YELLIN v. UNITED STATES

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Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 477, Edward Yellin, Petitioner, versus United States.

Mr. Rabinowitz, you may proceed with your argument.

Mr. Victor Rabinowitz: May it please the Court.

The petitioner here was convicted of a violation of Section 192 of Title 18 for contempt of Congress for his failure to answer four questions put by a Subcommittee of the House Committee on Un-American Activities at a hearing held in Gary, Indiana in February of 1958.

The alleged subject under inquiry was Communist infiltration at the basic industry and it was the 10th investigation that the Committee has held on that subject.

The petitioner testified in between the Watkins and the Barenblatt decisions of this Court and then refusing to answer the questions put.

He relied on what he conceived to be his rights under the Watkins decision.

He also cited the vagueness of the authorizing resolution, his rights as he conceived them to be under the First Amendment, the lack of jurisdiction of the Committee over the subject of the inquiry.

He did not rely on the Fifth Amendment.

He was not tried until after the Barenblatt decision and he was found guilty on all four counts and received the maximum sentence possible under the statute namely one year in jail.

Prior to the time he testified, he had been a steelworker employed in Gary.

At the time he testified, he was an engineering student at the University of Colorado, subsequently, received a Fourth Foundation grant at the University of Illinois, he's now a candidate for his doctor's degree which I think he will probably receive in June.

Each one of these Section 192 cases come before this -- that come before this Court have tracks which distinguish this -- this case from all of the other cases and I'll state those facts, of course.

But I should like to state in all conduct that the constitutional issues in this case, which I propose to raise again, are indistinguishable from the constitutional issues in Barenblatt, Wilkinson and Braden.

And I propose to urge that the decision of the Court in those cases should be reviewed and should be overruled.

The petitioner was subpoenaed to appear on February 10th, 1958.

On February 6th, prior to the hearing, I, who was representing the petitioner, sent a telegram to the counsel for the Committee reading as follows, "Undersigned represents Edward Yellin and Nicholas Busic.

On their behalf, I request executive session in lieu of open session.

Testimony needed for legislative purposes can be secured in executive session without exposing witnesses to publicity."

This request was made in view of Rule IV (a) of the rules of the Committee which reads as follows, "If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter at a public hearing."

Justice Potter Stewart: This witness had never appeared at an executive session, has he?

Mr. Victor Rabinowitz: Had never appeared on executive session, no, sir.

On the same day, I received, in response to my telegram, a telegram signed not by Mr. Tavenner to whom I have addressed my wire but a telegram signed by Mr. Arens, Staff Director, which telegram read as follows, "Reurtel requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic.

Your request denied."

At the hearing in Gary, I sought to introduce these two telegrams into the record.

Congressman Walter who was residing at the hearing refused to accept the telegrams into the record and in the conformity with normal practice at congressional hearings refused to let me say anything.

He testified at the trial, and at that time he stated that he had never seen the telegrams.He had no idea at all as to what was in them.

He said that he thought, and I quote, "They were more or less in the nature of a request to postpone without grounds."

As a matter of fact, he said that he hadn't seen the telegrams until he got on the stand at the trial in Gary two or three years later.

He said all of this was a big misunderstanding that I made a mistake in sending the telegram to Mr. Tavenner, that I should have sent the telegram to him.

Arens, he said, had no authority to deny such a request.

He said, and I quote again, "I am sure this could not have happened, had you addressed your telegram to me.Had he knew one of the request?"

He said, and I quote again, "We might have a different situation today."

Justice Potter Stewart: Where are you reading from the record?

Mr. Victor Rabinowitz: Well, the first portion comes at record page 70.

Justice Potter Stewart: Is this testimony after trial?

Mr. Victor Rabinowitz: This is the testimony after trial, yes, sir.

And --

Justice Potter Stewart: And this is what, Mr. Arens or Mr. Tavenner?

Mr. Victor Rabinowitz: This is Mr. Walker.

Justice Potter Stewart: Walker.

Mr. Victor Rabinowitz: Mr. Walter, Congressman Walter testified.

Justice Potter Stewart: Chairman of the Committee -- of the Subcommittee.

Mr. Victor Rabinowitz: Yes, Chairman of the Subcommittee and, of course, of the Committee as well.

And he said at that time that long time ago when they decided to call Mr. Yellin, they had decided considered the question of an executive session, I had decided not to call him an executive session.

The reason that they had decided not to call him in an executive session was that they had received the report from Mr. Collins, a former F.B.I. agent, who was an investigator for the Committee.

And I quote from page 70 of the record, "His story was that this man was a known Communist, that he had been active in the international conspiracy, that he had deceived his employer.

And furthermore, he came within the category of those people that we were experiencing a great deal of difficulty in finding out about with respect to the colonization."

Question, "Did you assume from Mr. Collins' report that Mr. Yellin would be a witness who would refuse to give information to the Committee?"

Answer, "We had no way of knowing."

Question, "Well, what conclusions did you draw from the report of Mr. Collins which you have just related?"

Answer, "We concluded that this would be a fine witness for the Committee in support of proposed legislation having to do with colonization and two, having to do with the protection of our defense efforts and it is always worth the chance that somebody will testify."

Question, "But wasn't it worth the chance of calling him an executive session to see what his position would have been?"

Answer, "I'm sure that had you communicated this whole matter to the Committee before we left Washington so that we should -- could have given the due consideration, we would have and always do, we might have a different situation today."

I then said, "Well, I raised it at the hearing.

Couldn't you have called an executive session right then and there?"

And he said, "Well, I didn't know what was in these telegrams.

I thought you were just asking for postponement."

And then I said, at page 71 of the record, "When did you first learn that I had made an application for an executive session?"

Answer, "I believe today.

I'd never seen these telegrams, actually.

I heard you mention them, at least now my recollection is, I heard you mention them but I haven't seen them until this minute."

And then subsequently, at rule -- at page 72, he says that as I say, if he had known of the request, we might have a different situation today.

Now -- it's rather unjust to send them in to jail for a year because of the misunderstanding with the Chairman of the Committee, who wasn't sufficiently interested to read the telegrams which were -- which I was attempting to present to him at the hearing.

Justice Potter Stewart: What does -- what if anything does the transcript of the Subcommittee hearing show with respect to the request for an executive session?

Mr. Victor Rabinowitz: At the opening of the hearing, the witness identified himself and this is -- well, I -- I think that the hearing is attached to the record that -- that is the printed transcript, it's attached to the record that Your Honors have.

It appears at page 1974 of the printed record which should be an appendix to what Your Honors have.

And Mr. Yellin was asked about his name and where he lives and then I said, "Mr. Counsel, I wonder whether it would be possible to read into the record the exchange of telegram -- telegrams between myself and the Committee in connection with the witness's testimony.

I would like to have it appear in the record.

"The Chairman said, "We will decide whether it will be made a part of the record when the executive session is held."

Congressman Walter said that no executive session ever was held.

"Go ahead."

And then I said, "Mr. Chairman, I sent the telegram because I wanted them to appear.

I don't care whether they appear publicly or not.

I do want it to appear that the exchange of telegrams occur.

I didn't do it just to increase the revenue of the telegram company."

And the Chairman said, "Well, whatever the reason was, whether it's been stated or otherwise, it will be considered in executive session."

I then said, "May I state?"

And the Chairman said, "Do not bother.

You know the privileges given you by this Committee.

You have appeared before often enough.

You know as well as anybody.

Go ahead, Mr. Tavenner."

And I know from having appeared before this Committee on previous occasions that this is usually the prelude to the possibility that counsel will be asked to leave the witness room -- the hearing room and so I used my discretion and I sat down.

I would like to note first that the standards used by Mr. Walter in applying Rule IV of the Committee were quite different from the standards used by the Committee, standard set forth in the rules rather.

The rules say that an executive Committee shall be held when the Committee believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation.

Congressman Walter, in his testimony at page 70, said that they had decided to hear Mr. Yellin at a public session instead of an executive session because the man was a known Communist.

He'd been active in the international conspiracy.

He had deceived his employer.

And then he came within a category of those who might give information.

Now, the Government has responded to this by saying that, well, under the rules, no one has a right to an executive session.

And I suppose that that is probably true.

I do submit, however, that under the rules, everyone has a right to a good faith consideration of a request for an executive session.

Such a request was made.

It was communicated from counsel to counsel, which is the normal way of communication between parties to litigation or what, this possible potential litigation.

And there was no good faith or any other kind of consideration given to the request in this instance.

The Committee is bound by its rules.

This Court has frequently so held.

And I submit that under the circumstances here, the petitioner was entitled to a good faith consideration of his application.

He never received any consideration of his application either in good faith or otherwise and that these grounds alone are sufficient for our reversal here.

I would like next to move to a problem that is raised, I think inherently, in all of the cases since the Barenblatt decision, although I don't believe that the Court has ever addressed itself to it as fully as I would like to have the Court address itself to it on this occasion.

In the Barenblatt case, the Court used this language.

When First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the Courts of competing private and public interests at stake in the particular circumstances shown.

I cannot, as a philosophical matter, accept the balancing theory at all but as I think, one of the members of this Court said, assuming what I cannot assume namely that the balancing theory is what we are to adopt here.

I was confronted at the trail of his case of following the rule that the Court had laid down in the Barenblatt case and, therefore, I address myself to the question of balancing.

What are we balancing here?

The Court first speaks in terms of the competing private and public interests at stake in the particular circumstances shown.

To me, that sounds like this is the question of fact to be determined in each case in accordance with the particular circumstances in each case.

Now, it's hard and I was puzzled about how to address myself to this problem but it wasn't my language and it wasn't my ruling, it was this Court's ruling.

And so at the trial, I attempted to address myself to this question, what are we balancing?

What are the elements and the scale?

And what way are we to assign to each of these elements?

Who was to decide this question?

The Barenblatt decision says resolution of the issue always involves a balancing by the Courts.

And so the Courts, presumably, in the first instance, the trial court has to balance these issues.

Now, part of the question is easy.

On the one side of the balance is the public interest in national security.

How much weight is to be given to that side of the scale?

Is it possible that each judge reads the morning newspapers, decides how much protection the national interest requires this day or this year and then ascribes in some way and this becomes almost a metaphysical problem, how much weight he's going to give to the -- to that aspect of the national security?

Or is this a question of fact that's to be determined on the basis of evidence which is presented in Court?

Since the first possibility seem to me inconceivable, I address myself to the second and I attempted to or for evidence in Court as to the nature of the national security interest involved and how much weight should be given to it.

And I could think of no better way to approach to this problem than to present expert testimony on it and that's what I tried to do.

I presented an expert witness.

It was Professor Thomas I. Emerson, professor of law at Yale University, who has devoted the last 10 or 15 years of his life to a discussion of problems involving freedom of speech and national security and their impact on each other.

And I offered him as an expert witness on the question of how much weights to be given to part of this of this -- on the scale that -- to solve this factual problem.

His testimony was excluded.

The court said this was not a proper subject or testimony in court.

The Court of Appeals later said, this is a question of law to be decided by the Court and therefore the exclusion of the testimony was proper.

I don't understand what that means.

But in any event, Professor Emerson's testimony was -- was excluded as I say, however, it does appear in the record as an offer of proof and it can be read by the Court at pages 91 to 114 inclusive and in our opinion, it should have been admitted.

I'm now addressing myself to the weight of the evidence.

I'm not addressing myself to whether it proves the case that I was trying to prove but rather to the admissibility of it.

And I submit that the Court was in error in excluding that testimony.

The second thing that I tried to do in meeting this question of how much weight has to be given to the national interest was to attempt to prove at the trial that the information that was sought of the petitioner by the questions which are the subject matter of the inquiry, which are the subject matter of the indictment here, that these questions were trivial, that they will miniscule, that they were so unimportant that even if they were placed in this scale, they wouldn't amount too much.

It is conceited now that as to two of the questions, namely, "Where did you reside in 1957 and were you a member of the Communist Party in 1949" were corroborative, corroborative of information that was already in the files of the Committee.

The other two questions, which were questions formed in this jargon that the Committee has developed, "What do you know about colonization in the steel industry?"

Incidentally, I object to those questions on the ground that this word "colonization" is a peculiar word of ought that experts and the Committee know but the witnesses at a congressional Committee aren't necessarily required to brush up on but of course it was given concurrent sentence so even if I win on those two questions, I haven't won my case.

In any event, it was my argument that these two questions relating to colonization in basic industry had been the subject of testimony at nine prior hearings in Buffalo, in Flint, in New Orleans, in Denver, in Baltimore, all over the United States.

Now, with three or four other witnesses who cooperative fully at the Gary hearing until the great deal about this subject and that therefore this testimony on these two questions was cumulated.

Now, the Government says, and I think the Government is right, that even corroborative questions and even cumulative questions are pertinent because they're corroborative or cumulative.

They maybe pertinent, but they don't weigh much.

They have no great weight in the balance which this Court has directed should be struck in each particular circumstance.

That is the point of my argument with respect to these questions.

Now, what's on the other side of the balance?

To balance the public interest, the national security, the weight to which we still don't know and how much weight is to be given to those interests.

I think we can agree here that on the other side of the scale are those great rights that are protected by the First Amendment, the right of privacy, the right of free speech, the right of assembly and above all, and most important of all, the right of the public to hear a debate of the important issues that are confronting the world today and confronting the United today -- United States today in an open society without fear of a subpoena from a congressional Committee.

Those are the rights on the other side of the scale.

I cannot believe that the Barenblatt, Braden and Wilkinson cases can be explain by the feeling of any member of this Court that those First Amendment rights are unimportant or that they don't require protection.

As a matter of fact, this Court has protected those rights and has protected them very effectively in cases like NAACP against Louisiana, Bates against Little Rock, Shelton against Tucker and others.

My time is up.

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

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Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 477, Edward Yellin, Petitioner, versus United States.

Mr. Rabinowitz, you may continue your arguments.

Mr. Victor Rabinowitz: Thank you sir.

At the close of the session yesterday, I was discussing the balancing theory which has been adopted by this Court in the Barenblatt, Braden and Wilkinson and other similar cases and was pointing to what I felt was a conflict between the doctrine that had been applied in these cases and the doctrine that had been applied or the results at least that had been reached in cases decided contemporaneously such as National Association for the Advancement of Colored People against Louisiana, Bates against Little Rock, Shelton against Tucker and a few others involving the integration of problem in the cell.

May I with all due respect to this Court, suggest that perhaps the explanation of the Barenblatt line of decisions lies in the fact that the ideas and the speech in the assembly which was seeking protection in those cases were ideas, speech in assembly which we hate and which we abhor?

Well, the ideas that were seeking protection and the assembly that was seeking protection invades Shelton, the Louisiana case and the others are ideas which today we find tolerable and in some cases even attractive.

This of course is not a permissible application of the First Amendment to the Constitution if that amendment is to be given significant content.

It is contrary to a long line of decisions running back to the days of Judge Brandeis and I'm not going to quote to Your Honors language which is very familiar to you from decisions by Judge Brandeis, by Judge Jackson, by Judge Black, in Richards against California and in many other cases and by Judge Holmes of course.

All of them have pointed out that the primary purpose of the First Amendment is to give protection to the ideas that we abhor and that unless that it is given that interpretation, the Amendment has no a very significant meaning.

Justice John M. Harlan: (Inaudible) Barenblatt?

Mr. Victor Rabinowitz: Yes sir.

Well, no sir.

I don't have to overrule Barenblatt to succeed in this case.

I think that I have, as I previously indicated, a reversible -- reversible error with respect to the question of the failure to grant an executive session.

I believe further that I have reversible error and that the Court refused to admit the testimony of Professor Emerson on the balancing theory.

And I believe further that within the bounds of Barenblatt and within the bounds of the balancing theory which is I said before, I am assuming although I cannot agree with it, that on balance in this case unlike what the Court felt was the situation in Barenblatt.

On balance in this case, the balance lies on the side of the petitioner and on the side of the great First Amendment Rights which our for the protection of public discussion in the United States rather than on the other side of the scale which Your Honor has held in Barenblatt, must be weighed against the public and private interest on the other side.

Justice John M. Harlan: The Congress of the United States has no power to investigate on the field?

Mr. Victor Rabinowitz: Oh I think Congress of the United States has power to investigate on the field.

No one is challenging the right of Congress to call witnesses to take testimony, it has called hundreds of witnesses who have given testimony voluntarily, given testimony freely, have given a tremendous amount of testimony and even --

Justice John M. Harlan: You're not asking us to --

Mr. Victor Rabinowitz: Oh I'm asking you to overrule Barenblatt but I haven't gotten to that.

I was just about to come to that point now.

As I said at the beginning, in its constitutional issues, I feel that this case is undistinguishable from Barenblatt.

And from now on, shall we say, I am asking the Court to overrule Barenblatt although I do not believe that anything I have said up to this point requires the overruling of Barenblatt but rather it requires an application of the balancing theory which will throw the balance in this case in the other way, and I'm not arguing what should have been -- how the balance should have been thrown in the other cases because those other cases are not here nor do I represent those other petitioners.

I would now like to turn to the constitutional issues which as I say call for a reversal of Barenblatt.

I have prepared an argument on this aspect of the case and I had intended to show first that the charter of the Committee Rule 11 was unconstitutionally vague and that it was improper to attempt to give it meaning by a search of legislative history at least in a criminal case.

However, proper that might be for historical or other purposes.

I had intended to argue further that since the Committee by its charter was limited to investigation of Un-American propaganda and even assuming that we could assign a meaning to that somewhat vague expression.

It would give the Committee the power to investigate speech because propaganda is merely another word for speech, and that that was improper.

I had intended to argue that this particular hearing had nothing to do with propaganda anyhow.

And I had intended to argue further that this was a good case of exposure for exposure sake.

After preparing all of this argument with great diligence, I reread the dissenting opinion in the Barenblatt case and I found that everything that I had intended to say were said in that dissent or almost everything I have intended to say were said in that dissent.

And for me to repeat all of the arguments that were made there and the decision that was handed down only I think two and a half years ago, what I think to be a -- in position on the Court, it would be merely repeating arguments and words which I have thought -- sure the Court is fully familiar with and I would not omit a word within if I have -- with permission of the author of the opinion, I would like to incorporate that dissent so as to speak by reference into this argument.

If I may however, at the risk perhaps of "gilding the lily" add just a few words to what was said in that dissent.

The dissent was written in 1959.

In the two and half years that have passed since that date, the process of the expansion and the growth of the seeds planted in ACA against Douds against which the dissent won in ACA against Douds and won again against in the Barenblatt case.

Those seeds have continued to expand and the doctrine of ACA against Douds has continued to apply further and further so that we have had since Barenblatt, the Braden case, the Wilkinson case in the specific area of congressional committees, the Scales case, Suppressive Activities Control Board case and perhaps four or five other decisions generally in the area of the rights of communist.

The second point I would like to make is addressed to the question of exposure for exposure sake which is also discussed in the Barenblatt decision and in other decisions as well.

I would like to note here the failure of the Committee to grant an executive session which I have already noted as an indication of the purpose of this Committee in seeking to call people before it for the purpose of exposing them.

In the course of the hearing Mr. Tavenner said he didn't interview the petitioner in advance to find out what his testimony would be because he didn't think the witness would cooperate, that's perhaps another way of saying that he didn't call -- he didn't subpoena the witness in advance because he didn't think the witness would testify.

And it doesn't seem to me that calling witnesses in a congressional investigation with the knowledge of understanding or belief that they aren't going to testify is the proper way to conduct the legislative investigation; the purpose of which is to get information and not to expose persons for their political belief.

In this case, the Committee had a great deal of information on the situation in Gary.

It had several so-called cooperative witnesses in Gary.

It called about ten other witnesses and as I have said before, it had engaged in nine previous investigations on this general subject and the only difference between this hearing and let us say, the hearing in Buffalo was that one hearing was in Buffalo and the other was in Gary.

But for legislative purposes, the fact adduced in both of those hearings was identical.

I would like to add just a few words, they're not in the record before this Court but they are matters, I believe of public record or most of them are, as to what happened after this hearing.

As I said before, the petitioner received the fourth foundation grant to study at the University of Illinois.

When the appearance before the --

Justice Potter Stewart: I thought he was from the University of Colorado.

Mr. Victor Rabinowitz: He was originally a graduate of the University of Colorado and he did -- is now doing graduate work at Illinois.

He received the fourth foundation grant of the University of Illinois and when this appearance before the congressional committee came to the attention of the faculty at Illinois, an investigation was held, the dean, after a great deal of campus activity on the subject and much distress to the petitioner, the dean after a faculty investigation, found that the petitioner had returned in good faith to the academic world.

Subsequently, he received a Nat -- National Science Foundation grant.

This came to the attention of Congressman Scherer, who made several speeches on the floor of Congress about how these persons who had refused to testify before the Committee had received government aid and as a result of those features, the National Science Foundation grant was revoked so that the Committee even after the hearing has been pursuing its exposure purposes.

Finally, I would like to say one more thing and with this, I shall close.

The most important aspect of the First Amendment to the Constitution is I believe not the right of the petitioner to belong to the organization he wants to or to speak or to remain silent.

The most important right is the right of the public to hear what he or whatever people may have to say.

And it is here that our democracy faces its greatest threat because today, while we have some degree of democratic discussion on high intellectual levels among people who are secure, there is no free in democratic discussion among the masses of the people on the great issues of the day.

And this is largely because of fear.

Would you advocate peace?

Two years ago, 20 or 30 members --

Justice John M. Harlan: What investment is that?

Mr. Victor Rabinowitz: I'm about to expand on it sir.

Would you advocate peace?

20 or 30 years ago -- 20 -- two years ago, 20 or 30 members of the Committee for saying Nuclear Policy would call before a congressional committee and examined extensively on their political beliefs.

Would you advocate a change in our policy to a Cuba?

Last week, this very Committee announced that it was traveling to Los Angeles for the purpose among others of subpoenaing members in Los Angeles of a Committee called, "The Committee for Fair Play for Cuba."

