GIBSON v. FLORIDA LEGIS. INVESTIGATION COMM.

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Argument of Robert L. Carter

Chief Justice Earl Warren: Number 70, Theodore R. Gibson, Petitioner, versus Florida Legislative Investigating -- Investigation Committee.

Mr. Carter.

Mr. Robert L. Carter: If the Court please, this case is here on writ of certiorari from a judgment of the Supreme Court of Florida to review the constitutional validity of that judgment which affirmed the conviction of petitioner for contempt and sends him to six months imprisonment and fine for refusing to obey a court order which required him to bring to the hearings of the respondent Committee the membership list of his organization for the purpose of validating the inquiries, his answers to inquiries concerning the associational relationship of persons alleged to be subversive with the NAACP to which he belonged.

As we see the issue, if the Court please, the basic question in this case is whether the facts and circumstances of this particular case place it within the orbit of NAACP versus Alabama and Bates versus Little Rock and pertinent cases of whether there is an overriding state interest which is sufficient to enable the state to pierce the constitutional protection and therefore that the doctrines of Barenblatt, Uphaus, Wilkinson and Braden and Florida.

We contend, of course, that the -- this issue -- this situation is unlike the latter cases and that on the facts, although the facts are somewhat different but that the law -- the same application of the law which this Court applied in NAACP versus Alabama is applicable here.

The facts are somewhat of this nature.

On November 4th and 5th of 1959, the respondent Committee held hearings in Tallahassee, Alabama and Tallahassee, Florida an issue to subpoena duces tecum to petitioner and others requiring them to bring all records in respect to the membership list of persons in the NAACP in Mi -- in Miami.

The petitioner and other persons appeared and at the outset of the hearing, the chairman read the statute which gave the Committee authority and that statute is set out on pages two and three of our brief, brief for petitioner, and then he made a statement that the hearing was concerned with the activities of various organizations operating in Florida in the field of race relations, coercive reform of social and educational practices in more ways by litigation and pressured administrative action.

The labor education of the vital places of life upon this party, Communist front organizations variance in the degree depending to which Communists and Communist front organizations have succeeded in penetrating, infiltrating and influencing various organ --

Justice John M. Harlan: Where -- where do I find that, Mr. Carter?

Mr. Robert L. Carter: Yes.

The statement begins in the record at pages -- at page 8 of record.

We have -- and the statement that I am referring to in -- on page 12, beginning at the bottom of page 12.

Justice John M. Harlan: Thank you.

Mr. Robert L. Carter: Thereupon the -- the chairman called a -- one Arlington Sands and we contend was the chief witness for the Committee who had any -- allegedly had any personal knowledge of the facts that they attempted to adduce.

On the day, November 4th, Mr. Sands was not present and the next witness was a -- the investigator of the Committee.

The investigator of the Committee proceeded to testify that there were some 14 persons who he met, set out in detail whom on his investigation were members of the Communist Party or were active in subversive organizations and were according to the information of the Committee, members or had been active in the Miami branch of the NAACP He also named some 33 other persons who he indicated had been in Florida at the present time or were -- or is engaged in this subversive activities and on the basis of the Committee statement investigation were active in the organization.

Petitioner was then called and he stated that he was the custodian of the membership list that he had -- the membership list of the branch was in his custody.

That membership in the organization was on a year-to-year basis that he had been present in the organization for five years.

He pointed out that the organization had adopted a -- an affirmative anti-Communist policy in its 1950 Convention and had repeated it thereafter which barred Communists from the organization.

And he indicated in answer to questions from the Committee counsel that he would be willing to testify of his own knowledge as to whether various persons who were named and alleged to be by the Committee subversives, as to whether those people were in fact members of the organization but he would not and he had not brought the membership list and he would not -- and refused to validate his testimony against the membership list itself.

After -- in the course of the testimony, he was shown pictures of some of these 14 persons I have mentioned and each instance he -- his statement was that some of the people he recognized and some he did not but that he would -- that he had no knowledge if they had been members of the organization.

Justice John M. Harlan: How big -- how large is the membership of the NAACP --

Mr. Robert L. Carter: He push this --

Justice John M. Harlan: -- at that adapted party?

Mr. Robert L. Carter: Petitioner gave a figure of 1000.

He said that he was not sure of that but that he was reasonably sure that this was the --

Justice Charles E. Whittaker: Then this involved as I understand it 14 names out of a thousand?

Mr. Robert L. Carter: No, sir.

I'm not sure that's it.

These were 14 people that the Committee had said that it had reason to believe were members of the Communist Party and were -- they had reason to believe or felt were also members of the organization.

In addition there were some 33 members.

There's never any statement by the Committee that these people are in fact members of the organization.

The whole purpose of the investigation was to determine whether they were in fact.

Justice William J. Brennan: And he did not refute to say whether among the thousand were these 14 or any other?

Mr. Robert L. Carter: That's correct.

He did not refuse to -- I might, in all honesty and in fairness, I might indicate that the petitioner position on this was that the 14 people who were named and some 33 apparently in terms of -- where there was no reason on his part to believe or to disbelieve the Committee statement that were in fact subversive, he proceeded to testify and to indicate as to whether they were members of the organization.

In each instance as I indicated, he said, “No,” but there did come a time when the Committee named a particular person, Reverend Graham who's in a companion case to this which we have appended as Appendix B in our brief, in our petition in which petitioner asked the Committee why this statement was pertinent.

And they did -- at the first hearing, they refused to cont -- to carry on with it and at the second hearing in July 27th, they did state that he had -- they had reason to believe that he was a member of the Communist Party or active in subversive activities but petitioner persisted in his refusal to det -- to this -- to tell them whether or not he was a member of the -- whether or not he was a member of the organization.

But I suppose that the more accurate statement of petitioner's position is that where he has reason to doubt, that where he had reason to doubt that what the Committee said was in fact true with respect to the subversive connections of these particular people about information they wanted that he would to refuse to answer but where he had no reason to doubt or to question their statement then he was answering the question out of his knowledge.

Justice William J. Brennan: When you say subversive Mr. Carter, is that synonym for members of the Communist Party in the context of this statute?

Mr. Robert L. Carter: I -- yes.

I -- yes, I think that in the context of this particular statute, in the context of the Committee hearing and the purposes for which the Committee hearing were, subversive means Communist Party.

It does not mean the -- it does not and has not meant in terms of their investigations of the -- the White Citizens Councils or the fascist organizations, racist organizations.

Justice Tom C. Clark: Do I understand that he refused to say whether he himself is a member of the Communist Party?

Mr. Robert L. Carter: No, sir.

There has never been any allegation here by anyone here that -- with respect to his being active in any subversive organization at all.

And although he did not in fact make a statement in this particular -- and in this particular hearing of the record, the record on there, but he specifically, he had in prior -- prior times, he was not asked that.

The Committee -- in fact, the Committee assumed and was -- were satisfied that he himself had no connection with any subversive organization.

Now, if I may pick up the thread of the facts, again, the petitioner answered as to these 14 and was for whom he was showed pictures and then he was -- there was a name of -- names some 30 people -- 33 of people and as the counsel for the Committee indicated that he would not -- he didn't have pictures of these people and he didn't -- that petitioner might not recognize a name and therefore, he asked him, would he bring the membership list of the organization to the Committee hearings so that he could authenticate his testimony in respect to the relationship of those particular persons.

Justice Charles E. Whittaker: That would be of a negative character and I suppose that his testimony was true and all he would say if he had the list, my answer is no.

Mr. Robert L. Carter: That is correct.

Justice Charles E. Whittaker: There would be no revelation of any contents of the list save in that negative word?

Mr. Robert L. Carter: That's correct, except -- well I might as well deal with it now.

You -- you have taken me -- you've taken me a little bit further along in my argument than I have point --

Justice Charles E. Whittaker: I didn't mean --

Mr. Robert L. Carter: -- than I had planned to because I do -- my contention is that once the membership list becomes part of his testimony that it becomes relevant and that a series of factors become -- or put in motion which may well require that the membership list be produced.

Justice Charles E. Whittaker: Is that produced Mr. Carter now?

Mr. Robert L. Carter: Well -- well I might as well explain it, explain this now, that point.

I think that our contention is that the -- that it is not as innocent as it sounds that if the petitioner comes in with a -- with the membership list and has that at his feet as the Committee says that they want him to.

And he's asked whether John Jones or Robert Young or so forth are members of the -- and who -- who we contend are members of the Communist Party are members of the association and he says, “No, they are not,” then it seems to me that what is put in motion is that the -- the membership list becomes relevant because the Committee may not believe that he is telling the truth.

And in that instance, in order for them to prove that he's not telling the truth, the membership list becomes relevant in terms of the -- the disclosure of entire membership list become -- becomes relevant and the State has thereby created the overriding interest to get the list to determine whether or not the petitioner has committed perjury and secondly, it becomes relevant insofar as the petitioner is concerned because he may have to produce it in order to defend himself against the charge that he has lied.

Justice Charles E. Whittaker: He might as be -- the Court's order though has expressly said to -- that the list shall not be required to leave the hands of the witness, he uses it only for verification.

Mr. Robert L. Carter: I agree -- I agree, Your Honor.

This is what the Court says but the Court has not said what would happen in the next step when the Committee disbelieves what the petitioner is testifying to.

Now, the -- the Court --

Justice Charles E. Whittaker: That's another case, isn't it?

Mr. Robert L. Carter: I think not, sir because I think that what we have is that we have to determine in terms of whether this is in fact a violation of constitutional right.

We have to determine I think, what can be done under this and it seems to me that this is a very reasonable and logical sequence of events which could flow from his producing -- from his testifying from the list.

Because I think the list then becomes relevant, the state then has an overriding interest which it does not have we contend it does not have at the present time.

So that I think that by he's bringing the list there, the state has produced the very thing which would make it possible to say that it -- it may or have the -- the entire membership list without a violation of the (Inaudible) of rights or a violation of the doctrine in NAACP versus Alabama.

Justice Hugo L. Black: Would you mind repeating why do you -- what is the standard by which you say the state did not have or did have an overriding interest at one time or the other?

Mr. Robert L. Carter: Well, Mr. Justice Black, my contention is that the state has no interest.

It has no override -- it has no interest at all, but that if under the -- under the opinion of the Alabama Supreme Court in its apparent seeming innocence, if the petitioner produces the membership list at the Committee hearing in order to testi -- to authenticate his answers to whether or not various persons or members of the party or members of the -- of the party or members of the organization.

My contention is that a sequence of the events are put in motion which may compel the production of the list, one that the state in might disbelieve him and therefore the Committee in terms of prosecuting him for perjury would -- may have then a right to see the list to determine whether he's lied or petitioner in order to defend himself against charges of the perjury maybe required to produce the list.

And therefore, my argument is that on these basis, I see no real difference between the opinion of the Supreme Court of Florida, saying that the list maybe -- may not be disclosed, but he may testify from it and the actual production of the list, which this Court forbade in NAACP versus Alabama.

Justice William O. Douglas: You will discuss cases like the Uphaus case?

Mr. Robert L. Carter: Yes, sir.

I -- I will -- I -- if I may -- if I may finish the fact --

Justice William O. Douglas: Yes, in your own time.

Mr. Robert L. Carter: If you insist and then after -- as we indicated, he was -- he refused to bring the list in and he was ordered to do so and he persisted.

The next day, I think the hearing closed as I recall, the hearing closed that day and the next day, the -- Mr. Arlington Sands was produced and Mr. Sands testified that he had been a member of the branch.

He said that his membership -- rather his official capacity of the branch predated 1950 that he didn't really know whether he was a member now or not.

He hasn't been to a meeting in two years.

As he began to testify about these 14 people whom the investigator had indicated were members of the Communist Party and also members of the organization.

In almost every instance except one, he indicated that he did not know whether these persons were members of -- were members of a subversive group and were members of the NAACP.

I think in one or two instances, he indicated that one person while he was an officer, he had invited him to attend the meeting or he was a lawyer, but he denied the fact that this person was a member of the Communist Party.

Now, we contend that the investigator was then brought back to impeach this testimony and it was indicated that the investigator had talked to this Mr. -- Mr. Sands at the Wednesday before the hearing alone in a room with him and that therefore it was -- what he said was his word against the other.

But we contend therefore, that the only witness produced at this hearing who had any -- who could've had any personal knowledge about the facts to which they are testifying isn't all in consent that it is clear from his testimony that any evidence or facts that he had predated 1950 and that therefore that the people about whom they were asking, the 14 people and so that they were asking him about were persons that may or might have had some connection with the organization in 1950 or before 1950 and that -- Mr. Sands had himself had not been active in the organization since that time.

So that we think that this testimony is in itself insubstantial in -- to provide any connection, present connection and for that matter any past connection between the organization and subversive activity.

At the close of -- when Mr. Sands was finished, there were several other witnesses connected with the organization and testified and were shown these various persons' pictures and for the most part, they did not having seen them at any meetings.

They all denied that they to their knowledge that they knew whether these persons were members of the organization and in some instances they indicated that these persons might -- that they might have seen these persons at meetings.

And then the petitioner was brought back and he was asked how the anti-Communist policy of the organization was implemented and he pointed out investigations that were made of officers to be sure that there are no officers who are members of the party, who are the officers of the organization.

And that if any -- there's any evidence of any person being engaged in any activity, any rank and file member that steps were taken to reject that person.

But he was again asked to produce the membership list for the first purpose of authenticating his testimony and he again refused.

And then the Committee as the statute authorizes, sought a rule nisi in the Circuit Court in Florida to require the person -- the petitioner to show cause why he should not produce the membership list.

And there was a hearing at that -- on that order to show cause and at this hearing, the petitioner produced evidence, showing that the disclosure of the names of the NAACP members might result in reprisals and harm, economic and physical harm, attempted to proffer testimony into -- indicating that the persons at the Committee whom the Committee was interested had not been or were not residents of Florida any longer and that the Committee really had no knowledge, no knowledge in its -- or no evidence in its files that these persons allegedly Communist were members of the organization.

This, the Court refused to permit interrogation of the Committee chairman and the investigator for the Committee for that purpose but a proffer was offered.

The petitioner was ordered to appear again before the Committee and to give the evidence and the petitioner refused.

He went before the Committee but again refused and subsequent to that there was a hearing he was convicted of contempt on sentences I have indicated.

Now, on appeal to the --

Justice John M. Harlan: Is the Committee functus officio now or is it still operates?

Mr. Robert L. Carter: The Committee is -- the 1959 statute has expired but the Committee's life was reconstituted in the 1961 legislature so the Committee is still active.

Now, the Supreme Court of Florida affirmed the conviction and the Supreme Court of Florida, I think we have to take the -- this opinion which is -- in the Supreme Court of Florida which is appended to the petition for writ of certiorari and its prior opinion in the case -- in the prior case here which -- in which the Supreme Court of Florida set forth the framework in the rational on which it required the production, the bringing of the list to the -- to the hearing.

Supreme Court of Florida says that the state having a right to investigate the infiltration of Communist into legitimate organizations that this gives the state a basis for demanding the names of the persons who are alleged to be Communist as to whether they are members of the organization different from what is the present in NAACP versus Alabama.

And that in order to protect the petitioner and organizations that there will be no demand for the list itself and that all that the petitioner will be required to do will be to bring the list and validate his testimony because if the state says -- the State Supreme Court says that the Committee cannot get the list and there will be no necessity for the list to be filed.

Now, we contend, as I pointed out at the outset that there is no legal difference between this case and the NAACP versus Alabama.

We think that the rule of this Court in these cases is that the state must show an overriding interest which will compel, of compelling nature in order for the state to be able to intrude upon this First Amendment area.

Our contentions are that no such overriding interest has been shown in this particular matter.

We think that -- we think that as the Court has pointed out in several opinions that this interest cannot be simulated, it must be a real interest.

Justice Hugo L. Black: Do you contend that this interest is simulated?

Mr. Robert L. Carter: Yes, sir.

Justice Hugo L. Black: Are there any facts on that in the record?

Mr. Robert L. Carter: I beg your pardon?

Justice Hugo L. Black: Is there any evidence on that fact in the record?

Mr. Robert L. Carter: Well --

Justice Hugo L. Black: Any findings?

Mr. Robert L. Carter: There is no finding in the record if the Court please, but we think that it's simulated because of the fact that we think that there is no evidence in the record of a sufficient nature to show that insofar as the particular organization is concerned that there isn't any real evidence of any Communist infiltration to the organization.

Justice Hugo L. Black: Whether someone had sworn it, it's your idea that then they would have the right to do that?

Mr. Robert L. Carter: No, sir.

'We don't con -- we --

Justice Hugo L. Black: Well what -- what does that have to do with this then?

Mr. Robert L. Carter: Well, what it has to do with it as far as I -- as we think is that the state, as we understand the decisions in Braden and Wilkinson that if the state may investigate, the Government may investigate the activity of subversives into legitimate organizations, what we understood in the -- in that case was that the investigation must be real two, that it must be for a valid legislative purpose and three, there must a reasonable basis for the -- these kinds of inquiries to be made.

Now as far as we're -- as far as we understand, this is now the law of this Court.

Justice Hugo L. Black: They were the same -- were they the same type of inquiry as this?

Mr. Robert L. Carter: No, sir.

The --

Justice Hugo L. Black: What questions were asked in Braden?

Mr. Robert L. Carter: The questions that were asked in Braden and Wilkinson were their own connection with the Communist Party.

In this particular instance, there has been no evidence that the petitioner is himself a Communist or has involved in any way in any connection with Communist organizations.

Justice Hugo L. Black: Would it be different -- would it be different in your judgment if there had been some witness of some kind who had told them that he was a Communist?

Mr. Robert L. Carter: Well, I would think that -- let me -- let me answer it this way, if the Court please?

The (Inaudible) for me on the facts of my own case is that there were -- was no such evidence that it is conceded that -- there is no connection with subvers -- with subversion by this petitioner.

There is also no evidence that the organization that he represents is in fact a Communist front organization.

Justice Hugo L. Black: Were they -- did they claim that there was any evidence that they were members of the -- of your organization were also members of the Communist Party?

Mr. Robert L. Carter: The came -- the claim is a -- is a peculiar claim if the Court please.

