Justice Hugo L. Black: What about a law --

Mr. A. William Barlow: When a lawyer gets up --

Justice Hugo L. Black: What about a law review article?

It makes charges tantamount to the same thing.

Mr. A. William Barlow: I'm not prepared to answer a law review article that makes the same charges.

If the writer of the law review article imputes a dishonest motive to the Judge but the Judge is scrapping all rules of evidence, --

Justice Hugo L. Black: That's done --

Mr. A. William Barlow: -- that he is allowing --

Justice Hugo L. Black: That's done pretty often, isn't it?

I think I have seen some editorial of Judge Richmond to that effect.

Mr. A. William Barlow: Well, there's no doubt about it.

There's --

Justice William J. Brennan: How about the opinion of this Court?

Mr. A. William Barlow: I think that this Court is --

Justice William J. Brennan: Suppose that many is the same that you said, here, you'd find the -- an opinion from this Court.

Mr. A. William Barlow: Yes.

I think that this Court is subject to criticism.

Frankly, I have criticized some of the decisions of this Court, but I'm not here litigating today and last night, I wasn't out making a speech criticizing this Court for the shocking and horrible things that go on in here.

Justice Hugo L. Black: Well, do you think, if you hadn't gone out and made a speech somewhere here criticizing the Court for what it's doing, that you could have been disbarred in whole or in part?

Mr. A. William Barlow: I think, frankly, that I would be subject to censure if I showed disrespect to this Court and that's all we're claiming, that she was disrespectful to the Court under Canon 1.

I mean, what do you have to do to be disrespectful to a court?

Justice Hugo L. Black: That's one of the problems through history as to what was disrespectful to the Court and to whether that was enough to take away a person's liberty or his right to do something.

Mr. A. William Barlow: Well, she's merely being deprived temporarily.

If the --

Justice Hugo L. Black: Well, that's a --

Mr. A. William Barlow: If the Canons of Ethics are going to be nullified, in effect, by allowing people to go out during the course of a trial and accuse a presiding Trial Judge of getting together, so to speak, with the prosecution so that the prosecution can allow or put in all kinds of testimony, then, I think that the Canons of Ethics are worthless.

Justice Hugo L. Black: Have they been adopted as a part of the Law of Hawaii?

Mr. A. William Barlow: The Canons of Ethics have been adopted by the Supreme Court of the Territory of Hawaii.

Justice Hugo L. Black: Has there been any statute adopting it?

Mr. A. William Barlow: There's no statute.

It's merely by rule of the Court.

Justice Felix Frankfurter: Do all the decisions of your Court rest on statute?

Mr. A. William Barlow: Not necessarily, sir.

Justice Hugo L. Black: Do -- are there any times when people's rights to make a living are taken away from them without a law passed to that effect?

Mr. A. William Barlow: Not that I know of, sir.

Justice Hugo L. Black: In Hawaii or anywhere else?

Mr. A. William Barlow: Not that I know, sir.

No one is taking away anybody's living here, sir.

They're suspending --

Justice Hugo L. Black: Well, I should --

Mr. A. William Barlow: -- your license for one year.

Justice Hugo L. Black: I should think that that would be a play on words.

A person whose practice, goes to law school, I don't know how long, takes all the courses and gets ready, to say that you deprive them of the right to practice for a year does not affect their right to have the ability to earn a living.

Your case may be alright on the other grounds, but I don't believe that would support that argument.

Mr. A. William Barlow: Well, there's no doubt in my mind that if we're being practical, if she is suspended for a year, she losses whatever earning capacity she has for that year.

I don't deny or dispute that but there's big -- one bigger question here, may it please the Court.

Justice Hugo L. Black: Just one?

Mr. A. William Barlow: Well, there's one in answer to this question and that is whether a lawyer is engaged in a business, or whether we're engaged in a profession, and whether we, as lawyers, are bound by standards that are a little higher than a businessman.

The petitioner makes the statement in this --

Justice Hugo L. Black: Do you --

Mr. A. William Barlow: -- reply --

Justice Hugo L. Black: Do you think, whichever it is, that a lawyer is entitled to any less protection than an ordinary citizen?

Mr. A. William Barlow: No, I think lawyers are entitled to as much, if not more, protection than ordinary citizens.

But I certainly think that a lawyer's conduct should be guided by a higher formula, a higher degree, or a higher standard than an ordinary citizen.

And if a lawyer is not supposed to be guided by a different standard than an ordinary businessman, then I say that the Supreme Court should say, in effect, that “insofar as the Canons of Ethics are concerned, disregard them.”

Justice Felix Frankfurter: Are you going to leave yourself time to discuss the juror question?

Mr. A. William Barlow: I think so, sir.

I think that I've covered the speech incident sufficiently.

I think if the Court will look at our brief, we have tried to itemize and corroborate each one of the statements that was made by Matsuoka in his notes.