Would you advocate abolition of the Committee?

I merely called to your attention the decision in the Wilkinson case.

On the great issue of the recognition of China, there is hardly anyone to subpoena.

We have to go back into history to examine what happened to the Institute of Pacific Relations.

The Amerasia Affair, the prosecutions, two, I believe they were of Professor Lattimore (ph).

Would you advocate socialism?

There is the threat of the Subversive Activities Control Board which may find you a member of the Communist Party or which may find your organization; a Communist Action Organization, a Communist-infiltrative Organization, a Communist Dominated Organization and I hate to predict what maybe the next kind of organization, perhaps a Communist Mislead Organization.

Would you engage in the theoretical discussion of communism?

Last year, I believe it was or two years ago, this Committee held an investigation of a foundation which gave grants to theoretical discussion of Marxism and also called before it a group of teachers who are teaching at a school of Marxist studies in New York.

Furthermore, this situation is not getting any better.

At least from the point of view of a lawyer who reads the advanced sheets of this Court, it seems to be getting worse.

Such a situation would have been serious enough 50 years ago but in the dynamic world of today, it poses a very serious threat to our existence as a free and democratic nation.

There is today a world wide debate going on, all over the world, Vietnam, in Argentina, Western Europe, Cuba, in Africa, a debate on the relative merits of two great opposing forces, two great social systems.

I suppose for a shorthand purposes, we can say the capital system of free enterprise and the socialist system of a planned and controlled society.

Unless our people can debate this, and debate this not nearly in the magazine section of the New York Times but debate them in their trade unions, on the street corners, in their clubs, in their political parties.

We are acting out of the debate and as the democracy, it is doubtful as to whether we can survive.

We can't survive perhaps as a military machine but not as the United States that we all know and love.

In this atmosphere of fear where issues are debated by people who are either very secure or most people not being secure are debated only with the fear of a congressional committee subpoena or a Subversive Activities Control Board prosecution.

Free debate cannot exist.

The subpoena may never come, most of the time it does not come.

The prosecution under Subversive Activities Controlled Act usually does not happen.

But Your Honors, I can tell you that in the last year, I have had 20 people come to me and say, "I was a member of the Communist Party years ago, is it alright for me to use my passport and go to Cuba?"

I'm -- excuse me, can't go to Cuba with the passport, go to -- go to Europe.

People are frightened and in this atmosphere a free and democratic discussion cannot exist.

I have the greatest respect for this Court of course and it is because I have such great respect that I had these last few words.

I cannot say that this Court is responsible for all of this that has happened.

But I think that if the record is examined objectively, it must be said that it bears its share of that responsibility.

Beginning with ACA against Douds, to Dennis, Barenblatt, Wilkinson, Braden, Scales, SACP and a scour of other cases, this Court has thrown its not uncon -- inconsiderable weight on what I feel is the wrong side, had it not done so, had it encouraged and supported the drive to political conformity.

It would not have given substance to what one member of this Court has referred to as the "black silence of fear."

I myself feel some very slight responsibility for this.

Some years ago, longer ago than I care to remember, I argued American Communications Association against Douds and sometimes I think that had I been a better pleader, perhaps I would have won the case and all of these wouldn't have happened.

Perhaps, I'm now seeking redemption for my small sin.

Justice John M. Harlan: What case are you residing?

Mr. Victor Rabinowitz: ACA against Douds sir.

It will take us a generation or two to get out of the utmost of fear -- atmosphere of fear to which we have been passing.

I hope that it is not too late to begin now, certainly, it is not too early.

Thank you sir.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

The start of my argument, I would like to state the Government's basic position and the most important issues in all three of the contempt of Congress cases which are being argued today.

These basic issues are, first, whether the questions which were asked, the petitioners were in law of pertinent to the subject under inquiry.

Second basic issue is whether the petitioners were apprised of the pertinency of the questions which they were asked to the subject under inquiry at the time that they appear before the Committee.

The third basic question is whether the Committee's questioning of petitioners violated their rights under the First Amendment and the fours -- fourth basic question is whether the Committee's inquiry had a valid legislative purpose.

The Government submits that all four of these questions are squarely controlled by the recent decisions of this Court in the Barenblatt, Braden, and Wilkinson cases.

In fact, petitioners in their briefs and petitioner Yellin here in oral argument, seems to agree at least as to the controlling principles.

While petitioners indicate disagreement with those cases, they accept their applicability and argue that the particular facts of these cases, the cases which are now before the Court dictate a different result.

And therefore, we submit that the issue which is before the Court, both as to pertinency and as to the First Amendment is whether the particular facts make these cases distinguishable from Barenblatt, Braden and Wilkinson.

It's the Government's position that the cases which are now before the Court are substantially similar on their facts to Barenblatt, Braden and Wilkinson and insofar as the facts are different, that the cases which are now before the Court are considerably stronger for the Government.

I would now like to turn to this particular case, the Yellin case.

The Committee at the time the petitioner appeared before it was conducting an investigation of Communist activity in basic industry and particularly the steel industry in the Gary, Indiana area.

The Committee had considerable information of a major effort of the Communist Party to colonize, that is to infiltrate basic industry throughout the United States and more specifically, to colonize the steel industry in the Gary, Indiana area.

Petitioner Yellin was convicted for refusing to answer four questions, although he refused to answer considerable number more.

The first question on which petitioner was convicted was where he resided prior to September, 1957.

The Committee explained that this question was designed to establish, the petitioner had lived in the Gary area and that therefore he would likely have knowledge of Communist activities in that area.

The second question on which petitioner was convicted was whether he knew of Communist Party colonization in steel unions in the Gary area before 1957.

The third question was whether petitioner was a member of the Communist Party on June 23rd, 1949, which was the date that he applied for employment at the steel mill in the Gary area.

And the fourth question on which petitioner Yellin was convicted was whether there were Communist Party colonizers in the steel unions in Gary in 1957.

And therefore, all the questions on which petitioner was convicted involved with petitioner's own Communist Party activities or that -- or Communist Party activities generally in the steel industry in Gary.

The petitioner here on my petitioner's prominent silver does not raise any issue as to pertinency.

He does not claim that the questions which he refused to answer were not in law of pertinent to the subject under inquiry nor does he claim that the Committee failed to apprise him of the pertinency of the questions to the subject under inquiry.

Petitioner Yellin's major contention is that the Committee's questioning of him violated his rights under the First Amendment.

As petitioner admits his basic arguments that the Committee had no valid legislative purpose and that his First Amendment Rights were violated, were answered by this Court in Barenblatt, in Braden, and in Wilkinson.

However, petitioner says that his case is different because here, the private interest of the petitioner in silence outweighs the governmental interest of the Committee in compelling him to answer.

This Court in the Barenblatt case emphasized the great, the overriding governmental interest in protecting the national security from go -- from Communist subversion and this determination did not standalone.

It reflected of series of earlier decisions such as the Dennis case which upheld portions of the Smith Act, American Communications Association versus Douds which upheld the Non-Communist Oath Provision of the Taft-Hartley Act as well as numerous other cases in addition reflected the detailed findings of the Congress in Section 2 of the Subversive Activities Control Act.

In Barenblatt, this Court found that this obviously vital governmental interest in preventing subversion justified an investigation by the very same Committee which is involved in this case into Communist activities in educational institutions.

And in Wilkinson and Braden, this Court held that the governmental interest in protecting against subversion justified this Committee in investigating Communist Propaganda Activities.

Comparing the situation which was before the Court, the situations which was -- were before the Court in Barenblatt, Braden and Wilkinson to this case, the governmental interest here is considerably stronger both education and propaganda are of course areas particularly protected by the First Amendment.

Here on the other hand, the Committee's investigation was at -- was in the field of basic industry and particularly to steel industry which is certainly less directly protected by the First Amendment.

In addition, while it was reasonable for Congress to believe that the danger from Communist subversion was substantial in education and propaganda.

Certainly, the danger there was at less direct to the national security in Communist activity in basic industry.

In fact, it has been recognized for 40 years, as it is reflected in this Court's decision in American Communications Association versus Douds that one of the most important steps used by Communist to subvert democratic governments is to infiltrate and control labor within basic industry.

Certainly, the Congress could reasonably believe that such attempts by Communist in the United States presented a substantial danger which should be investigated at the least, and if found necessary, legislated against.

This Court in Barenblatt also pointed to three other considerations besides the danger of subversion in balancing the governmental and individual interest which were there at stake.

First, the Court in Barenblatt noted that the Committee was not attempting to pillory Mr. Barenblatt and this is equally true here.

Committee made a considerable effort to persuade petitioner to testify and even explained the pertinency of the questions to him despite the fact that he made no specific objection on the grounds of lack of pertinency.

Second, this Court emphasized that Mr. Barenblatt had not been subpoenaed as a result of indiscriminate dragnet procedures, lacking in probable cause for belief that he possessed information which might be helpful to the subcommittee.

And again, this is equally true here.

Two persons identified petitioner as a member of the Communist Party.

These were live persons.

This did not come from the files of the Committee including Francis Crawley who identified petitioner as a fellow member of the Communist Party at the University of Michigan at the very same hearing that Francis Crawley similarly identified Mr. Barenblatt.

And finally, this Court in the Barenblatt case said that the relevancy of the questions is not open to doubt and this is even more clear in this case.

Petitioner was repeatedly told that the Committee was investigating Communist activity and basic industry in the Gary, Indiana area.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Yes it did.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: It's not in -- it's not in the -- it's not in the -- in the record.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: It's in the petition sir.

It's 287 F.2d 292, 287 F.2d 292.

And finally, this Court said in the Barenblatt case, the relevancy of the question is not opened to the doubt and as I have said that this is equally true here.

Petitioner was told specifically of the subject under inquiry and the questions he refused to answer your concerned is on Communist Party activities or Communist Party activities in the steel industry in Gary.

Petitioner, however, claims that this case is different from Barenblatt because the Committee had all the information on Communist activities which petitioner could possibly have supplied.

Petitioner contends that the Committee knew where Petitioner reside it before 1957 and that he was a member of the Communist Party in 1949 which was the question sought in the -- which was -- which was the information sought in the questions underlying counts one and three.

And Petitioner further claims that the Committee knew from previous hearings concerning Communist activities and basic industry, the answers to the questions involved in Count 2 and 4.

Therefore, petitioner argues the Committee wanted only collab -- collaboration which does not outweigh the individual interest in silence.

The Government submits the petitioner's first mistake in this argument is a considering only the information which was sought from the particular questions on which petitioner was convicted.

The answer to anyone question or even any four questions, they will not be vitally important to the Committee's investigation.

In order to determine the interest of the Government in disclosure, one must weigh the purpose of the entire investigation in the Communist activities in the steel industry and the possibility that the witness can contribute to this investigation.

And therefore in the Barenblatt case, this Court weigh the Government's -- the Committee's interest in Communist infiltration and education, not the interest of the Government in obtaining the answers to the particular questions on which Mr. Barenblatt was convicted.

Petitioner's second mistake is in ignoring the important governmental interest and having a well-informed witness confirmed previous information particularly when the existing evidence is in a controversial area as this one certainly is, and is therefore likely to be challenged.

The questions which this Court upheld in Barenblatt, Braden and Wilkinson, all sought information concerning whether the witness was a member of the Communist Party to collaborate evidence of the Committee already had in all three cases that the witness was a member of the Communist Party.

And in addition, it is clear that the Committee was not merely seeking in the questions involved in Counts 2 and 4 to confirm evidence that it already had.

The previous Committee hearings concerning Communist activities in basic industry and more specifically in the steel industry concerned different although related subjects to the subject of Communist activities in the Gary area for those hearings all involved Communist activity and basic industry in other parts of the country.

For example, the Buffalo hearings concerned Communist activity and basic industry in the Buffalo area.

The Committee therefore could have a valid interest in seeing whether the pattern which was established in Buffalo also apply throughout the rest of the United States and that therefore, legislation might be necessary.

The record also shows that the Committee had little or no information of Communist Party activities in Gary after 1952 from other witnesses and did it hope to obtain this information from petitioner.

At the least, Petitioner has never shown that he could not have provided new information and certainly cannot unilaterally determine that he had no new information and that therefore, he need not testify before a properly authorized congressional Committee.

Petitioner Yellin also claims that his case is different from Barenblatt, Braden and Wilkinson because here, the trial court excluded the proffered expert testimony of Professor Emerson on the issue whether petitioner's First Amendment rights had been violated.

This testimony is included in full in the record at pages 100 to 115 and was in response to the following question.

Everyone opinion as to the various factual considerations which have to be taken into account in balancing the competing public and private interest at stake in the circumstances presented.

The trial court held that this question asked for an involved legal opinion and that Professor Emerson's answer constituted such a legal opinion.

Without going into Professor Emerson's lengthy response in detail and then to summarize at pages 28 to 30 of our brief, we submit that the ruling of the trial court which was approved by the Court of Appeals was correct.

The proper testimony consisted largely of legal factors which the Court should consider not with factual evidence relating to those factors.

Professor's Emerson state -- Professor Emerson's statement in short reads by the closing argument of very able counsel summarizing his client's legal position under the First Amendment.

In fact, Your Honor it does -- parts of itself considerably like Mr. Rabinowitz's closing remarks here today, while such statement it is of course proper when presented by counsel is legal argument, the lower courts will correct and it did not constitute evidence.

But even if we are wrong and the lower courts are wrong and Professor Emerson's testimony was properly admissible, we submit petitioner's conviction and nevertheless should not be reversed.

Justice Hugo L. Black: May I ask you just one question in connection with expert testimony?

Should I recall that the Government of short time ago argued that expert testimony should be admitted from time-to-time to approve or disapprove obscenity, do you think that had any relation to this point?

Mr. Bruce J. Terris: Well, I assume Your Honor that that kind of testimony would go to the question whether -- whether the particular documents were obscene not on the -- not on the standards which should be applied by the Court here --

Justice Hugo L. Black: -- (Voice Overlap) -- I may be wrong and I recall it was an order to determine whether it was offensive to the more reason of the community.

Mr. Bruce J. Terris: That's right Your Honor and I -- and I assume that is a -- is a factual question.

I don't think that this -- that the question Professor Emerson testified to is the same that what -- what he stated was quite similar to -- if you put the majority opinion in Barenblatt next to the dissent, his testimony once -- he first deals basically with the majority position that there's a great danger to the national security from Communist subversion and then it goes down the line at the dissent that the interest of the individual in silence is greater.

I don't think that's the same type of issue which was involved in the obscenity case.

But even if there was admissible, the Government's further argument is this -- that petitioner Yellin's contention should anyway be sustained but the testimony was offered solely concerning petitioner Yellin's claims under the First Amendment.

And this was a legal issue which this Court in Barenblatt, Braden and Wilkinson decided for itself and therefore, this Court itself consider Professor Emerson's statement which is fully set fort in the record to determine if petitioner Yellin's First Amendment rights were actually violated.

And if we so consider Professor Emerson's statement, a fair summary is that a danger of -- that the danger from the Communist overthrow of the United States Government is not substantial but the threat to First Amendment rights from congressional inquiries in the Communist activities is extremely serious.

We submit that this statement adds nothing to the competing considerations waived by this Court in Barenblatt, in Dennis and American Communication Association versus Douds.

And therefore, we submit that Professor's -- Professor Emerson's statement presented no basis for changing this Court's determination in the earlier cases.

The congressional committees can compel witnesses to testify concerning communist activities without violating the First Amendment.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: That's right Your Honor.

That's right.

And of course in all these cases, the basic First Amendment rights having considered by this Court is a question of law.

Chief Justice Earl Warren: Well, Mr. Terris, assuming that they're accepted rather the -- the Barenblatt doctrine that there is balancing processes between the rights of individual and the rights of the -- of the Government.

Is it your position now that that all that balancing has been done and that there is nothing open to the -- to the defendant in the case of this kind to balance?

Mr. Bruce J. Terris: Your Honor I would -- I wouldn't like to say that it's done for all time.

Chief Justice Earl Warren: Well, we'll just say for all cases at this time.

Mr. Bruce J. Terris: Your Honor, if petitioners can show that there is any difference today from what from -- as to the factors -- from the factors which this Court considered in Barenblatt, only two and a half years ago that -- that is one thing, but that is not, that is not what Professor Emerson testified to.

He basically testified to what the Court should consider.

Now, this Court already held in Barenblatt what -- what our lower courts could -- should consider.

In addition, his testimonies almost and precisely the same time (Voice Overlap) --

Chief Justice Earl Warren: Would you mind --

Mr. Bruce J. Terris: -- this Court is doing --

Chief Justice Earl Warren: -- telling me -- would you mind telling me please, what kind of testimony would be available to a defendant in the case of this kind?

Mr. Bruce J. Terris: If you -- as to the -- as to the balancing process?

Chief Justice Earl Warren: Exactly.

Mr. Bruce J. Terris: Well, Your Honor --

Chief Justice Earl Warren: Either there is -- there is something available to him where there isn't now.

Now, if there is, I just like to know what it is.

Mr. Bruce J. Terris: Your Honor, the way the Government sees the relationship between Barenblatt, Braden and Wilkinson on the one hand and any city in Alabama, Shelton and Tucker, Bates and Little Rock and the other which all involved the balancing testing, came out different ways.

Is that Court held in Barenblatt that there was great danger from subversion from communism?

And the questions as the communism could be asked because of the overwriting governmental interest in that subject.

On the other hand, an N.A.A.C.P.in Alabama, in Bates and Little Rock, this Court that found there was no interest of the State in finding out the membership list of the -- of the N.A.A.C.P.

And in Shelton and Tucker, this Court found that there wasn't -- there wasn't sufficiency in -- sufficient interest to find out the membership of teachers in all their organizations.

Now, it's interesting in Shelton and Tucker, this Court carefully said that it was not deciding that a State couldn't ask questions of teachers concerning their membership in certain organizations or they could -- that the State was not precluded from asking from certain teachers their membership in all organizations.

Now, if -- the Government submits that what these cases altogether show is that when the -- when a Committee, when the State or Federal Government is investigating something is serious, is Communist subversion that the governmental interest outweighs the private interest.

Now, if the question that was asked was so clearly on its face unrelated to anything to do with Communist activity, I suppose that there would be unconstitutional to ask the question, although it probably also not be pertinent.

Chief Justice Earl Warren: Mr. Terris, may I put it this way through you then?

Do -- under the Barenblatt case and the Wilkinson case, is it your position that every witness regardless of the circumstances of his case stands in exactly the same position before the Committee so far as the balancing process is concerned, namely that there is -- there is nothing -- there can be nothing in the -- in the circumstances of any particular case that would change it and that is a matter of rope.

We must now say, in every case where a -- where a pertinent question is asked that there is no countervailing interest that -- that can prevail?

Mr. Bruce J. Terris: Your Honor, the answer is no.

This Court in Barenblatt's gave three considerations which have to be applied in each individual case.

One of the considerations was whether the witness was called as a result of dragging and procedures.

I've arg -- well, I assumed that there's no absolutely no basis that can believe it he has any information about the subject under inquiry.

Chief Justice Earl Warren: Where do you get a definition like that?

Mr. Bruce J. Terris: Well I -- I think that is the meaning of what -- of what this Court said in the Barenblatt case and is repeated substantially in those terms in both Braden -- both Braden and Wilkinson that Mr. Barenblatt was not subpoenaed as the result of it and, “Indiscriminate dragnet procedures lacking and probable cause for belief that he possess information which might be helpful to the subcommittee.”

Now, applying that standard, if a witness was just called off the street, they had no -- no indication that he had any information about Communist activity in the particular Communist activity which the Committee was investigating then I think this would probably violate the First Amendment.

Now, the two other considerations which are in Barenblatt; one is that whether the Committee was attempting to pillory the witness and another one was whether the questions were relevant.

Now, I've argued that it -- in this case as in the other two cases, all three of these standards are met.

And then I -- the Government submits that if they are met then as Your Honor suggesting this question that Barenblatt, Braden and Wilkinson establish that the Committee can compel a witness to answer questions which are pertinent.

Chief Justice Earl Warren: Regardless of any other equities of any kind?

Mr. Bruce J. Terris: Your Honor, first of all I think those three considerations have the basic equities.

I don't know of –- of other equities that should be weighed and – and second of all, I think the –- the basic --

Chief Justice Earl Warren: Well, let's take –- let's take a question of this kind.

In -- I forgot in whether it was Wilkinson or Braden and we found that a Committee had taken one witness.

I think he was an employee of the Customs Department, all around the country to about entertain different places and they had him testify to the very same thing concerning the same bags of male and what was in -- what was in those bags, particular bags of a male.

Now, suppose we had a situation with that kind with – with this defendant Mr. (Inaudible) --

Mr. Bruce J. Terris: Yellin.

Chief Justice Earl Warren: -- Yellin.

Mr. Bruce J. Terris: I would think that would be pillorying the witness.

Chief Justice Earl Warren: I beg your pardon.

Mr. Bruce J. Terris: I think that would be pillorying the witness.

Chief Justice Earl Warren: You do?

Mr. Bruce J. Terris: Now, the Barenblatt case doesn't go –- go into detail what pillorying means.

But if it was just that, I reserve it.

I think it's a different question if there's a substantial length of time between the two so the Committee could have reason to believe that the witness would testify at another hearing.

But if it's perfectly clear and they call him once he refuses to answer, I don't think that he can have a legislative purpose to as you say, just drag him across the country and ask him precisely the same questions again and again over a short period of time.

Chief Justice Earl Warren: Would you say a long period of time?

Mr. Bruce J. Terris: Well if -- if there was -- if the reason to believe that he had additional information or he might change his mind, yes, I think yes.

There might be a very -- very significant difference.

The reason I say that is --

Chief Justice Earl Warren: You mean if he claimed the privilege once and they gave him a little time that they could call him again on the theory that he might have changed his mind and then that -- on that basis --

Mr. Bruce J. Terris: Well --

Chief Justice Earl Warren: -- they could take him all over the country?