I don't think that that claim was ever really made.

The claim was that they wanted to -- that they thought that there were some persons who were -- that there had been some Communist infiltration at the organization and they wanted to find out the extent of it.

There was no -- there was no -- the Committee as I understand their position is not claiming that the organization had been infiltrated.

They claimed the list and they claimed to make this constant inquires in order to determine whether it is so.

Justice John M. Harlan: Is it fair to say that we should take this record as if the Committee had expressly said, “We do not claim that the NAACP is a Communist organization itself or even a front organization, but we are interested in knowing to what extent Communists have infiltrated the organization and made use of the NAACP, is that a fair statement?

Mr. Robert L. Carter: I think so.

I think that's exactly -- that's exactly what their position is.

Justice Felix Frankfurter: (Inaudible) --

Justice Tom C. Clark: And they introduced now the witness who testified that the 12 named persons were Communists?

Mr. Robert L. Carter: Were com --

Justice Tom C. Clark: Then there were questions directly as your witness or -- is whether they belonged to any (Inaudible)?

Mr. Robert L. Carter: Yes, sir.

And in each instance and so far as -- well, let me put it this way, Mr. Justice Clark.

They presented an investigator who testified that there were 14 persons who on his investigation which -- were shown to be members of the Communist Party.

But the hearing disclosed as I think quite clearly that the information he secured was from an Arlington Sands and Arlington Sands testified -- when he testified, he disclaimed that this persons were Communists or that for the most part that they were members of the organization.

So that we don't really have any clear, valid, in my judgment, testimony even to the point of the 14 named persons.

Now the -- now the witness did -- the petitioner did agree and did answer when shown with the pictures of these 14 persons.

He did indicate these persons -- he did say whether or not he knew or whether these persons had any connection with the organization.

In each instance -- in each instance, he said, “They had not”, to his personal knowledge.

But that he refused to produce the membership was to authenticate his testimony.

Justice Felix Frankfurter: Mr. Carter, on the basis of your reply to Justice Harlan, I'd like to put you this case and let me say by way of preface that I'm never troubled by questions of degree of a necessity of growing lines.

So that the case I put to you isn't exactly this case, but your answer will shed some light at least to me on your contention.

Suppose instead of this kind of an investigation, we had a totally different case that these 14 men, who were, according to the record in this case, authenticated or identified Communists, suppose you didn't have that situation, but these 14 men were named in some publication as Communists or charged with being Communists and they there -- because of that -- on that -- on the basis of that publication brought a libel suit.

I don't know if the law applies this but certainly the law of good many states charged a man of being a Communist is libelous if the plaintiff can disapprove that because the plaintiff says he isn't and no proof can be made that he is.

Let us assume that in Florida to charge a man with being a Communist is a libelous accusation and these 14 men bring a libel suit against the publication so charging one.

The defense is that in order or it appears in the course of the -- of the trial that the defense claimed that in order to conceal to -- to cover up and camouflage their Communist affiliation they sought and became members.

They were due paying members of the local branch of the NAACP as a cover for their activities as Communist on the basis that all right-minded people know that the NAACP is not a Communist or a Communist connected or affiliated or sympathetic organization.

And the plaintiff then puts on the stand the custodian of this -- of -- of the NAACP as here and asked him on direct examination whether naming them or any of them was in fact a member of the NAACP, was a registered member on the books of the NAACP and he forthrightly says quite clearly, “No, of my own knowledge, I'm able to swear that they're not.

They do not belong to the NAACP branch.”

On cross-examination, the defendant saying all human memory is treacherous and asked him to produce the membership list and examine the list in order to verify the correctness of his memory.

And he declines and a subpoena issues, and the subpoena is -- is disobeyed and then the question arises whether the Court has compulsory power to compel the custodian to produce that list not with the view of disclosing it, the list as such, not with the view of putting the list in the possession of counsel for the plaintiff, not with the view of even having the Court examine the list but counsel for defendant on cross-examination being a rigorous cross-examine says I -- just to ask you to turn the pages of your membership list and now tell me after you've done whether you adhere to your testimony or all your testimony unaided by any reference to the record that these 14 people are not members of your organization.

Would that disobedience -- disobedience with that subpoena also claim the immunity from production on the basis of the Alabama case?

Justice William O. Douglas: Would -- would you mind restating that question in a few words because I'm not sure I understand it?

Justice Felix Frankfurter: Could you understand --

Mr. Robert L. Carter: I --

Justice Felix Frankfurter: -- the question?

Mr. Robert L. Carter: I think I could.

Justice Felix Frankfurter: Alright.

Mr. Robert L. Carter: As I understand what Mr. Justice Frankfurter wants to ask is that if in a civil proceeding the membership list in a -- on a cross-examination, there was an order to require the production of the membership list to authenticate, to verify, to refresh the recollection of the first -- the custodian of the list as to whether under these circumstances a claim could be had under the -- under NAACP versus Alabama, is that correct?

Justice Felix Frankfurter: That is quite correct.

Chief Justice Earl Warren: That the man used the -- the man used the list originally to testify from?

Mr. Robert L. Carter: No, sir.

Justice Felix Frankfurter: I just want you (Voice Overlap) --

Mr. Robert L. Carter: That this testimony is -- as here, that he testified out of his own knowledge, but that under cross-examination as I understand it which would be the place of the Committee in this particular instance that there was a demand for the list in order to be sure that the testimony out of his knowledge was true and there -- therefore there was a -- for recollection purposes and that there was no demand that the list be brought in but that it be produced in this particular instance.

I -- I will say Mr. Justice Frankfurter, this is a -- it seems to me to be a -- a very difficult question.

My answer to it -- of course I will answer it in this way, I don't see exactly the same kind of consequences which would come from this -- from the testimony of this particular witness under cross-examination and as would occur in this particular case.

I think that if the -- if the man were on the witness stand, the custodian to authenticate, to refresh his recollection with the protection which this Court in this -- the Supreme Court of Alabama in this opinion gives that they cannot be produced, It would seem to mean that at that point, that there could not flow the consequences that I fear in this case, that the whole membership list could thereafter be seized on -- in -- in further prosecution and so forth on -- for perjury of -- for -- or that the -- sought that the --

Justice Felix Frankfurter: Well how could it -- how could it be seized except by a third order of -- of a subpoenaing authority whether a Court or a Committee which then would be subject to judicial review?

Mr. Robert L. Carter: But -- well, I think if -- if the Court please, the reason that I take the next step is that I think that we have to examine whether or not there's been an intrusion of First Amendment rights by seeing what can occur under this -- under this -- under these consequences not only in this particular case, not only can the -- well, that there'd be a compulsion on the part of the petitioner to -- to make on -- there'll -- there'll be a compulsion on the part of the state to get the list once it is -- comes in -- it comes evidentiary.

But there's also --

Justice Felix Frankfurter: You mean --

Mr. Robert L. Carter: But there will also be a need on the part of the petitioner for -- to produce the list because he would -- in order to defend himself against the next step.

Justice Felix Frankfurter: As I understand it -- I may misunderstand but as I understand it, the list here would not become evidentiary, it would not be an exhibit for instance, it wouldn't be an exhibit marked for identification.

Mr. Robert L. Carter: But --

Justice Felix Frankfurter: It would merely -- so far as possible, I thought I stated except the issue would be different, it would be before a court instead of an investigating body, but I thought I gave as close a duplicate original of the legal situation at least as my limited imagination could divine.

And I wanted to ask you whether your real position was that at least -- as far as to say it because I don't want to carry an implication that I don't mean, that at least in this -- in -- in the state like Florida or in Kindred, Southern State, the list itself is immunized from any kind of legal production, for any purpose whether the list becomes an exhibit or identification or in evidence, the list is producible for general purposes or limited purposes.

And I just wondered whether you thought the -- the reach of the Alabama case or the momentum which one decision gives to a succeeding set of facts linking it together which is what you fear, whether -- or thereby your conclusion is or your submission is that the list in the circumstances we're dealing with is as such immunized for all evidentiary or producible purposes.

Mr. Robert L. Carter: No I --

Justice Felix Frankfurter: I'm not suggesting, Mr. Carter, remotely --

Mr. Robert L. Carter: I -- I --

Justice Felix Frankfurter: (Voice Overlap) an answer.

It's a troublesome question.

Mr. Robert L. Carter: I would like to take that position.

I don't think that the -- I don't think that I can lead that into the Alabama decisions.

I don't think that -- the reason I don't think I can take that position is because of the fact that if that were true, it would appear to me that if this was not being decided on a case-by-case basis, it would appear to me that the Court having decided in NAACP versus Alabama would not have granted certiorari and heard the subsequent cases in which this -- this issue was ripe.

I think that -- as I understand the Alabama case, that there maybe some -- some relevant circumstances in which the -- the Court might find that there would be a requirement to produce the list.

But it doesn't seem to me that all I can do is in terms of the case I have in point, I don't think that any relevance to the circumstances, any state interest is present here which would warrant a departure from the -- from the immunization which the list has been wracked around the list in NAACP versus Alabama.

Justice Felix Frankfurter: But that the state interest of being sure you get the truth so far as humans are capable of producing it and the same kind of state interest that I've put in my case, I don't mean to give an answer to it, Mr. Carter, namely that -- that memory -- people are awfully sure.

I speak from deep personal experience.

People are awfully sure sometimes that they can turn out to be quite the opposite.

Mr. Robert L. Carter: Well, let me put it (Inaudible) -- let me put (Inaudible) -- our position this way if the Court please.

I don't believe that the state has any power to compel answers to the questions that were asked of the -- of the petitioner in respect to whether or not we allege such in such a persons are members or subversive members of subversive organization and that therefore, will you tell whether -- whether they are or not members of the organization.

Our contention is that the state has no constitutional authority to even at that instance compel answers to that -- to that particular question or any question --

Justice Felix Frankfurter: Is that -- is that an issue here?

Mr. Robert L. Carter: No, sir, but that is an issue in answer to your question that I -- the question I was attempting to deal with that you raise with me.

Now, we -- we take that position because of the fact that we -- we say that without a showing that there has been -- that the petitioner himself is involved in subversion or that the organization is not -- the organization is that there is no -- that they can't compel that answer to the question in that.

As a matter of fact, what Father Gibson did in this particular instance was to voluntary -- volunteer to cooperate with the Committee, but when the Committee demanded that he bring his membership list he asserted as I think he validly may the -- the right freedom of association right.

Justice Felix Frankfurter: What you're saying, if I get your argument Mr. Carter, what you're saying is that the law knows a number of not too many appellees because the first record is of a society is to be able to elicit the truth in a matter in controversy.

But that there are countervailing considerations of policy whereby the truth is fenced off from being disclosed in Court before investigating body because as those to circumstances, I mean the various privileged communications, husband and wife, lawyer and client, priest and confessor and the communicator, etcetera, that in those instances, the normal regular very vital interest of society to elicit the truth, at least to elicit evidence with the view to obtaining or ferreting out the truth must be used in other interest of society to shut off that source of information.

What you are saying is, in situations presented by your case falls within that rule of privilege, that's what you're saying in the fact, isn't it?

Mr. Robert L. Carter: That's right.

Justice Hugo L. Black: Do you think your constitutional question will be different had your controversy had arisen in Oregon or Maine?

Mr. Robert L. Carter: Well, that also is a difficult question for me to answer.

I would think not.

I think not.

I think that -- personally, but I think that the cases -- I -- I don't think that I can rely in terms of that -- on these cases.

As I read the cases, they are based upon the particular facts, particular facts which are relevant in the South and they have been applied to the South.

And then -- and I think that the Court has made a claim as far as I can read the cases that if the situation arose in Oregon or some other place with -- where the particular deterrence which would occur to the disclosure of the membership list that if life is free to reach a different conclusion.

Justice Felix Frankfurter: Well, if your -- that the basis of your argument, at least a vital consideration of it is reasonable fear of consequences then I should think geography might make a difference if reasonable fears don't exist.

Mr. Robert L. Carter: I -- I am not and I want to be clear that I am not here advocating my position.

I am merely attempting to state --

Justice William O. Douglas: But you're saying, follow the prior decisions of the Court.

Mr. Robert L. Carter: That's what I'm trying to state what this Court -- what I think this Court has held.

Justice Potter Stewart: Do you think your -- (Voice Overlap) --

Justice Hugo L. Black: Do you think the constitutional question would be different?

You're association instead of being association of colored people was an association of White people?

Mr. Robert L. Carter: No sir. I don't think that.

Not White people -- certainly, not white people in the South engaged in the kind of activity in which we were engaged in an unpopular -- in an unpopular activity, the kind of which we were engaged, I would think not.

Justice Felix Frankfurter: Well, if you think if you had an unpopular corporation if there be such, if you had an unpopular or a corporation for the time being under some public what shall I say, anxiety or disfavor and a law arose which makes otherwise relevant the ascertainment where there are certain persons or stockholders in that corporation pursues a heavy stockholder that -- that we would have the same case of associated protection of those who are members of -- of an enterprise whether it be the NAACP or the XYZ Corporation.

Do you think all these things are all the same (Inaudible)?

Mr. Robert L. Carter: No, of course not, Mr. Justice Frankfurter.

I -- and if I --

Justice Hugo L. Black: Do you mean -- you mean that the cons -- are you agreeing and I think you'd have other basis maybe and so on and something that's unclear, are you agreeing in that instance, (Inaudible) First Amendment, if you review -- refer to the First Amendment applies differently, people of different races in different parts of the country or to different groups in different parts of the country?

Mr. Robert L. Carter: I -- I -- as far as I am able to read the opinions of this Court.

I would -- I would before -- I think that I would come to that conclusion.

I think that -- as I understand the opinions of the Court, the facts in terms of the reach of the First Amendment, the facts are crucial.

And where the facts differ then the -- the issue is to whether -- whether or not the dangers which the Court -- as in the guarantee which the Court seeks to protect may or may not be present based upon -- upon what the actual facts and the circumstances are.

Justice Felix Frankfurter: Mr. Carter, can we end on a harmonious note and agree that the First Amendment applies throughout the United States?

Mr. Robert L. Carter: Yes, sir, right.

If I may reach the few minutes I have, if I might reach the question that you asked me Mr. Justice Douglas.

I think that the -- that this case, in my judgment differs from Barenblatt and Wilkinson and Braden on the one hand because in those particular instance, the question which was asked and which the Court felt -- this Court felt that there was no protection against was whether or not this person was a member of the Communist Party.

In Uphaus on the other hand where there was no allegation and no assertion that the petitioner was a member of the party, although there was disagreement on -- on the Court, the majority of -- the majority found that there was relevant facts to connect the World Fellowship with the Communist Party and therefore to give grounds for the state seeking the entire membership list.

We think that these kinds of relevant circumstances and relevant facts which were present in those cases are not present here.

And that -- and that as a -- as a matter of fact, the state has not shown that there is any reasonable -- reason -- reason or rational reason for it to require the production of the membership list.

We also contend if the Court please, that the -- that the -- the fact that this Committee, this investigation has been going on since 1956, Committees has been appointed and reappointed until -- in 1957 a Committee was appointed and -- and in 1959, a Committee was appointed and in 1961, we understand a new Committee has been reconstituted.

And that as a matter of fact, there -- we contend that out of all these appointments of the Committee's investigation, no valid legislation has been enacted.

And we contend that there is no valid legislation which can come by virtue of the investigation which this Committee has under -- undertaken particularly or -- or especially I might add in respect to the -- to the -- to the membership in this -- in the particular organization which is before the Court.

We -- as we understand the -- the law in this area, the free speech in the -- in the free speech area that although an investigation of subversive activities may be made that the -- that the investigation cannot be an end in itself to merely feed on itself and this be subjective that there has to be -- it has to be for some valid purpose.

There has to be for some remedial legislation that has to be made for some -- some -- some aim or some interest which the state has a right to attempt to legislate about and we are -- we contend that that this not -- not present here.

Chief Justice Earl Warren: But Mr. -- Mr. Carter, I understood you a moment ago to distinguish Uphaus from this case on -- on the ground that in Uphaus, the Committee did have some evidence that subversives had frequented this -- this place and you say that in this one, in your case, there is no such evidence, therefore you distinguish the two cases but you go on to say that even if they had to -- if there had been evidence that there were subversives in -- in your -- in your organization or at least so testified to that that they still couldn't do it.

Now, I -- I can't quite follow that.

Mr. Robert L. Carter: I -- I don't -- I didn't --

Chief Justice Earl Warren: Or maybe I misunderstood you.

Mr. Robert L. Carter: What I meant to say -- what I should have said more clearly was as I understand that this Court's opinion in Uphaus was that there was evidence in showing not just members of -- that the World Fellowship had Communist in it, but there was evidence of -- a connective link between it and the -- and the Communist Party or evidence on which the -- it held that the state had a right to believe that there was a connective link between the World Fellowship to the organization involved and the Communist Party.

We contend that there is no such evidence of any connective link in this particular case.

And I said before and I -- I would stand on that that I don't believe that the connective link is demonstrated by the issue as to whether or not a particular person is a member -- who -- who is allegedly a member of -- of the Communist Party is a member of the organization that the connective link has to be in terms of the organization's activities which are in conformity with the aims of the -- of the Communist Party of the sub -- or subversion.

Now --

Justice Hugo L. Black: I maybe wrong but as I recall it, what you called the connective link in Uphaus was evidence that that some Communist had been at this (Inaudible).

As I understand this record, it is claimed here Communists had been NAACP leaders in Florida, is that right?

Mr. Robert L. Carter: Yes, sir.

Yes, sir.

There is a -- there is this -- there is a claim to that effect, Mr. Justice Black, but we -- we don't believe that the claim has been substantiated --

Justice Hugo L. Black: Well, they were trying to prove it by asking the witness before them.

Mr. Robert L. Carter: That's true that they were trying to prove it by asking the custodian of the list they had a -- and they had a person who they said apparently they produced as a witness who had personal or purported to have -- who they thought had personal knowledge of it.

Justice Hugo L. Black: Is there any likelihood that they could have found any witness who has known better who were the witnesses -- members in this particular man?