And before I get off that subject, I would just like to say to the Court that it isn't only Matsuoka's notes that is part of this record.

If the Court will look at the record, the Court will find out that Matsuoka was put under oath and he testified for 17 pages, and petitioner's counsel cross-examined him extensively and intensely.

And Matsuoka testified under oath to many of the statements that are found in his notes and in a newspaper article.

Justice Potter Stewart: Just before you leave that point for good, is -- am I right in understanding that it's your basic position that the First Amendment does not protect a lawyer from being disciplined for unethical conduct even thought that conduct may consist in -- simply in speech which is, we may assume, protected speech from the point of view of the -- that the citizen might make from the First Amendment but still, that that does not protect a lawyer from disciplinary proceedings taken to discipline him in his professional status.

Is that it?

Mr. A. William Barlow: That's right, sir.

If it does, then Canon 1 is worthless.

Justice Potter Stewart: Well, most the Canons or many of them are worthless, aren't they?

Mr. A. William Barlow: Well --

Justice Potter Stewart: If -- if that -- if --

Mr. A. William Barlow: Well, that's what I -- that's why I say that if you hold that a lawyer is to be measured by the clear and present danger test that Judge Pope advocates, then you might just as well scrap the Canons of Ethics.

And frankly, I have been operating under the Canons of Ethics for a long time and if the Supreme Court feels that they are worthy of being scrapped, I would like to be so advised because I'd like to get in there and meet my competition.

Justice Hugo L. Black: Do we have to pass on all those other Canons of Ethics in order to decide whether a lawyer could be disbarred for making a speech?

Mr. A. William Barlow: No, sir.

Justice Hugo L. Black: Well, why do you say that this necessarily scrapped the Canons of Ethics?

Mr. A. William Barlow: Well, if you're scrapping the First Canon of Ethics, I think that you're scrapping one of the most important of all the Canons of Ethics which requires a lawyer to show a little respect for the court in which he is advocating.

Justice John M. Harlan: What about the jury or the juror's point?

Mr. A. William Barlow: It's our contention that petitioner violated Canon 23, Opinion 109 of the American Bar Association, violated the Rakes and Millie rulings.

After the verdict, Mrs. Bouslog got a telephone call on a Friday night from a woman who was the sister of the sick juror.

This woman was a member of the ILWU.

She called Mrs. Bouslog and said, “My brother is sick.”

Mrs. Bouslog said, “Is he a member of the ILWU?”

Or something to that effect.

She is -- she indicated he was.

So, she says, “I'll be right down.”

She went down and she found the juror to be in a very weakened position.

I think her affidavit indicates that he was motionless, that he certainly was too sick to be talked to at that time.

She talked to the --

Chief Justice Earl Warren: Have you given us all of the conversation that took place between the two at the --

Mr. A. William Barlow: No, I have not, sir.

Chief Justice Earl Warren: -- at the beginning?

Mr. A. William Barlow: I am --

Chief Justice Earl Warren: Well, why don't you give us the sum of the rest of it?

That might be important.

All you told us was that she said, “My brother is sick,” and the respondent or the applicant here said, “Well, is he a member of the ILWU?”

Now, those things, in themselves, don't mean very much.

Were they acquainted?

Do they know each other, these people who --

Mr. A. William Barlow: Well, I was coming to that sir.

Chief Justice Earl Warren: Well, I --

Mr. A. William Barlow: Mrs. Bouslog is the attorney for the ILWU.

Chief Justice Earl Warren: Well, I know.

I know, but I'm just wondering if you told us what the fair import of this first conversation was where the woman called.

Is that all that was said?

Mr. A. William Barlow: I am practically quoting the record verbatim, sir.

Chief Justice Earl Warren: That's all that was said, that's all?

Mr. A. William Barlow: Mrs. Cabreros who is the sister of the juror, Fuller, called Mrs. Bouslog who is the attorney for the ILWU.

Chief Justice Earl Warren: Yes.

Mr. A. William Barlow: And she said to Mrs. Bouslog, “My brother David, who was the juror, is sick.”

Chief Justice Earl Warren: Yes.

Mr. A. William Barlow: And Mrs. --

Justice Hugo L. Black: Did she say anything else that he'd said?

Did she say that he -- she --

Mr. A. William Barlow: Mrs. Cabreros?

Justice Hugo L. Black: Did she say he wanted to see her?

Mr. A. William Barlow: She indicated in her conversation that he wanted to see her.

Chief Justice Earl Warren: For this --

Justice Hugo L. Black: Why?

Mr. A. William Barlow: And she indicated that she had told Mrs. Bouslog that her brother was yelling, “Frame up!”

Justice Hugo L. Black: Was what?

Mr. A. William Barlow: Was yelling “frame up!”

F-R-A-M-E -U-P, frame up.