Mr. Bruce J. Terris: Well, the privilege Your Honor is the Fifth Amendment, none of these cases are --

Chief Justice Earl Warren: I know that is --

Mr. Bruce J. Terris: -- diverse.

Chief Justice Earl Warren: -- that isn't here.

Mr. Bruce J. Terris: No, it's the first.

Chief Justice Earl Warren: But it's --

Mr. Bruce J. Terris: No.

Chief Justice Earl Warren: It's certainly is pertinent to the discussion here.

Mr. Bruce J. Terris: Well, I suppose if he invoked the Fifth Amendment, there have been no prosecutions for a number of years on any witnesses who've invoked the Fifth Amendment, now, what -- so that I assume that he wouldn't be prosecuted.

Now, it would be a very improper thing I would think for the Committee to take a witness across the country and do this although I know of no such cases on unwilling witnesses.

But if they did it, I don't know what the judicial remedy would be.

I think it would be improper in my file -- his First Amendment rights but I can see no way that he would be prosecuted.

Chief Justice Earl Warren: I assume that the -- that the Government did have to show the importance of the investigation it was conducting.

And all I'm asking --

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: Is -- is there any way that -- that a witness can offer any testimony in order to counter balance that kind of testimony?

Mr. Bruce J. Terris: Well, Your Honor, as I say, he -- if he can show that they just picked him up off the street or they pilloried him or that the questions were not -- were not relevant then, yes, he can introduce such argument or evidence.

Much of that evidence would come from the transcript of the hearings itself, maybe all of them would.

But these it seems to me are the basic considerations and petitioners nor as far as I know anyone else has ever suggested what additional considerations should be weighed.

And this Court held that, given all this set of factors -- set of factors in Barenblatt, Braden and Wilkinson which are almost the same factors here except as I've indicated.

I think the Government own interest here is even stronger that given the set of factors that the First Amendment isn't violated.

Justice Hugo L. Black: May I ask you question (Inaudible)?

As I understand it, you're saying that if there the Committee has some information that a man is a Communist (Inaudible) and they do not, whatever you mean by pillorying than then the fact that it's in the field of communism, leave nothing to be balanced so far their rights to interrogated their concern and they can continue to interrogate them in connection with communism as distinct from something like N.A.A.C.P or somewhat organization.

Mr. Bruce J. Terris: I think that's essentially right Your Honor because I think all of it that -- that is to say is that when the facts are essentially the same, the balance always comes out the same way.

Justice Hugo L. Black: Well now, may I ask you this and I -- I maybe wrong but as I understand the rumor about that thing, it exists in order to escape what is said to be a much (Inaudible) that is the doctrine of absolutism.

Why is that matter an absolutely as proved under your definition?

Mr. Bruce J. Terris: Well, I don't think that what I've suggested is that -- that there isn't a genuine balancing in each case.

All that that I suggest --

Justice Hugo L. Black: Balancing of what?

Mr. Bruce J. Terris: The Governmental interest versus --

Justice Hugo L. Black: If he's a Communist -- if he's a Communist or they think he's a Communist they want to ask him question, what is that left about?

Mr. Bruce J. Terris: Well -- to repeat, what they are balancing is the governmental interest versus the individual.

Now, the Governmental interest --

Justice Hugo L. Black: But it isn't all settled finally, completely once and for all, what if he is a Communist so they have reason to believe you.

You summon a man without bringing a man under dragnet and they do not pillory him or whatever that means?

Isn't it all settled?

Haven't they got a right to ask him anything they want to although they might not have a right to ask the members of some of the organizations?

Mr. Bruce J. Terris: Well, Your Honor, it is settled when the facts are substantially the same but I --

Justice Hugo L. Black: Those facts, just those fact, why is that not, the doctrine there absolute his position with reference to that question in the First Amendment?

Mr. Bruce J. Terris: Well, Your Honor because I don't know of any other considerations which are proper in this Court is held.

They are no additional considerations.

Justice Hugo L. Black: I understand your view and I think -- I think you're doing, if I may say so making a fair presentation view points.

But all I'm asking is, if that's true why is not that an absolute lists of view that the First Amendment does not apply when the balancing doctrines seems to rest on the idea that there must be no absoluteness protection of the First Amendment?

Mr. Bruce J. Terris: Well, without getting into what the meaning of absolute is this --

Justice Hugo L. Black: Well, I don't know either.

Mr. Bruce J. Terris: The balancing process which takes place under Barenblatt seems to me to be an actual -- and real balance.

It is not es -- it does not establish a rule for all cases regardless.

What it does do is say that when the balance is essentially the same, when the factors are the same as in Barenblatt, then the result will be the same.

Justice Hugo L. Black: Well, then why if that's true, is all I'm asking?

That's true if a witness is called up the reason to believe he's a Communist, is asked the question -- they asked where you say in the ninth, 13 come now, not repeated time after time, say 100 times same question, just two or three times.

And he question is -- the question is communism rather than whether he is N.A.A.C.P member, member of some other organization.

Is there anything left to balance or is not true at that time, the Committee is the investigating Committee, that has a right to ask him whatever it would be --

Mr. Bruce J. Terris: Your Honor --

Justice Hugo L. Black: -- on that subject.

Mr. Bruce J. Terris: -- is there anything left to balance, that is what you balance.

Justice Hugo L. Black: But if there's anything left but what should --

Mr. Bruce J. Terris: Well --

Justice Hugo L. Black: -- be left?

Mr. Bruce J. Terris: You'll balance the -- you balance the individual's interest in silence which includes whether he was pillorying, whether the questions were relevant and whether he was brought before the Committee as the result of a dragnet procedure.

You balanced that against the governmental interest and protecting against subversion.

Now, the result all -- and the same facts is always the same.

I agree it should be the same.

Justice Hugo L. Black: Suppose, for instance, he was on the indictment and he did not plead the First Amendment, I mean the Fifth Amendment.

He's more to plead there.

But you kept telling him that he didn't want to testify because there was indictment pending against to somewhere.

And that whole question resided around the indictment, would that be admissible on the balancing process?

Mr. Bruce J. Terris: We -- well, Your Honor I'm -- I'm assuming here that the Committee head of the -- head of the legislative purpose which it stated, finding out about Communist activities in some particular area.

Now, this Court is held that you don't look into the -- to the motives, the -- the beliefs of the Committee.

I'd -- I assume therefore under Watkins, Barenblatt, Braden and Wilkinson, all four of the cases that -- that the fact they might have had an improper motive would not make it -- the inquiry invalid under the --

Justice Hugo L. Black: I'm not --

Mr. Bruce J. Terris: First Amendment.

Justice Hugo L. Black: -- referring to motive.

I'm referring whether there's anything else that kind of bring up something else that might entitle the man to say, “When you go to balance this, the Government just don't let me alone on this particular question because it is an interest and not -- the Government sender is not sufficient to go that far with reference of this question even in the field of Communist.

Mr. Bruce J. Terris: Well, Your Honor I -- I think that that would not make a difference that he was under indictment.

However, that was not a question which is before the Court in any of the cases perhaps that would be an additional factor that would have to be balanced.

It's certainly not before the Court in any of the cases, which are now pending in this Court.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Pardon me?

Justice John M. Harlan: Do you have other case here?

Mr. Bruce J. Terris: Yes, but I don't -- I don't believe they involved however to the First Amendment.

Turning now to petitioner Yellin's contentions under Rule IV of the Committee's own rules that the Committee violated this rule and therefore, he could not properly be convicted for refusing the answer of the questions.

He claims that he had the right to appear in executive session rather than in a public hearing under Rule IV (a).

Now, Rule IV (a) of the Committee's rules which is at beginning of the petitioner's brief and is also quoted in the Government's brief at page 37, states that if the Committee and, “Believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation or the reputation of other individuals.

The Committee show interrogates such witness in an executive session.

We submit that it is clear that Rule IV does not convey any rights or at least no legal rights which are rever -- reviewable in a court on a witness for the rule makes the determination whether a witness shall appear in an executive session, depend on the belief of the Committee, not on any objective facts.

In addition, Rule IV (a) does not convey out of witness the right and again -- or certainly not any legal right reviewable on the courts that have the Committee make a determination whether he should appear at an executive session or at public hearing.

House rule 11 (g) makes Committee hearings normally public, Rule IV of the Committee's rules merely provides for an exception when the Committee has a certain belief, but even if the Committee's rule, Rule IV (a) did give witnesses a legal right which was reviewable on the courts clearly a congressional committee has broad discretion to determine whether a witness should be heard in executive session or the public hearing.

Justice Potter Stewart: Before exercising the discretion, do you think the petitioner was entitled to have the Chairman of the Committee at least read his telegram and know what was in it?

Mr. Bruce J. Terris: Well one of the -- well --

Justice Potter Stewart: His counsel's telegram.

Mr. Bruce J. Terris: What the major difficulty with that Your Honor, even assuming that the answer to that is yes, he has that right.

The telegram was not sent until over into approximate two weeks after the -- after the witness was subpoenaed.

It arrived and I think also was sent the same day on February 6th.

The hearing was to take place on February 10th.

The Chairman and the -- and the entire subcommittee had left Washington for Gary.

They did not see the telegram.

Now, mistake was made at that point.

The staff director of the Committee answered the telegram, he had no authority to do so, but he answered it saying that the request was denied.

Now, in this situation, we don't think the Committee was anymore chargeable with fault than the witness was.

In addition --

Chief Justice Earl Warren: But you argue another case Mr. Terris at where the -- where the rules the Committee say that the -- that the Committee itself may issue subpoenas that these very people such as one he sent the telegrams to have the power to --

Mr. Bruce J. Terris: No.

No Your Honor.

Chief Justice Earl Warren: -- to issue --

Mr. Bruce J. Terris: I don't believe that so I think that those subpoenas had to be signed by the Chairman of the Committee.

Chief Justice Earl Warren: Well, I thought -- didn't we have a case recently there were (Voice Overlap) --

Mr. Bruce J. Terris: The case was before the Court -- I think the fact is that the Chairman had -- no I think the Chairman -- or at least he had to authorize them and it was perfectly clear in that case the -- the Shelton case is the case you're thinking of Your Honor and -- and the Chairman did authorize the subpoena in that case.

Chief Justice Earl Warren: Well, I thought --

Mr. Bruce J. Terris: Here, the chairman did not authorize rejecting --

Chief Justice Earl Warren: Shelton, was that the New York Times case?

Mr. Bruce J. Terris: That's right.

Yes, Your Honor.

Chief Justice Earl Warren: Well he -- he has changed it didn't he?

Mr. Bruce J. Terris: No, no.

Chief Justice Earl Warren: He stated --

Mr. Bruce J. Terris: No.

Chief Justice Earl Warren: -- when he got there.

I thought he got to the New York -- New York Times and asked --

Mr. Bruce J. Terris: I don't want to reargue -- reargue (Voice Overlap) --

Chief Justice Earl Warren: No, no.

No, no, but I mean the --

Mr. Bruce J. Terris: Yes,

Chief Justice Earl Warren: -- other one --

Mr. Bruce J. Terris: -- yes.

He didn't just change it.

Chief Justice Earl Warren: I thought he --

Mr. Bruce J. Terris: No, he called --

Chief Justice Earl Warren: -- got --

Mr. Bruce J. Terris: -- the Committee.

Chief Justice Earl Warren: there and found out that there was no Shelton by that name so he just -- he just gave it to another Shelton.

Mr. Bruce J. Terris: Well, there were few steps left out in between Your Honor.

Chief Justice Earl Warren: Left out, alright.

Mr. Bruce J. Terris: He found out that there wasn't any Shelton there but then he called the Committee, that matter was brought to the attention of the Chairman.

The Chairman said go ahead and -- and served that -- the only Shelton who was on the new side of the Times and that then the subpoena was -- was changed.

So returning to Mr. Justice Stewart's question, we think that Committee was no more chargeable for fault than the witness himself.

In addition uphe --

Justice Potter Stewart: But perhaps not -- perhaps it's not so much a matter of fault, it's just a matter of a -- whether or not, the petitioner was entitled to have the many exercise -- his discretion that have been informed way rather than uninformed.

Mr. Bruce J. Terris: That's right.

As Your Honor is suggesting, they did exercise their discretion and at least in an uninformed way by -- because the Chairman testified that they had determined not to hear the witness in --

Justice William J. Brennan: Did you just say, they exercised their discretion in an uninformed way?

Mr. Bruce J. Terris: Well I -- but I say uninformed that they were uninformed as to the request.

Justice William J. Brennan: Which is to say then they did not exercise their --

Mr. Bruce J. Terris: No, no.

Justice William J. Brennan: -- discretion on the request.

Mr. Bruce J. Terris: On the request, they did not.

They exercised their discretion not to hear the witness in executive session.

Now, let me point out when I say was un -- they were uninformed of the telegram.

The telegram contains no information which would justify holding the -- hearing the witness in executive sessions.

Justice Potter Stewart: Simply a request --

Mr. Bruce J. Terris: It's just a --

Justice Potter Stewart: -- it's just that, wasn't it?

Mr. Bruce J. Terris: -- request and it does not indicate anything which would come under Rule IV.

Justice Potter Stewart: No factual basis for the re --

Mr. Bruce J. Terris: That's right.

Justice Potter Stewart: -- in the telegram itself.

Mr. Bruce J. Terris: That's right.

There's nothing to indicate the Rule IV applies because the telegram merely says that he'd like not to appear at a public hearing because -- because of the publicity which of course -- which the course is obvious.

Now, Rule IV requires in order to have a witness appear in an executive session either that his testimony will endanger national security or that it will unjustly injure his reputation.

Justice William J. Brennan: Well, might that not -- might not be involved in the suggestion that the right and executive session would void publicity?

Mr. Bruce J. Terris: Well, that might be involved but all -- what I was addressing my --

Justice William J. Brennan: And wouldn't the reasonable --

Mr. Bruce J. Terris: Interpretation of the telegram?

Justice William J. Brennan: The interpretation that would be that?

Mr. Bruce J. Terris: Just publicity -- publi -- the thing is Rule IV doesn't say that mere publicity isn't up.

It has to be unjust injury to his reputation.

And in fact, the Committee soon, it could reasonably believe that there would be no unjust injury to his reputation.

They already had heard sworn testimony in public session that -- that petitioner Yellin was a member of the Communist Party.

Justice William J. Brennan: I mean --

Mr. Bruce J. Terris: And it --

Justice William J. Brennan: -- that -- this all supposes.

This went through the Committee's mind and you've already told us they didn't even know --

Mr. Bruce J. Terris: Well --

Justice William J. Brennan: -- the requirements.

Mr. Bruce J. Terris: There is testimony in the record that the Committee does not consider it unjust injury to a witness' reputation, to have him identified as a Communist.

Justice William J. Brennan: Certainly, you can't say that's the reason he was denied an executive session here by the Committee, can you?

Mr. Bruce J. Terris: Well, the Committee denied its appearance in an executive session.

Now, it's hard to believe that it didn't know that he would be identified, that there would be a suggestion after session that he was -- that he was a Communist.

Now, that is certainly not a very -- a very subtle thing for the Committee to have -- to have thought about.

And apparently, they decided and exercise their discretion.

Chief Justice Earl Warren: Well, isn't it?

Justice William J. Brennan: What is this decision?

Mr. Bruce J. Terris: This decision was prior to the hearing.

Justice William J. Brennan: Why didn't --

Chief Justice Earl Warren: Isn't this reasonable --

Mr. Bruce J. Terris: -- by the Committee.

Chief Justice Earl Warren: -- to suppose that they didn't -- isn't reasonable to suppose they didn't consider that at all because I understood Mr. Rabinowitz, Congressman Walter, the Chairman of the Committee who -- who testified at the trial said he had never seen the telegrams, never heard of them until that day in court.

Mr. Bruce J. Terris: Your Honor, I've -- I had not mean to suggest that when the Committee denied the appearance of petitioner in executive session that they had its request in front of them -- his request in front of them.

They did not -- the Committee did not have this request in front of them.

What I'm saying is that when they denied -- when they'd decided to have him appear in public session, which is the normal practice under the -- the rules of the House of Representatives.

That when they decided that, they could hardly have failed to know that there was going to be a possibility that there would be -- at the hearing that he would -- there'll be suggestion he was a Communist.

After all, that was the basis for calling him.

Chief Justice Earl Warren: I suppose Mr. Terris under those circumstances, the question of a -- of an executive session for the purpose of protecting a witness would never come.

Mr. Bruce J. Terris: No that --

Chief Justice Earl Warren: Would never come up unless -- unless there's some -- was some request such as was made here.

Mr. Bruce J. Terris: No.

Apparently, it does come up because in this very case without knowing of the request, the Committee decided not to have him appear in an executive session.

Chief Justice Earl Warren: Is their affirmative evidence --

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: -- to the effect they decided not to have it --

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: -- or if they just subpoenaed him to testify in a public session?

Mr. Bruce J. Terris: There is affirmative evidence in the record from the Chairman of the Committee that they decided not to hear the witness at an executive session.

Justice Potter Stewart: Where does that appear in the record --

Mr. Bruce J. Terris: I think it's -- in page up here.

It's at the top of the page, three -- page 70 of the record, it's the third line.

Well, the Committee already passed in the question of whether or not we would hear Mr. Yellin at a session and -- and that would -- and that was discussing at an executive session if you'll notice the question of --

Justice Hugo L. Black: And as I recall, and my recollection may be wrong, one -- one statement was made that the Chairman of Committee said that if he had known about it, it might have been different here.

Mr. Bruce J. Terris: It might have been different, yes.

Justice Hugo L. Black: Is that what he said?

Mr. Bruce J. Terris: Yes.

He did say.

That's on the same page Your Honor.

Justice Hugo L. Black: On the same page?

Mr. Bruce J. Terris: The situ --

Justice Hugo L. Black: What page is that?

Mr. Bruce J. Terris: But, let -- let me say, however, that the petitioner's contention is a -- certainly suggest an incredibly technical reading of the -- of the Committee's rules, all the Committee's rules -- first of all, the Committees, well, don't say that you have a right to have this issue determined by the Committee.

Second of all, they don't say that particular facts exist that the witness is entitled to have -- to be testified in executive session.

It merely says that if they have -- if the Committee has a belief which I assume is the most subjective kind of word one could possibly use that then -- then the witness will be given the opportunity to appear in an executive session.

Chief Justice Earl Warren: Well, what is the Rule IV, isn't a rule to manifest fairness and to give a -- give a witness an opportunity to -- to present his cause in that regard?

Mr. Bruce J. Terris: Yes.

I agree Your Honor.

The reason for the rules is --

Chief Justice Earl Warren: And he didn't have that opportunity here, did he?

Mr. Bruce J. Terris: Well, part of my answer is -- what I said to Mr. Justice Stewart that he had the opportunity and --

Chief Justice Earl Warren: But he didn't suggest --

Mr. Bruce J. Terris: -- partly through his form, partly through the Committee's fault that -- that the two of them didn't get together very well.

Now, aside from that, the fact that he didn't have this opportunity in this very no -- non-mandatory permissive rule to reverse petitioner's conviction on this basis, seems to me a very technical reading of the Committee's rules.

I'd like to suggest to the Court that this is not a proceeding in the -- in the District Courts.

These things aren't done on a very legal basis.

The things tend to be done on a basis of negotiation and -- and discussion.

To apply the kind of rules that one might apply and they did in the District Court, seems to -- seem to me to -- to be a very serious mistake with the coordinate branch of -- of the Government.

Chief Justice Earl Warren: Well, under your -- under your interpretation so far as protection of a -- of a witness is concerned, this rule means nothing.

Mr. Bruce J. Terris: You mean legal rights protected in the Court?

Chief Justice Earl Warren: Any protection.

It --

Mr. Bruce J. Terris: Oh I think it has --

Chief Justice Earl Warren: -- means nothing because --

Mr. Bruce J. Terris: -- no, I think it has -- it has considerable protection to tell them --

Chief Justice Earl Warren: What -- what is -- what is that protection?

Mr. Bruce J. Terris: It tells the witness that if he presents evidence to a Committee which fall into any of the three categories and the Committee believes that they will hear him in executive session.

In fact, they did hear -- they do hear people in executive session.

Chief Justice Earl Warren: Didn't he offer to do that and -- and did --

Mr. Bruce J. Terris: No, there's no --

Chief Justice Earl Warren: -- summarily did not.

Mr. Bruce J. Terris: There's no indication that he offered to do it.

His telegram merely says that he'd be exposed to publicity.

Now, I suggest that the Committee understood that.

There was no possible way you will hear in public session in which are not exposed to publicity.

So he did not offer to pres -- to present evidence under any of these three considerations.

Chief Justice Earl Warren: How many admirations would a man have or wanted in -- wanting an executive hearing other than to avoid the publicity of a -- of arbitrary?

Mr. Bruce J. Terris: No, one of the -- the reasons that he has to give is that it was unjust injury to his reputation or the injury of others, unjust, not injury to his reputation.

It is not enough that he would be identified as a Communist.

If he is a Communist or the Committee reasonably believes he's a Communist, the Committee believes and it seems to me this is a fair interpretation of its -- of its rules and this in the record that is not unjust injury to his reputation.

It's injury but -- but the Committee believes that -- that this is just.

And in fact, he'd already been identified, as I have said in public session, as a member of the Communist Party, the very same public session to which Mr. Barenblatt was identified.

Justice Hugo L. Black: Well, if that's the fact that they believe solely he's a Communist, he has no right to be heard as in executive session.

Why isn't that simply exposing him in order to expose him?

Mr. Bruce J. Terris: Because the Committee hopes that he will testify and I assume that one of the reasons that it hopes to testify is that there is some additional pressure to testify from appearing at a public session.

I don't know whether it's a matter of psychology, this -- this is true but apparently, that is one -- one of the beliefs for the Committee.

They don't want to put a premium, in other words, for witnesses not to talk and that would be the premium.

Justice Hugo L. Black: Certainly, it does indicate, it doesn't matter.

They want something beside the information.