Mr. Robert L. Carter: Well, it would seem to me if the Court please, if they wanted to find out whether persons are members of the -- or whether they are subversives in the organization that the -- the direct thing to do is to find the persons and ask them.

They had a list of the names of these people.

They were stating that they were members of the organization.

If these were true -- if they were -- these were in fact true, it seems to me that this whole controversy in respect before the Gibson is -- is a kind of a futility.

Justice Hugo L. Black: As I recall, there was a suggestion in most of these cases if they could ask the witnesses themselves.

Mr. Robert L. Carter: Well, they could ask the witness themselves as to whether they were --

Justice Hugo L. Black: Ask questions themselves, not the witness.

Mr. Robert L. Carter: I beg your pardon.

Justice Hugo L. Black: The persons who were accused of being Communists.

Mr. Robert L. Carter: They made no -- in this particular hearing, they didn't bring any persons to that extent.

As I indicated, the person that they did bring had no -- this -- who had been at one time a member of the -- of the NAACP disputed their testimony.

I -- well, I think I had better leave the -- the one point I would like to make before I do sit down and that is that the -- I think that where the -- the issue here is whether or not this investigation can be made on the basis of the fact that whether persons are named by the Committee to be subversive that this place is in terms of pertinency, this place is an intolerable -- intolerable burden on the petitioner because there are no objective standings by which he can determine whether he can answer the question or not.

If the Committee says that a particular person is a subversive, he either accepts that or -- and refuses -- or refuses to answer at his own risk because if it later turns out that the Committee does have evidence, it would seem to me that he would be in contempt.

This is not the degree or as I understand the decisions of this Court that pertinency where it must -- must be -- must be determined on the basis of some objective fact where the petitioner or the witness is able to make a determination and will not be -- that he will have to make it up on his mind or his belief and what he believes in.

Chief Justice Earl Warren: Very well.

Mr. Hawes.

Argument of Mark R. Hawes

Mr. Mark R. Hawes: If Your Honors please.

I hope you will indulge my rough voice.

I am just overcoming a severe sinus attack.

I'll try to stand in form of the facts with one opinion.

If I -- opinion is too much please, indicate it out (Inaudible).

If I may at the outset begin my back -- my argument back with Your Honors, in answer to Mr. Justice Hugo Black's question as to whether or not we could've called the alleged subversives, I would like to direct, Your Honors' attention to the fact that we did call some of the alleged subversives in this case and before we called the petitioner Gibson, we called a Communist Party member Abe Sorokin to the witness stand.

This appears, beginning at the record on page 22, you will find -- beginning actually on 19 of the record.

I call Mr. Sorkin to the stand and Mr. Sorokin declined to answer any question I asked him asserting his absolute privilege of the Fifth Amendment.

Among the questions I asked Mr. Sorokin and this was before we called petitioner Gibson was, “Mr. Sorokin, are you now or have you ever been a member of the Communist Party of United States?”

He declined to answer that on the ground of the Fifth Amendment and other constitutional privilege.

I asked him if he -- “Have you now -- have you indeed in the County of Florida been a member of the Communist Party of the United States?”

That question he declined on the same ground.

I asked him, “Are you now or have you ever been a member of the NAACP in Miami-Dade County, Florida?”

That question he declined on the same ground.

I asked him, “Is it true that you are -- that you were in fact a member of the NAACP and that you joined it at the direction of the Communist Party of the United States?”

That question Mr. Sorokin declined to answer on the grounds among other than his Fifth Amendment rights which gave him an absolute privilege on all of the decisions of our own courts.

Now then Your Honor, my Committee investigator testified point blank that Mr. Sorikin was a member of the Communist Party and gave his Communist party card number.

Mr. Sorikin is one of the men about whom we asked the petitioner.

Of course, we have received the same response to every Communist Party member that we have called used the Fifth Amendment.

We called in this particular hearing other party members.

I think you'll find Benny -- a witness named Benny Stellar was called in this case and asked him, we got the same result.

So, actually we tried to pursue the notion of getting this information from the witnesses themselves or the subversives themselves and we ran into a blank wall.

If I may say Your Honors, the only issue before the Court in this case is on -- and clearly that del -- delineated on page 17 of the petitioner's writ for certiorari and the first two sentences of the paragraph beginning just above the middle of that page.

And this is the issue which is stated by the petitioner and which I accept as a true issue in this case.

Justice Charles E. Whittaker: Page 17?

Mr. Mark R. Hawes: Page 17 of the petition for writ, Mr. Justice Whittaker.

The issue is not whether petitioner is compelled to disclose the entire membership list of the NAACP or even on the names of some members.

The issue is whether petitioner can be compelled to produce his organization's membership list to testify concerning any persons, association or status and I -- in the line there, if Your Honors please, under any conceivable conditions ever.

What you're being asked to do in this case is precisely what you were asked to do in the Barenblatt case and what you failed to do in that case is to erect a constitutional sanctuary of absolute immunity around people engaged in a particular activity or belonging to a certain class or association.

In the Barenblatt case, Your Honor, will ask a whole that a person belonging to the educational field cannot be interrogated about Communist activities on the ground, of course, of -- not only First Amendment freedom of associational rights but I think freedom, academic freedom.

Now, if you will turn to the opinion of the Supreme Court of Florida in the appendix of the petitioner's petition for writ of certiorari at page 28, I may say to you Your Honors that Mr. Justice Thornal of the Supreme Court of Florida is one of the brainiest constitutional lawyers I have ever encountered in my experience as a lawyer.

Mr. Justice Thornal held in these two opinions which are attached to this appendix that we could not compel the other witness Graeme to testify about the membership of these same people in the NAACP because we had the petitioner, the custodian of the records there that purpose.

And Mr. Justice Thornal in the Supreme Court of Florida exonerated the appellant Graeme from a contempt conviction.

He declined to answer any questions on the grounds that we had the custodian of the records here who could give us this information, Gibson in this case.

Now if you will look at Mr. Justice Thornal's opinion, you will find, beginning on page 25 and he says that if the factual situation were analogous, at the bottom of the page, the NAACP versus Alabama, the Supreme Court of Florida would of course honor Your Honors' decision in that case and reversed the conviction of this man, but he finds the facts are markedly different as they are.

On page 27 of the appendix, in the middle of the page, he finds that as in the Uphaus case, this record unequivocally reports that members of the Communist Party and members of the affiliates -- of its affiliates have on various occasions attended meetings or participated in the affairs of the NAACP in Miami.

That appears in this record as Judge Thornal says it does.

On the top of page 28 of the appendix on his opinion, he finds that what the appellant is really asking is that they construct a constitutional city of refuge which opens its precincts to those who seek to speak freely and assemble righteously in their advocacy of their just causes.

And in doing so however, he would have us provide ideological asylum for those who would destroy by a violence the very foundation upon which their governmental sanctuary stands.

An appeal so ideological he thinks cannot make judicial sanctuary and if Your Honors please, they have no dispute between counsel for the petitioner and myself as to the law of this case.

This is purely and simply a question of fact.

If there is any evidence in this record sufficient to show probable cause to believe that subversive persons have been associated with the NAACP in Dade County, Florida then this case falls under the rational of Your Honors' decisions in Barenblatt, Wilkinson, Braden and Uphaus and the petitioner's conviction should be affirmed.

If you find that there is no evidence in this record to show that we have any Communist in Dade County who have been or may have been participating in the NAACP's meetings and decisions down there, if you find that as purely a figment of the imagination of the Committee from the record then of course you should reverse the conviction of the appellant of the petitioner and set him free.

In that connection, we all know and we have discussed in today that some 51 people altogether were identified in this record.

I want to call Your Honors' attention to one other piece of evidence in this case which in most material to the consideration of the nexus between subversive activities in the NAACP or as counsel referred to in a moment ago in answer to your question Mr. Justice Black, the connecting link.

If you will look on pages 119 and 120 of the record, you will find the piece of evidence there which in my judgment is absolutely sufficient to justify the investigation which the Committee undertook and which the Courts of Florida have upheld.

Here's an anti-Communism resolution brought by the petitioner himself to the Committee's hearing and of course which we've already possessed up when we started this hearing.

If you will look at pages 16 and 17 of my brief, I quote that resolution there and I have italicized for the Court's convenience certain portions of that resolution.

I set this resolution out setting -- starting on page 16 of my brief.

And this is a resolution which by the petitioner it is admitted was passed by the National Association for the Advancement of Colored People no later than its last national convention last year.

And it says starting out where certain branches of the National Association for the Advancement of Colored People are being wrecked by internal conflicts between groups who follow the Communist line and those who do not and going on in that paragraph to say that that thing asserts that it's threatening to disrupt the organization.

In the next paragraph, and whereas it is apparent from numerous attacks by Communist in their official argument, the daily workman, the political affairs that there is a well-organized nationwide conspiracy by Communists either to capture or split and wreck the NAACP and incidentally we have shown this by independent evidence in other hearings, they recognize that it is a name of the N.A.A.C. -- of the Communist Party to penetrate and capture their organization.

And they resolved in the next paragraph Your Honor that they go on the record as against the Communist and here, we have called upon and direct and instruct the National Board of the Directors to appoint a Committee to investigate and study the ideological composition in terms of the membership and leadership of the local units with the view to determining the causes of these things and then they instruct and resolve that that Board shall have a necessary authority to investigate such infiltration and if necessary suspend, reorganize and ban a local branch of the NAACP that's been infiltrated.

In other words, the National Convention and Solemn Convention assumed has found that some of their branches are so infiltrated that they themselves had set up an investigating committee to cope with the situation, and if that is true Your Honors and that evidence comes from the petitioner himself, “Why wouldn't the State of Florida show that there's at least 50 some odd communist in Dade County in close proximity to the Miami Branch down there?

Why can the State of Florida not determine whether or not that situation exist in the Miami Branch so that we may determine whether or not it's necessary that we legislate in whatever area Your Honors have left to us to control, sedition directed against the State of Florida and against seditions directed against the United States Government under the Nelson decision.

That is purely and simply, Your Honors, a question of fact.

The record abounds and I say supports clearly the state's position in this case.

The record sets the Uphaus decision in motion, the Barenblatt decision, the Wilkinson decision and the Braden decision in motion in this case.

Your Honors, we were not pursuing Reverend Gibson in this case.

If you will look at this record, you will see I gave him at least three or four opportunities to purge himself to comply with our request in this case.

We didn't want that Reverend Gibson (Inaudible) in this case, we wanted the information.

This case has been to the Supreme Court of Florida on two occasions before it ever reached Your Honors' doorsteps.

You will find that the fair conclusion of this entire hearing, I called him back to the stand after he had repeatedly refused to comply with the order of the Committee and asked him again if he wouldn't comply with the order of the Committee after calling his attention to the fact that there were some names that he wouldn't recognize out of the thousand names, that he didn't know all the members of his branch.

He admitted, if you will look at the record that he didn't know all the members of his branch and that he wouldn't associate a name with the face sometimes and yet, he wouldn't comply with the order -- the Committee or the Court.

Justice Potter Stewart: In that connection -- that is, the connection in the point you're now making is that you weren't -- you had no interest in sending the Reverend, Mr. Gibson's to jail but rather were interested in getting the information.

Mr. Mark R. Hawes: Yes, sir.

Justice Potter Stewart: What if this Court should decide that -- that you were right, that you were entitled to have him bring with him the membership list so that he could refer to them in answering questions about specific individuals, would he be given a locus penitentiary or would he have to serve six months in jail?

Mr. Mark R. Hawes: I will say this to Your Honor.

I don't know of course what position my Committee would take.

If it takes the same position it has always taken, we have permitted several witnesses to purge themselves.

We are civilized people down there in the legislature of Florida Your Honor and I know that for myself, I have no desire to see Reverend Gibson in jail at all.

Justice Potter Stewart: Well I assume of course that you are civilized and I am --

Mr. Mark R. Hawes: Of course, that case (Voice Overlap) Committee.

Justice Potter Stewart: I just (Voice Overlap) -- I just -- was looking at the judgment of the Court.

It's a judgment of a six months sentence in jail whether -- or whether $1200 fine with no opportunity to -- to purge oneself in that sentence by answering the question.

Isn't that though -- isn't that the form of the judgment?

Mr. Mark R. Hawes: The difficulty now that with the position I'm in, Your Honor, is the Committee does not control.

Justice Potter Stewart: That's right.

Mr. Mark R. Hawes: This is a -- a contempt to the Court --

Justice Potter Stewart: That's correct.

Mr. Mark R. Hawes: -- case now.

You see, what has happened is, we have invoked the aid of the Circuit Court and he has come in contempt to the Circuit Court of Leon County, Florida by refusing to answer the question.

Justice Potter Stewart: That's correct.

Mr. Mark R. Hawes: But, he has been ordered twice by the Circuit Court to do this, Your Honor and by the Supreme Court of Florida once to do this before he was ever put under this final order of contempt.

Justice Potter Stewart: That's been stayed pending his --

Mr. Mark R. Hawes: Yes, sir.

Justice Potter Stewart: -- coming to this Court and so that he's -- he's certainly --

Mr. Mark R. Hawes: But before this (Voice Overlap) --

Justice Potter Stewart: We were talking about the Uphaus case before.

As I remember the Uphaus case, Mr. Uphaus, right up until the very -- at any time sort of avoided going to jail by simply answering the questions.

And -- but that doesn't seem to be the case here that that was -- that's the matter to which I was directing my question.

Mr. Mark R. Hawes: Well, honestly, Your Honor.

I don't know what his position -- Judge Walker would make to this case in the Circuit Court.

If the petitioner wanted to purge himself that would be another matter.

I could not speak for the Circuit Court, but I know this.

I know that the record shows that we have sought information from this man in this case and I know this was the fact that this particular witness was not the official custodian of the records in this case until it was announced that we were going to hold this hearing and I know that the Reverend Gibson took it on his self to take the records from the official custodian who was the Secretary of the Miami Branch and he announced publicly that he had the records that he wouldn't produce them.

And he defied this Committee in advance of the hearing being called and he came there with that attitude of defiance and he's stuck to it through out the hearing and through out all the Court proceeding.

And this record will show that the witness Burnell Alberry was the real custodian of this record before Reverend Gibson took him over as president and he actively asserted himself into the position that he now finds himself, Your Honor.

He hasn't given us any choice in this case, but on the question of law which is all before the Court, I submit that it's a purely a fact of question and it directly brings us within the Braden, Uphaus and Barenblatt's cases and as a matter of law, the conviction should be affirmed.

Thank you.

Justice Tom C. Clark: I wonder if the Committee has given this (Inaudible) --

Mr. Mark R. Hawes: It is Mr. Justice Clark.

Justice Tom C. Clark: Well, if we -- unless the court finds (Inaudible) that you're right, would you recommend the Committee (Inaudible) the reports, some action alleviating (Inaudible) conviction if the Reverend answered the questions?

Mr. Mark R. Hawes: I would on this condition, Your Honor.

And one thing that counsel and I have always been at fundamental dagger heads for in this case.

You understand we are trying to hold an investigation and when we asked him about a particular person, we'd tell him, “We are interested in this particular fellow's affiliation.”

Now, counsel has taken the position that they have got the right to make us prove to the witnesses' satisfaction that the information we have about the subversive affiliation to the man we are asking him about is right beyond any reasonable doubt.

Now, of course, Your Honor, no investigation can be conducted if every time you want to ask a witness about the association of a particular third party, you've got to stop from having a side trial to determine whether or not that third party is really a subversive.

Now, if he will answer the question about the people which our Committee's information indicate are subversives or affiliated with subversive activities in Florida and in his branch, I personally will recommend to my Committee that they recommend to the Court that these sentence not be executed or at least shortened, yes sir.

I have no desire to see this man in jail and if you will read in the record, you will see the last thing I did with him was to give him another opportunity to answer these questions.

Justice Hugo L. Black: Is there a Florida law now that makes it a crime to be a member of the Communist Party?

Mr. Mark R. Hawes: There is, Mr. Justice Black but --

Justice Hugo L. Black: Is that cited in the --

Mr. Mark R. Hawes: No, sir.

But its validity at this time is in a (Inaudible) condition since Your Honors decision in Nelson versus -- versus Pennsylvania.

We have never revised that statute to take out those portions of it directed against subversion -- directed against the Federal Government.

The -- the validity of that statute is very much as presently withdrawn in question.

We have such a statute though.

Justice Hugo L. Black: Has there been any proceedings started against the NAACP directly in order to forfeit its order or anything of that kind?

Mr. Mark R. Hawes: No, sir, Your Honor, none whatsoever?

Chief Justice Earl Warren: Mr. -- Mr. Carter.

Rebuttal of Robert L. Carter

Mr. Robert L. Carter: Well, if I may -- because I think that the statement that Mr. Hawes made really succinctly places the problem before the Court.

Mr. Hawes says that the Committee doesn't want to stop every time if they asked whether a person is a member of the party and the person decides to stand on his constitutional rights, but it seems to us, if the Court please that this is the -- this is a particular issue here.

The fact that the constitutional guarantees remain make -- that the Committee cannot violate the constitutional guarantees and cannot freely violate constitutional guarantees is the very reason for this Court.

And that -- therefore, in this particular case, as we pointed out, we think that we had demonstrated that we think that the evidence in this case demonstrates that there is no reasonable connection between the demand for this -- for what is being demanded in any legislative purpose that the -- that this Committee is -- is investigating to determine whether or not that certain persons alleged to be members of the Communist Party or members of the -- of the organization.

And as a matter of fact, what do they do with this information.

Can they pass a law barring that members of the Communist Party be in the organization?

If in fact the -- what they have to do in order to -- to attack the organization and to lay a foundation for making the kind of investigation which I think -- which I -- as I understand that the decisions of this Court, there would have to be some showing that the organization itself is involved in some kind of activity of this kind.

Now, as we attempted to point out in this brief and show to the comm -- I mean in -- for all these hearings and show to the Committee the organization, as most organizations of its kind were -- attempted to take care of the -- of the problems within it by the resolutions which -- which were adopted and by following it, implementing it and therefore, being sure that there were no subversives in the organization.

The testimony in the record reveals that the persons who were in charged with this, with -- and implementing these resolutions stated that there are no Communists in the Miami Branch and that they have no evidence of any being there.