And because of the fact that he was yelling “frame up,” the fact that he was sick, she went --

Justice Hugo L. Black: What do you mean by that?

Did she use the word “yelling?”

Mr. A. William Barlow: I don't --

Justice Hugo L. Black: Why did she say that her brother said that the conviction was a frame up?

Mr. A. William Barlow: Words to that effect.

Chief Justice Earl Warren: Well, that's a rather important part of this conversation that you only told us fragmentarily, isn't it?

Mr. A. William Barlow: It is sir, I --

Chief Justice Earl Warren: Why didn't --

Mr. A. William Barlow: If the Court wants me --

Chief Justice Earl Warren: Why didn't you tell us that?

Mr. A. William Barlow: -- to, I can read the record for the Court.

Chief Justice Earl Warren: Well, no, but if you're going to relate the conversation, I would suggest that you relate the important parts of it so that -- so that we can understand what the genesis of this whole thing was.

Well, don't bother about that now.

I'll give you three minutes to -- to state your position on this because your time has expired.

Mr. A. William Barlow: Alright, sir.

The -- anyway, Mrs. Cabreros indicated to Mrs. Bouslog that her brother wanted to see her.

Mrs. Bouslog came down, she found the brother sick in bed.

She did not interview the juror on that occasion.

She came back the following day and conducted a very searching examination, an inquiry of the juror as to what transpired in the jury room.

And I think that our brief shows that the juror, presumably, related 30 different incidents that occurred in the jury room and she submitted that affidavit to Judge Wiig in an attempt to impeach the verdict.

The judge, as I recall the situation, did not have a hearing on that affidavit, but the Bar Association charged her with this violation of conducting a studied interrogation of the Juror Fuller.

And the evidence before the Court in the record will indicate that Mrs. Fuller had made many of the statements to Mrs. Bouslog, that Mrs. Bouslog did not advise Judge Wiig of the exact physical condition or mental condition of the juror, that she related to Judge Wiig the conversation that she allegedly had with the juror, and the many things that the juror told her occurred in the jury room.

And the -- Mrs. Bouslog did not tell the judge in her affidavit that the Juror Fuller was too sick to sign an affidavit.

She did not tell the judge that she tried to get the wife, Mrs. Fuller, to sign an affidavit but Mrs. Fuller said, “I won't sign that affidavit because what you have in that affidavit is not what my husband said.”

So, Mrs. Bouslog decided to sign the affidavit instead.

And the Court has before it the record of the doctor that treated the juror.

The Court has before it the record of the psychiatrist that treated the juror.

And we feel that under all the circumstances, that studied interrogation violated Canon 23 and it violated the holdings in the Millie and Rakes cases.

Chief Justice Earl Warren: Was it -- was it misconduct for her to go out and see this juror?

Mr. A. William Barlow: It depended on what she went out to seem him for.

Chief Justice Earl Warren: Well, in response to this telephone message that her client had been framed, was it misconduct for her to investigate that after her juror had been discharged from duty?

Mr. A. William Barlow: The Canon 3 says -- or 23 says that a lawyer should never communicate with a juror, that's before or after and during the course of a trial.

Chief Justice Earl Warren: Well, there would be thousands of lawyers disbarred in this country if that rule was observed.

Mr. A. William Barlow: Well, it's possibly so and if the Court feels that you can interrogate a juror after verdict, why, I'm sure that there are lots of us lawyers who adhere to the Canons and don't interrogate jurors.

We would like to know because we'd like to get to the jurors too --

Justice Hugo L. Black: Is there any law --

Mr. A. William Barlow: -- to find out what they're thinking about.

Justice Hugo L. Black: Is there any law against it?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Any law against it in Hawaii?

Is there any statute against it?

Mr. A. William Barlow: There is no statute against interrogating a juror, sir, except that the Ninth Circuit Court has laid down a rule in the Millie case which indicates that it is a violation of the Canons of Ethics to interrogate jurors, to -- to conduct a studied interrogation of jurors after verdict.

Justice Hugo L. Black: Well, you mean if the -- if the lawyer hears that there's been misconduct that brought about the conviction of his client, that he violates some kind of law written by the Courts so somebody else to make inquiry about it, of the juror?

Mr. A. William Barlow: Well it's --

Justice Hugo L. Black: Is that what this second charge is based on, this second -- the part of the --

Mr. A. William Barlow: The second charge is based on a fact that she conducted a studied interrogation of a juror.

Justice Hugo L. Black: What do you mean by “studied?”

Mr. A. William Barlow: The witness Hall indicates that we would develop the subject.

We would ask him questions, he would answer.

She would ask a question, I would ask a question, and he would answer.

We would develop a subject then go onto another subject.

Justice Hugo L. Black: They had a right to do it.

They had a right to do it their way, didn't they?

I don't quite get what you mean by that.