They could get --

Mr. Bruce J. Terris: I don't think it does indicate that Your Honor.

Justice Hugo L. Black: -- the information in executive session, doesn't it?

Mr. Bruce J. Terris: Pardon me?

Justice Hugo L. Black: They could get the information in executive session.

Mr. Bruce J. Terris: Well, they could -- you mean they could fail to get the information.

He would say -- he would --

Justice Hugo L. Black: He would be for some reason that he'd love to testify, avoid the public at the executive session.

Mr. Bruce J. Terris: But they think that the additional pressure --

Justice Hugo L. Black: Is that open to prove or it does have to assume that?

Mr. Bruce J. Terris: Well, I think -- I don't know whether it's true or not.

But then he gets a reason of -- reasonable assumption that the theory is, I suppose that there is some pressure not to invoke constitutional privileges when asked questions about communism, maybe the very same pressure that -- that is invoked --

Justice Hugo L. Black: But they weren't trying to get him not to raise constitutional privileges I'm --

Mr. Bruce J. Terris: They --

Justice Hugo L. Black: -- sure.

Mr. Bruce J. Terris: -- yes, of course they were.

Justice Hugo L. Black: They were?

Mr. Bruce J. Terris: They want to get -- getting him to -- to testify to -- you don't have -- after all the first person doesn't -- isn't required to raise his First Amendment rights, of course --

Justice Hugo L. Black: I know, but you mean that -- you mean that the Committee, Congress, putting pressure on people, trying to keep them from raising a constitutional privilege?

Mr. Bruce J. Terris: What do you mean by pressure, I think to -- that the --

Justice John M. Harlan: They're trying to get with your testimony.

Mr. Bruce J. Terris: Right, which is the normal --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: That's right, which is the normal duty that a person has in his country just to give testimony when he's asked for a properly constituted authority.

Now the --

Justice Hugo L. Black: But he also has, doesn't he a privilege that the Constitution gives it to him to exercise that privilege without any pressure by Government to get him to break to the -- not to exercise a privilege?

Mr. Bruce J. Terris: We aren't at the --

Justice Hugo L. Black: And he had that?

Mr. Bruce J. Terris: I would agree but it seems to me the -- the minimal pressure of saying, "You're going to have to exercise your privilege in public."

Let me take the example of a court.

Would it be wrong for a court to make a witness that they were -- that they wanted to testify, appear before the court and invoke his Fifth Amendment right without -- when he told them in private, "I'm going to invoke my Fifth Amendment Right," would the have to say, "Whether we won't call you."

Well this would put an actual bonus on -- on people to not -- to just tell people, "I'm going to invoke my First or my Fifth Amendment right or some other right."

The Committee doesn't want to -- to give people this encouragement.

He wants to say, "Well, you can invoke it but you're going to have to invoke it in public.”

And it doesn't seem to me that that -- that's first of all, unconstitutional, or second of all, even unfair.

Justice Hugo L. Black: What's that -- it depends on the same extent on what weight and appraisal you put on the value of a constitutional privilege, doesn't it?

Or rather --

Mr. Bruce J. Terris: Well Your Honor --

Justice Hugo L. Black: -- the Court would do that.

Mr. Bruce J. Terris: I don't think so --

Justice Hugo L. Black: Or rather the Court would do that?

Mr. Bruce J. Terris: I don't think so Your Honor.

I think that this is -- this has been a -- this is traditional in this country, the witness is called.

He invokes his rights and if he's right is -- and if it's properly invoked, that's the end of it.

But I don't think it's enough where witness to say, "Well, I'm going to invoke my -- my constitutional right so just don't bother me anymore."

Justice Hugo L. Black: I understand what you say now is that if he appeared and wants to tell to the Committee, he is invoking it -- that intake and they're not supposed to ask him a 100 questions thereafter on the same line.

Mr. Bruce J. Terris: Well, as a matter of fact he doesn't end it.

That's never has and I don't think it should.

Well, I forgot in which of the witnesses.

I think it's -- which of the petitioners, I think it's Mr. Silver.

Yes, it was Mr. Silver.

He told one of the investigators when he -- when he was interviewed by the investigator that he was going to invoke his Fifth Amendment right.

The Committee called him anyway.

He didn't invoke his Fifth Amendment right.

Now, he did invoke the First Amendment but he testified to a considerable extent about his own activities.

He didn't go into detail but he said he was a Communist.

Now, this is the kind of example.

It doesn't to me this is wrong, assuming not unconstitutionally wrong and it is not -- and I don't think unfair.

Now in conclu --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Oh yes.

Oh yes.

All three of the petitioners had counsel and they actively participated in the hearings although at times, they were cut short by their ordinary rule of the Committee that they aren't supposed to conduct the debate directly with the Committee, although such debates did frequently take place for a considerable period of time.

In conclusion on this point, I would like to emphasize the contrary to what Mr. Rabinowitz said.

Petitioner was not convicted because of the confusion over the executive session.

Rule IV (a) does not require that the Committee allow a witness to appear in executive session and certainly not in the circumstances of this case.

And even if the Committee had allowed petitioner to appear in executive session, there's absolutely no indication that he would have had answered the questions which the Committee asked him.

And of course if he refused on the same grounds which be here in the same posture except for the fact that this one argument under Rule IV would -- would not be in the case, so that there is nothing to the argument that the only reason we're here is because of -- of this confusion over the sending of the telegram, they're sending of it to the wrong place at the wrong time or the Committee should have listened more carefully at the hearing or any of the -- any of the confusions which admittedly did take place.

Chief Justice Earl Warren: Does the Committee ever have witnesses who will testify in private but who won't testify publicly?

Mr. Bruce J. Terris: I don't know Your Honor.

I think maybe the reason I don't know is that those witnesses probably don't testify him.

Chief Justice Earl Warren: I beg pardon?

Mr. Bruce J. Terris: Maybe those witnesses don't testify publicly, maybe they tell everything they have and the Committee is satisfied.

I don't know what --

Chief Justice Earl Warren: But they do take the private questions (Voice Overlap) --

Mr. Bruce J. Terris: Oh yes, oh yes.

And they interviewed for example Mr. Silver and I -- and I gather -- I think this is only an inference from the record that he didn't -- they didn't talk to him.

Chief Justice Earl Warren: Oh yes.

Mr. Bruce J. Terris: So they -- they often to do but they didn't do in this case.

They didn't interview petitioner Yellin in this case and to be frank with Your Honor and -- and then the first reason they didn't was that he was in Denver and then the interviews were being conducted in Gary.

Now, there's also some confusion on the record about whether they would have interviewed him if he had been in Gary.

There's some talk that they wouldn't have anyway because they didn't think he would talk.

But in any event the actual reason they didn't was because he was in a different city.

Petitioner's last document goes only to -- to the questions involved in Counts 2 and 4.

He claims that they were too vague to support his indictment and therefore too vague to support his conviction.

Now, of course the first and conclusive answer is this goes only two counts even if he's right on it, the other two counts are valid and that -- since there was an concurrent sentence, the conviction would have to be sustained.

The second answer is that he did not raise this issue in his petition for certiorari and therefore, this would be for the Court.

And the third answer is that his contention on his merits without substance, as far as I know no -- no indictment under the contempt of Congress statute has ever explained the meaning if the questions.

The only two questions which are -- there is any doubt -- the only two words that there's any doubt about it, the words colonization and colonizer and it's very difficult to understand how petitioner could have been confused about them.

Admittedly, they've -- they are some -- there are words of art that petitioner admits that he was present during the lengthy testimony of the previous witness in which he went into detail what these questions and what these words meant.

And in fact, the previous witness specifically defined the word colonize and the petitioner was in any doubt at his trial and/or petitioner's counsel, all he would have had to do is read the transcript of the hearings and he would -- have certain be fully satisfied.

However, petitioner argues that this isn't enough that has to be in the indictment.

It isn't enough --

Chief Justice Earl Warren: Just what -- just what does colonization mean?

I don't know is infiltration or (Voice Overlap) --

Mr. Bruce J. Terris: Well, that's the start but apparently --

Chief Justice Earl Warren: -- what does it mean?

Mr. Bruce J. Terris: Infiltration is the start of the definition apparently, the more -- the more full definition by those in the Communist Part and in the Committee who seemed to understand each other is that -- that the party had a program which began in 1948 of what it called colonization.

What they did is they sent college graduates or at least people in college who had a considerable amount of training in the basic industries, steel, transportation and textile mills, automobiles and the like.

These people concealed the fact that they had excellent educations from the workers in order so that they would attain a position of importance in the labor movement and would be able to influence them which of course, they would have trouble doing if they've told that they were members -- they had good educations.

In fact, they might not even get a job because companies of course would be suspicious that people who want to become permanently not just for summer job, steel workers on -- on the regular line right at the -- right at the furnace.

So they can -- now, this is exactly what happened to petitioner Yellin and that's what the Committee had evidence of this.

His application for employment in 1949 in the Carnegie Illinois Steel Company in Gary, did not disclose that he had been to New York -- City College of New York and the University of Michigan and had -- and had virtually an AA average and so that -- that's precisely the subject that the Committee was interested in.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Rabinowitz.

Rebuttal of Victor Rabinowitz

Mr. Victor Rabinowitz: I would like first to go into this executive session thing because I think the facts can be cleared up.

Mr. Walter testified that at some time, presumably at the time the subpoenas were issued, although that is not altogether clear.

The Committee had decided that it would call Mr. Yellin in executive session, I mean in public session.

And the reason he said was that this man was a Communist.

He had deceived his employer and that they thought they had -- they had a lot of information about him.

Now of course, the rule does not list these reasons as reasons for an executive session.

The rule says that an executive session shall be called when it will result in unjust publicity so that apparently in making the original determination to call Mr. Yellin and 15 other people I suppose in public rather than an executive session, whatever the reasons where they had nothing to do with the rule.

The standard used by the Committee or by Mr. Walter in making this determination was tended that I'm not included in the rule at all.

Then, on behalf of Mr. Yellin, I sent a telegram and it was as clear as anybody ever is in a telegram.

I asked for an executive session and I said that the reason was that -- well, I'll quote, “Testimony needed for a legislative --

Chief Justice Earl Warren: Well, what page is it?

Mr. Victor Rabinowitz: Well, it's in page -- it's in the record at page 37 but it's -- I mean at page 287 (n) but it's almost illegible there.

It's in my record, in my brief rather at page 5, the -- the copy in the record is -- is very bad reproduction.

Testimony needed for legislative purpose can be secured in executive session without exposing witnesses to publicity.

Now, this raised as sharply as I could.

I thought the standard that was set forth in the rule which says that a -- an executive session will be held when the Committee feels that the interrogation of a witness might unjustly injure his reputation so that in the telegram, the rule was not referred to by number but it seemed clear that the purpose of the telegram was to call to the attention of the Committee, the rule.

Justice Byron R. White: Could you say that to?

Mr. Victor Rabinowitz: I said that to counsel for the Committee.

I normally in dealing with -- opposing parties deal with counsel.

Justice Byron R. White: Do you raise the question when the Committee itself object to (Voice Overlap) --

Mr. Victor Rabinowitz: I tried to raise it at the hearing but I was told to sit down in view a fashion and I sat down because I have found that the better practice when the Chairman of the Committee tells me to sit down.

I do that.

Justice Byron R. White: I mean do you ask the Committee in so many words that he would be requesting or demanding or otherwise asking for --

Mr. Victor Rabinowitz: Well, what -- what I did was say I would like to have these telegrams in the record.

Oh that was the formulation that -- that I --

Justice Byron R. White: What telegram was that?

Mr. Victor Rabinowitz: This telegram that I just read together with the answer denying.

Justice Byron R. White: Did you identify the telegram so --

Mr. Victor Rabinowitz: Oh yes.

Justice Byron R. White: -- he would understand.

Mr. Victor Rabinowitz: I said there has been an exchange of telegrams and I -- I would like to have them included in the record of Congressman Walter in effect he said sit down.

Justice Byron R. White: The telegram is on what?

Did you say what it was?

They did at least in Committees I suppose.

They're unlikely probably.

Mr. Victor Rabinowitz: Well, what I said was Mr. Counsel -- addressing myself again to Mr. Tavenner.

“Mr. Counsel, I wonder whether it would be possible to read it to the record the exchange of telegrams between myself and the Committee in connection with the witness' testimony.

I would like to have it appear in the record.”

And that Congressman Walter without reading the telegram and it doesn't appear on the record but let me state with a show of impatience said, “Go ahead.”

And I said, “I pressed again I sent the telegrams.

I want them to appear.

I want to -- I want it to appear at the exchange of telegrams occurred.”

And he said, "You know the privileges given by this Committee have appeared it before often -- before it often enough.

You know it as well as anybody, go ahead Mr. Tavenner," and I took that as my cue to sit down and I did it.

Justice Hugo L. Black: Well, did you later discuss it within on cross-examination of it, I mean at the --

Mr. Victor Rabinowitz: At the trial?

Justice Hugo L. Black: Yes.

Mr. Victor Rabinowitz: Oh at the trial, he said he didn't know what the telegrams were.

He hadn't seen them until the day of the trial.

He said he thought it was an application for an adjournment without grounds and that was why he told me to sit down.

Justice Hugo L. Black: He didn't tell you what's they were, is that it?

Mr. Victor Rabinowitz: At the trial -- at the hearing, I did not say this is a request for executive session.

I had assumed that since I had set the telegrams to Mr. Tavenner, Mr. Tavenner was standing in front me and I had received the response from the Staff Director of the Committee saying that the request was denied that this was a communication between me and the Committee and the Committee knew what was in the telegram so I sent them.

Well, I got an answer.

I confess that I did not at that time think about the question of whether within the internal workings of the Committee, Mr. Arens, who conduct about half of these hearings, have authority to deny this.

Justice Hugo L. Black: Where's this telegram hide it and tight and put in the record or put into record?

Mr. Victor Rabinowitz: No.

They're not in the record at all.Not in the record of the hearing.

They are in the record of trial --

Justice Hugo L. Black: Of course in the hearing.

Mr. Victor Rabinowitz: No sir.

They don't --

Justice Hugo L. Black: By whom were they turned over?

To whom were they turned over?

Mr. Victor Rabinowitz: Well, they weren't turned over to anybody.

I sent one and of course kept an office copy for myself.

Justice Hugo L. Black: I mean when you -- when this colloquy came up, did you hand them to anybody or did they refuse to take it?

Mr. Victor Rabinowitz: Well all I said was, I wonder whether it would be possible to read it to the record of exchange of telegrams.

I had the -- my office copy of the one I sent then I have the original, the one that I received, and I wish to read them into the record so that I could bring to the attention of the Committee the fact that this exchange of telegrams had occurred.

Justice Hugo L. Black: What is the rule to which Mr. Walter called your attention when he said, “You know the rules of the Committee?”

Mr. Victor Rabinowitz: Well, it's not a written rule.

It's just a rule of practice --

Justice Hugo L. Black: What is it?

Mr. Victor Rabinowitz: The rule of practices that counsel shouldn't talk to the Committee but should only talk to his witness.

Anytime counsel attempts to address the Committee at any of these hearings, the general rule is except to stating his name.

The general rule is -- well, it varies -- well, it depends on whether Mr. Walter is conducting a hearing in which case the rules are very strict, though Mr. Doyle was conducting a hearings in which case the rules are pretty liberal, Mr. Doyle being less a impatient man.

But generally speaking, the rule is that counsel is not supposed to talk to the Committee.

He is supposed to talk only to his witness, to his client and that of course is a whispered conversation that takes place at the witness table.

Generally speaking, arguments of law and so forth and so on are supposed to be made, objections to the jurisdiction of a Committee at least of the privilege and so forth and so on, are made by the witness.

What frequently happened, I supposed always happens in practice at least it does may have had before the Committee is that counsel reviews this with the Committee, with the witness if the witness is good enough.

He recites what has been told or what he believes ought to be said.

If not, he reads the statement which he and counsel have worked out in advanced and the situation varies in a great deal.

In Mr. Yellin's case, you can tell by reading the transcript, he spoke off the cop.

He wasn't thrown up constantly and he argued with the Committee as to the lack of jurisdiction and so forth.

In -- as we will see in the Silver case, Mr. Silver said, “I want to incorporate by reference everything that the previous witness said because the previous witness had read a long statement.”

And the practice in this respect varies but one thing does not vary.

Counsel can't do anything talking, that's clear.

Now, after these telegrams were read, the witness proceeded to testify.

Now, counsel, one the Government is mistaken in one respect.

He stated not once but three or four times that by the time Mr. Yellin testified there, it was already a testimony before the Committee that he was a Communist.

That's not so.

The first witness who testified was Mr. Lautner who never heard of Mr. Yellin or at least gave no indication that he did.

Mr. Yellin was the second witness.

There were subsequent witnesses who identified Mr. Yellin that having once been a Communist, but this was after Mr. Yellin testified and not before it.

Counsel says both parties were at fault.

I suppose that the witness was at fault because he didn't send the telegram quickly enough, at least that's the only clue that I can think of.

Well, the witness was in Denver, I was in New York, the hearing was in Gary, the Committee was in Washington and it isn't easy to make full connection quickly under those circumstances.

Perhaps it would have been better if I have sent the telegram before I sent the telegram as quickly as I could and under circumstances of distance that were involved here, as soon as I can get authorization from my client to do it since I get --

Justice Potter Stewart: I think the distance has to do with it when you're talking about telegram.

Mr. Victor Rabinowitz: Well, it has to do with the fact that it becomes difficult to confer with the witness except over long distance telephone.

Justice Potter Stewart: Yes then there's such of that.

Mr. Victor Rabinowitz: Could discuss with him the reasons why such a telegram -- why you think such a telegram ought to be sent, whether he would like to appear in executive session first and some of the questions.

And as I say I -- I know that theoretically a long distance telephone conversation is as good as a face-to-face conversation but it rarely is --

Justice Potter Stewart: But were you -- were you -- there was no prospect that you were going to have a face-to-face conversation.

You didn't have one before you sent the telegram, did you?

Mr. Victor Rabinowitz: No, I believe we worked it out in the -- I don't remember frankly how much time allots me to interview the day he was served with the subpoena.

I don't think that appears on the record.

It may have been only a very short time and I -- I frankly don't recall.

(Inaudible) for the sake of -- of argument anyhow, I can see that -- maybe I was at fault here.

Justice Potter Stewart: Injured as -- there are some questions about whether or not you sent it to the right person?

Mr. Victor Rabinowitz: Well I -- I sent it for counsel for the Committee.

I didn't know Mr. Walter was going to preside it this hearing and normally as I said before, I'm an attorney and in dealing with opposing parties, I ideal with attorneys --

Justice Potter Stewart: Was it -- that was Mr. Tavenner?

Mr. Victor Rabinowitz: Tavenner, yes sir.

Justice Potter Stewart: And then there was a --

Mr. Victor Rabinowitz: A response from Mr. Arens.

Now, Mr. Arens, title was Staff Director and later had developed and Mr. Walter said, he never had any authority to reject this and this was all the misunderstanding of the kind, and as -- as has been pointed out the -- Mr. Walter said that at one point -- Mr. Walter said, "If you had sent the telegram to me or perhaps we wouldn't be here."

Now one -- one that appearing at page -- record -- record page 69 he said, “I am sure this could not have happened, had you addressed your telegram to me?”

And at record page 70 he said, if he had known of the request for an executive sessions so that the Committee could have given the due consideration, we might have a different situation today.

Now, maybe it was a little bit of the fault of the Committee but I'm willing to excuse both faults.

I'll excuse the fault of the Committee and they'll excuse my fault.

I don't want to send the Committee to jail.

I don't think it ought to be punished for its fault but I don't believe that my client ought to be punished for his fault either.

And if we would at fault, this is a criminal trial and I think that that is a pretty good reason for letting the defendant off.

Justice Potter Stewart: Was it try to convicted of -- either sending a telegram too late or sending it to the wrong person, he was --

Mr. Victor Rabinowitz: No, but this is the --

Justice Potter Stewart: He was tried and convicted of refusing to answer questions directly (Voice Overlap) --

Mr. Victor Rabinowitz: Yes, and the question is whether his rights were violated in connection with this request for an executive session, and this is so far as our present discussion is concerned, the reason for reversal that I am pressing.

Now, I would like to get on to the balancing question and here I am very grateful to counsel for the Government because I have heard here for the first time what I assume is the authoritative government view out of what the balancing rule means.

Express -- I must confess much more clearly than this Court has ever expressed it, and I think it's a clear view.

I think it -- it's easy to apply.

I think it destroys much of the First Amendment and I don't believe that the Court ought to accept it.

As I understand the situation, the Court has decided that for the present according to counsel, the public interest in this kind of investigation is overwhelming.

Now, I don't know for -- how long for the present exists and I don't know when it is that I get an opportunity to show that the present has changed.

Now, the Court decided in Barenblatt on the basis but no evidence in the record at all incidentally.

I assume the Court did it by taking judicial notice of the threat of Communist subversion, that as of that day, the threat of Communist Subversion was so great that the Congress had this -- this overpowering.

I forgot the word that counsel used but it was a very strong one overwriting I think interest in -- in this investigation, overwriting government interest was the word he used.

But when does it change?

When do I get an opportunity to show that this situation is no longer overwriting?

That fact is that we do live in a dynamic world, things do change.

I tried to do it.

I tried to do through Professor Emerson's testimony.

What did he say?

Well, he said he doesn't think there's much threat and he went into reasons.

He said there's very little communism for once in the trade-union movement today.

He said that in the academic world as far as he knows, there's practically no communist influenced.

He said that most communist have been driven out of the Government.

He said that we have no social unrest in the United States to speak off or that the social unrest that does exist which is mostly in the South.

It does not seem to be leaning in the direction of communism that the Negroes have taken other methods of securing redress of their rights and that there appears to be no rebirth or -- or strengthening of communism in the South.

He said he find no significant opposition by way of another political party to the major political party.

He said that in his opinion the strength of the Communist Party was very small as a result of the laws that it did pass what she detailed.