Now, all the Committee wants to do is to -- and we think that this is -- what the Committee wants to do in this particular instance is to attempt to have the -- Father Gibson come before the Committee with the membership list and an announcement made that the Committee has had possession of the list and we think that this doesn't fair with the NAACP versus Alabama case situation --

Justice Felix Frankfurter: Mr. Carter before you – I beg your --

Chief Justice Earl Warren: Go right ahead.

Justice Felix Frankfurter: Before you sit down, I want to ask you a question and I might -- perhaps should have asked Mr. Hawes since you're the petitioner here, I'll ask you.

He spoke of Reverend -- Mr. Gibson answering a question, there are no questions in controversy in this lawsuit except the question -- will you look at the record?

Isn't that right?

Mr. Robert L. Carter: That's right.(Voice Overlap) --

Justice Felix Frankfurter: There were no -- no oral -- no oral inquiries.

Mr. Robert L. Carter: (Voice Overlap) --

Justice Felix Frankfurter: That is right, isn't it?

Mr. Robert L. Carter: That's right, sir, which were authenticated via testimony whether these people are members of -- by -- by the record.

That's the correct.

Chief Justice Earl Warren: Mr. Carter would you -- would you briefly again distinguish this case from Uphaus for me, please?

Mr. Robert L. Carter: As I understand the Uphaus -- the Uphaus case, the majority -- there was a -- there was a disagreement as I understand it between the majority and the minority on what the facts meant.

But as I understand Uphaus, the majority held and therefore held that the membership list was not privileged because the majority held that there had been established in the record a rational basis to believe for the state to believe that there was a connection between the World Fellowship and the -- and the Communist Party.

Justice Hugo L. Black: What connection?

Mr. Robert L. Carter: The connection that I -- as I see -- saw in the -- as I understand the opinion, the connection was by virtue of the fact that there were speakers had or the speakers who had been invited were allegedly members of the Communist Party to address this group that some of the members who had been -- who themselves was allegedly they're Communist on this -- this is on the testimony of -- of various witnesses.

The other distinction, if I may, was that the -- the guest list itself, as I understand Mr. Justice Clark's opinion, the guest list was required to be made public.

And that insofar as the Court held and insofar as the guest list was concerned that the -- the protection which -- which the -- which was being claimed had been given up at the very outset because they were required to disclose it, but the main difference is -- as I --

Chief Justice Earl Warren: Because what?

Mr. Robert L. Carter: Because there has been dis -- it required to disclose it under -- the quest list was required to be given and its given to the sheriff and public law enforcement officials under New Hampshire law so that -- this was another difference between the two cases.

Now, I'm saying that in that particular case that there is no nexus between the party, the Communist Party and the -- and the NAACP established in this record.

There has been allegations made that the -- there are some persons involved who are in it, but -- but the allegations I -- we submit are insubstantial because the allegations are in dispute even by the Committee's own witnesses and that therefore we think that the -- the link which Uphaus held was necessary or was -- would require a break with the NAACP versus Alabama is not present in this case.

Chief Justice Earl Warren: But I understood you to say further that you thought that -- that they could not, by further evidence of a link, establish facts which would entitle them to this list in your case.

Mr. Robert L. Carter: Well, I --

Chief Justice Earl Warren: Was I wrong in that?

Mr. Robert L. Carter: I think -- I -- I could say that -- what I think I meant to say, if the Court please, I thought that they had no right in answer to the hypothetical question Mr. Justice Frankfurter put to me, I indicated that I didn't believe that it was a valid question that could be asked as to whether we say that such and such a person is a member of the Communist Party.

Is he a member of the organization?

I contend that this is not a valid question that the state has a right to ask in -- in circumstances of this particular case.

I contend of course, that they can't prove that there is any nexus between the organization and the -- and the NAACP, but I think what I have to argue here is the worst kind of circumstances in which they can prove in this particular case and the worst kind of circumstance I think they can prove is on their own evidence.

The evidence is not -- is not evidence in which there can be any support.

Chief Justice Earl Warren: Well, the thing that troubles me is this.

In Uphaus, the facts, let us take them as you say it were in this case, one witness testified that 14 individuals were Communists.

Another one testified that he had seen those people at NAACP meetings.

Now -- now, that -- if -- if we take those facts as true, it's difficult for me to see where in it can be differentiated from Uphaus.

Mr. Robert L. Carter: Well, I think that -- that the facts are that an investigator, a person who investi -- who are alleged to be investigator, who was shown to have talked to the witness saying -- testified that his -- his evidence showed that these people were -- were members of the organization.

But Sands himself, the personal witness came on the witness stand and testified, one, that most of these people were not members of the Communist Party to his own knowledge and two, that they were not members of the organization.

So that our -- our contention is that the -- the evidentiary basis which they were attempting to establish has been taken away from them by their own witness.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Robert L. Carter

Chief Justice Earl Warren: Theodore R. Gibson, Petitioner, versus Florida Legislative Investigating Committee.

Mr. Carter, you may continue your argument.

Mr. Robert L. Carter: At the close of the argument yesterday, Mr. Justice White raised the question and asked me to address myself to it, on today.

I can’t repeat the question in words, but the burden of it as I understood it was whether why was it not in the interest of the organization to verify the fact that the person’s name, that alleged the communists were not in Memphis and therefore to give the testimony requested.

The reason that this was not done and I think that the record is clear, the reading of the record makes clear that these 14 persons named by virtue of the fact that the membership in the organization has only existed for one year and it’s obvious that these persons that were -- supposed persons were named or persons that if they had any connection with the organization at all, would have been predated 1950.

The reason that this was not done is because of the fact that petitioner believed that he would place in jeopardy the constitutional right of freedom of association and the privacy in that association which this Court protected and secured in NAACP versus Alabama.

Now, the issue that comes down to it is if -- that if the petitioner answers that the question, where will he stop?

The next question will be a list of Negro school teachers and proffered with the statement that we have reason to believe that these persons are members of the Communist Party, will you verify as to whether they are members of your organization or ministers for example.

And the fact that this is itself can be gleaned from the Court -- by the Court -- by reading of the record at page 241, in which on the -- when the petitioner came back to the committee on the second time, counsel for the petitioner need be with the -- it begins on about -- at page 239, but looking at the middle of page 241, he was asked to disclose whether or not Reverend Edward Graham was a member of the NAACP.

Mr. Holt said that Reverend Graham that -- what's -- the pertinence of the question is that Reverend Graham is and has been a member of the organization in Dade County that over a period of years, he is or has been a member of certain organizations which have been listed as subversive, etcetera.

Now, we contend that the committee was not really looking for these persons.

That what the committee was in fact doing and what is before this Court, is not a discussion of an abstract principle of state power but the same issue which was before this Court in NAACP versus Alabama and the Bates case and in the case from Louisiana.

And that is that, and I have not stressed this in the argument in this case because this case does not come here of a -- as a case of first impression, but this Court as I understood its opinion in both cases held that this being an organization of a minority group, unpopular, that the freedom of persons or their desire to the persons who might ordinarily join would be deterred by virtue of the fact that they might be disclosed and -- their names might be disclosed, their identity might be disclosed, and therefore, they would be subjected to kinds of intimidations, intimidation which would prevent their doing what the Constitution says that they can do and that is to participate in a lawful group activity.

For this reason, in that case, this Court said that there must be a status with some compelling -- of compelling proportions in order for the intrusion in this area to be allowed, and secondly, that the disclosure must be relevant to a valid legislative objective.

Now --

Justice John M. Harlan: Do you claim in this case that the state had no power to contest this investigation no const -- (Inaudible) -- it was a constitutionally unauthorized investigation?

Mr. Robert L. Carter: No sir.

I don't have -- I don't think I have to make that argument, but I do think that what the state must disclose, is not only that the interest and that is the interest here being investigation of subversion, but that the state's interest must be directed one to a valid legislative objective and it must show that there is some basis for the inquiry in this particular instance.

In other words, this is not a case as it was in -- but Baron, Black or Braden or Wilkinson in which the petitioner was asked, "Are you a member of the Communist Party?"

Nor is this the case in which the -- if there is an assertion by the investigators that the organization is subversive nor is it a case in which there is an -- any assertion at all that the organization engaged in any illegal or unconstitutional activities, nor as in Wilkinson and Braden had there been any showing that the inquiry is directed to any legislative objective that there is any legislation being composed which would deal with this particular problem, I must say that I don't know what this -- what they could do in this instance validly legislated.

What this is and re -- we think --

Justice Arthur J. Goldberg: [Inaudible] may I interrupt you a moment and -- in knowing [Inaudible] on the -- based on the [Inaudible] and being of the same task, or that what was necessary [Inaudible] --

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: -- if the state were really interested in information, then of course it could do this in another way, but what I was attempting to define was that the limits what I regard as state power.

And in this instance, it seems to me that the state has to make this kind of showing or else, what is really occurring is that the state can say, “We are concerned with the infiltration of communists.

We have reason to believe that they're members of subversive organizations, of subversive groups and a particular organization, and it that regard it can destroy the enclosure which this Court has erected around freedom of association in NAACP versus Alabama.

And I think that this Court, that this is a retreat them from that decision which I would respectfully urge that this Court not take.

Now, in further answer to Mr. Justice Goldberg's inquiry, it does seem to me that if the -- if there was any real interest here in evidencing to the petitioner's organization that we have the information that these 13 people are members of the party, they're likely to taint your organization, you be careful about them that what they can do is to inform.

They could inform the petitioner's organization to watch out for these persons and permit them if they -- if such people are in the organization to purge them from it.

But if they did not do that, what they did was to attempt to -- by this means, we think to get constructive possession of the membership list.

And we say if the Court please, that this case is of the same of a piece with the same situation which was before this Court from Alabama, Louisiana and Arkansas that if the Court will read the first opinion of the Supreme Court of Florida in this case.

But the Supreme Court of Florida took this Court's opinion in NAACP versus Alabama and said, that the committee at that time was seeking the possession of the entire membership list.

But the Court said, in view of NAACP versus Alabama, we do not hold that you can have that but that -- on the grounds that you're looking for a communist in the organization, you may require an answer to this -- to specific questions asked by -- as to whether a person -- validating as to whether a person belongs to this organization.

And we if the Court please, that this is a legalism, that what this does by not placing any real predicate, any real indication by the Court, any real showing by the committee that there is some link, some real link between the organization and communism that what is in -- it in fact saying is that we, merely by virtue of the fact that we alleged that certain -- a person is a communist, then we can get your -- just your membership was entirely.

And we think that this gives the individual whose custodian of the listing, the only person who can protect the membership list and the freedom for association of the organization's members.

In this instance, gives him no principles on which to stand, he acts -- he doesn't know what names to give up, he has to give up all the names or else he has no way of knowing whether these persons who are called communists are in fact communists or not.

And I might --

Justice John M. Harlan: If you assume that there was a sufficient nexus so called -- do you understand what I mean --

Mr. Robert L. Carter: Yes sir.

Justice John M. Harlan: -- sufficient justification for the committee to proceed to make an investigation of this character, do you still say that the records for the limited purpose for which they were questioned could not be required?

Mr. Robert L. Carter: No sir.

I would -- again, I don't think I have to go that far in this case.

I think that if there was a showing, not that do we have evidence that A, B and C are members of the Communist Party, but a real showing of a connection, an activity on the part of the organization which connects it, which -- that which -- has -- give up the -- the state reason to believe that is harboring subversives and engaging in subversive activity, then it would seem to me that that would present to the Court an entirely different question.

And that would present also to the Court a question as to whether or not the individuals who was custodian of the list had a reason to know and believe and understand that this is exactly what the organization is doing.

Justice Hugo L. Black: It would also present a question would it not under numerous cases, whether assuming the power of the state to conduct investigation looking at the whole circumstances involved and what is being done, the rights of the individuals to associates, the purpose they have, the power of the state the fact informational rather the second offenses [Inaudible] this Court would say under this -- these cases, the interest of the state is sufficient to override these constitutional protections to the individuals.

Mr. Robert L. Carter: Yes sir.

But, I think that what I was --

Justice William J. Brennan: Well, Mr. Carter, may I peruse this a little differently?

Mr. Robert L. Carter: Alright.

Justice William J. Brennan: If I get your answer to Mr. Justice Harlan, what you've been saying is this.

We may assume the constitutionality of this kind of legislative inquiry.

We may assume also that it was an inquiry which had a valid legislative objective.

But that nevertheless, before there may be an encroachment upon the First Amendment protections which you rely upon, there has to be substantial evidence of actual communist activities by the organization before these questions can be put --

Mr. Robert L. Carter: Yes sir.

Justice William J. Brennan: Is that it?

Mr. Robert L. Carter: Yes sir.

Justice William J. Brennan: Well, then it seems to me what you're doing is saying that, or are you, that factually, this record is more like the Sweezy record where this Court found there was no evidence that the progressive party engaged in communist activities and therefore, questions put to Dr. Sweezy about the progressive party could not be put, even assuming the validity of the New Hampshire legislative inquiry in the subversive activity.

And that this is like the Sweezy record and not like the Uphaus record where the Court found that the World Federation or whatever that thing is called, that the Uphaus was connected with in fact was engaged in activities which at least to a majority of this Court satisfied the requisite of proof, substantial proof of activities by the organization itself under inquiry.

Is that your point?

Mr. Robert L. Carter: Yes sir.

But the -- exactly, Mr. Justice Brennan, but I would add the other point that I think that this Court held in NAACP versus Alabama.

And that is not only the factual evidence of subversive activities must be demonstrated, but it seems to me that the state must also be able to show that the disclosure which it seeks is relevant to a valid legislative objective.

Justice William J. Brennan: Well, I assumed in my --

Mr. Robert L. Carter: that is set in two --

Justice William J. Brennan: -- I assumed in my question that -- as I understood your answer to Mr. Justice Harlan, you could assume that it had a valid legislative purpose.

Mr. Robert L. Carter: Alright.

Justice William J. Brennan: You could assume that the subject matter of the inquiry was constitutionally permissible, namely subversive.

And yet, before the questions can be put before they could put the encroachment on the First Amendment rights that you are asserting, there has to be this substantial evidence of activity, subversive activity by the organization under inquiry.

Mr. Robert L. Carter: That's right.

Justice Hugo L. Black: And I don't know that there is any difference in the question I asked you to the one my Brother Brennan did.

But I want to see if you are -- if you have changed your view as to the question I asked you.

Let us assume that the record does present evidence which the courts apply you think to be sufficient or substantial to connect these people up with -- at least some of them that would -- some kind of activity.

And that therefore, you find the power on the part of the state, conduct an investigation of this kind --

Mr. Robert L. Carter: Alright.

Justice Hugo L. Black: -- abstractly.

You also have facing over on the other side of that, a constitutional power, constitutional rights of individuals to associate for the legal purposes of protecting that constitutional right.

I understood you to answer me a while ago that you are insisting that even under those circumstances, the interest of the state in doing what it wants to do, must great or must be thought under all the circumstances to outweigh the interest of the individuals into exercising their constitutional rights.

Mr. Robert L. Carter: I don't think Mr. Justice Black, that there is any difference in my answer to --

Justice Hugo L. Black: I didn't think but I want to be (Voice Overlap) --

Mr. Robert L. Carter: -- Mr. Justice Brennan and to your question.

I think what I -- what I understood -- Mr. Justice Brennan to indicate was that, that this showing of the link of communist activity would be the evidence which this Court would weigh as to whether this was an overriding -- overriding the state interest.

And of course, in terms of weighing it, the Court would have to decide, must decide what -- whether this is sufficient.

Justice William J. Brennan: But you don't reach it if in fact the evidence doesn't --

Mr. Robert L. Carter: Yes.

Justice William J. Brennan: -- show a link --

Mr. Robert L. Carter: That's right.

Justice William J. Brennan: -- of the organization with the subversive activities --

Mr. Robert L. Carter: That's right -- and that's -- that's exactly the point which --

Justice William J. Brennan: And --

Mr. Robert L. Carter: -- we've been trying to make --

Justice John M. Harlan: – in determining whether was a link, do you think that the NAACP's resolution with respect to communist infiltration in its ranks is a relevant factor to take into consideration?

Mr. Robert L. Carter: I think that the NAACP's resolution in respect to the presence of communist in its ranks is a relevant fact.

I think that the fact that it -- in 1950 adopted the -- this kind of resolution.

It evidenced that there was a problem and I think that when the courts reached the other resolutions that have been adopted from year to year is there's an indication that this problem had been dealt with by the organization itself.

I also think that the --

Justice William J. Brennan: You're not suggesting surely that because the association undertook to recognize the problem to deal with it which I am sure it has tried to deal with it, that insulated it from official inquiry?

Mr. Robert L. Carter: No sir, but I think that these -- that having -- taken these steps does not give the state the right to say that this is evidence of activity which links you clearly upon on that factor alone to subversion, into subversive activities.

Justice William J. Brennan: Well, on that very question Mr. Carter.

Mr. Robert L. Carter: I beg your pardon?

Justice William J. Brennan: On that very question, how many chapters does NAACP have?

Mr. Robert L. Carter: I think it has about 1500 chapters.

Justice William J. Brennan: About 1500 chapters.

Now these resolutions which as I recall it are dated from 1950 or thereabout?

Mr. Robert L. Carter: Yes sir.

Justice William J. Brennan: Did -- the Miami Chapter or whatever -- what -- is that -- we're dealing here with the Miami Chapter?

Mr. Robert L. Carter: Yes sir.

Justice William J. Brennan: Whatever there may be said in those resolutions is there any identification of the attempted infiltration referred to in those resolution, with the Miami Chapter as such?

Mr. Robert L. Carter: No sir.

And as a matter of fact, the --

Justice William J. Brennan: Well, then -- then may I ask, if there isn't, now you answered to Mr. Justice Harlan that nevertheless those resolutions might be a relevant factor and what puzzles me is how can they -- those resolutions which make no reference to the Miami Chapter as I understand it, be relevant to the conditions within the Miami Chapter?

Mr. Robert L. Carter: Well, I didn't understand Mr. Justice Harlan's question as to mean that.