Mr. A. William Barlow: Well, the Ninth Circuit Court, may it please Justice Black, has decided in the Millie case that it's unethical and it's not proper for a lawyer to conduct a studied investigation or interrogation of a juror after a trial.

Justice Hugo L. Black: Do they use the word “studied” and make that a part of it?

Mr. A. William Barlow: I'm not sure that I am quoting the exact words but that's the import of the ruling and holding of the Ninth Circuit.

Justice Hugo L. Black: So, then, under that rule, as you understand it, even if a person's file had been convicted of a crime, and he's learns that one of the jurors says there has been some misconduct that they ought to know about, that he would be subject to disbarment if he went down to the juror and made inquiries on it?

Mr. A. William Barlow: Under certain circumstances, sir.

Justice Hugo L. Black: Well, I'm talking about the circumstance that he learns or he's told that this juror says that there's been misconduct if -- that he should know about in connection with the conviction of his client.

Mr. A. William Barlow: He is not supposed to conduct an investigation of a juror subsequent to a verdict.

Justice Felix Frankfurter: He could go to the judge but need not tell him about it.

Mr. A. William Barlow: Well, I mean --

Justice Felix Frankfurter: Could he do that?

Mr. A. William Barlow: -- that's too simple for some --

Justice Felix Frankfurter: Pardon me?

Mr. A. William Barlow: -- lawyers to do.

Justice Felix Frankfurter: Pardon me?

Mr. A. William Barlow: I said that's too simple --

Justice Felix Frankfurter: But he --

Mr. A. William Barlow: -- for some lawyers to do.

Justice Felix Frankfurter: I mean, there's nothing in the law or in the understanding of the Bar or in the conceptions of propriety that prevents him from going to the judge, is there?

Mr. A. William Barlow: Not to my knowledge.

Justice Felix Frankfurter: But where is anything --

Mr. A. William Barlow: The Judge is available for that purpose.

Justice Hugo L. Black: Where is anything in any law in any state in this Union that bar, it may be there, I don't know, I never heard of it, --

Mr. A. William Barlow: Well --

Justice Hugo L. Black: -- that bars a lawyer from investigating and asking a juror after the case is decided in connection with an effort to find out if there's been something done wrong?

Mr. A. William Barlow: Well, it's -- we have it in our brief, sir, in the Millie case and in the Rakes case.

One is the Fourth Circuit Court of Appeals and the other is the Ninth Circuit Court of Appeals.

Justice Felix Frankfurter: Is that based on a statute?

Mr. A. William Barlow: No, sir.

Justice John M. Harlan: What you are --

Justice Hugo L. Black: That --

Justice John M. Harlan: -- saying is if there is a general understanding with the Bar that lawyers don't have relations with jurors during, before -- or after or during the trial, isn't that what you're saying?

Mr. A. William Barlow: That's right.

Justice Hugo L. Black: And what do you base the statement on that there is such a general understanding after the jury has been discharged, anything but those two cases?

Mr. A. William Barlow: Those two cases, plus, Canon 23.

Justice John M. Harlan: Which is really before us.

Mr. A. William Barlow: That's right, sir.

Chief Justice Earl Warren: And did those cases -- in those cases, did the juror ask to see the lawyer?

Mr. A. William Barlow: Well, I think, may it please the Court, I think that if you read the evidence, you'll find out how and who asked to see what lawyer in this particular case.

It isn't --

Justice Felix Frankfurter: I haven't done that.

Could you please tell us what bearing what you said a little while ago that the lawyer asked -- this lawyer asked the wife to sign an affidavit prepared by her which the wife refused to sign because she said it didn't contain what her husband said.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: Now, is that in the evidence?

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: Was that before the Committee of the Bar and the Supreme Court?

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: That it ended to the conclusion on this point?

Was that relevant to this -- to the charge?

Was it relevant to the charge --

Mr. A. William Barlow: It --

Justice Felix Frankfurter: -- that a lawyer prepared an affidavit containing things which did not represent what the witness, quoted in the affidavit, supposedly said and asked somebody to sign it?

Mr. A. William Barlow: It was relevant to the charge in this respect, that when they asked us for a bill of particulars as to whether the affidavit was true or false, we stated that we did not make any statement as to the truth or falsity of the affidavit.

All we say is that the affidavit, its contents, and the manner in which it was secured violate the Canons of Ethics.

Justice Felix Frankfurter: What I want to know is whether the Supreme Court of Hawaii had before it testimony that an affidavit is prepared which included matter that did not correspond to the author who was quoted as having said what was in the affidavit, and whether the Hawaii Supreme Court deemed that relevant to the charge before it.

Mr. A. William Barlow: They had before it that -- those facts and they deemed it very relevant to the findings in this case.

Justice Hugo L. Black: Now, what I'd like to know, as this has come out at the last moment, is for you to point out in the record where that is the basis on which the suspension rests, in one sentence in the whole record.