He found that there was very little religious and religious institutions very little Communist strength.

And, the situation we believe has changed.

When do we get a chance to show that the thing has change?

Now, just one word more, on the other side namely the right of the individual, his side of the scale as I understand the Government's position, the only right that the individual has is that the Committee should be nice to him.

No talk about free speech, no talk about the assembly, no talk about free press, no talk about the right to express his views, he just is entitled to be treated as a gentlemen and not pillorying.

Well, I think this is reducing the First Amendment to rather small (Inaudible).

Thank you.

Print this transcript Transcript: 

Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 35, Edward Yellin, Petitioner, versus United States.

Mr. Rabinowitz.

Mr. Victor Rabinowitz: May it please the Court.

The petitioner was convicted of a violation of Section 192 of Title 2 for his refusal to answer several questions put to him by a subcommittee of the House Committee on Un-American Activities at a hearing held in Gary, Indiana in February 1958.

The alleged subject under inquiry was Communist infiltration for basic industry.

And it was the tenth investigation that the Committee had held over a period of some four or five years under that Title, to say nothing of course of hundreds of investigations that the Committee has held on related subjects.

He testified between the Watkins and the Barenblatt decisions of this Court.

And in refusing to answer the questions put to him, he expressly relied on the Watkins’ decision on the vagueness of the authorizing resolution upon his rights under the First Amendment and on the lack of the jurisdiction of the Committee over the subject under inquiry.

Like Barenblatt and Braden and Wilkinson and Russell and the other cases that were decided by this Court at the last term, he did not rely on the Fifth Amendment.

He was not indicted or tried until after the Barenblatt case.

At that time he was found guilty and received the maximum sentence of one year.

Prior to his testimony, he had been a steelworker.

At the time of his testimony before the Committee, he was an undergraduate engineering student at Colorado.

Since then he has been a graduate student and a candidate for his doctor’s degree at the University of Illinois.

It doesn’t appear in the record of course but the fact is that in 1961, he received a fellowship from the National Science Foundation which was taken from him when Congressman Scherer made a speech about it on the floor of the House.

And in 1962, he received the fellowship from the National Institutes of Health which was similarly taken from him.

He is however receiving a scholarship from Johns Hopkins University, not out of public but of private funds.

The case was argued at the last term and is now here on reargument.

It differs from the Russell and other cases that were decided by this Court at the last term because this indictment was drawn by the United States Attorney in the Northern District of Indiana.

And he apparently used his own forms for drawing an indictment and did not fall into the error that the court found fatal in the cases decided at the last term.

I shall argue both constitutional and unconstitutional grounds for reversal here.

There are facts in this case that were not present in Barenblatt, Wilkinson and Braden.

And even one of my constitutional arguments may not require a reversal of Barenblatt, Wilkinson and Braden, at least I may have found a crevice in which I can find some shelter.

But if I have, it’s a narrow crevice and I shall ask the Court here to reconsider the Barenblatt, Wilkinson, and Braden cases because I suggest that those cases were bad law.

I must say that the brief on reargument, a new brief on reargument submitted by the Government in this case gives my some comfort in that regard because I think that the Government recognizes that issues such as these are never finally decided.

At page 26 of the Government brief, the Solicitor General says, after discussing Barenblatt, Braden and Wilkinson, under normal circumstances therefore and perhaps in the present instance, it would be enough to show that the case at bar is indistinguishable from the controlling precedence.

We are mindful, however, that the present controversy involves the most delicate and dangerous of the court’s responsibilities.

The Solicitor General then goes on to describe what those delicate and dangerous responsibilities are, I disagree with that.

And I’ll come back to that a little later.

But the Government goes on to say, “For these reasons, we would be derelict in our duty despite the precedence”.

Justice William J. Brennan: Well, that’s not that reason.

Mr. Victor Rabinowitz: I’ll come to the reasons in a few minute -- at the close Your Honor because I think that the reasons are very important.

There is a vital difference of opinion between the Solicitor General and I myself with respect to the reasons.

I have no intent to omit it, I will show you.

“For these reasons, we would be derelict in our duty despite the precedence if we fail to show in some detail the constitutional foundation for the congressional investigation into the subject.”

I too feel that there are delicate and dangerous issues involved here and that this kind of issues can never be left rest as certainly the history of this Court has shown.

Let me state --

Justice Potter Stewart: Mr. Rabinowitz, the -- you filed a new reply brief --

Mr. Victor Rabinowitz: Yes, sir.

Justice Potter Stewart: -- but not a new original brief, is that correct?

Mr. Victor Rabinowitz: No, just a new reply brief.

Justice Potter Stewart: Thank you.

Mr. Victor Rabinowitz: The petitioner was subpoenaed to appear on February 10th, 1958 in Gary.

On February 6th, counsel sent a telegram, addressed to counsel for the Committee reading as follows, “Undersigned represents Edward Yellin and Nicholas Busic.

On their behalf I request executive session in lieu of open session.

Testimony needed for legislative purposes can be secured in executive session without exposing witnesses to publicity”.

The response by -- signed by Mr. Arens, the Staff Director of the Committee read, “Reurtel requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic.

Your request denied”.

The request was made in the first place pursuant to Rule IV-A of the Rules of the Committee on Un-American Activities which reads as follows: “If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing”.

At the hearing, counsel for Yellin attempted to introduce this exchange of telegrams into the record so that the matter could be called to the attention of the Committee and would appear in the record.

Congressman Walter who was presiding refused to permit counsel to address the Committee at all.

At the trial, he said that he never saw the telegram.

He didn’t know what they were.

He didn’t see him at the time of the hearing and as a matter of fact, he hadn’t even seen them until he got on the stand at the trial and when I showed him those telegrams, during the course of this examination, he said, that was the first time he saw them.

Justice Arthur J. Goldberg: He will -- did the witness himself asked the Committee (Inaudible)

Mr. Victor Rabinowitz: No sir.

In the view of Congressman Walter’s express on the witness stand, this was all a big misunderstanding.

He said the telegram should’ve been sent to him and not to the counsel for the Committee.

Moreover, he said, Mr. Arens, who denied the request, had no authority to deny any such request.

Only the Committee had the authority to deny such a request.

He said and I quote, “I am sure this could not have happened had you addressed the telegram to me”.

He further said that he had he known of the request for an executive session, “We might have a different situation today”.

As a matter of fact, Congressman Walter said, that the Committee had concede -- considered calling the petitioner on executive -- petitioner an executive session.

And this appears at page 70 of the record.

And he said, “Well, the Committee had already passed on the question of whether or not we would hear Mr. Yellin at a session”, when the purpose of calling him was discussed.

Then it was decided then that the rule with respect to an executive session was not applicable because the investigator and I might say it was Mr. Collins, a former FBI agent, who developed this entire matter.

And we were willing to accept his story with respect to the proposed testimony.

I gather from this not completely clear answer that Congressman Walter was saying that an executive session was denied because they had a very reliable investigator and they were prepared to take his word for what the witness was going to be called for and an executive session was therefore not necessary.

Now, that of course is not the standard that is required by the rules.

The rules say that an executive session shall be called when in the opinion of the Committee, the interrogation of a witness at a public hearing might endanger national security or unjustly injure his reputation.

The Government points out that the witness has no right to an executive session and I think this is true.

The witness has no right to an executive session.

Justice John M. Harlan: The Rule -- that’s Rule IV --

Mr. Victor Rabinowitz: Rule IV-A, it appears at page 4 of my brief.

Justice John M. Harlan: Rule IV.

Mr. Victor Rabinowitz: The witness has no right to an executive session, but I respectfully submit, he does have a right to have the rules apply.

And that means in this circumstance, that he has the right to have his request considered by the Committee and to have the standard set forth in the rules applied.

And if then the Committee decides that the standard set forth in the rules do not require an executive session, it may very well be that it will deny it.

Here, the Committee was never given an opportunity to pass on the matter and when it did consider the question of executive session, the standard that he applied -- that it applied, bore no relationship at all to the standard that’s set forth -- that is set forth in the rules.

Justice Potter Stewart: Do you know when that rule was promulgated?

Mr. Victor Rabinowitz: No, I don’t sir but I would guess it was probably some ten years ago, at which time there was a great deal of criticism of the Committee for not having any rules, for not permitting counsel to participate and the set of rules was adopted of which this was one.

Justice Potter Stewart: I'd be interested in knowing when the rule was promulgated and how many times, if at all, that Congress has reauthorized the Committee since the promulgation of this rule.

Mr. Victor Rabinowitz: I'll be glad to --

Justice Potter Stewart: And if you can find that out.

Mr. Victor Rabinowitz: -- find that out for you, but I might say that this of course is a rule of the Committee, not a rule of the House.

Justice Byron R. White: I understand --

Mr. Victor Rabinowitz: Yes.

Justice Byron R. White: -- but they knew -- the House knew?

Mr. Victor Rabinowitz: I would presume that the House knew about it.

Justice Byron R. White: Did the -- did they rely on investigator (Inaudible) referred to testify previous to Mr. Yellin?

Mr. Victor Rabinowitz: No, sir.

Justice Byron R. White: His testimony was never placed in the record?

Mr. Victor Rabinowitz: His test -- he did not testify at the Gary hearings.

Now, whether he testified an executive session before the Committee at some other occasion or he testified at some other hearing, I don't know.

He did not testify at Gary, that I am certain of.

The Committee is bound by its rules.

The standard set by the rules must be followed.

This Court has frequently held that this Committee as well as other Government agencies when they adopt rules are bound by them.

And I respectfully submit that this little misunderstanding that Mr. Walker -- Mr. Walter referred to is not sufficient to send the man to jail for a year.

Chief Justice Earl Warren: Mr. Rabinowitz, you may continue --

Mr. Victor Rabinowitz: Alright, sir.

Chief Justice Earl Warren: -- your argument.

Mr. Victor Rabinowitz: Mr. Justice Stewart, through the courtesy of Solicitor General Cox, I am advised that the rule in question was adopted in the summer of 1953 so that it has -- it had been at the time of the hearing in Gary readopted by successive Congresses or by successive Committees I think twice.

That would be in 1954 and 1957.

Justice Potter Stewart: This is stand -- standing Committee of Congress --

Mr. Victor Rabinowitz: This was standing.

Justice Potter Stewart: -- but does it need to be read -- constituted these --

Mr. Victor Rabinowitz: I believe that the House --

Justice Potter Stewart: -- every two years?

Mr. Victor Rabinowitz: I believe that the House does go through what is in most cases a pro forma readoption of the rules reestablishing each Committee each year and that maybe that the Committee (Inaudible) --

Justice Potter Stewart: Or every two years (Voice Overlap) --

Mr. Victor Rabinowitz: Yes, every -- perhaps every Congress.

Justice Potter Stewart: Yes.

Mr. Victor Rabinowitz: That would be every two years.

Justice Hugo L. Black: Unless they have appropriation.

Mr. Victor Rabinowitz: Yes.

There would have to be an appropriation --

Justice Potter Stewart: Every Congress --

Mr. Victor Rabinowitz: Well, every Congress, if not, every year in some cases.

I would like to pass on next to what is a constitutional point but not a First Amendment point, rather a Fifth Amendment and --

Justice Arthur J. Goldberg: Mr. Rabinowitz, before you leave the rule question, would it be in your argument that the witness himself has a right to have his application for an executive session passed upon?

Or would it be sufficient that the Committee in substance consider it on its own motion?

Or on application whether it wouldn't go into executive session with a particular situation?

Mr. Victor Rabinowitz: I should think that the com -- that the witness would have the right to have an application -- to have his application considered by the Committee when he makes an application.

Now, it isn't routine that a witness makes an application but I should think that when a witness makes an application, he's entitled to have it considered and considered on the basis of the standards that are set forth in the rule.

Justice Arthur J. Goldberg: Then I take it from that, that you're argument then would be to -- and I'm not saying it took place in this case, but rather to be a reference to the record if --

Mr. Victor Rabinowitz: Yes, sir.

Justice Arthur J. Goldberg: -- you have to interpret what was said.

But I take it from that that the Committee, on its own motion, majority being present, said, “We have to consider whether we apply our rule or we're not going to apply it.

You would say that would not be sufficient because an element in that decision would be the application?

Mr. Victor Rabinowitz: I'm not sure really.

I -- I'm -- I can't -- I suppose that when an -- a litigant makes an application to a court, the court has to make a ruling on it or ought to make a ruling on it and this of course isn't the court.

But I should think that the Committee ought to consider applications that are made to it.

Now, of course, Congressman Walter said that such a consideration had been given to it.

There was no Committee record or minute or anything else that was introduced to that effect and --

Justice Arthur J. Goldberg: The sole evidence we have on that is the record reference from which you (Voice Overlap) --

Mr. Victor Rabinowitz: Yes sir.

That's the one that I have read.

Justice Hugo L. Black: Will you have them link?

Mr. Victor Rabinowitz: Yes sir.

Justice Hugo L. Black: And you tried link this, the telegram?

Mr. Victor Rabinowitz: Yes sir.

Justice Hugo L. Black: Do they know what the telegram was?

Mr. Victor Rabinowitz: No.

Congressman Walter at times is somewhat irascible and when counsel attempt to speak.

He generally tells them in one formulation or another, sit down or you'll be thrown out.

That precisely what he said to me at the time, I said, “I'd like to introduce these records,” and he said, “You've been here often enough to rule -- to know the rules of this Committee, sit down”.

And since I was there often enough to know, I sat down.

Justice Hugo L. Black: You didn't tell him of the executive session (Inaudible) --

Mr. Victor Rabinowitz: Well, I had them in my hand and I said, “I would like to introduce these, that I'd like to read them into the record”.

Justice Potter Stewart: You called Congressman Walter as your witness at the trial?

Mr. Victor Rabinowitz: At the trial, yes sir.

Justice Potter Stewart: And he was your witness as (Inaudible)

Mr. Victor Rabinowitz: I would like to argue next that the statute under which the petitioner was convicted was unconstitutionally vague in violation of the Fifth Amendment.

And I must admit that this record was inherent.

This question was inherent in the record in Barenblatt, Wilkinson, and Braden, but has to the best of my knowledge never been considered by any majority opinion of this Court.

Justice John M. Harlan: This is the narrow crevice, you say.

Mr. Victor Rabinowitz: This is the narrow crevice.

It was not argued in Barenblatt --

Justice John M. Harlan: You're talking about the statute or the resolution?

Mr. Victor Rabinowitz: I am talking about the statute which for reasons that I will give in a moment, I think must be read together with the resolution.

Justice William J. Brennan: Well, the --

Justice Hugo L. Black: Where is the statute quoted in your brief, to which you referred to?

Mr. Victor Rabinowitz: Page 3.

Justice William J. Brennan: This is the contempt --

Mr. Victor Rabinowitz: From Section 192, yes sir, the contempt statute.

Justice Potter Stewart: What -- well, this has been passed on in good many other cases in addition to those you mentioned, Sinclair and, I guess, a dozen of others (Voice Overlap) --

Mr. Victor Rabinowitz: I think not sir.

I think not if (Voice Overlap) --

Justice Potter Stewart: Or at least, it was implicit, that is -- convictions were affirmed.

Mr. Victor Rabinowitz: Not exactly.

If I may -- may I continue --

Justice Potter Stewart: Yes, you can go ahead.

Mr. Victor Rabinowitz: -- because I think that that's not quite so.

I said it was a narrow crevice under this.

Nevertheless, I think it's a perfectly sound point.

It was not argued in Barenblatt.

It was not argued in Wilkinson.

It was argued in Braden but apparently not forcefully enough to -- Mr. Boudin argued it, not forcefully enough to require any response by the majority of the court.

In all candor, I must say that it was considered and considered at very great length in the dissenting opinion in Barenblatt although it had not been argued in that case.

And I must also confess with candor that much of my argument is cribbed from that dissenting opinion, but I would like to make it nevertheless.

The Government points out that Section 192 reads pretty clearly and I suppose it does, every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before the House, or who having appeared refuses to answer any question pertinent to the question under inquiry shall be guilty of contempt.

The Rumely case, however, interpreted that statute as applying only to a situation in which the question is asked on the matter concerning which the Committee has jurisdiction.

And therefore, that statute I suggest, must be read as meaning that a witness who having appeared refuses to answer any question within the jurisdiction of the Committee is guilty of contempt.

That's what Rumely said.

And therefore, we must go back to the jurisdiction of the Committee in order to ascertain what the statute means.

It's analogous to a statute which says it shall be a violation of law for anyone to violate the regulation of the State Department.

If the regulation of the State Department is unclear, the statute is unclear.

Now, it is true that this Court at some length in Barenblatt did consider the meaning of Rule 11, the authorizing resolution.

And as a result of rather extensive research, all of which appears at page 120 of the Barenblatt decision, it found the meaning for the language which the Chief Justice had been unable to find in the Watkins case.

And it said that, as I understand the decision, the words Un-American propaganda activity really means the investigation of Communist activities generally.

Congressman Walter, when he was on the stand at Gary, expanded this a little bit.

He said that the words “Un-American propaganda activity” means and I quote, “Any activity that is inimical to the best interests of the United States”.

Congressman Walter is the ranking Democratic member of the Judiciary Committee and I should think that his views on the subject would be worthy of at least some consideration.

I am not disposed at this time to argue what that resolution means.

We are -- I am not arguing now the question of pertinency.

I am not now arguing the question of whether this particular investigation was within the scope of the Committee's jurisdiction as that jurisdiction has been determined by this Court to be in Barenblatt.

I am directing myself only to the question of whether this statute read as a criminal statute with Rule 11 was sufficiently clear and certain to justify to be able to sustain a criminal conviction.

Now, I submit that Section 192 read in the light of Rumely as with the emendation of Rule 11 does not meet the standards of -- retried to this Court of a criminal statute.

The court has formulated these standards on many occasions and let me just refer to the standard applied in the Connelly case.

The statute is bad, said the Connelly case, if and I quote, “Men of common intelligence must necessarily guess at its meaning and differ at its application”.

Well, men of uncommon intelligence have been compelled to guess at its meaning and have differed in its application.

Aside from Congressman Walter, this Court has divided on what the statute means.

I have never heard of a case and the Government cites no case.

I don't believe there is any case in which a court has examined the legislative history in order to uphold a conviction on a criminal statute.

And it seems to me on its face impossible.

If a statute is clear on its face, legislative history is irrelevant.

And if a statute is unclear on its face, a criminal statute used to sustain a conviction, then most certainly, legislative history cannot be used in order to clarify that statute.

Now I repeat, we are not here concerned with whether the Committee had jurisdiction although this subject under inquiry and I am willing although I don't think it did, nevertheless, I am willing to concede for the purposes of this argument that it had jurisdiction.

Had there been a subpoena and the motion was made to vacate the subpoena versus the motion perhaps should've been denied.

The Committee had a right to hold this hearing and to call these witnesses, I will stipulate to all of that.

But here we have a criminal statute.

And a man cannot be held criminally liable on the basis of a statute which combines the fairly clear language of Section 192 with the most obscure and meaningless language of Rule 11, language on which as I say, many, many people have difficulty.

If there ever was a case of blurred signposts to criminality concerning which the court spoke in United States against the CIO, this is it.

It would be bad enough if Rumely were the only gloss that had been placed on Section 192.

But this Court has placed still another gloss on it.

And in the Barenblatt case, the court found that these questions could be asked depending on the way a balance felt.

And when this is added to Section 192, it seems to me that to require a person to guess as to whether he is supposed to answer, whether he is required to answer a question or not, is far beyond reason.

And that brings me to balancing.

There has been so much written and discussed about the balancing doctrine as set forth in the Barenblatt case that I hesitate somewhat to take up the time of the Court to discuss this matter in detail again.

Not only have there been a majority and minority opinions of this Court on a -- in a number of important cases, but there have been law review articles written on it and books written on it, and the subject is really been discussed most extensively.

Nevertheless, it is an issue in the case and a very important issue.Petitioner contends that the balancing theory is unworkable.

But it is as of today the rule of this Court, and therefore, we must try to live with it and we tried.

I would like to read although perhaps the recollections of the Court doesn't need refreshing, I'd like to read the balancing doctrine as set forth in the Barenblatt case, a single sentence.

“Where First Amendment rights are asserted to bar governmental interrogation, the resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown”.

Now, this presents two very difficult and serious problems.

The first might be called a substantive problem.

What do we weigh?

How do we ascribe?

How much weight is to be placed to the various elements that we've put in this balance?

The second might be described as a procedural problem.

How do we as practicing lawyers trying one of these cases go about the task of convincing the court at the trial level?

How this balance is to be struck?

Do we present evidence to the court on this matter?

Do we say to the court the balance should be struck one way or another on the basis of certain facts?

I would assume from the language of the court that the question of whether X weighs more than Y is a question of fact, and like all other questions of fact is to be tried by the court.

Taking the procedural matter first, we attempted to meet this at the trial level.

And after I assure you a great deal of deliberation, we came to the conclusion that we would try to convince the court that in the particular circumstances in this case, whatever may have been true in Barenblatt and those preceding cases, the balance fell all the way.

And we call an expert witness, Professor Thomas Emerson of Yale University, the record contains his qualifications on the subject and we asked him a series of questions which went to the problem of how much weight do we give to the various elements in this scale?

How many investigations has the Committee had into subversive activities?

How many has it had into infiltration in the steel industry?

How much of this evidence was known to the Committee?

What is the extent of the Communist menace in the United States?

How important is the Communist Party as a threat to the security of the United States?

What kind of laws do we already have on our books with respect to this matter, all of this being directed to the question of where the balance lies.

Now, the Government says that his testimony which of course was presented as expert testimony was contrary to a lot of decisions of this Court, ACA against Douds, the Dennis case, Subversive Activities Control Board case, Carlson against Landon and to the findings of Congress and the Subversive Activities Control Act for example.

And it's true of course that Professor Emerson's testimony was contrary to it but what of it?

I would think that in a criminal trial if a defendant wants to prove -- that today is Friday, he has a right to come in and try to prove it.

