BRYSON v. UNITED STATES

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Argument of Richard Gladstein

Chief Justice Warren E. Burger: Number 35, Gladstein against -- excuse me, Bryson against the United States.

Mr. Richard Gladstein: Mr. Chief Justice and may it please --

Chief Justice Warren E. Burger: If you’ll just wait one moment Mr. Gladstein until counsel gets clear.

Now, you may proceed.

Mr. Richard Gladstein: Thank you, Your Honor.

May it please the Court.

This case brings into question, the constitutionality of Section 9 (h) of the Taft-Hartley Act of 1947.

That Act provided in substance that before a labor union could resort to the facilities of the National Labor Relations Board.

Each of its officers most annually signed in filing non-Communist affidavit.

The constitutionality of that statute was upheld in 1950 in the case of American Communications Association against Douds.

The chief opinion was written by Chief Justice Vinson in which two other members of the court concurred, Justices Frankfurter and Jackson wrote separate opinions, concurring in part and dissenting in part.

Mr. Justice Black dissented on a number of grounds including explicitly an expression of his view of Section 9 (h) was a bill of attainder and therefore violated the Article I Section 9 of the Constitution.

Congress, it appears was not satisfied with its experience under Section 9 (h) and 12 years after its passage, nine years after this Court was persuaded to sustain it.

The Congress have repealed that law and replaced it with Section 504 of the Labor Management Relations Act.

That Section provided that it was a crime for a man simultaneously to hold union office and to be a member of the Communist Party.

That statute was held unconstitutional by this Court in United States against Archie Brown, 1965 in an opinion written by the Chief Justice, four other members of the Court concurring in the opinion on the expressed ground of Section 504 was unconstitutional bill of attainder.

One of the questions certified in this case is whether in the comparative light of American Communications Association versus doubts and United States versus Brown, Section 9 (h) is constitutional.

Let me say a few words about the background of this case in order to put the other two certified questions in perspective.

Petitioner here was one time the president of a small maritime labor union numbering some 3,000 members who served on vessels plying in and out of Pacific Coast Port in the Steward’s Department of those ships.

In 1951, he signed and filed the affidavit as required -- that was required at the time under Taft-Hartley law.

The union was and had been for some time engaged in the bitter jurisdictional dispute which ultimately led to the dissolution of the organization itself.

Now, the affidavit that he filed was a printed form.

But the Labor Board supplied and it recited three basic things.

It recited that the files at the time he signed did not then support any organization that advocated the overthrow of the Government by force, violation or other unconstitutional or illegal means.

It provided second that he said he was then not a member of the Communist Party specifically naming the Communist Party in the second portion.

It provided third, that he was not then affiliate for the Communist Party.

In 1954, almost three yeas after the filing of the 1951 affidavit although I should state that in 1952 Bryson filed the affidavit.

He did the same in 1953 and again in 1954 if my memory served me correctly, even after he was indicted on the 1951 affidavit.

He was charged in the indictment with three counts of violation, all three of the portions that I have mentioned

.Prior to the trial, the Government dismissed the count that charged him of supporting an organization that advocated the overthrow of the Government.

He went to trial on the counts concerning membership and concerning affiliation.

The jury returned the verdict holding or I should say that this was brought under the false statement statute which it set forth in our brief and in the petition.

Jury returned the verdict holding that when he swore that he was not been a member of the Communist Party he was not falsely swearing.

On the other hand, it returned the verdict holding that he did violate the law when he swore that he was not then affiliated for the Communist Party.

Bryson was sentence to five years in prison and a fine of $10,000 which was the maximum.

And in addition, the trial judge provided expressly that he could be subject to further imprisonment in the event that he failed to pay the fine.

He served nearly two years of his term and then was paroled.

And in the intervening years he has managed to pay $2,000 of the $10,000 fine but the there is a balance of $8,000.

Shortly before we filed a petition in the District Court that commenced the proceedings that are now here, the Government noticed the taking of Bryson’s deposition of the original criminal proceeding and did take his -- the position seeking assets for the purpose of enforcing the collection of the $8,000 balance.

And thereafter, the Government filed a civil action in the Federal District Court in San Francisco seeking judgment for the $8,000.

A week or two after that, Bryson’s petition was filed with the District Court seeking a writ of error coram nobis or relief under the other applicable post-conviction statutes.

One of the basic grounds upon which that relief was sought was the allegation that under United States versus Brown, the constitutional basis of Section 9 (h) had been eroded along with other decisions that it was constitutionally infirmed, that it should be controlled by the decision of this Court in United States against Brown and therefore that petition of original conviction had been unconstitutionally obtained.