Mr. A. William Barlow: I can't point out --

Justice Hugo L. Black: Can you --

Mr. A. William Barlow: -- that that --

Justice Hugo L. Black: Can you point it out later and send it to us where it would show where that was the basis on which this second charge was sustained?

Mr. A. William Barlow: Well, by, that I don't understand what Justice Black that if --

Justice Hugo L. Black: Well, I know that there's some kind of --

Mr. A. William Barlow: -- when you say “that,” --

Justice Hugo L. Black: -- some kind of judgments --

Mr. A. William Barlow: -- what do you mean by “that?”

Justice Hugo L. Black: Some kind of judgment and some kind of order.

If a person has been found guilty of perpetrating a false affidavit, I assume that you wouldn't want that done by implication.

Where did the Court find that?

Mr. A. William Barlow: The Court made no finding that there was a false affidavit.

Justice Hugo L. Black: Where did the --

Mr. A. William Barlow: And --

Justice Hugo L. Black: -- where did the Bar Association?

Mr. A. William Barlow: They made no finding on that sir.

Justice Hugo L. Black: Where did they charge it?

Mr. A. William Barlow: They didn't charge her on that.

Justice Hugo L. Black: They didn't charge it.

Mr. A. William Barlow: And I --

Justice Hugo L. Black: They didn't charge it and they didn't find it?

Mr. A. William Barlow: That's right and I did not so --

Justice Hugo L. Black: You want us to look at the record to find out if they could have done something on that if they had charged it and the Court had found it.

Mr. A. William Barlow: I did not make any statement to Justice Frankfurter that the affidavit contained a false one.

I say that the Court can easily, after it reads the evidence and evaluates the evidence, come to the conclusion that perhaps, the affidavit didn't state facts.

And my answer to Justice Frankfurter was that Mrs. Fuller stated to Mrs. Bouslog that “I will not sign this affidavit because this affidavit does not contain the facts as they are.”

Justice Felix Frankfurter: My --

Justice Hugo L. Black: And the question I asked was did the Bar Association charge that.

Mr. A. William Barlow: We did not charge her with --

Justice Hugo L. Black: Alright, the Bar Association didn't charge it.

Did the Bar Association find that to be a fact?

Mr. A. William Barlow: Yes, sir.

Justice Hugo L. Black: Where is that finding?

Mr. A. William Barlow: There's a finding by the Bar Committee to that effect.

Justice Hugo L. Black: Where is it?

Mr. A. William Barlow: Rather than take the time of the Court, I would like permission to -- “with respect to the charges in paragraph 3, the Committee finds that when” --

Justice Felix Frankfurter: Where are you reading from?

Mr. A. William Barlow: Page 15 of the record, sir.

“With respect to the charges in paragraph 3, the Committee finds that after rendition of the verdict in Criminal 10 Corps 95 mentioned above Mrs. Bouslog visited one of the jurors, David P. Fuller, Jr. while he was in a very poor mental and physical condition, and thereafter, submitted her affidavit concerning an interview with the juror to the presiding Judge.

While the affidavit of Mrs. Bouslog indicates that on the first occasion, he was gravely ill, the Committee finds that she did not fully disclose to the Court the condition of Mr. Fuller, nor the fact that she had attempted to get affidavits from Mrs. Fuller who refused to sign one and could not get an affidavit from Mr. Fuller because of his condition.”

Chief Justice Earl Warren: Does that say it's false?

Mr. A. William Barlow: No, it doesn't say it's false.

I didn't say it was false either.

I said that the testimony of Mrs. Fuller indicated that Mrs. Fuller made the statement that the matters contained in the affidavit weren't factual.

That's all I said.

And I say to this Court that you can very easily come to the conclusion that that is a false affidavit.

Justice Felix Frankfurter: Since I got you into this, I think I will just state what my question was.

My question was whether there is in the record evidence that an affidavit prepared by the lawyer purporting to set forth the facts was submitted to a witness, to a person to sign, Mrs. Fuller, who refused to sign because she said it didn't conform to what she understood her husband had said.

Mr. A. William Barlow: That is --

Justice Felix Frankfurter: Your answer to that was yes.

Mr. A. William Barlow: It is in the record, sir.

Chief Justice Earl Warren: And then -- then, Mrs. Bouslog or Mrs. Sawyer made the affidavit herself.

Mr. A. William Barlow: That's right, she signed --

Chief Justice Earl Warren: Now --

Mr. A. William Barlow: -- the affidavit herself.

Chief Justice Earl Warren: Now, do you -- do you contend that that is a false affidavit?

Mr. A. William Barlow: Is the Court asking me for my personal opinion?

Chief Justice Earl Warren: No, I'm asking you -- of course in accord with this record.

Mr. A. William Barlow: I think --

Chief Justice Earl Warren: Is there anything in the record here to indicate that -- that it is false?