That may be hard to prove but he has a right to try.

The court rejected the testimony.

The District Court as I recall gave no reason for rejecting the testimony.

The Court of Appeals, however, said that the testimony is rejected because the question of balancing is a matter of law and not a matter of fact.

And I must confess that at that point I have some difficulty in following the reasoning because assuming that the determination of which outweighs what is a matter for the court to decide.

How was the court going to tell, what are the facts on the basis of which this question of law is going to be determined?

Does the court reach its conclusions with respect to the importance of the steel industry with respect to the importance of the Communist Party with respect to all of these other things, by reading the newspapers or by reading acts of Congress, or by listening to the television?

I should assume normally that one of the ways in which a court makes up his mind how to decide even a question of law is by the presentation of testimony.

We think we had a right to introduce that testimony.

We think it was highly relevant on the question of balance.

Now, I would like to get to the first problem which I have characterized as the substantive problem and it is here that I have the greatest difficulty and if what I say sounds --

Justice Tom C. Clark: May I ask you a question before you go to that?

Mr. Victor Rabinowitz: Yes sir.

Justice Tom C. Clark: Let's say we agree with you on the professor's testimony, shall we consider here this charge?

Mr. Victor Rabinowitz: There is an offer of proof in the record.

The testimony is set forth in full in the record and it is before Your Honors.

Now, of course --

Justice Tom C. Clark: Can we throw it in the balance, should we probably make the balance or is it --

Mr. Victor Rabinowitz: Well, if you're going to make the balance and you are prepared to accept his testimony, I suppose it could be thrown into the balance.

Of course, there was no cross-examinations since it was merely in the form of an offer of proof.

There was no countervailing testimony.

That is, the Government made no effort to meet the testimony but its here for the court to examine.

I should like to discuss the problem of what gets in this balance and if I sound in this discussion more like a metaphysician than a lawyer, all I can say is that it wasn't my idea of this balancing theory.

The Solicitor General says -- or let me put it this way, there are two sides to this balance.

There's the side for affirmance and there's the side for reversal.

The side for affirmance which is the Solicitor General's side, says that the public interest that is involved in this situation and I quote from page 48 of the brief is, the need for information concerning putative subversive activities in a critical area of our national life.

Now, remember in discussing this, I am not discussing admissibility of testimony or pertency -- pertinency of testimony.

I am addressing myself to the question of how much weight shall be given to it in this constitutional balance?

How important is it to outweigh the very weighty considerations which everybody concedes at least in the language, everybody concedes lie on the other side of the balance.

How much importance is it that the Government have this -- the answers to these questions?As I said before, this was the tenth inquiry into the question of Communist infiltration into basic industry.

Thousands -- literally, thousands of pages of testimony had been taken on this subject before the Gary hearing and hundreds of witnesses had been called.

It is conceded by counsel that much of the testimony sought of Mr. Yellin was corroborated of information that was already in its files.

As a matter of fact says the Government, it had most of this information, its far back as 1947.

Look at the debates when the Taft-Hartley law, Section 9 (h) was passed.

And I might refer also to Mr. Justice Jackson's opinion in ACA against Douds.

Now, the Government responds to all of this by saying that the -- it isn't for the court to decide whether Congress needs more information.

It isn't for the court to decide whether Congress wants corroboration.

And I would say that would be true if we were talking about questions of admissibility because I suppose counsel in a case have the right to get evidence which corroborates information in its files if he wants to.

But it is for the court to decide how much weight is to be given in the balance, otherwise, how can we possibly apply the test in the Barenblatt case.

How many times are we to listen to a repetition of the same testimony sometimes from the same witnesses repeating over and over and over again the same the facts with respect to alleged Communist infiltration in the steel industry or in other basic industry before we get to the point where we say this weighs as only a grain of sand in the balance.

It's not admissibility, it's not pertinency but weight in the balance.

Is there not a time when this must end and we will say that the constitutional rights of the witness will overcome?

Mr. Tavenner in his testimony in this case said at one point and I quote, its in the footnote of page 19 of my brief, he said, “We received a considerable amount of evidence at Flint, Michigan or perhaps eight or 10 instances of colonization of the exact type that you describe”.

How long do we continue to deprive persons of the way he writes which everybody admits that they have in order to get this additional bit, this additional one man who will testify to something after thousands of pages of testimony have taken and hundreds of witnesses have testified on this subject?

That's on the one side of the scale.

What have we got on the other side?

The first place we have the petitioner's right.

The right to engage in public debate on critical issues, a right which the court has on frequent occasions held there's tremendous importance and the right which the activities of this Committee inhibits for reasons that are set forth fully in the Watkins and Sweezy cases.

But, there is another right, a right which a very great Justice of this Court felt was perhaps the most important right of all.

Mr. Justice Brandeis said, the makers of our Constitution recognized the significance of man's spiritual nature of his feelings and of his intellect.

They knew that only a part of the plain pleasure and satisfactions of life are to be found in material things.

They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

And they conferred as against the Government the right to be let alone, the most comprehensive of rights and the right most valued by civilized men.

This is the right which lies or one of the rights which lies on one side of the balance.

But there is another element in this balance on petitioner's side which I think is even weightier and that is the right of the public to hear.

In De Jonge, this Court said the security -- the security of the Republic, the very foundation of constitutional government lies in full opportunity for free political discussions.

Edward Yellin is the petitioner in this case but ranged along with him as co-petitioners unknowing, sometimes perhaps even unwillingly, there is a host of other persons.

There is the Committee for Sane Nuclear Policy which was investigated by the Committee and was almost destroyed, if not completely destroyed, by the Committee.

Next week in this city, there will be hearings at which some 20 witnesses of Women Strike for Peace will be called before this Committee.

Last week, an organization called Medical Aid for Cuba, two weeks ago perhaps, was the subject of an investigation by this Committee.

The World Fellowship camp was the subject of an investigation not by this Committee but by a little Committee of little -- Un-American Activities Committee up in New Hampshire.

The Integration Movement, almost every progressive movement in the United States has at one time or another been subject to the investigation by this Committee.

To my mind, this is the weightiest element of all.

Now, the Government responds by saying Mr. Yellin wasn't trying to debate, he wanted to keep quiet.

He had an opportunity to express his views freely at this Committee and they would've given him plenty of opportunity to do so perhaps and perhaps they would have, I don't know.

But certainly the right to engage in free political discussion involves the right to choose your own forum.

No one who was present at the Gary hearing could possibly have confused that hearing room with the free marketplace of ideas which is supposed to be the guarantee provided by the Constitution.

Mr. Yellin, if he wanted to express his views, had a right to express his views in the circumstances and in conditions that he chose, not in conditions in which he was appearing as a witness before a Committee in a courtroom crowded with hostile persons, with the opportunity for an exchange of ideas which the Constitution is supposed to guarantee was not present.

Now, I'm aware as I speak that really in talking about this balance, I am attempting to weigh the imponderable, to measure the limitless.

In a sense, that's perhaps the principal reason why I feel that the Barenblatt balancing test is improper.

It cannot be applied.

It would turn the law into a scholastic's debate rather than a living technique or a living method for ruling man and in this case, for protecting the fundamental freedoms without which, we have no democracy here.

And there are other reasons which have been called to the attention of the court why the balancing theory is not consistent with the Constitution.

As Mr. Justice Black has so frequently pointed out, the language of the Constitution is absolute.

Furthermore, the doctrine is based on the fullest premise.

Justice William J. Brennan: If you (Inaudible) -- if you follow the literal language of the Constitution, of the First Amendment, what kind of a case would you have?

Mr. Victor Rabinowitz: If I followed the literal --

Justice William J. Brennan: What language?

What literal language of the First Amendment are you relying on?

Mr. Victor Rabinowitz: Well, the literal language that I am relying on is that Congress having no power to invest -- to pass a law restricting propaganda activities likewise Congress has no power to conduct an investigation into that area (Voice Overlap) --

Justice William J. Brennan: Well, but you have to depart in the literal language.

Mr. Victor Rabinowitz: Well, I think it's not the case.

Justice William J. Brennan: Well -- being absolute -- being absolute is being literal and you have to depart from the literal language of the Constitution.

Mr. Victor Rabinowitz: I submit that furthermore the Barenblatt decision, Braden, and Wilkinson decisions provide -- proceed on a false premise namely that our national security can be injured by too much free speech, by too much political organization, by too much free association.

I don't know of any society, certainly no well-established society whose security was ever threatened by too much free speech.

It may be true of a country that is just emerging from colonialism where for a period of time, limitations on free speech are necessary, but we're a strong country, probably the strongest in the world.

Our political institutions are stable and the greatest threat to that stability is I suggest an interference with the freedom of speech.

I would like to return now to the point raised by Mr. Justice Stewart at the very beginning namely the remarks at page 26 of the Government's brief, namely the delicate and dangerous of the -- the most delicate and dangerous of a courts' responsibilities with which justifies a constant review of the constitutional issues that are involved in these cases.

The Solicitor General suggests that this -- the issue raised by this controversy relates somehow to the balance of -- to the balance of powers between the Court and Congress.

And that the real issue in this case, the most important problem in this case is the manner in which the Congress, an equal and coordinate branch of Government, has performed one of its own constitutional functions.

And it goes on to refer to the dangers of collision between this Court and the Congress.

Now, I admit that that is a dangerous and a difficult controversy and a delicate one also.

And I don't think that it is in this case too in a very great extent.

I should have thought that the fundamental problem with respect to the extent to which this Court may interfere with if I may use that word or review the actions of Congress had been set on the Marbury against Madison.

And while I know the question keeps recurring every once and a while, I really think it's a pretty unimportant part of this case.

There is, however, a delicate and a dangerous issue before this Court.

And that relates not to the relationship between this Court and Congress but rather to the much more important, much more critical relationship between the citizen and this Government, the extent to which the Government may interfere with the freedom of speech and the freedom of association of the individual.

This is the First Amendment.

This is the issue which has been -- which has come before this Court scores of time, particularly in the last 17 years, I guess it is since the Cold War began.

And although I don't want to discourage any of the members of the court, my guess is, it's going to continue to come before this Court because it is a difficult and a dangerous and a delicate problem.

It's the issue which I think begun in ACA against Douds and then to the Dennis case, and the Yates case, and the Ballin and the Lerner case, and the Uphaus, and Watkins, and Sweezy and Barenblatt and all of these other cases.

It had to be faced in those cases and I think it has to be faced again and it will continue to come before this Court as long as there is a court because the problems which arise out of the efforts of a Government to interfere with the freedom of its citizens are never ending.

The effect of the decisions of this Court are well-known.

It has resulted in -- well, one of the members of this Court has referred to in two articles written I believe 10 or 12 years apart as the Black Silence of Fear or more recently the Submerged American.

I think this Committee has played a tremendous role in creating that Black Silence of Fear.

And while it is not the only one of our Government agencies which has resulted in submerging the American and cutting off so much of the vital debate which is necessary if our country is to survive as a free country.

It has played its role in that.

I hope that the Court will take this opportunity to reconsider the decisions that I have referred to and to free our people and our democracy from at least one of those repressive forces which has interfered for I guess about 25 years now with the free and full expression of opinion by Americans and their free association.

Thank you.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

I would like first to deal with petitioner's only non-constitutional claim.

One that he was not obliged to answer the Committee's questions because the Committee violated its own rules, its act of questioning witnesses in executive sessions.

The pertinent facts you will recall are these.

The Committee has a rule which apparently dates back to 1953 set forth on page 82 of our brief.

If a majority of the Committee or subcommittee duly appointed as provided by rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation.

The Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.

Pursuant to this rule, the subcommittee met and considered whether there was sufficient reason to believe that questioning petitioner in a public session might endanger the national security or unjustly injure his or another's reputation so that the petitioner should first be preliminarily questioned in an executive session.

The commission -- the Committee decided that there was not enough reason.

Justice Potter Stewart: Now, where is the -- where does it appear in the record that the Committee --

Mr. Cox: On page --

Justice Potter Stewart: -- did apply the test of the rule?

Mr. Cox: I infer that from the statement that Committee met -- it's on Record 70.

The Committee already -- very top of the page, the Committee passed on the question of whether or not we would hear Mr. Yellin at a session when the purpose of calling him was discussed.

It was decided that the rule with respect to an executive session was not applicable.

I take it also there is nothing explicit that says we apply each of the tests in the rule.

It says it was decided that the rule was not applicable and I would think that was enough in the absence of anything contrary.

Justice Potter Stewart: I would think that would probably be enough in from the absence of anything to the contrary but I'm -- notice that on page 82 of the record, there is a suggestion to the contrary that they -- and this again, I think, is Congressman Walter testifying, and he doesn't mentioned anything about damage to the personal reputation of a witness.

And he does purport to set out there what's -- what standards are taken --

Mr. Cox: This was a -- this is true.

It is also true that he was being asked at that stage a general question.

Justice Potter Stewart: Yes.

Well, they begin with a question on -- bottom of page 81, “The Committee does sometimes hold executive sessions, doesn't it?”

“Yes”.

And what are the considerations which the Committee uses in determining whether to hold executive sessions?

Mr. Cox: And then it -- then he goes -- then he discusses what it -- the Committee usually does (Voice Overlap) there's no doubt about that.

But I suppose that it could be argued that the Committee did hear what he usually did.

I would think that a general testimony in answer to a general question was really less persuasive --

Justice Potter Stewart: Than the rule itself?

Mr. Cox: -- than focusing the -- on the statement that we decided that the rule was not applicable.

Justice Tom C. Clark: The reason -- they state -- they state the rule was not applicable was because the investigator was a former FBI agent.

Mr. Cox: I'm sorry, I got --

Justice Tom C. Clark: Top of page 70.

Mr. Cox: Well, they said that the -- the reason --

Justice Tom C. Clark: Was not applicable because the investigator was a former FBI agent.

Mr. Cox: Well, I think he interrupted his train of thought that the other part of the answer is.

Well, his story was that the man was a known Communist.

That he had been active in international conspiracy.

That he had deceived his employer and so forth.

I think that's all part that what the investigator said is part of the reason that the former employment of the investigator, except perhaps this -- they thought that added to his reliability.

Chief Justice Earl Warren: But General, after that -- after that answer that you just read of Senator McClelland's, as you then having said that it was in answer to a general question, there was another one.

“Are those the only circumstances under which executive hearings are held?”

The answer is, “I don't know of any other except that where we are fearful, the testimony might be induced, it could be harmful to the national defense.

We are not so sure about the testimony of any witnesses”.

Isn't that rather specific?

Mr. Cox: Well, I think it's specific that that was all he could recall.

It certainly is.

I wasn't able to follow Your Honor exactly because I was still back on page 70 because I've got the graph, he did not mention this reason.

I would think so far as that goes, that the Committee's own interpretation and application of the rule was to be given very great weight indeed if it was not binding.

Unknown Speaker: Was it --

Mr. Cox: The Committee -- well, I think that it's a Committee, it's a rule adopted for the Committee's own guidance.

It's a rule which purports to confer no rights on witnesses any way.

It's a Committee which leaves -- it's a rule, excuse me, which leaves the Committee of the very widest discretion.

In each instance, it's simply, if the Committee believes, it should -- that these things would happen, there they should hold a preliminary statute.

We think three -- to summarize, we think there are three answers to this contention.

One, that the rule was satisfied.

Second, that the rule confers no rights upon witnesses, that it sets up no procedure, that it is written in terms guiding the Committee's discretion, and that failure to follow it adds nothing to the witnesses' rights.

Third, I would lay stress, more stress than I have in my brief perhaps on the fact that the objections raised by the witness were -- that no objection was raised by the witness on the ground that he had not been questioned in a preliminary executive session.

On the contrary, his objections under the Fifth Amendment -- under the First Amendment and the lack of congressional power were all general objections which would be equally applicable in an executive session or in a public session.

Here --

Chief Justice Earl Warren: When he tried to lay a predicate for it, didn't he, by offering the telegrams?

Mr. Cox: But the counsels said --

Chief Justice Earl Warren: Was there any other reason than that?

Mr. Cox: -- this counsel said that he would like to have the telegrams in the record.

Chief Justice Earl Warren: Yes.

Mr. Cox: And then, following not any idiosyncrasies of Congressman Walter but in an established rule of that Committee, counsel was reminded that all counsels were permitted to do in that Committee hearing -- were to advise witnesses and not speak.

The petitioner at that stage did not say a word with respect to a desire to be heard in executive session.

It's significant I think too that the petitioner has never given the slightest indication that he would testify in executive session.

Indeed, his request for the executive session, his objections in the court, his objections before the Committee, are all carefully void any intimation that he would've been test -- willing to testify under any circumstances.

It would seem to me to be a travesty now to set aside and justify his refusal to answer on the ground of which so far as we can tell didn't possibly influence his conduct.

There is one other point with respect to the rule that I split over.

The telegrams -- the telegram requesting the executive session was addressed to Committee counsel.

It arrived very late after the Committee and the counsel had left Gary.

There's nothing in the rule that says that the decision must be made on the request.

The Committee had made it.

There was nothing whatsoever new set forth in the request and the staff director, I infer although this does not appear in the record, answered mindful of the Committee's private -- previous decision.

The witness undoubtedly could've raised the question later on what would've happened, of course, I don't know and neither does anyone else.

I think that's the whole case on that point and that I should now proceed.

Coming to the constitutional issues, I must make two preliminary remarks.

First, we are concerned here with the refusal of a particular witness to answer four specific questions during the course of a particular congressional investigation.

I stress the point because petitioner's reply brief complains of our close and literal attention to the facts of this case and says that the real issue is what the petitioner's calls the enormity of the Committee's offense against the American people.

This Court, I need hardly say sits to decide particular cases and we're here concerned with the case of Edward Yellin, a case which as I shall argue later is very different and in our view much stronger for the Government than any of the previous cases that have come before the court and other conceivable cases involving the Committee's activity.

The rights of other witnesses not to answer other questions under other circumstances and on other occasion will have to be decided when those questions arise.

Second, I must emphasize that we are not concerned here with the rightness or wrongness, the wisdom or folly, the necessity or superfluity or even the fairness or unfairness of the Committee's action.

The responsibility for legislating is vested in the Congress.

With it goes the power and duty of deciding what bills should be considered.

What information should be obtained and how it should be obtained in order to frame appropriate legislation.

When an individual asserts that the Congress has trespassed on one of his individual rights, then of course, this Court has the constitutional duty of deciding between the two.

The court can avoid unseemly conflict and avoid upsetting the balance of our constitutional system only by exercising special care in such cases in marking the line between violation of constitutional rights which the courts must redress and simply bad judgment in the exercise of legislative power which is remediable only in Congress or at the polls.

The previous decisions of this Court coming down directly to the constitutional merit, the previous decisions of this Court require affirmance of the judgment.

Barenblatt against the United States, Wilkinson against the United States, Braden against the United States are squarely in point, that these -- this is an easier case than any of them.

Petitioner admits these constitutional claims he's made cannot be affirmed or accepted without overruling those decisions.

I'm not unmindful that occasionally in our constitutional history exact precedence have been overruled.

This -- and appropriate indeed and essential when the inherited law has lost reality or changes in the condition and the community has altered the conditions on which the precedence were based.

And so that today the precedent would have a different social or economic impact than at the time that it was decided.

The present case obviously does not fall in that category.

Justice Hugo L. Black: Is that -- do you mean by that, that that's the only conditions, those are to be set up and barred beyond which (Voice Overlap) --

Mr. Cox: No, no, I mean, nothing is absolute as that, Justice Black.

I think that is a relevant circumstance, a highly relevant circumstance in deciding whether a decision should be overruled.

Now, I was simply -- but there are others.

I would like to point out that that circumstance is not applicable here.

That Barenblatt, Wilkinson, and Braden were recently decided by a full court after careful deliberation.

Justice William O. Douglas: Since I've been on the court through that, this happened and then a membership of the court changed and the no case was rather immediately overruled as I remember it.

Mr. Cox: There have been -- there have been instances of that.

The two cases, two situations in which it would seem to me that overruling a case came easiest was where there were changes in conditions or where the decision was an isolated peak as it were on the amendment.

Neither of those is applicable here.

Barenblatt, the basic postulate of Barenblatt, Wilkinson, and Braden, that the Communist conspiracy is a threat to the national security into which Government may inquire in concerning which it may legislate and why is not applicable to ordinary political party is the predicate of at least the score of decisions over the last 15 years.

And Barenblatt and the cases that followed it were preceded by decisions in the lower court which were quite uniformly in accordance with those decisions.

Now, I submit with the greatest deference that the power to overturn such an established body of constitutional law without any relevant changes in the underlying conditions should be exercised only upon the clearest conviction of a very serious error before the --

Justice Hugo L. Black: Wouldn't that rule apply at any time to overruling the case?

Now, that's a general statement.

I don't see why it could be limited to those few grounds.Of course, it should -- what I mean is, do you say that it should be limited to the cases where there's clearest error, but if the court thinks that the clearest error, then your standard is met, is it not?

Mr. Cox: Well, it's a matter of degree as of clarity.

The degree of what was -- one must show in order to overrule it, I presume that it involves too -- consideration of the arguments on the -- the reasons not to overrule the decision.

For I point out with all respect that the condition which is indispensable to all liberty acceptance of the rule law depends on preserving the principle that even the highest court must give judgment not simply according to its use of policy however just or wise but according to a law that binds the courts no less than the litigants, the judges, no less than the judge --

Justice Hugo L. Black: Now, I would ask (Voice Overlap) --

Mr. Cox: -- and that is a consideration --

Justice Hugo L. Black: I would like to ask you another question with this.

That implies that the court sometimes does it.

The basis of what he speaks the law ought to be rather on the basis of what he thinks it is.

And the mere fact that one vote to overrule a past decision of the court certainly cannot give rise to attributing to that person, the desire simply to get his own notion to the -- of the law even though they're wrong.