The District Judge granted petition in all respects except not granting the prayer for a return of the $2,000 that Bryson has paid to the Government on his fine.

The Government took an appeal to the Court of Appeals Ninth Circuit and that court in a per curiam decision reversed holding that Bryson was precluded for bringing his petition by reason of a decision of this Court in Dennis versus the United States.

That case was a case in which this Court declined to review a challenge of constitutionality against Section 9 (h) upon the ground for the petitions in that case were shown to have been engaged in a conspiracy to deceive and to the defraud the Government and therefore that they had lost standing.

The Court of Appeals holding that Dennis presented an insuperable obstacle to us declined the test on the other questions and reversed.

The other two questions presented and certified here then are: One, whether the petitioner is precluded by reason of this Court’s decision in Dennis from attacking the constitutionality of 9 (h).

The other is whether the petitioner qualifies regardless of Dennis upon the ground that it’s inapplicable in as much as this is a post-conviction proceeding and under the all writs section or under the other Section providing for such relief, he would qualify for this relief.

Unknown Speaker: When you talk about the constitutionality of 9 (h) it’s really whether 9 (h) wasn’t absolute.

Mr. Richard Gladstein: Yes, I --

Unknown Speaker: Is that no longer unquote?

Mr. Richard Gladstein: I know.

I can see that.

Yes, Your Honor.

However, the vitality of it still affects Bryson and as hope to argue also affects to its detriment to the bill of attainder provision in our Constitution.

Now, let me say something about the petitioner of the evidence here.

Because I suppose in the last analysis, this Court is not going to look nearly at forms as the Government invites it to do and say well, in Dennis there was a conspiracy to defraud and Bryson’s case the jury found that he lied about whether or not he was affiliated with the Communist Party and therefore they are on a par, this is the Government’s argument.

I would suppose that if Dennis lays down a rule, the Court created by which the Court will determine in its own discretion whether or not a particular person is entitled to be heard has standing to be heard.

One must look at the character of the particular petitioner in so far at least as the record and the evidence would seem to show.

Now in petitioner’s case, the facts are these.

There’s no question that for a period of ten years between 1937 and 1947, he was a member of the Communist Party.

He was an officer of that party.

He was an officer under what was called the Waterfront Section Level in San Francisco and he was an officer on a state level, state committee.

There was no suggestion in this record that Bryson never tried to concede the fact that his membership or holding office in the communist party when he was a member of it.

Now in 1947, he terminated his associations and there is no evidence.

There was no evidence of the trial to sustain any charge that there was an active relationship between him and the party thereafter.

The evidence upon which he was convicted not of membership but of association of affiliation summarize by the Government in its brief, and I assume that they have called from it as much as there is and this is one of the matters to it that comes on pages 5 and 6 of the Government’s brief.

First, he said that in 1949, at an open union convention, he -- I quote what they say, “premised -- he refused to see that delegate to a union conversion premised on the delegate’s failure to accept an opportunity to join the Communist Party.”

So not only was that two years before he filed the affidavit in this case.

But I mentioned that this is the type of evidence on which the affiliation count was based.

Chief Justice Warren E. Burger: But is it not after he now says that he terminated his membership?

Mr. Richard Gladstein: There was no announcement.

There was a cessation of all relationship, all active relationship --

Chief Justice Warren E. Burger: In 1947?

Mr. Richard Gladstein: In 1947, yes sir.

Chief Justice Warren E. Burger: This event that you’ve just described under the Government’s brief two years later?

Mr. Richard Gladstein: This and two or three other statements attributed to him.

Yes, one in 1949 and several in 1951.

One of which as the Government correctly points out was two months after he had filed his affidavit in 1951.

He then is supposed to use -- it was testified that he said in the course of an argument between him and one of the men who was forming a dual union, a rival union within the organization.

He -- this man testified that Bryson said to him in the course of an angry exchange.

“If you are referring to me, I’m still a Communist and proud of it.”

There is another piece of testimony that was given by another person who in the course of -- who was expelled from the union or was in the process of being expelled.

There was an argument about whether or not Bryson was discriminating against him or ordering him to be discriminated against in regard of getting union jobs.

And the man testified that what you have to do to get a job around here, to be a party member of something of that kind and he said that might help and in reply to another question after Bryson said when he was accused, “are you still a member?”

He said, “yes and I’m proud of it.”

That’s the evidence.

Now, the District Court told the jury what, based on the record, what’s the kind of evidence was that existed when Bryson was a member of the party and he told the jury that they should take him to consideration of whether or not he held office or official position on the Communist Party whether he have ever attended and participated communist party meetings.

Whether or not he took instruction from communist party leaders, whether he participated in distributing literature, whether he solicited members for the party, whether or not he cooperated closely with and worked for there benefit and so on.