Mr. A. William Barlow: I think that the Court can come to the conclusion that it is a false affidavit.

Chief Justice Earl Warren: Did anybody below come to that conclusion?

Mr. A. William Barlow: The point was never decided by any court below, no, sir.

Justice Felix Frankfurter: But that doesn't wipe out the fact that she did prepare an affidavit for signature by the wife of the man who's supposed to have said what she made him say and the wife refused to sign it because she said that isn't what her husband said.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: That is still in the record?

Mr. A. William Barlow: That's right.

Justice Hugo L. Black: And then sign it?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Did she sign it then after that?

Mr. A. William Barlow: When Mrs. Fuller refused to sign the affidavit, then Mrs. Bouslog made an affidavit.

Now, whether it was the same affidavit, the same --

Justice Felix Frankfurter: But Mrs. Fuller never signed the affidavit.

Mr. A. William Barlow: No, she never did.

She never signed the affidavit because she said, under oath, that it contained matters that were not factual.

Justice Hugo L. Black: Do you think that's the basis on which this woman has been suspended from the Bar, that -- that statement by Mrs. -- the juror's wife?

Mr. A. William Barlow: You mean if you take it alone, isolate it?

No.

Justice Hugo L. Black: I'm just saying is that's the basis on which this due process that you say has been given her was given to her, that they were suspending her from the Bar because she has a woman to sign an affidavit which the woman said is not the correct?

Mr. A. William Barlow: Sir, that's only part of this whole problem.

Justice Hugo L. Black: I understand that.

Mr. A. William Barlow: That's one facet.

That is not the reason why the Court voted suspension, and I might say to the Court that insofar as the Supreme Court of the Territory of Hawaii was concerned, they did not impose any punishment on the second count because they felt that their one-year suspension on the first count was adequate, so that she was not given any suspension for the second count.

Justice Hugo L. Black: Well, do we have it up here at all, the second count?

Mr. A. William Barlow: Well, frankly, as far as I am concerned, I subscribe very heartily to Justice Lennon's opinion and decision and I don't think that this case should be here.

Justice Potter Stewart: Didn't the Court of Appeals for the Ninth Circuit unanimously believe or a majority of them at least believe that if the second count alone had been involved, that Court would have had no jurisdiction?

Mr. A. William Barlow: That's right, sir.

Justice William J. Brennan: The facts we knew were all been called.

This was imposed.

Mr. A. William Barlow: As a --

Justice William J. Brennan: It didn't enter into the discipline, did it?

Mr. A. William Barlow: As a matter of fact, the Court decided that she was guilty on two counts.

It isn't very artfully set out by the Supreme Court and as a matter of fact, the petitioner herself did not bring the matter up on appeal in the Ninth Circuit Court.

They took it upon themselves to look into the matter and write the opinion that they did.

The only thing that the petitioner went up to the Ninth Circuit on was the first count involving the speech.

Justice Felix Frankfurter: May I ask you --

Mr. A. William Barlow: Yes, sir?

Justice William J. Brennan: Only when she --

Justice Felix Frankfurter: She didn't ever sign on anything.

Mr. A. William Barlow: That's right.

The Court said that “we feel that the year's suspension is sufficient and we will not impose an additional punishment on the second count,” sir.

Justice Felix Frankfurter: May I ask a jurisdictional question about this.

I'm fully ignorant.

As I understand from the cases that have come here, the two cases, we have said over the last 20 years that there are certain limitations upon the reviewing power of the Ninth Circuit of judgments in the Supreme Court of Hawaii.

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: Now, assume, as you indicate, assume that the second -- the proceeding -- the disciplinary proceeding had related solely to the second count.

You just indicated that Judge Lemmon held that that was not a given basis for review, is that right?

Mr. A. William Barlow: No, I indicated that Justice Lemmon, at the very first hearing, indicated that the Ninth Circuit did not have jurisdiction over this matter for two reasons.

Justice Felix Frankfurter: So, the whole case -- the whole case --

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: I --

Mr. A. William Barlow: For two reasons.

First of all, he said that there was no constitutional question involved.

Secondly, --

Justice Felix Frankfurter: The monetary amount?

Mr. A. William Barlow: The monetary amount that the license to practice --

Justice Felix Frankfurter: Is there a difference --

Mr. A. William Barlow: -- had no price tag.

Justice Felix Frankfurter: In your view, is there a difference between the subject matter of the two charges so far as the jurisdiction of the Ninth Circuit was concerned?

Suppose the second charge stood alone.

Would that be reviewable on the basis on which they reviewed this case?

Mr. A. William Barlow: Well, she got no punishment for the second charge.

Justice Felix Frankfurter: Well --

Mr. A. William Barlow: If she got a punishment for the second charge, I would say that is was not reviewable for the very simple reason that I don't think that the right to practice law carries with it a price tag.