I understood Mr. Justice Harlan's question to raise the -- raise with me the issue as to whether the fact that the NAACP had enacted a resolution of this kind, was a factor to be considered in a -- in the determination of this Court -- of this question.

And I believe that the -- quite frankly, that the -- the resolution does show that the organization had a problem but that --

Justice William J. Brennan: That the organization does.

Mr. Robert L. Carter: Yes sir.

Justice William J. Brennan: But what we have here is the State of Florida making an inquiry into the --

Mr. Robert L. Carter: That's right.

Justice William J. Brennan: -- Miami Chapter of the organization.

Now, I ask again -- I'm a little puzzled how the facts that the organization as an organization had a problem bears on whether or not there is attempted infiltration of the Miami Chapter.

Mr. Robert L. Carter: Well, I -- what I wanted to say in further answer to Mr. Justice Harlan's question is that this record shows that insofar as these persons are concerned, and so far as the persons in Miami who are in-charge of keeping the org -- keeping this resolution being sure that there was no communist infiltration but there is evidence in the record of testimony, these persons that over ten years that they had never heard of any communist activity in the organization.

They are charged with pro -- with the thing that this resolution is enforced and there was nothing in the record to refute this.

So, that -- as a matter of fact, I think that the record from the basis of the resolution makes clear and it's undisputed that the resolution has been enforced that in regard to the Miami Chapter and that there is no communist activities certainly the state.

Justice John M. Harlan: Nobody is suggesting that the NAACP is not taking steps to defend itself against this sort of thing, that's the very purpose of the resolution, it shows on its face.

Mr. Robert L. Carter: Yes sir.

Justice John M. Harlan: But I put you again the question, granting all that, you say that that insulates the organization from official inquiry?

Mr. Robert L. Carter: No sir.

I did not --

Justice John M. Harlan: I think you did.

Mr. Robert L. Carter: I did -- I didn't say that.

I don't intend to say that, but I do think that even in spite of the fact that there's such a resolution that the state is obligated to present concrete evidence showing an activity or some thing set that the organization itself in Miami is harboring subversion.

And I think the state has failed to do this before it can show to this Court that it has presented some substantial inference which subordinates, the right of freedom for association and (Voice Overlap) --

Justice John M. Harlan: But Mr. Carter, the very purpose of an investigation is to ascertain whether something is so or not so and you are surely not suggesting that as a predicate for making such an inquiry is the state might show that in fact what it's undertaken to investigate exists before it can begin the inquiry in to it.

Mr. Robert L. Carter: But if I may say Mr. Justice Harlan, I think that the state cannot merely be investigating something for the purpose of investigating. It must be related to something.

It has to -- if they are investigating the presence of communist in the Miami Branch of the NAACP, it has to be related, I think.

And I think this Court held to this in the Watkins versus United States, something in regard to the congressional investigation, it has to be related to a valid legislative purpose.

I also think that this Court reaffirmed this doctrine in Braden and in Wilkinson.

And I don't believe that it's sufficient to say that they are investigating the presence of communist or that they have a right to investigative.

Of course, I think they have a right to investigate but it has to be related to something that they can do, some valid purpose which I think that they have failed to show in this particular case.

And I -- as we pointed out in our brief, this committee has to -- in existence since 1956, that it has been reconstituted in 1957 and 1959 and in 1961.

And as -- and it -- during all this period of time, it has not evidenced and certainly is nothing in this record to evidence that it is doing anything valid -- in a valid legislative objective in terms of this other than an attempt to disclose and expose which I think this Court says that legislative power cannot be used to that extent.

For these reasons, if the Court please, we respectfully urge that the judgment below be reversed.

Chief Justice Earl Warren: Mr. Hawes.

Argument of Mark R. Hawes

Mr. Mark R. Hawes: If Your Honors please, I was a little surprised today to see my opponent taking the position that in addition to the nexus between communist activities or subversion and people within this organization that we had to show an addition before we could raise these questions.

Some evidence said this organization as such was engaging in some sort of subversive activity.

Now this is not the question, if Your Honors please, this case came before this Court only.

It is not a question embraced in the petition for the writ that you issued.

Now, if you refer that these two petition for the writ itself, you will see the question presented is quite substantially different from the contentions being made by counsel for the petitioner here in this argument.

The question is presented in the petition for the writ is whether or not under the circumstances in this case, we could compel these answers without violating the freedom of association and privacy.

In the absence of some showing of a nexus between the Communist Party or communist front organizations and their subversive activities in the petitioner's organization, I deem that to be a proper question, if Your Honors please, and I deem that to be the question that's before the Court for consideration.

And I say that if a nexus is established by this record showed that there's reason to believe that people connected with a subversive organizations are or might be members of the Miami branch of the NAACP what you have an actuality before the Court, is Uphaus against Wyman over and over.

Now, it is not required and was not required in the Uphaus case that the Legislative Committee of New Hampshire operating as a one-man committee through the Attorney General, show that the World Fellowship organization had engaged in any subversive activities.

But the nexus in that case was that some 18 or 19 members of the Communist Party and/or communist front affiliation groups had spoke at meetings in a summer camp run by the World Fellowship Association.

That was the sole nexus in that case.

That record didn't purport to show that the World Fellowship Association as such had engaged in any subversive activities.

Justice William J. Brennan: Well, am I wrong -- I thought that among the truths that the Court relied on in that case, were these that the -- some of the speakers at World Fellowship meeting were admitted communists.

That Dr. Uphaus himself had attended that Warsaw Convention where the United States was censured for using germ warfare allegedly in Korea and there were communist pamphlets, some wanted by smaller talk.

The evidence was were distributed at meetings of the World Fellowship.

Now, wasn't that rather a different record than we have here, that is as regards -- the activities of that organization, World Fellowship, and the activities of the Miami branch of the NAACP --

Mr. Mark R. Hawes: Your Honor I read Uphaus opinion yesterday.

If my recollection is not in error and I admit it may be, the only evidence reflected by that opinion is that Uphaus himself is -- and he was executive director I believe or secretary of World Fellowship shown to be a member one or more communist-run associated organizations.

And at the summer camp run by this association had their speakers of some -- I believe 19 speakers, some of whom had been members of the Communist Party and some of whom had been members of various front organizations.

Justice William J. Brennan: None of these were actual activities of World Fellowship.

These are meetings of the World Fellowship addressed by these individuals who the record showed actually admitted that they were members of the Communist Party, was it not?

Mr. Mark R. Hawes: No sir.

I can't glean that from the opinion Mr. Justice Brennan.

I say that these are meetings at the summer camp run by the organization.

The record does not show from the opinion that this is official meetings of the organization, but they are meetings of some type at the summer camp run by this organization in which these people spoke, that is what I glean from the opinion.

Justice Arthur J. Goldberg: Suppose, that you [Inaudible] --

Mr. Mark R. Hawes: I think not Mr. Justice Goldberg.

What you have in mind is a fact that the laws of New Hampshire required this summer camp which ran apparently a larger motel to maintain a guest list for the state purposes but it did not appear that this list had actually become available to the state.

It simply was that the state law required the maintenance of this list to show which guest apparently had stayed at the motel or the hotel.

That is my impression of the decision.

Justice William O. Douglas: When you look at this request of this -- the Florida Committee a little more closely you see that some of the matters they want to discover who has been at any time a member of the Communist Party, past members as well as present members, is that right?

Mr. Mark R. Hawes: Yes sir.

Justice William O. Douglas: But, would the committee -- do you think a committee in a state or congressional committee have authority to make a canvass of its jurisdiction to see how many people that ever joined the Communist Party without being relevant to any legislative purpose?

Mr. Mark R. Hawes: Well --

Justice William O. Douglas: Leaving out all -- present membership.

Mr. Mark R. Hawes: If Your Honor please, I think in the Uphaus case to answer your question, the legislative directed to the Attorney General was extremely broad and as I read your decision, it was for him to determine whether or not there were any communist or subversives within that state.

Justice William O. Douglas: I'm talking about past membership, 30-year-old membership, 20-year-old membership, 10-year-old membership.

Mr. Mark R. Hawes: I think you reach your point, to answer your question sir, that a membership can be so old if it can be shown to have been broken that it becomes irrelevant.

Now, where that line is sir, I do not purport to know.

Justice William O. Douglas: But this is a pretty broad nexus thrown here, isn't it?

Mr. Mark R. Hawes: I think not.

Justice William O. Douglas: 53, 55 past or --

Mr. Mark R. Hawes: We were here in 1956 when we started this investigation Mr. Justice Douglas.

Justice William O. Douglas: I know, but I say 55 members were said to be past or present.

I just wondered what the past membership, what relevancy, possible relevancy that has?

Mr. Mark R. Hawes: Well, it depends upon the extent.

Justice William O. Douglas: Because I imagine, if you look -- start looking in the past of it, any person you'd apt to find something that might be held to ridicule him if it was exposed or degrade him or her if it were exposed?

I don't suppose anybody is without some sin or --

Mr. Mark R. Hawes: Mr. Justice Douglas, this brings us to the very question which I think has evolved in this case.

Justice William O. Douglas: I just wondered how -- what legislative can use such a big myth to --

Mr. Mark R. Hawes: The question --

Justice William O. Douglas: -- in this field.

Mr. Mark R. Hawes: The question has become in my judgment as its evolved is whether or not any legislative investigations committee, state or national, shall be permitted to investigate in this field at all.

Justice William O. Douglas: Well, what I'm talking about, this field is past membership.

Mr. Mark R. Hawes: Well, Mr. Justice Douglas, as I say there is a point.

Definitely, there must be a point where past membership fails to be relevant any further.

But I don't think that past membership of a year or two years or three years, in the Communist Party itself is necessarily irrelevant in determining whether or not an individual is a subversive still.

Now, if he renounced the membership in the party 10, 15, or 20 years ago, I think clearly there's no question that that becomes irrelevant to any reasonable mind.

Justice William O. Douglas: Of course, you might say that the -- he might still be operating underground that might be just a front.

It illustrates the great danger of getting into this field at all unless you are investigating not the ideas and ideology and political faith, but actions.

Mr. Mark R. Hawes: I want to say this to you Mr. Justice Douglas --

Justice William O. Douglas: Do you understand what I mean?

Mr. Mark R. Hawes: That -- yes, sir.

Justice William O. Douglas: A 10-year old membership --

Mr. Mark R. Hawes: It has been (Voice Overlap) --

Justice William O. Douglas: -- and then perhaps he went underground.

Mr. Mark R. Hawes: It has been said that this committee that I represent is here to simply trying to smear the NAACP.

Justice William O. Douglas: I didn't suggest that.

Mr. Mark R. Hawes: -- it has been said, now by counsel.

Now, if Your Honors please, it's a fact.

This same committee investigated John Kasper, the Ku Klux Klan and the Seaboard Citizens White Council in regard to their activities in their same racial disturbance down there in Florida.

Justice William O. Douglas: Well, my question would be as relevant but if this was a White Council and you're investigating past membership, (Voice Overlap) --

Mr. Mark R. Hawes: Yes sir.

And I submit Your Honor if the petitioner in this case was a Ku Klux Klan that I wouldn't have any difficulty in explaining to the Court the legitimacy of the state's interest in this investigation.

Now, it's certainly is not true that this particular committee of the State of Florida is going out simply to destroy the NAACP and I want to say to Your Honors that the State of Florida has long recognized the binding effect of the judicial decisions of this Court in regard to segregation and desegregation.

And that if you will read the opinion of the Supreme Court of Florida in this case, I don't think you can come to the conclusion at all that any -- the judiciary of Florida and I know it's not the position of my committee to defy and use of power of the state in this committee to defy the edicts of this Court in regard to desegregation.

Yet that is a suggestion that's made by counsel up there for the petitioner.

Now this is the question, pure and sample as this.

As you're going to close this organization with absolute immunity, from many sort of investigation in regard to subversion and the effect is that you're saying to all investigating committees, you've got to get out of this field entirely, not only in regard to the race issue and regard to communism but anything else.

Now you must look at the effect such a law will have on other cases in my judgment.

I can see the effect of this type of decision is overruling the immunity statutes of many of the states and the Federal Government.

You're going to make on the First Amendment if you continue and if you receive to what is asked you, on an absolute shield in effect like the Fifth Amendment.

You're going to have witnesses coming before state juries and regular state prosecutions of ordinary crimes and saying this and regardless of the fact that I get immunity under your law for my criminal involvement whether defendant in this case, I'm not going to testify as a witness from the state against this defendant because it invades my privacy, my associational rights.

You cannot compel me to say, "Well, I know this criminal" and whether I have associated with him before.

Now, these are facts and problems if Your Honor pleases, been said many times that hardship law is bad law.

And when you sit down to write a decision to protect the individual because perhaps you think in one sympathetic case is in a hardship situation, the result nearly always is that there's a distortion of the true law that operates in benefit of those -- that you don't contemplate.

Now, what is the purpose of an investigation?

What it --

Justice Arthur J. Goldberg: Mr. Hawes, before you can [Inaudible] --

Mr. Mark R. Hawes: Yes sir.

Justice Arthur J. Goldberg: I didn't [Inaudible] in your brief my question and the -- where the investigation right under the [Inaudible].

Let me ask you this, of course in your investigation I am sure you established [Inaudible].

That in view of your position that if your investigation is fully in effect [Inaudible]?

Mr. Mark R. Hawes: Mr. Justice Goldberg, I have never in my life and I have been -- conducted all of these investigations.

I've never asked a witness about his religious affiliations.

My answer to that is no sir.

But on --

Justice Arthur J. Goldberg: But, I know that -- on my own experience [Inaudible] this is the White Citizens Council [Inaudible] membership through a union. And here, your position is [Inaudible], checking his list, to verify that fact?

Mr. Mark R. Hawes: If the White Citizens Council ever gets itself clearly in the position of the Communist Party where it has been judicially determined and Congressionally determined to be aimed at violent overthrow of the Government of the United States and the various states of this union, my answer to that is yes sir.

Justice William O. Douglas: Of course the legislative objective is not restricted to overthrow the Government.

It could be --

Mr. Mark R. Hawes: That's correct Mr. Justice.

Justice William O. Douglas: -- anything which you might -- that might be legislation (Voice Overlap) --

Mr. Mark R. Hawes: -- legitimate state interest.

Justice William O. Douglas: Yes.

So, I would think that that --

Mr. Mark R. Hawes: But now what is -- here's the whole question in this case Mr. Justice O' Douglas as I see it.

Are you going to require an investigating committee to show conclusively before it can put questions to a witness to determine whether or not a thing is true, that it is true?

We've got to make a conclusive showing that present members of the Communist Party or in the NAACP branch in Miami before we can subject this organization to these questions.

Now these are the sole question in this case in my judgment.

Justice William O. Douglas: I thought --

Mr. Mark R. Hawes: Because if we don't --

Justice William O. Douglas: I thought the question is whether or not there is any evidence that the organization that you're investigating was engaged in -- engaging in communist activities.

Mr. Mark R. Hawes: That is the question that has evolved here orally if Your Honor please, I agree with that.

I disagree violently that that is the question legally before the Court. [Attempt to Laughter]

Now, here's the situation.

We set out in here before these groups, we call the counsel in, we call them in and in their presence, we put on -- and let me say incidentally, that Reverend Gibson broke into this hearing.

This committee didn't go looking for him.

This record shows that he broke into this hearing.

He was not the proper custodian of these records at all.

A woman named Ruth Perry was the secretary and had these records.

He went and is present and took him and announced to us in advance to that hearing that he wouldn't produce them for any purpose at all under any condition, under any showing.

Now, when we called him up there, we made our position clear by the same token, he made his clear.

If you think I've exaggerated his position, you look at page 44 and 45 of the record.

On page 44, and let me say, there's been some talk of 14 members of the Communist Party here.

Mr. Strickland did identify 14 people as members of the Communist Party and those 14 people.

He said, he had reason to believe, might have been members of the NAACP or had attended meetings of it, but there were another 33 people that he identified as members of the party or communist front associations, and another five members of the Communist Party itself which he had no information in regard to whether they had been associated with the NAACP in any capacity.

If you look at the last question on page 44, I say to the Reverend Gibson that I have this list of people before me that they have been -- according to my information affiliated with the party or various front organizations at sometimes -- and I want to know whether or not -- I didn't have any photographs of these men, the first 14 men I'd showed in photographs of and was -- got to rely in on his memory of the faces, he admitted that sometimes you don't associate name with the face and sometimes you don't recall a name.

I didn't have any photographs of any, but the first 14 men, Mr. Justice Goldberg.

Now these other 33 plus eight -- five, these 38 people, I had no pictures of them and I asked him if he would bring his list after the purpose of me inquiring with regard to whether or not they were members of NAACP.

This he declined to do and if you look on page 45, I asked this question.

Reverend, so there won't be any misunderstanding on your position, regardless of the names or the information that I have concerning the names of the people that I have before me here, you simply will not bring your records here for the purpose of comparison.

You yourself examining them, he said, “No sir, I wouldn't.

If you will call those names, I will unequivocally and truthfully tell you if I know these people.

Question - Based strictly on the name.

Answer: Yes sir.

Question: Your recollection of the name?

Answer: Yes sir.

Question: But you will not bring your records for the purpose of comparing your membership rule with the list of the names that I have.

He says, "No, no."

Now, if Your Honors please, they didn't raise any question then and that was the time to do it, that we haven't -- we hadn't produced enough evidence in their presence, that these people were subversives.

That's the time they should have done it if they wanted to raise that question.

He says, my position is, I'm not going to bring those records into this hearing room on any condition for any purpose, purely and separate.

Now, if his conviction is to be set aside under this condition, if Your Honors please, on the basis of the evidence actually presented in the presence of he and his counsel is not sufficient to show a nexus, you are simply saying that an investigation, you can't have one because you've got to have conclusive proof in order to justify the inquiry and if you have conclusive proof sir, there is no objective to the hearing.

And so, you are simply saying that you just can't operate in this field, if this conviction is to be upset in my judgment and that conclusion is absolutely inescapable in my mind as a lawyer.

As one way or the other, you either got to have conclusive proof or you haven't?

Now, in Uphaus, Your Honors made this comment about an issue of the nexus.