Mr. Cox: But I -- I'm thinking that's true but there are -- there are times when a court decision creates a rule of law which did not previously exist and there are times in constitutional law where the line between law and policy, evaluation of social and economic conditions become exceedingly binding indeed.

If I imply that anyone was simply trying to make the world according to his (Inaudible), I had no -- no such intention.

I do mean to imply that there are weighty considerations on the side of adhering to an established body of decision and I think that that weight is the greatest when one does not have in favor of arguing for change, either the fact that it's an isolated decision or the fact that the underlying conditions have changed.

Justice Hugo L. Black: In the final analysis, I suppose you would agree that a judge who was here under oath to support the Constitution should construe it after considering all of these things that you say according to his best judgment of what it -- what it means?

Mr. Cox: Of course.

Coming to the substantive question, in our view, reason and principle also demonstrate quite apart from the authority that the use of compulsory process in examining petitioner as a witness before the Congressional Committee deprived him of none of his constitutional right.

In examining this question, we may begin with the proposition that it said along that Congress' power to use compulsory process to secure information in aid of a proper legislative purpose.

It is also clear beyond dispute on this record that the questions that petitioner was directed to answer were asked in pursuance of a proper legislative purpose.

The Committee's purpose was set forth in the resolution authorizing the hearings in Gary and it was restated by the chairman at the start of the hearing in the presence of all the witnesses including the petitioner.

Without reading his statement at length, it emphasized that the Committee was holding the hearing for the purpose of receiving testimony concerning Communist techniques and tactics of infiltration, and the extent, character, and objective of Communist Party activity in basic industry.

He then went on to refer to the existing laws over the administration of which the Committee was exercising oversight and to some of the bills and kinds of bills that were before the Committee at the time the hearing was held.

Among those proposals just to make it specific that there was legislation to which this inquiry was highly relevant, were Section 9 (h) of the Taft-Hartley Act which had been repealed.

HR 8151 which proposed to amend the Internal Security Act by setting -- by authorizing the Secretary of Defense to establish a system of security around defense plants.

Another bill introduced by Congressman Shearer, who was one of the Committee conducting the hearing to accomplish the same purpose by other ways and various proposals to amend the Smith Act, the Internal Security Act, and the Communist Control Act.

Whatever might be the merits of any particular piece of legislation, it is also -- it is not denied in this case at least that Congress has some power to enact some legislation, to deal with infiltration of vital defense plants, in basic industries by professional revolutionaries through fraud and deception for the purposes of a foreign dominated conspiracy.

And that is the kind of conduct that the record shows very clearly into which this inquiry was being conducted.

It's also plain that the pertinency of the questions was made clear to the petitioner.

He acknowledged that he was present when the chairman made his statement and as I understand it, he has not challenged the pertinency seriously in the lower court or in this Court.

It follows therefore that the use of compulsory process was a lawful exercise of legislative power unless it violated some constitutional privilege or other restriction upon the Congress.

Petitioner's claim is that the answer violate -- is that the use of that process violated the First Amendment.

We think otherwise.

In the beginning, it is plain that petitioner is not being prosecuted because of any statements, any publications, or any associations.

He is being prosecuted because of a refusal while under subpoena to answer the inquiries of the legislative body.

The use of compulsory process is concerned primarily with the witness' performance of the normal duties of all citizens to furnish information needed in the legislative or judicial process.

Second, the use of the compulsory process did not in itself curtail petitioner's freedom of expression or association.

He remains free from any governmental compulsion to think, speak, or form such associations as he chooses.

Nor was this petitioner being tolerated by the Committee because of any past statements or association.

Being so far as the record shows, he has never made any past public statements of any kind.

He was subpoenaed because he apparently could give information needed in the legislative process.

He does not even claim that this is a case of exposure for the sake of exposure.

In this case, we submit, in this respect we submit, the case is markedly different from Uphaus, Wilkinson, and Braden where the dissenting justices did find occasion, that did find that the occasion for calling the witnesses was their public criticism of the Committee.

There is nothing like that present here.

Fourth, the Committee's questions I think can fairly be described as primarily concerned with conduct with reported infiltration of professional revolutionaries into the basic steel industry concealing their background and identity through fraud and deceit all in support of a program looking forward to disruption of normal trade union activities, political strikes, or sabotage, or espionage as might be directed by a foreign power.

Undoubtedly, the questions would also have elicited information concerning petitioner's associations and beliefs or possibly including his speech.

But this is because the speech and associations were an extra complaint intertwined with the conspiracy to engage in conducts subversive of bona fide unions and dangerous to the national security.

In short, the petitioner's only complaint here when one analyzes it carefully is that the consequences of compelling him to testify about conduct might result in disclosure of views and associations sufficiently unorthodox, unpopular, or even hateful to the general public to damage him and perhaps to discourage others from embracing unorthodox or controversial views or associations in the future.

Let me make it clear that I do not suggest that those consequences raise no constitutional issue.

Of course they do.

In some cases they lead to the conclusion that the use of compulsory process would violate the First or the Fourteenth Amendment.

My only point is that in this case, any interference with freedom of association as an indirect consequence.

The constitutionality of which cannot be decided without taking into account the justification for requiring the disclosure.

Let me take a moment to try and make that clear, both the distinction of its importance by a simple and indeed perhaps trivial example what I think it illustrates the point.

Suppose that a man is on trial for first degree murder and he offers an alibi to the effect that at the time the murder was committed he was at a closed meeting of the top members of the John Birch Society.

The defendant subpoenas me as a witness hoping to prove through me that he was at that meeting.

Now, if I am compelled to answer on the ground overruling my claim of freedom of speech or freedom of association, certainly the disclosure of the secret membership in the John Birch Society would be damaging to my career.

I assume that I would lose the pleasure of appearing before this Court as often as I do, I doubt that I should be welcomed back by my former associates with much enthusiasm.

Others who observe my faith, I suppose might be deterred from engaging in the same associations at least under the same circumstances.

Nevertheless, it seems fair to conclude that no one did -- would dispute that the testimony could be required.

That the interest in the fair administration of justice would prevail over my interest in privacy of associations and that it would add nothing to the argument to say it would be true that the public interest in my associational secrecy so that others might be -- might feel free from engaging in associations would also be sacrificed to some extent.

Now, of course I don't say that the present case is identical with the example.

My point to repeat it is that the effect on First Amendment freedoms in the present case is indirect and consequential as in my example.

And that therefore, one cannot dispose of the present case simply by asking whether freedom of association might be adversely affected by requiring the testimony.

Justice William O. Douglas: But if you are engaged in the balancing processes, I gather you are, then you would have consider I would think in this case, the Yellin case the extent of which Yellin's testimony, it was necessary for the (Inaudible) by Congress that it is --

Mr. Cox: No, I intend to --

Justice William O. Douglas: -- provided by the (Voice Overlap)

Mr. Cox: I intend to -- I intend immediately to discuss some of those questions as I do deal with the issue, I don't attribute any particular significance to balancing, justification, cogent reasons for invading the privacy, any of the expressions that recognize that here there is a conflict between two interests.

And where there is a conflict between two interests as so often in the law, the court must measure the one in the light of the other and determine their relative importance.

The point stated by the Chief Justice very well in the Watkins case.

It is manifest after pointing out the effect of some of the disclosures that might be compelled, he went on to say.

It is manifested despite the adverse effects which followed upon such compelled disclosure or private matters not all such inquiries are barred.

The critical element is the existence of and the weight to be ascribed to the interest of the Congress in compelling disclosures from an unwilling witness.

Here, the public interest in questioning petitioner lay in obtaining for legislative purposes information concerning putative subversive activities in a vital area of our national life.

The information if the reports the Committee had withdrew was relevant to national survival.

The Communist Party, Congress had previously found, also purportedly a political party is in fact an instrumentality of a conspiracy to overthrow the Government of the United States.

The policies and programs of the Communist Party are secretly proscribed for it by foreign leaders of the World Communist Movement.

Even if that finding were not supportive by convincing proof, certainly there would be the strongest reasons for inquiring further into the conduct of a conspiracy which there was substantial reason or indeed any reason to believe might be being manipulated by a foreign and sometimes hostile power for treasonable purposes.

Nor are we concerned here and I wish to emphasize this distinction between some of the prior case, nor are we concerned here with a general inquiry into the activities of the Communist Party, the Committee was investigating a reported program for infiltrating highly educated rev -- professional revolutionaries into the basic steel industry by concealment, fraud and deceit.

And then by having the Communist agents pose as ordinary workers to subvert labor unions and other worker organization to Communist purposes.

The basic steel industry, I need hardly say is the core of our economy in time of peace and its lifeblood in times of war.

Justice William O. Douglas: I misunderstood the record.

I understood that the Committee already had this information.

Mr. Cox: I think that --

Justice William O. Douglas: I don't --

Mr. Cox: That is an overstatement and it seems to me that the record, with all deference, does not bear it out.

I wonder if I might simply finish discussing the subject into which the Committee was inquiring and then deal with the question of what petitioner --

Justice William O. Douglas: But suppose (Voice Overlap) --

Mr. Cox: -- have had.

Justice William O. Douglas: -- certainly.

And anyway, like it goes to my earlier question as to whether or not -- whether you're weighing or balancing, whatever the phrase is, whether the (Voice Overlap) --

Mr. Cox: Well, let me say --

Justice William O. Douglas: -- the importance of this particular witness' testimony to the performance of the legislative function must not be considered.

I don't know if this -- did -- they seemed to have had all the information that they could possibly got from this man.

Mr. Cox: Well, I intend to -- I intend to find out --

Justice William O. Douglas: And certainly sending him to prison doesn't get him more information.

Mr. Cox: Well, let me -- let me discuss the reasons for calling petitioner now then if I may and then I will come back to the national importance of the subject that the Committee was investigating.

Petitioner was in a position to furnish extraordinarily accurate and pertinent information about this reported conspiracy.

He was not subpoenaed as the result of indiscriminate dragnet procedures.

The Committee had information before he was called that he was a long time Communist Party member who had actively participated in the party's organization of the steel industry.

In the Gary area, he was apparently one of the professional revolutionaries with higher education whom the party had recruited to conceal their past, pose as laborers and thus gained for Communist purposes key positions upon the workers in basic industries.

His education and this long experience put him in a position where if he were willing, he could give invaluable information upon the direction, techniques, and purposes of the program of colonization.

Now, it is said that although the Committee was asking questions directed to that very program of action, that the Committee had all the information it could possibly use on this point.

And that this would be redundant and therefore of no value to the Committee.

We think Mr. Justice Douglas that there are two complete and very short answers to that argument.

In the first place, it seems to us to have no foundation in effect.

We can't tell what petitioner would've said since he refused to even to tell where he lived in 1949.

But every indication in the records shows that he could've contributed in part for the testimony.

Now first, at the time petitioner was called, there was no witness who had testified about Communist infiltration in the steel industry in Gary, Indiana.

Its nonsense I think to say that testimony about what happened in Buffalo or some place in the fish industry down in North Carolina or in the auto industry in Flint covered this subject completely.

Certainly, a conscientious legislature would wish to know the extent of the colonization programs in terms of the number of vital industrial plants effect, it wish to know its intensity in terms of the number of professional revolutionaries are on that area.

And he'd wish to know about the degree of its success or failure.

If the evidence convinced him that the conspiracy was ineffective and made up on the whole of rather pathetic or radically inclined young men, he might conclude that the wisest fallacy would be to leave them alone.

If the evidence showed that numerous vital steel mills were affected and that there were professional revolutionaries in key union positions of each, new legislative measures might be deemed appropriate.

Petitioner's testimony covering the vital Gary steel mills would've thrown important new light on those methods.

Second, --

Justice William O. Douglas: I suppose that would be true if you were investigating the church or the -- what (Inaudible) confession on it.

That would be very interesting information that some Congressmen that I think --

Mr. Cox: Oh, we're -- we're dealing with questions of degree here as I recall it, like the privilege in self -- against self-incrimination at least in a judicial proceeding.

The privilege of the confession is absolute.

As I was arguing --

Chief Justice Earl Warren: Well --

Mr. Cox: -- earlier, the right to privacy of association seems to me not to be absolute.

The second point on which Yellin could give new and important information --

Justice William O. Douglas: The relevancy of my question obviously was whether or not Barenblatt is -- should be overruled.

Mr. Cox: But I think that in this case, is an easier case from the Government's point of view and that therefore even if which I don't suggest for a minute, Barenblatt were wrong, it shouldn't be overruled in this case.

I think this an exceedingly strong case and I don't mean to guess any aspersions on Barenblatt.

But I think one could disagree with Barenblatt and both to affirm in this case, I think that's quite clear.

Justice John M. Harlan: Unless you're going to say that the Congress of the United States has no power to investigate that he was a Communist.

Mr. Cox: But this is even more than the field of Communism, I think Justice Harlan.

This is a -- this is in a vital -- I didn't develop that part of my argument, but this is in a vital steel mill.

It also isn't a -- in an -- which has been a tremendous national importance and I needn't relate all the occasions on which it's been a tremendous national importance.

So it also pertain -- excuse me sir.

Justice Arthur J. Goldberg: (Inaudible) that this constitutes a national burden (Voice Overlap) --

Mr. Cox: This had been one of the points that I -- we do develop in our brief and that I had intended to develop if I hadn't gone on to deal with what petitioner could add.

It's also of relevance I think that history demonstrates that the effect of these activities in the labor movement is not sheer fantasy that there is a -- have been a number of occasion early during World War II if you recall it Justice Goldberg.

There were Communist strikes in North American Aviation and in Allis-Chalmers in Milwaukee.

Unknown Speaker: That was in the (Voice Overlap) --

Mr. Cox: So that these are very real in this industry and I think it is quite different in those respect, from education, propaganda activities, those are different cases which have been decided and we are (Inaudible) --

Justice William O. Douglas: How about the NAACP versus Alabama?

I suppose many would think precisely as you do in this case, in that field, they're very critical.

Mr. Cox: I doubt -- I'm afraid I don't quite understand the point of Your Honor's question.

How would I distinguish that case?

Justice William O. Douglas: Yes.

Mr. Cox: Well, I think the difference is that there was their suggestion, no overriding public interest in the information sought to be elicited.

That's one difference.

The second difference is that there, the information sought to be elicited as I understand it had to do only with associations.

Whereas here, the effort is to investigate conduct and the associations come in collaterally and incidentally.

And I may say this seems to me also to be true of the Florida case involving the NAACP, NAACP against Gibson.

That -- and of course, it goes without saying that I would distinguish between the conspiracy to infiltrate bona fide unions in the labor movement and the -- in the vital steel industry is altogether different from the activities of the NAACP.

Now, coming back to the question, was this information that Yellin was requesting to give redundant?

I've indicated that it dealt with the new area and I could've dealt with it in a degree of detail and in a more vital segment of industry than before.

It also have --

Justice Byron R. White: (Inaudible)

Mr. Cox: In the area of Gary, it had very little about the steel industry.

I just -- to the best of my recollection all it had was about Buffalo.

Justice Byron R. White: (Inaudible) they really want to find out.

Mr. Cox: Well, they wanted to know whether he was in Gary --

Justice Byron R. White: Yes.

Mr. Cox: -- as preliminary matter to know whether he could give it --

Justice Byron R. White: Was it also a fact?

Mr. Cox: What?

Justice Byron R. White: Did it also -- did the record shows that (Inaudible)

Mr. Cox: The record shows that they had some information that he was in Gary, yes.

But I think that -- I think this is quite clearly a preliminary question, the questions that go to the heart of the inquiry where those that counts two and four are based on, did he know any colonizers in the steel industry in Gary in 1957, was one, and the other related to the colonizers in the steel industry prior to 1957.

Justice Hugo L. Black: I thought one of the counts under which he was convicted was the one that said he declined to tell where he lived?

Mr. Cox: That's true.

What I was -- what said was that the heart of the inquiry was embraced in the two counts that I just mentioned, that the one that dealt with where he lived was a preliminary question which would normally be asked a witness in order to found out whether he could give this more vital information on the point.

Justice Hugo L. Black: I don't suppose he should be doubted on whether they knew where he lived, isn't it?

Again, he's been convicted for failure to tell them where he lives as though that makes (Voice Overlap) --

Mr. Cox: Well, people had --

Justice Hugo L. Black: -- on the part of the Congress.

Mr. Cox: People -- well, I'm not arguing that the need to know where he lived Justice Black was essential (Voice Overlap) --

Justice Hugo L. Black: Well, how can you (Voice Overlap) to support that count under the balancing doctrines?

Mr. Cox: Well, I think to support that count, that I must show that this was closely related and preliminary unto the subject under investigation.

If you're asking a man what he knows about activities in Gary, it's important to know how much he -- how much of the time he was in Gary.

Justice Hugo L. Black: If they didn't already know?

Mr. Cox: If people have been -- people have been -- I've been -- the text in the last few years as if my residence was a place where it wasn't, this is in -- may be erroneous information.

Justice Hugo L. Black: Well, do you think there's any possibility that first, we should read this record and not know that they knew where he lived in Gary, Indiana?

Justice Byron R. White: If the judge may want to verify the information, I suppose that some of the --

Mr. Cox: Insofar as where he lived, well, yes.

The other part, the heart of the inquiry seems to me to have gone far beyond verifying.

Justice Byron R. White: But even if they do (Inaudible)

Mr. Cox: I think they -- I think they knew that they didn't know as much in this instance.

I've already pointed out that they hadn't had any testimony directly about colonizing in Gary at all.

I would like to add that they didn't have any testimony about activities in Gary either then or later after 1950 or 1952.

This was a hearing in 1957.

Looking to -- or early 1958, looking to legislation to be enacted at that by some early Congress of manifestly knowing whether these efforts had continued or not, or whether they had been intensified or not at Gary would be highly important to one who is trying intelligently to make up his mind on this precedent.

Third, as Your Honors suggested, the witness, there was every reason to believe could have given information on this point in a great deal, more detail than any of the previous witnesses who had testified.

There has been -- I understand that no colonizers, they were called, no professional revolutionaries who infiltrated by this process of fraud and deceit who has been willing to testify before the Committee.

Even if there had been one or two, here was one which could've added presumably if the information the Committee previously had a great deal about the way these activities were being conducted.

Now, it would seem to me, I find it a little -- maybe he shouldn't have been indicted on this count, but I find it little startling that one shouldn't ask the witness whether he was there at the scene of the activities he's being questioned about.

Justice William O. Douglas: I suppose an easier --

Mr. Cox: But even if -- even if one shouldn't, this was -- this conviction carried concurrent sentences and the -- to sustain it on any one count would of course sustain or require affirming the judgment below and that counts two and four are not I think conceivably open to the objection about residence.

The -- I've stressed already the degree of national interest in knowing about this program in its most basic industry and in the -- one of the handful and most important bill in its most basic industry.

I've also sought to develop that the pertinency of the questions to the sub -- that subject, the extent to which it was pointed out to the witness and the reason to believe that he could afford new information.

Now, there is one other answer to this argument about new information that I would like to submit to the Court.

It's more fundamental so it doesn't need to be ruled upon in this case.

We submit that whether information sought by a Congressional Committee is necessary or unnecessary or fruitless or useful or helpful or redundant is not a subject for a judicial determination once it is determined to be impertinent.

There's no doubt that the objective of the Committee must be legislation.

The information sought, as I just said, must be pertinent to that objective.

There must I assume for present purposes be some reason to believe that the witness has the pertinent information and he must be made aware of its pertinence.

The public importance of Congress' acquiring pertinent information on the subject under investigation must also justify the risk of damage to the individual liberties.

But once those points have been covered, I submit, the judicial function is exhausted.

Choosing among pertinent lines of inquiry deciding when the ground has been adequately covered, decide -- relying on testimony received or seeking new testimony that will corroborate or disprove the testimony already received are all parts of the legislative process.

No one can tell how helpful a logically material bit of information will be without studying and drawing inferences from the information you already have and ascertaining the other potential sources of information.

Obviously, the line that an investigation takes next requires some judgment as to what are the most likely forms of legislation and how will the Congress and the public respond from the legislative process to the information already adduced.

That I submit although as I say, I don't think our case rests on it, is a test for the law made and that the court should not undertake and substitute its judgment of theirs once the basic constitutional requirements that I had listed have been satisfied.

Now, I would like to turn to the information to the interest asserted by the petitioner.

And I suggest that we should examine it very carefully.

Let me make it plain that when I talk of this as an individual interest, that we fully recognize that there is a public interest in individual liberties not only because of the importance of the individual himself, but that is what the Government exist for.

But also because of the effect of the example on others and because the exercise of First Amendment freedoms and other civil liberties is of course important to the community as a whole.

Exactly stated, the in -- only interest that can be asserted by this petitioner is secrecy of association.

Indeed, it's fair to say that everything indicates that the -- his claim is really to a right of deception concerning his association.

Petitioner was not subpoenaed as I said earlier because of having a public or private utterance.

He was not subpoenaed because of any participation in an open assemblage.

The information in the possession of the Committee indicated that petitioner was recruited by the Communist Party to conceal his true beliefs and associations and then by false representations to insinuate himself in a bona fide worker organizations, and then to subvert them to his revolutionary purposes.

The interest he asserts is in not having those activities known to the public so that he and others may feel free to engage in them in the future.

I submit therefore, it is inaccurate to say that petitioner is simply invoking a right of freedom of speech or freedom of public assembly or association.

At best, his claim is to a right of privacy in associations.

That right has received and in my judgment should receive constitutional protection.

The point was decided in NAACP against Alabama, Bates and Little Rock, Shelton and Tucker and other cases.

There are two reasons however for concluding that the right to secrecy of association is not entitled to the same very high degree of protection which is acknowledge for freedom -- recognized for freedom of speech are open in public assembly.

One reason for a deference in the degree of constitutional protection is that the reasons for the special protection we incurred, the freedom of speech do not pertain to the right of privacy of association.

The other is that the asserted freedom to conceal one's association may be used to subvert the freedom of association of others.

Let me develop each point if I may very briefly.