Justice Felix Frankfurter: Well that's -- that's the question that we have in other relations, namely, whether the monetary requirement giving jurisdiction is satisfied, which we struggled with that.

The Court has struggled with it for 50 years.

This is another case, but that would be equally true as to the second count -- or, rather, the first count if he had been given the sentence of it, is that right?

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: And so, we have a case here where there were finding of -- there was a -- there was a finding against the defendant below on both counts but sentence was imposed only on one count.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: And therefore, there is no sentence here on the count subject to review, is that right?

Mr. A. William Barlow: Not the sentence, no, sir.

Justice Felix Frankfurter: No sentence here, nothing -- nothing --

Mr. A. William Barlow: There's nothing before the Court on that because there's no sentence.

Justice Felix Frankfurter: There's no sentence, but there was a determination of the issue, is that right?

Mr. A. William Barlow: That's right.

She was found guilty of gross misconduct on the two charges.

Justice Felix Frankfurter: Alright.

Chief Justice Earl Warren: Mr. McTernan.

Argument of John T. Mcternan

Mr. John T. Mcternan: Mr. Chief Justice, may it please the Court.

Although I did not have time yesterday to get to the jury point, I would like not to get to it today but to speak to the speech point because I think that's the more important aspect of the case.

Mr. Justice Harlan, if I might reformulate the question you put to my adversary, I would say that the holding below was that it is unprofessional conduct for a lawyer of record in a pending case to comment upon that case in the manner petitioner did here because, and this is the guts of it, I think, that is an attack on the administration of justice.

And I think that is the question begging aspect of the findings of the courts below.

What is meant by “attack?”

“Attack” obviously embraces criticism and fair comment, and a lawyer's utterances have to go beyond, it seems to me, criticism and fair conduct even of the conduct of the judge himself before he brings the Court into disrespect, before he interferes with a fair administration of justice, before he loses his First Amendment protection.

Justice John M. Harlan: Didn't you say, as certainly I understood you, on the trial in the District Court, you're not supposed to talk about the cases, in public, being tried in the courts?

Mr. John T. Mcternan: I think that this is a convention which most lawyers observe.

It's one that I observe in my practice.

I do this and I think lawyers do it because they are solicitous to avoid even the appearance of interfering with the fair administration of justice, but I don't think that it is something that is compulsory upon lawyers just because they are in that situation because what they say may well not interfere with the unfair administration of justice or bring the Court into disrespect as a matter of fact.

And I think this is what we're concerned with here.

Did it, in fact, do these things?

Now, I would also like to address myself to what I think --

Justice Felix Frankfurter: I don't suppose you could prove that except by having the jurors say, “We heard about it over the radio or some gossip or the way things are in the air and travel,” and they really impose our judgment.

That's the only way you could prove that.

Mr. John T. Mcternan: Mr. Justice Frankfurter, I think --

Justice Felix Frankfurter: Isn't that true?

Mr. John T. Mcternan: -- there is another way.

I think there is another way and I think it's the kind of way this Court has used in many cases in the past.

What it does, it weigh the facts which the record show.

Let's weigh them here, a speech given over and over or a hamlet of a thousand souls deep in a plantation where the people who listen to the speech were, largely, union members who had contributed to the defense of one of the defendants.

No publicity sought by this petitioner.

She spoke to a gathering in using words which at no time were directed to Judge Wiig by name or by implication except in criticizing a ruling that he had made.

So far as her intent may be relevant here and intent was considered in Pennekamp, for example, look at this situation of a lawyer of unblemished reputation for 18 years, appearing daily before this judge in defense of her time, bearing that kind of responsibility.

Is it reasonable to suppose that she intended to bring this judge into disrespect or to attack him in a way that goes beyond the fair criticism and fair comment?

I think, Your Honor, that it requires blowing this thing up into proportions all out of relationship to the facts of the record.We have an objective way of deciding whether this reasonably could have interfered with the fair administration of justice.

This Court has done it time and again, and it --

Justice Felix Frankfurter: That isn't the --

Mr. John T. Mcternan: -- can do it here.

Justice Felix Frankfurter: That isn't the basis on which lawyers make it physical that would reasonably interfere with the administration of justice.

The basis is whether they behave according to the low standard by which even -- even by the low standard by which the Bar likes to be judged.

Mr. John T. Mcternan: Your Honor --

Justice Felix Frankfurter: That's what we've heard this morning.

Mr. John T. Mcternan: Your Honor, those standards set up the conduct whereby we decide whether this lawyer conducted himself unprofessionally, and the questions here come down to bringing the Court into disrespect or interfering with the fair administration of justice.

Now, I would like to address myself, if I may, to this concept, “administration of justice,” because I think that it embraces far more than what is involved in the adjudicatory process.

In the administration of criminal justice, we find a substantial area which is determined, in the first instance at least, by the prosecutor.