You said, the nexus -- the proof in regard to the nexus is “not conclusive but sufficiently relevant.”

That's the test you laid down in Uphaus versus Wyman, not conclusive but sufficiently relevant.

Now, no court has ever said as I understand the decision, what degree of proof must be laid down to show the nexus?

I have never seen that degree of proof laid out in any decision, but you talked about reason to believe in some of these cases, reasonable grounds to think, I don't think it means the same as probable cause in a search warrant case, but if it does, the evidence before the Court is sufficient to satisfy that.

Would you prefer please to some of the testimony of a -- an investigator in this case beginning on page 24, down in the middle he identified a woman that he says she has information, this is record page 24, addressed to Burnberg of Miami as a member of the League of the Communist Party and he gives the court Number 357.

He says he has all the information that she is a member of front organization cited by the House Un-American Activities.

Now, Mr. Justice Harlan, at this point I was simply laying enough evidence out there for the purpose of making the relevancy of the inquiry to this witness apparent.

Think of the position the committee is in.

If I've got to stop the inquiry with this witness to prove that his satisfaction conclusively that there's real grounds, in a factual way for me to propound the questions to him, I can't find anything but irrelevant issues throughout this hearing and I could never progress.

Every time I ask him a question he's going to say, “As a matter of proof, Mr. Hawes, what is a nexus, what is the relevance?”

You see it and the investigation cannot progress from a practical standpoint because the committee will be required to stop and put on these side issues factually rather than merely stating to the witness what the relevance is.

Justice Byron R. White: Well, if it's necessary to have that [Inaudible] how does this require to become effective if the witness shouldn't be aware of your information.

How can he ever exercise his right to disclose or not to disclose?

Mr. Mark R. Hawes: I think, Mr. Justice White, that he is entitled to some information, information of prima facie, taken at face value, shows probable cause to believe that the nexus exists.

Justice Byron R. White: And you did that hearing?

Mr. Mark R. Hawes: In my judgment, I did.

Now that's putting --

Justice Byron R. White: What is the -- what is the man -- can you tell me offhand, which one of the 14 you had the most information about concerning his connection with the NAACP?

Mr. Mark R. Hawes: Well, I can tell you of several, Abe Sorkin.

Justice Byron R. White: What was that?

Mr. Mark R. Hawes: Abe Sorkin.

Justice Byron R. White: Thank you.

Mr. Mark R. Hawes: S-O-R-K-I-N.

Justice Byron R. White: Now, does this connects with the Communist Party also --

Mr. Mark R. Hawes: Yes sir.

Justice Byron R. White: -- any strong evidence to that?

Mr. Mark R. Hawes: Yes sir.

Abe Sorkin is identified as a member of the Communist Party in this record and he is identified by members of the NAACP itself --

Justice Byron R. White: As what?

Mr. Mark R. Hawes: As having attended some of the NAACP meetings.

Justice Byron R. White: Did the (Voice Overlap) --

Mr. Mark R. Hawes: I can give you the name of the witness who did that.

Justice Byron R. White: Did Reverend Gibson know him?

Mr. Mark R. Hawes: I don't recall if Reverend Gibson knew him.

Arlington Sands puts Abe Sorkin in meetings of NAACP on pages 7 and 71 of the record.

Justice Byron R. White: Did anybody say about it -- did you have any evidence that any of the 14 was a member of the NAACP or just attended meetings?

Mr. Mark R. Hawes: Ruth Perry, on page 92 and 93 of the records puts Abe Sorkin in meetings of the NAACP and I believe one or both of those witnesses say they believe that he was a member and now, members of the NAACP themselves.

Justice Byron R. White: Abe Sorkin has the clearest case, you think?

Mr. Mark R. Hawes: Abe Sorkin was a witness before the committee.

Justice Byron R. White: He's the one who refused to say one way or another.

Mr. Mark R. Hawes: He refused to say whether he was a member of the Communist Party and he refused to say whether he was a member of the NAACP on the grounds of the Fifth Amendment.

But I think this record discloses his actual communist card number, or one that he had borne in the past.

But in all events, Mr. Strickland testified positively that he was a member of the Communist Party.

Now, I note that among the 14 original men that I had pictures of, men and women, Arlington Sands also puts Oshana and James Nimmo in members of the NAACP, Oshana and James Nimmo are both shown to be communist by this record, that's on page 70 to 71 of the record.

Matt Negro is junior who's co-counsel for the petitioner here in this case puts James Nimmo in one meeting of the NAACP and he admits he only attended two or three of the meetings himself.

Chief Justice Earl Warren: Are the NAACP meetings closed meetings, closed to members or is the public entitled to go, do you know?

Mr. Mark R. Hawes: Some are closed and some are open, as I understand it Mr. Chief Justice.

Chief Justice Earl Warren: Which did this man attend, do you know?

Mr. Mark R. Hawes: I doubt seriously as the record makes the distinction.

Justice William J. Brennan: Well, it does as to Sorkin or does it not?

I'm looking at page 93.

Have you seen him in any NAACP meetings?

I've seen him occasionally at -- very rarely at the public meetings to which anybody can come to.

Mr. Mark R. Hawes: That's one witness, yes sir.

Justice William J. Brennan: Yes.

Mr. Mark R. Hawes: There's another witness who put Sorkin in some --

Justice William J. Brennan: He also disclaimed any knowledge whether Sorkin was a member of the NAACP, did he not?

Mr. Mark R. Hawes: That's correct.

Justice Potter Stewart: On page 25, Strickland said that at one -- that one -- according to his own testimony, he was at one time a member of the NAACP.

Mr. Mark R. Hawes: You'll notice --

Justice Potter Stewart: I'm now talking about Sorkin again.

Mr. Mark R. Hawes: Yes sir and you'll notice, Mr. Justice Brennan, at the bottom of page 24 that he says that -- Strickland says, Ed Weiler, who recently moved from Miami to Naples, Florida had been a member of the Communist Party that he had -- and advised on the statement he had attended meetings of the NAACP that he'd been instructed to infiltrate.

You look in the middle of page 25 you will see that in regard to Charles Marks, he said that Charles Marks of Dade County, was a member of the Communist Party.

He gives two numbers that he has born there.

This is more than just a witness sitting up there gentlemen only as counsel and saying to them, “Listen, I believe out of the pigment of my imagination that this man might be a communist and we want to know for that reason if he's a member of the organization.”

Now --

Justice Tom C. Clark: Is that a testimony that [Inaudible] instructed by the Communist Party to infiltrate [Inaudible]?

Mr. Mark R. Hawes: Mr. Justice Clark, I'm glad you brought that up.

I hold in my hand what the document on file before you entitled -- appendix, the petitioner's brief on reargument and if you will look on page 7 of that document, a revolution past in June of 1956 at the time of the commencement of this fair investigation, you'll find this statement in the last paragraph, the new line of the Communist Parties throughout the world and specially in the United States is by infiltration to insinuate their programs on noncommunist and even anti-communist organization.

We know, now this is the national -- NAACP speaking here, we know that the communist leadership in America has directed its representatives to seek -- to involve NAACP units in a united front program.

This, we absolutely reject and go along to say that the -- it's necessary now that they exercise more precaution than ever.

And in that connection, if you gentlemen will please refer to page 241 of the record, the page cited by counsel for the petitioner, you will find this question and I put to the petitioner in this case and I wish you'd read that question in light of that statement from NAACP there.

I asked about the membership of Edward T. Graham in the Dade County.

I explained the pertinency of the question to the petitioner Graham.

I state over period of years, Graham has been an active member of certain organization, was listed a subversive by the United States Un-American Activities Committee such as the Southern Conference for Human Welfare and it was holistic, the Southern Conference Educational Fund which was also cited as the outright communist replacement of the Conference for Human Welfare.

That Graham has appeared in addressed meetings of the Soviet-American Friendship Association and the FBR club, both subversive organizations.

As recent as, March 12, 1960, this is the last time he was before us.

March 12, 1960, he has participated in meetings in Orlando, Florida, called by and sponsored by this subversive organization to Southern Conference Educational Fund, that he went from Miami to Orlando with a man named Carl Braden whose conviction Your Honors upheld before this Court, that there was present a man named James Dombrowski, the Executive Director of the Southern Conference Educational Fund, subversive so said the Senate Committee on internal Security.

And according to our information, Dombrowski is a high official and member of a number of outright communist organization.

I go on and on and I say, “Now, I want to know Reverend Graham -- Reverend Gibson, if Reverend Gale is a member of your Miami Branch and if he attended this meeting in Orlando on March 12, 1960 as an official representative of your organization?

Am I not getting very close to saying that what he contends should be shown activity on the part of the organization itself?

Chief Justice Earl Warren: Read that question.

Mr. Mark R. Hawes: In light of the statement, we know that the communist leadership in America has directed its representatives to seek involvement, to involve the NAACP units in the united front program.

This is the very united front program that they are referring to there in that opinion by the same Carl Braden and the Southern Conference Educational Fund that Reverend Gibson declined to answer that question.

And I laid out in detail the information that we have then in regard to Reverend Graham and his activities in regard to this united front organization.

Now, if Your Honors please, it just seems to me that you reach a point where reason doesn't mean anything.

If you can say on this record if you read it carefully, if you'll say that this record is not sufficient to show that there is or maybe a situation where members of subversive organizations are members of the Miami branch of the NAACP then you've got to say this conviction [Inaudible] unless you're going to say that that showing has got to be conclusive.

Justice Byron R. White: Mr. Hawes, do you -- is it your position that you were entitled to have verified the membership [Inaudible] all the 50 or just the 14 [Inaudible]?

Mr. Mark R. Hawes: I say, everyone of them.

And I'm entitled --

Justice Byron R. White: Do you feel that all you have to do is to produce some evidence that some communists are perhaps members or attended meetings with the NAACP like the 14 (Voice Overlap) --

Mr. Mark R. Hawes: No sir.

Justice Byron R. White: -- and then -- you may present a list of any numbers of other communists, whether you have any knowledge of their connection with NAACP or not?

Mr. Mark R. Hawes: No sir.

Mr. Justice White, that is not my position --

Justice Byron R. White: What about those other than 30 in that connection?

Mr. Mark R. Hawes: Yes sir.

On everyone of those 33 people that I wanted to ask Reverend Gibson about, he had no right to raise the question of pertinency and he hadn't the right to make me go through the same procedure I went through with him on Reverend Graham on page 241 and 242 and to tell him in detail with what you want as referred to as connective reasoning.

Justice Byron R. White: Well, how about [Inaudible]

Mr. Mark R. Hawes: Sir?

Justice Byron R. White: You wouldn't have had anything to tell us about them.

Mr. Mark R. Hawes: Yes sir.

Justice Byron R. White: [Inaudible] connection with the NAACP?

Mr. Mark R. Hawes: In regard to their connection with the NAACP, I would not have, but I could have told him what our information was --

Justice Byron R. White: I want to know [Inaudible] that if you hadn't told him that you had that you -- that you knew nothing about their connection with the NAACP would give them right to verify their membership or not [Inaudible]

Mr. Mark R. Hawes: Taken in context with this whole record Mr. Justice White if I had shown him an answer to his question on pertinency, that we had evidence to link them with the subversive activities, anyone of them.

Justice Byron R. White: Yes.

Mr. Mark R. Hawes: And we place him in Dade County where the minor branch is located.

Justice Byron R. White: Yes.

Mr. Mark R. Hawes: And taken in connection with the whole testimony of the others' witnesses and all the evidence to show that it's a question as to whether or not the infiltration has been made, I would have been entitled in my judgment to the answer regarding that question.

Justice Byron R. White: You think (Inaudible) -- you placed the -- you placed 14 communists in the NAACP do you feel that established sufficient nexus between the Communist Party and the NAACP to ask about the -- sort of a -- a lot of other [Inaudible] --

Mr. Mark R. Hawes: I say if we show that there's reason to believe any communist infiltrated Mr. Justice White and we establish at any particular manner subversive, we a right -- we have a right to have the answers to whether that man is infiltrating, that's my position.

Justice Byron R. White: Was he convicted for -- he was convicted for contempt, is it not?

Mr. Mark R. Hawes: The petitioner in this case?

Justice Byron R. White: Yes.

Mr. Mark R. Hawes: Contempt to the Circuit Court, of Leon County, yes sir.

Justice Byron R. White: For answering parti -- not review -- to answer particular questions or were there many counts or what?

Mr. Mark R. Hawes: For refusal to answer any question in regard to -- based in his testimony on his membership pledge.

Justice Byron R. White: But that's a --

Mr. Mark R. Hawes: There's no particular number of counts.

Justice Byron R. White: Or people.

Mr. Mark R. Hawes: No sir.

Justice William J. Brennan: Is it -- the petition holding contempt was here isn't it?

Mr. Mark R. Hawes: Pardon me Mr. Justice --

Justice William J. Brennan: I'm sorry.

We have a petition here, do we not --

Mr. Mark R. Hawes: Yes.

Justice William J. Brennan: -- in which the conviction is based, is that the one at page 1?

Mr. Mark R. Hawes: You have it before you sir.

I don't know just where it is in the record because it's never been brought into question in this proceeding.

But the petition is beginning on page 1 of the record, yes sir.

Now --

Chief Justice Earl Warren: Mr. Hawes, may I ask this question?

Was Reverend Gibson asked as to whether he knew each of these 33 members that are alleged to have been communists?

Mr. Mark R. Hawes: No sir, Mr. Chief Justice Warren, he was not because he told me that he would not consult his list for that purpose regardless of what information we had and there was no use in us sitting there and going through the proceedings of asking him one after the other.

He said, he wouldn't consult it in regard to any of them.

Chief Justice Earl Warren: Well, he did tell you in one of the -- on one of the pages that you called to our attention that he would tell you honestly whether he knew them --

Mr. Mark R. Hawes: By name.

Chief Justice Earl Warren: -- or whether they were there -- yes.

Mr. Mark R. Hawes: By name?

Chief Justice Earl Warren: Yes.

Yes, well if you call -- or why couldn't you have asked him?

I don't say that's all you have to do but why couldn't you ask him?

Do you know John Jones?

Is he a member of the NAACP? And he might have cleared up most of your difficulties in that way.

Mr. Mark R. Hawes: No sir.

If you will look, Mr. Chief Justice Warren it in his entire testimony, he's -- admits that his membership is about a thousand people.

Chief Justice Earl Warren: Yes.

Mr. Mark R. Hawes: He doesn't know the names of all of them.

But sometimes he doesn't -- he knows the name and sometimes he doesn't connect the name with the person with the face, the features, the identities.

Chief Justice Earl Warren: Yes, yes, we're all treated that way.

Mr. Mark R. Hawes: Yes sir.

We're all human in that regard.

And for me, I just give him a name.

You see, I asked him about these specific 14, the first 14 because I had photographs of those individuals.

Chief Justice Earl Warren: Yes.

Mr. Mark R. Hawes: And I could associate that name with the face for him.

Chief Justice Earl Warren: You did ask him about all those 14?

Mr. Mark R. Hawes: Yes sir and of course, he knew some of those 14 but he didn't know them as members of the NAACP.

Chief Justice Earl Warren: Yes.

Mr. Mark R. Hawes: And it's interesting to note that another witness in this case, Sands knew I think eight of these members of the Communist Party when the pictures were exhibited to him, and he puts three of them in meetings of the NAACP, but you see Mr. Chief Justice, I was handicapped in regard of these other 33 people, I had no photograph of them and if I'm going to ask him, does he know John Jones, I don't know whether we're talking about if he knows John Jones, nobody knows whether we're talking about the same person or not.

And the thing I would say after this, we don't care anything about having possession of this list of the NAACP.

The Court had ruled in Alabama versus NAACP that that's impermissible.

We recognize the binding effect of that decision, but --

Justice William J. Brennan: What about Mr. Carter's point Mr. Hawes that I think he made it, did he not that, suppose Reverend Gibson had produced the membership list and you had asked him, is Abe Sorkin included in your membership?

And he looked to the list and said no, would you have stopped there?

Mr. Mark R. Hawes: That would've been the end as far as Abe Sorkin is concerned, Your Honor.

Justice William J. Brennan: I beg pardon?

Mr. Mark R. Hawes: That would've been the end as far as Abe Sorkin was concerned, yes sir.

Justice William J. Brennan: Well, supposed he'd taken Reverend Graham and said this, "Is his name listed?"

And he looked at the list and he says, "No."

Would you be content with that?

Mr. Mark R. Hawes: I'd had to stop there under the holding of the Supreme Court of Florida if you read their decision, that's why they directed me to stop.

Justice William J. Brennan: You mean that you could not have asked that the list be produced to confirm whether or not --

Mr. Mark R. Hawes: No sir.

Justice William J. Brennan: -- he's truthfully answering he know that Reverend Graham's name is not on the list?

Mr. Mark R. Hawes: No sir.

We couldn't have done that and we wouldn't have attempted to and the Supreme Court of Florida makes it clear that we are not entitled to do that.

We must rely on the integrity of the witness in this instance.

If he wants to perjure himself, if every man we asked about the [Inaudible] on that list he could tell us, no one would be hung with that.

Justice Hugo L. Black: Mr. Hawes, may ask you.

I just want to ask you one question.

Mr. Mark R. Hawes: Yes sir.

Justice Hugo L. Black: Does the record show and I want to make sure, what you would do with the name, what purpose it would serve after you got them?

The declaration of the committee as to why it wanted them and what it would do with them?

Mr. Mark R. Hawes: But our --

Justice Hugo L. Black: Except make them public.

Mr. Mark R. Hawes: Mr. Justice Black, there is no showing in this record as to what legislative purpose other than to gain information was to be served.

Now, there are many purposes.

Let me say, I think one of the justices on this end of the bench over here, raised one yesterday Mr. Justice Goldberg, that we all know for instance that is, so far as the communist agitation in this country to foment a racial strife or strife any racial situations and actual violence.

Now, it may be that we need state legislation to curve that, depending on whether we have sufficient infiltration or not in fact.

Justice Hugo L. Black: To do what?

Mr. Mark R. Hawes: To make it an offense to encourage violence around any or sort of a racial situation.

Justice Hugo L. Black: Do you not have laws to that effect over there?