First, we place a unique constitutional value upon freedom of speech because the public discussion is the only part -- that is not only the best half of the truth, but the indispensable condition of a democratic government.

The best corrective for error in thought and speech is more thought and more discussion.

We pitched our constitutional philosophy upon the belief that men who have the chance to hear all sides will reach the wisest and best decisions.

No one ever stated the point more eloquently than Mr. Justice Brandeis in his separate opinion in Whitney against California.

I would like to take time to read a lengthy passage which states the ideas I've tried to condense, time forbids but I would like to emphasize that he winds that passage up saying, “If there be time to expose through discussion the falsehood and fallacies to avert the evil by the processes of education, the remedy to be applied is more speech not enforced silence”.

Now, petitioner is unwilling to stake his doctrine on such intents of being unwilling to suppress -- to subject them to the free competition of ideas, to the marketplace of ideas, to have them discussed, known they didn't -- have them known and publicly discuss.

He's not in a position to claim the same degree of individual freedom as those who are asserting the right to speak openly and publicly.

Second, I would point out that secrecy or privacy of association is susceptible of abuses not open to speech or open public assemblage.

It can be used not only to protect one's own freedom of association but to destroy or subvert or mislead the associations of others.

There's no better example than the activities of the Communist colonizers described in the present record.

According to the testimony before the Committee, these highly educated young men embraced Communism, joined the party, took part in its activities.

This counsel says is a normal -- is an exercise of the normal freedom of belief, of speech and association.

But then by fraud and deceit, they were to gain jobs for workers, infiltrate the worker's organizations pretending to be bona fide trade unionists but in fact acting for a foreign power.

In this way, the asserted cloak of privacy would become a method of deceiving others in order to subvert or destroy their associations.

Now finally, I must emphasize the point made from the beginning.

The Committee was not investigating speech, thoughts, or political associations.

It was investigating conduct.

The violation of any privacy of beliefs or association would be incidental to that same central inquiry, the result indeed of the misuse of speech and association to further a conspiratorial end.

Judging the claims of petitioner's right and giving it its due public importance against the importance of the end being -- against the importance of the inquiry, the importance of full knowledge upon this very important subject of infiltration of our most basic industry, it seems clear to us that the judgment below was correct.

Now, I've thus far not dealt with two of the arguments that were presented by Mr. Rabinowitz.

One is the claim that the statute he says is unconstitutionally vague.

I must say first that it seems to me that any question about the vagueness of the rule -- of rule -- of the rule constituting the Un-American Activities Committee was clearly disposed of in (Inaudible) -- in Barenblatt.

As I read on page 122 after a long discussion, the opinion of the court says, “The rule cannot be said to be constitutionally infirmed on the score of vagueness”.

And then it goes on to discuss whether Congress could constitutionally confer this authority on the Committee.

Now, it doesn't seem to me to change the argument to say that we are looking at this through the rule of dealing with -- in behalf of Congress.

Second, dealing with the argument on its merits, the petitioner had no reason to doubt what it was that he was required to do.

He was directed to answer those questions.

And he knew that if he failed to answer the question, he in all probability would be charged of a crime.

This is not like a situation that one can argue that he doesn't know what his legal obligation is.

His legal obligation was specifically pointed out to it.

The argument here is that well, we challenged the authority of the Committee to require that.

Maybe it did require it or attempted to require it but it didn't have the legal authority.

It's now settled that it did had the legal authority.

Indeed that is conceded by petitioner and I would've supposed it was perfectly claimed that whatever be the exact limits of the Committee's authority, that there was no doubt about its authority to conduct this kind of investigation into this kind of activity and this by industry.

The other argument deals with the failure to receive Professor Emerson's testimony in answer to a general question what are the factual considerations and values that we should take into account in resolving the basic constitutional issue in this case.

It's enough to say that the difference between the petitioners and ourselves is not whether Professor Emerson's views should be taken into account, but how should that kind of material be brought to the attention of the court.

Should it be done by testimony under oath or should it be done in the normal manner by briefs or by the citation of such statements in law review article by the court's own study and understanding, by reference to public documents, and the like.

Its enough to say that this kind of question dealing with the basic conditions, the basic human values, if you will, and conditions in society that enter into the determination of a constitutional question have always in our constitutional system, have been decided by the courts, and the basis of such knowledge or -- and information as it may come to them in briefs or through their own reading and prior experience.

And that it is not something to be found on the testimony in a particular record with the findings of fact by the particular trial judge on that record and not taking into account anything else binding upon this Court.

Certainly, Professor Emerson's view should be taken into account.

They're in the record.

I hope the Court will read them.

They're an excellent illustration in my view of how easily and intelligent man could miss the whole point.

But all such arguments are important for the court to consider.

But they needn't come in through sworn testimony and cross-examination, so that we submit Mr. Chief Justice that there was no error below and that the judgment should be affirmed.

Chief Justice Earl Warren: Well General, just how would a defendant in a given case raise this balancing issue where Barenblatt says that the balancing had to be related to the particular circumstance shown?

Now, I suppose that means a particular case.

Now, how would the defendant raise that?

Mr. Cox: Well, I'd -- first, I would not understand the reference, a particular circumstance shown to refer to anything other than the inquiry that was being made in that case by Congress.

It's objective.

That of course can be shown by the resolution.

The kind of question asked.

That of course can be shown by the testimony or in most of these cases, the transcript of the testimony before the Committee.

And that particular circumstance means the sort of circumstance I've been arguing here.

Knowledge about those is derived on the part of the court, from what is submitted in the briefs.

I would think that it's from the general reading on the part of the court.

It is derived from a public documents of the same kind -- sort of information that comes to the attention of the court whether it decides a large number of legal question which are based on underlying appraisal of the conditions in the community.

Let me take an unconstitutional example which has been settled but at one time was litigable.

I have in mind the case of Glass against Ickes where the question was whether the Secretary of Interior should have an absolute privilege to make statements about people doing business before the Interior Department no matter how much it might injure that man's reputation.

Now, to decide whether to recognize such a privilege requires a judge to have a view about Government, about the importance of freedom of expression on the part of Government officials and of course, a view about the knowledge of the kind of harm that such statements may do to the one who is defamed.

But that kind of understanding about the impact in the community has never in the law I think been decided by calling witnesses to testify on the particular record.

I --

Justice Byron R. White: (Inaudible)

Mr. Cox: Well, I would think that was --

Justice Byron R. White: (Inaudible)

Mr. Cox: Well, I think that for our purposes, the only thing that needs to be determined is not whether as a matter of fact the Communist Party is dominated by a foreign power but whether con -- the Congress has sufficient foundation for believing that, to make this subject pertinent to inquire into.

The power would exist whether it is true as a fact or simply whether it was basis for inquiring it --

Justice Byron R. White: (Inaudible)

Mr. Cox: I wouldn't think that issue was opened in a court, no.

Justice Byron R. White: (Inaudible)

Mr. Cox: I take it that the court -- I take it that there must be some reasonable foundation for the congressional belief just as there are again the -- I am taking the example or field from this particular case because it might clarify our reasoning.

I suppose that if a state legislature would pass a statute that required every homeowner to cut down all his maple trees, that it wouldn't be opened to -- would normally be tried out in a courtroom whether maple trees like cedar trees harbored an insect which would just -- which would damage, if not destroy, an important crop like the apple crop.

That the question is whether the legislature had a reasonable basis for reaching such conclusion and that has been best proved, as Your Honor knows, best called to the attention of the court through materials like a Brandeis brief.

And it seems to me that it was quite proper for the district judge to take that position in this case.

I don't think the important question is really whether it comes in by testimony or not.

Let me make it clear, we are perfectly willing to accept Professor Emerson's statement as Professor Emerson's opinion and belief.

We'd -- I would stipulate that here now that we accept it as his opinion and belief and we will accept further that cross-examination wouldn't have shaken his opinion and belief.

The question is whether --

Chief Justice Earl Warren: They wouldn't do that below -- they wouldn't do that below though, would they?

Mr. Cox: I don't think they disputed that below.

I don't think it was ever made quite that explicit but I think that the whole conduct was consonant with that being their position.

The question --

Chief Justice Earl Warren: I thought you said it was -- took the position that it was irrelevant and wouldn't let them introduce it.

Mr. Cox: It was not that if -- if they took the position that it bar on a question to be decided by the court, and therefore and it was not properly put in by way of sworn testimony.

Now, I think really the critical question I am suggesting is not so much whether the court will accept the sworn testimony but whether the court is to be limited to findings concerning these ultimate values based on sworn opinion and testimony.

And that the critical question is whether this Court is going to be based -- limited by the opinions of those who saw and heard the witnesses as to which they believed and which they didn't believe.

And I submit that that would be totally at odds with our entire constitutional history as well as an exceedingly cumbersome and I think unwise process.

Justice Hugo L. Black: Wouldn't your argument imply -- I'm not saying it should be, expressing views about getting evidence on the constitutional questions overtime.

But wouldn't your argument imply equally to the position that's been taken recently in a number of courts.Like you said, it's not been found on by this Court that you can introduce witnesses to find out whether in a particular community, a matter is obscene in order to determine the constitutionality of the law?

What about that?

Mr. Cox: Well, I have asked -- Your Honor I have -- I would prefer not to take a position of that but I --

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

Mr. Cox: -- haven't studied it myself --

Justice Hugo L. Black: Yes.

Mr. Cox: And it is a question that's involved in cases before this Court.

Justice Hugo L. Black: But it --

Mr. Cox: I --

Justice Hugo L. Black: (Inaudible)

Mr. Cox: I'm sorry I haven't (Voice Overlap) --

Justice Hugo L. Black: I didn't know that was involved in a case here at the moment.

Mr. Cox: We have it from -- we haven't thought about it --

Justice Hugo L. Black: I thought about it --

Mr. Cox: -- in time.

Justice Hugo L. Black: I thought about it in connection with this argument.

I remember -- I recall arguing very vigorously against hearing evidence to determine whether the legislature had a right to decide a certain train practices per se.

It took several weeks to get evidence and determine --

Mr. Cox: What --

Justice Hugo L. Black: -- the constitutionality of an act on that basis.

Mr. Cox: I should have (Voice Overlap) --

Justice Hugo L. Black: I'm not saying that that would -- that would control this case.

Mr. Cox: I think if Your Honor compare with me, it'd be unwise for me to express something about which I have no intelligent thoughts at the moment in which it does all --

Justice Hugo L. Black: I just --

Mr. Cox: -- come before the court.

Justice Hugo L. Black: The reason I asked for your general argument was -- and I may say that it's -- I'm not going to -- indicated you to disagree with that general argument was that you should decide the constitutional questions on the basis of the Constitution rather than people's evidence about whether the thing was unconstitutional.

Mr. Cox: There is without directing myself to that, I should acknowledge that this is sometimes a question of degree.

I recalled that the first time I was ever in this courtroom dealt with the constitutionality of certain litig -- certain legislation pertaining to the bill.

And there, the case, the economic fact had been tried out with great detail before a Master.

Finally they were stipulated by a counsel and no doubt that gave the court a picture of the industry which would not otherwise been available.

But I don't think anybody argued that the ultimate judgment as to the weight of various interests involved, because that was an economic case was to be made by the Master finding -- making findings of fact.

The constitutional facts are facts which this Court must determine for itself from whatever sources seemed best to it.

And as I said before, we certainly would think that Professor Emerson's views -- he's a distinguished professor, should be taken into account.

We hope the opposing view as well his will.

Justice Byron R. White: (Inaudible)

Mr. Cox: I don't think that's a question to be tried out in the evidence in each particular constitutional case.

Justice Byron R. White: You don't think those practice (Inaudible)

Mr. Cox: No.

No, Your Honor.

I said I didn't think that they were appropriate to be tried out in the evidence in a particular case.

Justice Byron R. White: (Inaudible)

Mr. Cox: But here -- here we are -- here we are dealing with the propriety of congressional action and the facts in the first instance, the reason to make this inquiry in the first instance was up for Congress to determine.

Chief Justice Earl Warren: But one of (Voice Overlap) --

Mr. Cox: I add --

Chief Justice Earl Warren: -- we're deciding, aren't we determining here whether a man can be put to jail, put in jail in these circumstances.

And aren't we determining whether or not he's entitled to make a defense for himself?

Mr. Cox: Well, the -- we're determining in what manner his defense shall be made.

Of course he's entitled to make a defense for himself.

We're discussing whether those facts which go into deciding, whether requiring him to answer this question was constitutional are to be established on the basis of opinion testimony and only opinion testimony, I take it, which if one followed that, would require the court like he emphasized to follow the opinions on the value of free speech of the witnesses.

Justice Byron R. White: Only --

Mr. Cox: Now, I think that is not an appropriate way of deciding constitutional issues.

Justice Byron R. White: Do you think Emerson's testimony (Inaudible)

Mr. Cox: Well, all he did was read the newspapers.

He testified that this came from a file or clippings of magazine articles that he collected.

Justice Byron R. White: The district judge (Inaudible)

Mr. Cox: Well, I think that the -- I think there's two answers.

One, is that it is to a degree, the duty of this Court to keep abreast and social problems and condition, and of the facts that go into them equally of history and the like.

That's one reason that it's such an arduous job.

I think, two, the point I made earlier is highly relevant here that the question of fact, how many Communists are there is not a question to be tried out in this proceeding for contempt.

Justice Byron R. White: But it is (Voice Overlap) --

Mr. Cox: The question is whether --

Justice Byron R. White: -- rather a constitutional question.

Mr. Cox: The question that is relevant for constitutional purposes is whether Congress had before it sufficient information to justify its coming to the conclusion that this was a highly important subject for it to investigate.

And one ascertains what Congress had or might have had before it the same way one ascertains whether there is a justification for legislation fixing the price of milk or legislation requiring the cutting down of cedar trees or the leaving of coal pillars in a -- when a coal mine is dug in the (Inaudible) region, and the like.

These questions have never been done by exact testimony and I emphasize the court being limited to that exact testimony, sometimes the testimony may be helpful.

If it is helpful and not confining, then the thing to do with this case is to read it and take it into account.

Justice Byron R. White: In any event, do you think it involves (Inaudible)

Mr. Cox: That's correct.

Chief Justice Earl Warren: Mr. Rabinowitz.

Rebuttal of Victor Rabinowitz

Mr. Victor Rabinowitz: Thank you sir.

I trust I need not remind the court that we are dealing here with the application of a criminal statute and the right I take it that every person accused of a criminal statute has to present whatever facts there are in its favor.

And to have the determination made on the basis of the record that's presented in the court and not determine on whether this Court or any other court who has read newspapers or what newspaper they have read.

It doesn't seem to me that any intelligent system of justice can be operated on that basis and we never have up to this point.

I am somewhat entranced by the suggestions, somewhat belatedly made that the Government is now prepared to stipulate Professor Emerson's testimony, because this Professor Emerson's testimony is admitted as I understand the situation, this judgment of conviction should be set aside as contrary to the weight of the evidence since there's no evidence at all on the other side.

No one -- nobody put any evidence here about the extent of Communism in the United States, about how vital or not vital the steel industry was, or any of these other facts, and I would take it that where there is some evidence on one side and no evidence on the other, the court would have to rule on the basis of that record.

Of course this was not the position of the court below and I am sure of the -- and not the position of the Government below and I am sure that had the matter been -- had the evidence been admitted, there would've been cross-examination and I should think that there would have been not only cross-examination but perhaps rebuttal testimony because Professor Emerson's testimony, it seems to me, goes directly to this whole process of balancing.

And while it may not have been as effective as calling a hundred thousand or a hundred and eighty million witnesses and asking them whether they're members of the Communist Party, somewhat impractical, it seems to me the kind of occasion which opinion testimony is appropriate.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: Well, in the first place, I never said that Congress couldn't investigate.

Congress can investigate --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I've -- I've never --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I have never even suggested that Congress cannot conduct an investigation by interrogating witnesses because there are many witnesses, hundreds of them, perhaps thousands, who have come in and who have testified quite freely on this subject.

And while I think that the Committee is acting beyond its jurisdiction and so forth for the reasons that I've stated before, I don't know of any way of stopping a Committee from calling a witness who testifies voluntarily before him about his or her membership in the Communist Party as was of course true in this very hearing --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: -- where several witnesses did testify.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: Your Honor, I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I think that if I had to, I would be willing to go that far.

But I don't have to.

Justice Arthur J. Goldberg: But you have to argue.

Mr. Victor Rabinowitz: Because in this case and if there was one thing I learned from Mr. Justice Frankfurter is that is that I shouldn't try to prove more than I have to, to win my case.

In this case, in view of the extensive testimony that Congress have taken on this particular subject and in view of the trivial nature of the questions that were asked, then I'll come to that in just a moment.

And in view of the fact that it was cumulative testimony and it was corroborated in the view of the view of a very large elements on the other side of the balance, I say that Congress did not have the right to conduct this -- to ask these questions of Mr. Yellin.

And I think that same thing is probably true of the whole Gary investigation.

They had volunteer witnesses there who gave a great deal of information about this so-called colonization and I'll come to that in a just a moment.

Justice Hugo L. Black: Was there any indication that the Government wanted to pass a local bill reg -- regulating conditions that gave --

Mr. Victor Rabinowitz: Oh, no.

No suggestion whatsoever.

Justice Hugo L. Black: But it's supposed to be a general bill covering this subject all over the country?

Mr. Victor Rabinowitz: I suppose so.

I'm not sure that there was any bill that was really referred to -- the Committee always talks in terms of the Subversive Activities Control Act than the other bills that may be passed, that Congressman Walter for years has been introducing, and onto this bill which covers a wide variety of subjects and its on this bills that they Committee sometimes says that it's holding its hearing.

I would just like to raise one or two rather short points.

One goes to this executive session matter.

It is true that at rule -- at page 82 of the record, Mr. Walter set forth, I think in pretty complete form, the general rules that the Committee uses in determining whether as to here, to hold executive sessions, and I think that that is conclusive in my favor because the general rules and he says, there are very many exceptions or any exceptions he said is in may favor but even more telling if I may suggest, it is the testimony at Rule 70 because as Mr. Justice Douglas pointed out, the rule said Congressman Walter, the rule with respect to an executive session was not applicable but sentence didn't stop there although that's where the Solicitor General stopped reading it.

The next word is “because” and then Congressman Walter goes on to apply a completely different standard, different from the standard you --

Chief Justice Earl Warren: Where is that Mr. --

Mr. Victor Rabinowitz: It's on page 70, sir.

And it's the first question -- the first answer --

Chief Justice Earl Warren: Oh, yes.

Mr. Victor Rabinowitz: “The rule with respect to an executive session was not applicable because the investigator was an FBI agent and he'd done a pretty good investigating job”, which has nothing at all to do with Rule IV-A.

Mr. Solicitor General suggested that this was not a case of exposure for the sake of exposure.

Well frankly, if this was not -- if this is -- if the failure to call an executive session under these circumstances was not a perfect case of calling witness in public for no reason other than to give publicity to his testimony, I don't know what it is.

I would like to go to one (Voice Overlap) --

Justice Hugo L. Black: Did you argue that point?

Mr. Victor Rabinowitz: Pardon me?

Justice Hugo L. Black: Have you argued that point, that was exposure for exposure's sake (Voice Overlap) --

Mr. Victor Rabinowitz: Yes.

Justice Hugo L. Black: I understood you --

Mr. Victor Rabinowitz: I -- I've argued it in the brief.

I think the failure -- I don't remember exactly what page, but it certainly is in there.

I would like to go to this question as to whether this testimony as corroborated or accumulated or what have you.

Questions one and three were admittedly corroborative of testimony that the Committee had in its files.

And Mr. Tavenner said so on the stand.

He said, “Yes, we had sworn witnesses who testified that this man lived in Gary.

We have subpoenaed his employment records”.

As a matter of fact, his employment records I think were put in the record and we have sworn testimony that he was a member of a Communist Party in 1949.

And we knew all of that.

Justice Byron R. White: But they didn't know in full what -- they didn't know whether the sworn testimony was accurate?

Mr. Victor Rabinowitz: That's true.

They didn't know whether he still was, but they didn't ask him whether he still was.

That's not one of the counts in this case.

Justice Byron R. White: Well, they didn't know whether their sworn testimony -- the reason that they did that (Inaudible)

Mr. Victor Rabinowitz: I think it is probably -- well, this is true of all accumulated testimony or corroborated testimony, sir.

And I -- and I said, I'm not arguing that it wasn't relevant.

I am merely arguing that it weighs very little in the balance.

Justice Byron R. White: (Inaudible)

Mr. Victor Rabinowitz: Pardon me?

Oh, I don't know.

He said they had sworn testimony.

One of whom testified at the Gary hearing but I don't know how many.

Now, on the other question namely the extent of colonization in Gary, at page 151 of the record, there appears the report of the House Committee.

And I'm not going to read it.

It runs on some -- well, its too closely printed pages.

I'll just read a few words.

“Describing the tactical maneuvers of the Communist Party in its infiltration of labor unions, Mr. Lautner asserted that colonizers were sent to Gary, Indiana for the purpose of building a party in the steel industry.

He defined a colonized Communist as” -- and then he goes on to describe one.

“The witness told the Committee of classes conducted by J. Peters, a national functionary for the Communist Party for colonizing members of the Communist Party.”

And he goes on at very considerable length discussing the whole colonization program of the Communist Party in Gary and elsewhere.

Mr. Lautner testified immediately before Mr. Yellin.

The Committee goes on to discuss the testimony of Mr. LaFleur who also testified as to the colonization in the Communist Party and it ends up with this conclusion reached without the benefit of Mr. Yellin's testimony.

“The testimony disclosed the pattern of colonization in the steel industry by young men with excellent training and education who came into the area from New York City and elsewhere.

It is apparent that a hard core of Communist Party -- of the Communist Party is actively engaged in the rehabilitation of a Communist Party in the steel industry in Gary”.

So I submit the question two and four were just as cumulative as the others and weigh just as little in the balance, if we are to balance.

Chief Justice Earl Warren: Let's adjourn.