It is they who decide whether the case is going to be brought.

They decide whether it's going to be a trial of doctrine, as the Fujimoto case was.

Remember, that this is a case that exploded along with all the others after the decision of this Court in the -- in the Yates case.

They are the ones who decide to employ the conspiracy charge in its dragnet.

They are the ones that decide how remote and how much hearsay is going to be used and the -- and they also decide, if it please the Court, whether they will employ or otherwise purchase a stable of witnesses who run about the country for these political prosecutions tailoring their stories to fit the facts as they're required in a particular case.

It was these things, if it please the Court, that this petitioner was attacking.

This kind of administration of justice, she was attacking.

She was not attacking Judge Wiig and I say to you, because I've had a lot of experience with these cases, that in 1952, this sort of thing was reaching the proportions of a national scandal and I, as a member of the Bar, am proud of what my client did in attacking this kind of administration of justice and it took only a few more years for these things to reach the level of this Court.

And this Court did what was necessary in some of these respects to cleanse the springs of justice, and I am proud of that too.

And it is, I say, that a lawyer engaged in a trial of a case has the right to cry out against this kind of injustice in the administration of our temples and he has, therefore, a valuable and important contribution to make to public discussion.

And it is -- it seems to me, it is to -- it is to adopt the false ideals, false criteria of protecting the adjudicatory process, and I'm as concerned about that as Mr. Justice Frankfurter is, but I -- it seems to me that we have this area around the adjudicatory process which closely affects it, in which the bar has a duty to speak out when that area around it so intimately affects and indeed, and sometimes pollutes and taints the very adjudicatory process --

Justice Felix Frankfurter: Mr. McTernan, I --

Mr. John T. Mcternan: With which we are concerned.

Justice Felix Frankfurter: I have done my crying in my days but not while I was actively engaged in the trial of a criminal trial.

I have done my crying in a number of cases well-known.

Mr. John T. Mcternan: I know that you have, sir, and I -- I have intended no personal reference --

Justice Felix Frankfurter: I didn't think you made any.

Mr. John T. Mcternan: -- to you.

Justice Felix Frankfurter: I didn't think you made any.

I'm trying to make the distinction between crying to the public and attending to a trial in court.

Mr. John T. Mcternan: Your Honor, I think, as I said yesterday, it would be one thing to cry to the public, “Judge Wiig is a crook” or “Judge Wiig is biased in favor of the prosecution.”

This is not what this petitioner did.

This petitioner said, “The Government, the prosecutor is handing Judge Wiig a stacked deck.” That's what it -- he -- what she was saying in effect.

Justice Felix Frankfurter: But the Judge has to rule on the evidence.

The Judge has to control counsel and prosecute on defendants.

Mr. John T. Mcternan: And nothing --

Justice Felix Frankfurter: The Judge isn't a dummy.

Mr. John T. Mcternan: And nothing that she said interfered with his power or his right to do that --

Justice Felix Frankfurter: No, but what he said --

Mr. John T. Mcternan: -- in the slightest respect.

Justice Felix Frankfurter: -- related to it.

The Judge doesn't sit there like an automaton.

Mr. John T. Mcternan: This gets us down to the nub of the thing, Mr. Justice Frankfurter, because what --

Chief Justice Earl Warren: You have three minutes to finish now, Mr. McTernan.

Mr. John T. Mcternan: Thank you, sir.

I'll finish in less.

Chief Justice Earl Warren: It's all right.

Mr. John T. Mcternan: I don't think -- it seems to me that it is false and artificial to say that the -- because I think this is what it is involved in what you said, that because what she said in condemning the conduct of prosecutors and the methods of prosecutors dealt with a case that was pending, she was therefore interfering with the adjudicatory process.

I think that she was not.

She did not reach that and I think that we can rely on a good sense of our -- of our citizens to know the difference between criticizing the conduct of prosecutors which disturb the adjudicatory process and attacking that process itself.

I agree that it would be a bad thing for a witness to go out and say -- I mean, a lawyer to go out and say, “This man who is now testifying before this Court is all a matter of evil men and we intend to prove this and -- and reach the minds of the juror or put pressures on the -- on the courtroom in that respect.”

This is not what was done here.

I was -- it was suggested yesterday that we've -- that I made an over refined analysis of that speech.

I ask you to look at this speech in terms of the cc she said, the subject that she was talking about in her sentence, and break it down sentence by sentence and phrase by phrase, and you will not find -- not only will you not find what the Territorial Court said that she was saying.

You certainly will not find what my opponent here says that there the -- that she charge a conspiracy among the Judge --

Justice Felix Frankfurter: This is an abstract speech, wasn't it, Mr. McTernan?

Mr. John T. Mcternan: No, sir, it was not an abstract speech.

It was an -- it was a speech that went directly to issues outside the adjudicatory process.

Thank you, Mr. Chief Justice.