Mr. Mark R. Hawes: We have no such laws.

Justice Hugo L. Black: I wonder -- I think you have not.

Mr. Mark R. Hawes: I think we have not.

Justice Hugo L. Black: You do not?

Mr. Mark R. Hawes: I think we have not in that particular instant.

Another great area of uncertainty has arisen in regard to what the effect of our state's subversive statute is since your decision in Nelson against Pennsylvania.

Now, I'm satisfied in my own mind that this Court left open to the states in that decision the right to proscribe and punish subversive action directed towards the state itself but not against the Federal Government.

I think that's the effect of that decision, but I think our statute directly is tied up with practically the same wording, in the same effect as in -- as the Pennsylvania statue was when Nelson was prosecuted.

And the legitimate legislative purpose of the Florida legislature determined whether or not there's sufficient communist activity in the State of Florida to justify redrafting that statute so as to make it clearly aimed at subversion directed against a state alone.

Another legitimate purpose in my judgment, is to determine whether or not subversive activity in the state is sufficiently extensive, that the legislature of Florida would want to exercise its right under, I think it's the Tenth Amendment of the Federal Constitution, to get the state legislatures to attempt to initiate a constitutional amendment to the Federal Constitution to permit the states to enforce subversive statutes against subversion aimed at the United States Government itself as well as the states in spite of Your Honor's decision in Nelson against Pennsylvania.

I think the state has a right of self-preservation if Your Honor please, the same as the Federal Government has and I think there are many areas than legitimate areas for the state to operate in, in the field of subversion. I know that we've taken testimony in other hearings where we had competent witnesses to prove that one of the objectives of the Communist Party of this country is to obliterate the states because they look at them as individual packets of resistance.

There's no doubt at all that the communist conspiracy involved action against the state itself as well as the Federal Government is an interest.

Justice Hugo L. Black: Are you a member of the legislator -- leture or just the counsel for the --

Mr. Mark R. Hawes: -- the counsel Mr. Justice Black.

And I have been the counsel of this committee that ever had -- let me say this to you since its inception and I'm a criminal defense lawyer by nature and by training.

I don't think anybody could have anymore appreciation of a man's rights than I have.

I've made my living upholding and defending individual rights.

Justice Hugo L. Black: I ask you this simple question because I have a difficulty in the proceeding, maybe if it's true, legislatively speaking, why the names of 14 people in Florida, in fact the 14 particular people, colored people, might have belonged to some organizations.

Mr. Mark R. Hawes: They're not colored?

Justice Hugo L. Black: What it was?

Mr. Mark R. Hawes: All of them are not colored --

Justice Hugo L. Black: Why not (Voice Overlap) --

Mr. Mark R. Hawes: Go ahead.

Justice Hugo L. Black: White and colored?

Mr. Mark R. Hawes: Yes sir.

Justice Hugo L. Black: Why that was aid -- material in, maybe the law is that it doesn't make any -- it has -- didn't have to be material, is it?

Why that would be any material aid in framing the legislation to prevent -- turn up the racial violence?

Mr. Mark R. Hawes: Well, Mr. Justice Black --

Justice Hugo L. Black: But maybe (Voice Overlap) --

Mr. Mark R. Hawes: -- may I ask -- may I answer that in this way?

Justice Hugo L. Black: Yes.

Mr. Mark R. Hawes: You've got from congressional committee was over here on Capitol Hill and they're going to be holding some hearings in regard to interstate commerce and in regard to the assignment of televisions stations, you're having some scandal up here about that now.

I want to say to you sir, if you proscribe in this committee's investigation, you're going to prescribe that one, that the witnesses are going and come before that committee over there and they're going to say, “Wait a minute, under the U.S. Supreme Court's decision, you can't make me testify about my association with the people that I'm -- have duty to conspired with to get this channel for television unlawfully.”

Now, what value?

Justice Hugo L. Black: Well, it might be of -- because -- not be a problem there, might they not, in any legislation as to how I'm quoted.

Mr. Mark R. Hawes: The value of it is (Voice Overlap) --

Justice Hugo L. Black: – specifically, certain specific knowledge about certain specific individuals doing something which many people thinks wrong would -- how useful that would be in connection with the present legislation?

Mr. Mark R. Hawes: Well, you see Mr. Justice Black, if I may be perfectly frank, the difficulty with your question is that it encompasses your belief that we are trying to do something other than operate legitimately in the legislature in Florida.

Justice Hugo L. Black: Well, not necessarily at all.

Mr. Mark R. Hawes: And I can't answer that question.

Justice Hugo L. Black: It doesn't necessarily to be that at all.

Frequently people legitimately, they want to do things but maybe they are forbidden to do by the Constitution.

That doesn't mean that --

Mr. Mark R. Hawes: I want to say this to you Mr. Justice Black.

Any information had been recognized by this Court and all the other courts for years, any information vying upon matters as subject, the proper subject to a proper legislation.

Any such information this Court has always said the committees of the Congress over here entitled to have to enlighten them and whatever agreed it might be competent to enlighten them and (Inaudible) the past legislation --

Justice Hugo L. Black: Enlighten him in the passage of legislation within their comity --

Mr. Mark R. Hawes: Yes sir.

Justice Hugo L. Black: -- or court, that's right.

Mr. Mark R. Hawes: Yes sir.

Justice Hugo L. Black: But the question is -- does that -- the question I'm asking was based on the criminals could possibly [Inaudible] and maybe have been said in some of our cases, the question of how important that legislative purpose is as compared with the freedom of association guaranteed by the Constitution.

Mr. Mark R. Hawes: You've answered that question in the Uphaus case if Your Honor please.

You've said, communist investigation in the state is an overriding stated --

Justice Hugo L. Black: You said (Voice Overlap) --

Mr. Mark R. Hawes: -- puts it to rest --

Justice Hugo L. Black: Was that said abstractly?

Or I -- or rather -- well, I didn't agree with that opinion.

Mr. Mark R. Hawes: I understand that Your Honor.

Justice Hugo L. Black: I said – [Inaudible] abstractly.

Mr. Mark R. Hawes: That's --

Justice Hugo L. Black: I didn't think it was made in the abstract rule that any time there was a legislature who wanted any information at all about communism, all other rights would be subordinated to it.

I thought that that case went more largely on the basis that you had to consider if necessity, overriding the certainty of the state.

Mr. Mark R. Hawes: Yes sir.

But Your Honor, this Court as a composite group held in that case that the motive of the investigators could not be considered.

Justice Hugo L. Black: Well, that wasn't at all (Voice Overlap) --

Mr. Mark R. Hawes: Now, that was immaterial.

Justice Hugo L. Black: I was not talking about motives and I didn't intend to.

I simply wanted to ask, what purpose in your mind -- how much assistance was given to the legislature if it succeeded in getting this man, give these 14 names that he brought in his record.

How much could one reasonably say that would happen in the passage of the law?

Mr. Mark R. Hawes: Well, if Your Honor please --

Justice Hugo L. Black: I suppose it did -- I am [Inaudible] in the passage of it.

Mr. Mark R. Hawes: That wouldn't be limited in my judgment to the imagination of the members of the legislature and what they wanted to affect by way of legislation.

Let me say this to you sir that in the instance of the White Citizens Council and the Ku Klux Klan that we've investigated, we examined our statutes very carefully and we found that we had criminal statutes on the books to -- that undoubtedly covered any illegal activities or any violent activities of those organizations were engaged in.

Now, you've got other situation --

Justice Hugo L. Black: Would it not cover it with reference to other organizations?

Mr. Mark R. Hawes: No sir, because the Ku Klux Klan and the White Citizens Council does not operate like the Communist Party operation, Mr. Justice Black.

They don't operate by direction.

They don't go out and put on their robes and get out and then grab up a fellow and take him out and flog him, if you please.

Now, the NAACP in its national convention tells you something about how they operate and we read that in page 7 of the appendix here.

They operate through organizations and the more you know about an operation of that type, the more your imagination will help you to put together legislation that might be useful in combating it.

Chief Justice Earl Warren: Did your committee asked for and received the membership list of the Ku Klux Klan?

Mr. Mark R. Hawes: They don't have one, but we identify the members of the Ku Klux Klan Mr. Chief Justice and we had many members up there testifying for the Committee, yes sir.

Chief Justice Earl Warren: Did you ask for and received the membership of White Council's?

Mr. Mark R. Hawes: We did in fact get a membership list to the White Citizens Council, Seabord White Citizens Council which was John Kasper's organization in Florida and Miami, headed by a man named David Hackett.

Chief Justice Earl Warren: Did you get it freely – did you get the list through the custodian?

Mr. Mark R. Hawes: Yes sir.

Hackett, brought it right into the hearing room, turning over to us.

Justice Hugo L. Black: Was that the only one there?

Is that the only Citizens Council in the state that --

Mr. Mark R. Hawes: The only one that I'm aware of and this was -- John remained a member of -- John Kasper, I think a very respectful character.

He was messing around down in your State of Alabama down there in election.

Just before he came down there and we served a subpoena on him.

He had only one chapter in Florida at that time and it was in Miami and Hackett was his man down there and he brought the membership list right on up to the Capitol in Dallas and turned it over to us, subject to our subpoenas.

Justice Hugo L. Black: Did you have any competitors of the Citizens Council at that time?

Mr. Mark R. Hawes: None -- I'm sure he does have.

I'm sure that he does have but they have not taken any -- and there's no evidence that they have taken any violent position in the State of Florida as I read in the press, they have in other states Mr. Justice Black.

Justice Arthur J. Goldberg: Suppose that he refers to the [Inaudible]

Mr. Mark R. Hawes: Yes sir, frankly located.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: That was some time ago before this argument developed, --

Justice Arthur J. Goldberg: Why would [Inaudible].

I asked you of the [Inaudible] you would also add [Inaudible]

Mr. Mark R. Hawes: No sir.

Mr. Justice Goldberg, what I mean in the statement, this is a very broad statement and I mean by communist activities, infiltration by Communist Party members or members of other subversive organization.

Justice Arthur J. Goldberg: Yes, but on the -- I don't think [Inaudible]

Mr. Mark R. Hawes: I do not say that.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: I do not say that at all.

Justice Arthur J. Goldberg: You say that you [Inaudible] on this record, do not have to be [Inaudible]

Mr. Mark R. Hawes: And determine the extent of it if any.

We know there are some.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: No sir, not just the 14 names.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: The entire testimony of Sergeant Strickland, the testimony of Ruth Perry, the testimony of [Inaudible], the testimony of Arlington Sands and the resolutions of the NAACP itself, all of these things.

Justice Arthur J. Goldberg: [Inaudible] The NAACP as the one you addressed [Inaudible]

Mr. Mark R. Hawes: No, they have said we've got some other.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: That was the one that I had the pictures of.

Justice Arthur J. Goldberg: [Inaudible] that some were members of the NAACP, is that correct?

Mr. Mark R. Hawes: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: That's true.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: Unquestionably Mr. Justice --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Mark R. Hawes: Yes sir.

Now I want to go a little step further than that.

Justice Potter Stewart: But now -- but you've made clear I think, have you not that the Reverend Mr. Gibson was entitled to -- have you explained the relevance --

Mr. Mark R. Hawes: Of every person --

Justice Potter Stewart: -- as to each name?

Mr. Mark R. Hawes: -- I asked him about it, yes sir.

Justice Potter Stewart: Yes.

Mr. Mark R. Hawes: Yes sir, no doubt about it Mr. Justice.

I want to say this --

Justice Tom C. Clark: [Inaudible] -- what you're trying to find out, was it the [Inaudible]

Mr. Mark R. Hawes: Yes sir.

And these are not to all the organization we've investigated in Florida Mr. Justice Clark.

Justice Tom C. Clark: [Inaudible] numbers in [Inaudible] the names, is that right?

Mr. Mark R. Hawes: Names and numbers.

Names and numbers.

Justice Tom C. Clark: All the names could show, it would be that John Doe was a member of the Communist Party and that John Doe is a member of NAACP [Inaudible] which proves that nexus.

Mr. Mark R. Hawes: Yes sir.

Justice Tom C. Clark: And then the legislature might -- if it's sufficiently extensive as you said, might not do [Inaudible]

Mr. Mark R. Hawes: Yes sir.

Mr. Justice Clark, in the absurdity of the position, it seems to me it was illustrated by counsel's statement to, I believe Mr. Justice Brennan or Mr. Justice White yesterday that he conceded that we hadn't the right to ask Reverend Gibson if they had any communist in the Miami branch.

But we didn't have the right to say, "Now, here's two communists and do you have them particularly in the branch?"

Now that's the whole situation if Your Honors please, you just lose reasons somewhere along this line in my judgment.

Chief Justice Earl Warren: Oh, didn't he say he would tell you as he knew the fact to be.

Mr. Mark R. Hawes: Based strictly on his recollection of the name.

Chief Justice Earl Warren: His knowledge, yes.

Mr. Mark R. Hawes: Of the name alone, yes sir.

Chief Justice Earl Warren: Yes.

Well, if you've -- you probably had some other identifying material that you could have given him, you wouldn't -- you are limited to just saying, do you know John Doe?

You could have said, do you know that John Doe who lived --

Mr. Mark R. Hawes: Lived in a certain address.

Chief Justice Earl Warren: -- in such and such of place and who is -- have these activities and so forth and you could have done those things had you wanted to do it, couldn't you?

Mr. Mark R. Hawes: Yes sir.

Assuming that he had that kind of information about the individual, it might have identified them in his mind.

Chief Justice Earl Warren: Yes.

Mr. Mark R. Hawes: Yes sir.

Chief Justice Earl Warren: Yes.

Justice William J. Brennan: [Inaudible] there were other organization and you mentioned the Ku Klux Klan and the White Citizens Council, as well as the NAACP, what other organizations have you made this inquiry of?

Mr. Mark R. Hawes: There have been many if Your Honor please, like the Southern Conference Educational Fund that is mentioned here.

I think there's been probably a dozen or more.

Justice William J. Brennan: Well, in category -- for example, have you made this inquiry of labor organizations?

Mr. Mark R. Hawes: We have investigated in some areas of the labor movement in the Florida in regard to this sort of infiltration.

Justice William J. Brennan: Churches?

Mr. Mark R. Hawes: No sir.

Justice William J. Brennan: Schools?

Mr. Mark R. Hawes: Schools?

Yes sir.

Schools?

Yes sir.

Justice William J. Brennan: Now, has there actually been any legislation proposed in -- as a result of (Voice Overlap) --

Mr. Mark R. Hawes: There has been some proposed and not passed and there has been some proposed as a work of this committee and passed, in regard for instance to fingerprinting certain employees of the State Government.

We've investigated infiltration of the State Government in various agencies down there.

And one bill that I think of now that we passes all of these investigations was a bill requiring the fingerprinting of our employees permissibly and this section of the legislature, I'm sure we will have the necessary public opinion molded to passing mandatory to all our school teachers and all public employees in Florida.

But we've investigated many organizations, just not the purpose of this committee to just to smear NAACP at all.

Any other questions?

Chief Justice Earl Warren: Mr. Carter.

Rebuttal of Robert L. Carter

Mr. Robert L. Carter: If the Court please –-

Chief Justice Earl Warren: Had you used up your time, I didn't know if you have, but that what it -- I think you had three minutes more.

Mr. Robert L. Carter: Well, unless the Court wants to ask me some questions, I --

Chief Justice Earl Warren: I think not.

Print this transcript Transcript: 

Argument of Robert L. Carter

Chief Justice Earl Warren: Number 6, Theodore R. Gibson, versus Florida Legislative Investigation Committee.

Mr. Carter.

Mr. Robert L. Carter: Mr. Chief Justice, and members of the Court.

In this case, we're asking the Court to review the constitutional validity of a contempt conviction of petitioner with who has been adjudged in the contempt of court and sentenced to six months imprisonment, $400 fine and six months additional if the fine is not paid, for his refusal to abide by a court order which would require him to bring before the Florida Legislative Investigation Committee, the respondents here, to verify his answers as to their questions about alleged communists who were supposedly be members of the petitioner's organization which happens to be the minor branch of the NAACP.

Petitioner contends that in his basis refusal to submit to the order of the Court and to the order of the committee contends that this matter was foreclosed by NAACP versus Alabama.

And that for this reason, that the order of the court below which would require him not to give up the entire membership list or to authenticate his answers by reference thereto is in substance a -- or cannot be sustained for -- on the grounds of the theory of this Court in the NAACP versus Alabama.

For that reason, he has refused to submit to this and the -- his conviction was affirmed by the Supreme Court of Florida and this matter has been brought here.

We have set out in our brief, this -- for this Court on page 2, the law under which the Investigation Committee Acts.

It is investigating by the -- in Florida, the activities of organizations and the persons engaged in act of violence or advocating a course of conduct which would constitute a violation of Florida law.

Pursuant to this, the -- there was an investigation of the activities of the National Association for the Advancement Colored People in Florida.

The present Act before the Court is Chapter 59-207 of the laws of Florida of 1959 by the transcendence or statute which was enacted in 1956 and this committee was organized.

The committee was reconstituted in 1957 and reestablished in 1959 and I believe Mr. Hawes can verify this that the committee as -- was reestablished in the 1961 legislature.

Now, in our judgment, what the -- what was occurred in the -- before the committee on November the 5th and 4th -- and the 5th, of 1959, was that the petitioner who was the custodian of the membership list of the Miami organization, was called before the committee and before he testified, there was a testimony of an investigator for the committee who indicated that there were some 14 persons will be named who he indicated that he knew or believed to be members of the Communist Party and also members of the Miami branch of the NAACP.

The petitioner himself was called and was asked as to whether he would -- was prepared to be brought -- had he brought a membership list to be required, he had not -- wasn't prepared to answer questions concerning the identification or association of those persons with the organization.

This he refused to do.

He indicated to the committee that he would answer any questions from his own knowledge as to the membership of the alleged communists, the 14 persons' name with the organization but refuse to bring the association's membership list to verify his answers.

On the next day, a -- and this is -- I think this is an important issue or fact here because our contentions will be in this case that there must be some predicate for the inquiry.

The next day --

Justice William O. Douglas: Some what to the (Voice Overlap) --

Mr. Robert L. Carter: Some predicate, some basis for making the inquiry of the Court -- and the committee, we submit must justify the fact that it is making this kind of inquiry of this organization must have some facts upon which it can predicate a belief.

We believe that there is subversion is going on that these -- it is infiltrated by subversion.

Justice Potter Stewart: Your point that without a showing of that, this petitioner needn't have done even as much as he did, he could have refused to answer anything, is that it?

Mr. Robert L. Carter: That's right.

Justice Byron R. White: Do you mean, do you mean there was inadequate proof that any of -- for example the 14 names, really were communists or were active communists?

Mr. Robert L. Carter: We think that there is no proof in this record which would be sufficient to establish; one -- and although we don't have to make this contention but we think the record is clear, one, as to whether those persons were in fact members of the Communist Party and two, as to whether they were members of the NAACP and the -- on the hearing, under the Court --

Justice Byron R. White: Well, that -- the absence of both of those is, what you mean by the lack of predicate --

Mr. Robert L. Carter: Yes sir.

Justice Byron R. White: -- that's what it amounts to, not having a predicate?

Mr. Robert L. Carter: Yes, sir.

Justice Byron R. White: Something else amounts to that?

Those of the two --

Mr. Robert L. Carter: Well, I -- yes. What I'm trying to say, if I make myself clear, that what I'm trying --

Justice Byron R. White: Well, let me make my question clear.

Let's assume there really was adequate proof that there were 14 known admitted communists who were members of the NAACP, now does this make a -- does this make -- assume they had independent proof of it, assume they all come in and said they were members of the NAACP.

And they wanted their application from your organization, from your secretary, is that predicate enough?

Mr. Robert L. Carter: No sir.

Justice Byron R. White: Does that show that there is a -- that the organization is dominated or infiltrated?

Mr. Robert L. Carter: No sir.

This would be my next basis.

I would seem to feel but what -- would have to be shown in order for this kind of inquiry to be made in fact, would be a showing that there was some activity on the part of the organization, some link on the part of the organization with communists or with subversion before this association to privacy (Voice Overlap) --

Justice Byron R. White: Like may be a member of the Board or inactive officers?

Mr. Robert L. Carter: I would think -- my feelings would be that there has to be some activity, some activity on the part of the organization.

I say this and I might well finish answering the question, although you have pushed me far along in my argument.

I say this -- I say this because it seems to me that if this is not so then the -- then in other words, if you can merely establish that A and B are members of the Communist Party and the inquiry can be made as to whether they are in fact members of the organization and the state can demand that you bring your membership list and refer to it, what it means is, that you are forced to place your own custodian of the list, his own freedom from contempt and the association of privacy of members on something about which he would no way of knowing whether it is true or not.

In other words, he does -- it may well develop that he would believe that certain A and B are not members of the Communist Party but they might be proved to be so.

So, that he has no basis upon which, a solid basis upon which to assert the freedom of association of the members of the NAACP, which was established in the NAACP versus Alabama.

And for this reason, we think that this would put the custodian of the list in an improbable position and would undercut completely the basis for the -- for which was established and we think correctly in NAACP versus Alabama.

Justice William J. Brennan: Mr. Carter, would you summarize it?

Perhaps, you've already done it, I hope I haven't missed it.

Exactly what there was in the record which identified anyone who had membership in the NAACP?

Mr. Robert L. Carter: Yes sir.

There was testimony by an investigator which indicated that we have reason to believe that A, B, (Inaudible) num -- names of 14 people that we named were engaged in communist activities in the State of Florida and are members of the association.

Two, that 33 people who merely were named, are members of the NAACP and the Communist Party.

The witness in which was the investigators, the witness from whom the committee apparently thought it would substantiate this information was a man named Arlington Sands, who appeared the next day.

Mr. Sands was inquired -- it was -- inquiry was made of him as to these 14 persons and at -- in most instances, he indicated, one, I don't know whether this person was a member of the Communist Party.

I've never seen him at any NAACP meeting or he said that in one instance a person named Shyane he says, I -- he was a member of the NAACP because I invited them there but I don't believe he was a member of the Communist Party.

Justice Potter Stewart: Who was Mr. Sands?

Mr. Robert L. Carter: Mr. Sands --

Justice Potter Stewart: I mean, what was he --

Mr. Robert L. Carter: And one other point, if I may say.

Justice Potter Stewart: Go ahead.

Mr. Robert L. Carter: Mr. Sands was a -- as the record discloses, was in 1949 had been a vice-president of the Miami Branch, he indicate --

Justice Potter Stewart: Of the NAACP?

Mr. Robert L. Carter: Of the NAACP, yes sir.

He indicated that he had not been active in the organization since that time that he had not been a member of the organization over the last couple of years.

So that two things were established, we think in these terms of his testimony that all of these persons who -- the link was spread out on the record, even if they had been established that they were members of the organization, since this was of -- attempt was made to verify by it by Sands, were persons whose membership dated back to 1949 and there was no evidence of any membership since -- prior -- since that time.

Justice William J. Brennan: Now, this as to the 14, Mr. Carter?

Mr. Robert L. Carter: There -- as to the 14.

Justice William J. Brennan: Now, they're separate (Voice Overlap) --

Mr. Robert L. Carter: There was some statement about -- there was some statement about 33, but when Mr. Sands testified as he did, and apparently surprised the committee in terms of his testimony in regards to the 14, he was -- no further inquiry was made of him as to the -- of the other persons.

Justice William J. Brennan: So there's no other reference to the 33?

Mr. Robert L. Carter: No sir.

Justice William J. Brennan: No evidence at all about them, about any connection of the -- that they might have in the NAACP?

Mr. Robert L. Carter: That's right and what I'm trying to establish which I think is important and that is that there is no record -- there is no evidence in this record, independent evidence in this record, that anybody named as a communist or alleged to be a communist was a member of the NAACP at any time.

Justice Arthur J. Goldberg: Mr. Carter, there was some [Inaudible] that the NAACP itself adopted --

Mr. Robert L. Carter: Yes sir.

This -- the evidence on this point Mr. Justice Goldberg was that in 1950, the NAACP had adopted an anti-communist resolution baring persons from the organization.

All of the resolutions on that fact up to 1959 was submitted to the committee and because at the last argument here, counsel for the committee seemed to me to have given the Court an erroneous conclusion as to the -- what was in the resolutions passed since 1950.

We have those resolutions prejudiced so that the Court could itself see exactly the resolutions which had been adopted by the national organization beginning with 1950 through 1962.

The committee itself had and was presented in 1959, all the resolutions which we have adopted, the resolutions up to that point.

Now, it is our -- it's the -- the petitioner told the Committee that he had been present at the branch for five years, that there were 1000 members in it, that pointed out to them the resolution that has been adopted, a policy of the organization, and indicated that he himself was aware of no communist infiltration into the organization at all.

That as a matter of fact, the organization had taken a very strong policy on this and had made an effort to keep out alleged communist and keep itself free of this kind.

The committee demanded that he bring the list and on this there was this refusal, the matter then went to court on a -- pursuant to the statute and evidence was adduced in the Court to show that the deterrent effect on the disclosure and the policies of the organization and a proffer was made in court which the Court refused to show that the committee itself had no knowledge of any communist infiltration into the organization and that most of the persons who had been named were persons that no longer lived in Florida, but this proffer, this offer of evidence was refused.

Justice John M. Harlan: Mr. Carter, I think at the last argument you said and you correct me if I'm wrong, that you made no claim in this case that this was not a bona fide investigation in the sense that the truth just an effort to smear the NAACP, you said you made no claim at that time?

Am I wrong?

Mr. Robert L. Carter: I hope you are, I did not --

Justice John M. Harlan: Am I correct?

Mr. Robert L. Carter: I did not -- I don't believe that I've made a statement of that kind because my whole argument has to be predicated on the belief that the only purpose that could be served by this is the question (Voice Overlap) --

Justice John M. Harlan: But the question -- that's reason I asked you the question because I have a -- I was impressed with your frankness of that -- saying what you did last time in a --

Mr. Robert L. Carter: Well, I'm --

Justice John M. Harlan: I was wondering whether I had either misunderstood you or whether you had a different view with the matter now?

Mr. Robert L. Carter: I am certainly going to be corrected sir but I don't believe that I could have made a statement as to that.

I don't --

Justice John M. Harlan: No, that -- that's not your position now?

Mr. Robert L. Carter: Well, it's not my position Your Honor.

We -- what I may have said – what I may have said sir, was that I felt that the investigation that this Committee was making an investigation by virtue of decisions of this Court of communist infiltration in some organizations, as I understood the decisions of this Court in Wilkinson and Braden, I may have indicated that the -- that this was a -- could be a legitimate activity on the part of the legislative committee.

Our view of course is on this, and I think this was set out in our brief that this investigation was leading to no purpose was based upon no valid legis -- had no valid legislative purpose at all and I am reasonably sure that this had been set out quite clearly, this point has been set out in our -- both in our petition's brief that the committee had been in existence since 1956 and that our view is that the only thing the committee is doing is an effort to smear the organization by linking it or attempt to link it with communism.

Now, we have set out in the -- at the -- in the Appendix B to the petition that the opinion of the Supreme Court of Florida in Graham versus Florida, which is a companion case, in which the Supreme Court of Florida in that opinion accepts the fact that exposure of persons who belonged to the NAACP would have a deterrent effect upon their freedom of association and accepts the thesis we believe that the association is a legitimate organization.

It took the view however, that the state in investigating communism that this provided the state with an overriding interest which would entitle it to demand of the custodian not that he give up the list and this I think is the distinction between this that -- between their case and the NAACP versus Alabama, not that the entire list to be given off but that merely that the custodian list it required to come to the committee hearing and to authenticate by reference to the membership list, his answers to questions as to the statement of the legislative -- legislators that an alleged communist is a member of your organization and we want you to look at the list and tell us whether he is or is not a member of the association.

Justice John M. Harlan: That could be done without any exhibition of the list to the committee or the group [Inaudible]

Mr. Robert L. Carter: This is the purport of the decision of the Supreme Court of Florida.

Justice John M. Harlan: The Florida Supreme Court (Inaudible).

Mr. Robert L. Carter: Yes sir.

But the problem with that Mr. Justice Harlan is that it seems to me as I -- in answer to the question that Mr. Justice White asked, is that it seems to me that it undercuts completely the basis for the refusal to disclose the membership was -- by that was established in the NAACP versus Alabama because it thus seems to me that if a person can be required to disclose the – to refer to the list, name a name as to whether person is a member on the grounds that a committee has said to him, we have reason to believe that such and such a person is a member of Communist Party, then it seems to me, sir, that no person could with any security refuse to name any man that the committee would ask.

With that predicate then we have reason to believe that John Doe was a member of the Communist Party, would you refer to your membership list to let us know whether he's a member of your organization and we think, if Your Honor please, that this would simply mean that NAACP versus Alabama would have no foundation at all.

This would be a reversal in fact of what we understand to be the basis of that decision.

Justice John M. Harlan: If Reverend Gibson have had a very good memory and he did as you said he was willing to do and testify as to those names you could recollect, how does the impact on the NAACP differ from that which would result from his oral testimony as against that which would result from his request testimony?

Mr. Robert L. Carter: Because of the fact that what he is testifying from his oral -- then -- from his memory without reference to the list, he's testifying as an individual as other individuals were called upon to testify.

He does not bring into Court the organization, the membership list and he does not bring into any conflict or jeopardy at all the right of freedom of association of other members of the organization who -- they're on the membership list.

He is indicating out of his own knowledge that -- and he says that any person could be called upon to say, to cooperate and indicate that I know such and such a person is a member of the list.

I mean as a member of the NAACP.

Justice Arthur J. Goldberg: Counsel, did I understood [Inaudible]?

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: The same question to the effect was [Inaudible]?

Mr. Robert L. Carter: Yes sir, yes sir.

I called to that point but I was -- Mr. Justice Harlan asked me and questioned me in regard to that.

We think that the only sound basis for allowing an invasion of privacy which had been sustained by this Court in this regard is on, one, a showing an overriding state interest which would have to be established.

We think that the overriding state interest which the state would have -- would establish in this particular case would have to be that -- it was that this committee would be investigating communist infiltration into organizations that the disclosure of the names or the requirement by the person testifies to the membership list and therefore constructively at least discloses the names would have to be related to a valid legislative objective.

We think that this was the basis for this Court's decision in the NAACP versus Alabama and we think that this -- it should be adhered to.

Now, --

Justice Arthur J. Goldberg: Would you think [Inaudible]?

Mr. Robert L. Carter: To punish for -- to make it a crime?

Justice Arthur J. Goldberg: [Inaudible] -- In other words, [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir, I would believe that would be, yes sir.

But in order for the Court, for the legislative committee to use that objective in terms of the disclosing of the membership list of an organization otherwise illegitimate, it would seem to me you would have to show that this organization in it -- is itself in terms of its activity promoting violence in this regard.

Justice Potter Stewart: Well, what if there were testimony by witnesses that the members of the Communist Party were interested and one of their objectives was to promote interracial violence, wouldn't that support an inquiry as to whether any such members were -- had infiltrated an organization as to the National Association Advancement of Colored People --

Mr. Robert L. Carter: Mr. Justice Stewart, I don't think that would be sufficient because if the Committee -- I mean, if the state merely says that communists are promoting violence and therefore we want to know whether they are members of your organization, then it seems to me that they can make any kind of statement and secure -- totally secure the membership list which this Court has held that it is a right of freedom of association.

Because it seems to me that the -- that the state's justification has to be based upon something real and effective, something that's -- it has to have a basis for it, and this basis it seems to me if the Court please, would have to be the activities of the particular organization.

Justice Potter Stewart: Certainly, it's a very legitimate state interest to prevent bloodshed and violence, is it not --

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: -- within their borders.

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: And it would have been -- be a very legitimate inquiry would it not if there were evidence before a legislative committee that members of a particular group were bent on promoting interracial violence and wouldn't it then be a legitimate inquiry to find what if any organizations and such communist members had infiltrated, whether it'd be the White Citizens Council or the Ku Klux Klan or whatever.

Mr. Robert L. Carter: Only --

Justice Potter Stewart: Or the Rotary Club?

Mr. Robert L. Carter: Only in terms of the organization if they can establish that the organizations and they want to pierce the freedom of association which this Court has set up, is that those organizations are engaged in some activity along this line.

I don't think it would be justified and I don't think it would be sound for this Court to adopt the principle that an organization -- that the legislature is concerned about the infiltration of persons that were interested in promoting violence and it says that we have the names of X people who were interested in or concerns of violence and want to infiltrate the Govana's Club, let's say and therefore, this Court would hold -- would uphold the right of the state and the legislature to say – tell the Govana's Club that you have to disclose to us the names of every member of your organization because of this factor.

Justice Byron R. White: Well, this is the [Inaudible], they're saying that his has -- this verified that, out of the 14 names off the membership list, and the -- how did the -- how did an organization engage in this activity that you say that some of the organization would have to be engaged in such sort of acts -- of violent activity of this -- promoting this? Well, what if some of its members were, would the organization be doing it?

Mr. Robert L. Carter: I think that if the freedom of -- the First Amendment rights means that their protection had with the meaning, then it would seem to me that the freedom of association of the members of the particular organization is protected provided that the organization is involved in legitimate activity.

This is what I understand the decisions of this Court to mean.

Now, --

Justice Byron R. White: But what if it's also engaged in some illegitimate activity through some of its members?

Mr. Robert L. Carter: Well that, I think that what the Court would have to do would be to weigh the evidence of the illegitimate activities to determine whether there was a sufficient nexus obtained of the legitimate -- the legitimacy of the organization before it would be able to make -- to allow the kind of inquiry which this Court -- which this -- is being asked for here.

Justice Byron R. White: You don't think the legislative committee for example shouldn't -- they shouldn't be allowed to find out that whether or not the organization was engaged in this sort of activity by inquiry from the organization.

They must get evidence independently first before they can find out.

Mr. Robert L. Carter: I think Mr. Justice White, that if they're asking about activity, we're talking about the names of members, if they're asking about activities, that's an entirely different thing because it would seem to me, perfectly legitimate, for the legislative committee to inquire of Father Gibson or anyone else connected with the organization that is brought before them as to what kind of activity your organization has been involved in, what has it done.

Has it -- let's say that, in any kind of communist, a subversive activity to inquire us to whether they have done this.

This would not involve in my judgment the same kind of problem which has involved in the present before the Court when they're not asking that.

Justice Byron R. White: You wouldn't think they -- do you think that it could be -- did they ask the secretary, do you have any communists in your organization?

Mr. Robert L. Carter: I think so.

But they asked the secretary to -- do you have any communist in the organization and I think the -- as a matter of fact, they asked Father Gibson that and totally he did not, he knew of none.

Justice Byron R. White: But you think -- you couldn't say, well here, these communists are these two members of your organization?

Mr. Robert L. Carter: Here are --

Justice Byron R. White: Please check from your membership list.

Mr. Robert L. Carter: No sir, because I think that when you come to that point, if you ask -- if you come to that point, it seems to me that what you're really doing is in terms of rank and file, rank -- the rank and file members of the organization who have pierced the association of privacy which has been protected.

And it seems to me also that if in terms of the legitimate activities that the organization was involved and if it is attended, if it is related to something that the disclosure would help the state to pursue a valid objective, of course it can be.

But we think that all of the state has hidden, has said as we believe -- that you -- we have reason to believe that certain number of people in your organizations are communists therefore, you bring your membership list and let us know about it.

They'll get -- they go from 14 and as the evidence in this case disclose, they had went from 14 and on the last hearing, they went to another person.

Justice Byron R. White: Towards the -- when this question was asked, it was already of the record, a public record, all the evidence to whether or not the 14 were communists or whether or not they were members of the NAACP, all the other evidence was already in the record.

And that -- perhaps we can answer them tomorrow why it was that (Inaudible) -- why it wasn't to the interest of the NAACP to verify or not the membership of these people who had -- on the public record were said to be members are active even in organization.

Mr. Robert L. Carter: [Inaudible]

Chief Justice Earl Warren: We'll recess.