There was evidence that during the period of executive membership, of his membership between 1937 and 1947, there was evidence that these were the activities in which he engaged.

There was no evidence I might say that he ever advocated there was ever present when they was advocated or that he ever runs to it in whatever portion of the Communist Party he was associated with.

That there was forbidden doctrine or policy advocating the further or that he himself believed in the overthrow of the Government of United States by force surveillance and of course there was no evidence in the case itself offered by the Government.

To establish what the teachings of the Communist Party were, what their doctrines were, what their policies were, what their objects were?

The case went to the jury on the sole question of whether nor he was a member or affiliated with the Communist Party without any evidence to indicate.

Either he understood it to be based on his associations or what the party itself stood for in fact from the viewpoint of the Government.

Chief Justice Warren E. Burger: Well, aren’t those arguments that were addressed to the Court from this case was tried?

Mr. Richard Gladstein: All of the arguments that are offered now were addressed to the courtroom when the case was tried.

That is we addressed these arguments on appeal to the Court of Appeals, the Court of Appeals rejected the arguments.

This Court did not grant a position for certiorari.

We saw twice first after the original conviction was upheld and I should say that in the petition for rehearing that we filed with the Court of Appeals calling their attention of the fact that in their first decision, we thought they were establishing de novo law.

They reiterated and they said I’ve copied on the sentence from their opinion which is referred to in our brief as well as in the Government’s.

They answer this by saying that although it was true that there was no evidence in the case of active affiliation, it didn’t have to be any.

They said affiliation and this is the quote, “Affiliation is a relationship that can exist even when not manifested by activity.”

As to the argument that we advanced that had to be some showing that the communist party stood for either a calling, political strikes which was the purpose of Section 9 (h) according to the legislative history Congress wanted to inhibit the threat that political strikes might be called in the labor movements.

There was no evidence of anything of that sort either as to Bryson or as party but specifically as to Bryson.

Never had he advocated or suggested or anything of that sort, although he was being found and in fact guilty because Congress assumed that anybody found to have been affiliated with the Communist Party was necessarily presenting threat to the country that he would throw the country into political strikes.

The Court of Appeals answered that argument by saying that the requirement of adherence to Communist Party purposes was covered by the instruction to the jury that said in effect affiliation is a very difficult concept to define, I tell you in essence that its everything but membership been named only and suggested that it is comparable to the relationship between a man and a woman who are not married.

There was no instruction to the jury advising that affiliation could be found only if there was some evidence that Bryson adhered to some forbidden doctrine or that he advance some policy of believing some policy.

Whether it be the overthrow of the Government by violence or the calling of political strikes.

Now, this was the evidence against the man and nothing else.

He did not take the stand.

We’ve tried to show in our brief why.

It was the practice then and it may still be that in cases of this kind or any kind perhaps where a person has been a member of the Communist Party.

It is uniformly the practice of the prosecutor to inquire on cross-examination for the names of other persons who were in the party at the time that the witness was.

It was clear at the time and we set forth in detail the reasons that if he were asked questions of that kind and if he declined to become an informer, the person whose he had known long years ago in the Communist Party that he would be sentence to a jail term for contempt of court by the trial judge and of course that would take place on the presence of the jury and in he had any chance of becoming acquitted he would lose it with a thing like that happening as well as gaining a jail-term.

But there’s some things to some man that are even more important than the risk of spending a term of years in prison and one of them as a matter of point.

Bryson chose not to testify in order to avoid being placed in the dilemma of having to become either an informer or showing disrespect for the court by declining to answer questions that he would be ordered to answer.

In the absence of Bryson’s testimony because he couldn’t under those circumstances, he was not a free agent to get up and either deny those statements that he claim had not been made that were attributed or if he made some of them to explain the context to them which they were made so that the jury could know what he as doing, what he was saying in the absence of his own ability to testify.

In the presence of no evidence by the prosecution at all concerning association of activities, association of times or any kind with the party, we did what we considered the next best thing.

Fourteen witnesses, reputable people from various walks of the community were called and testified that he have to enjoy an excellent reputation for truth, honesty, and integrity.

His record of having sailed on the seas for many, many years and being subject to the United States Coast Guard Regulations of course was a fact he had never been arrested on any charge either a charge of violating a regulation or for that matter a violation of any law.

We also did this --

Justice Potter Stewart: I have a little trouble understanding Mr. Gladstein, what the relevance of all these is to the issues now here before the court, after all the jury did convict him.

Mr. Richard Gladstein: Yes, well --

Justice Potter Stewart: Under instructions that have been explicitly approved by this Court as I understand it of violating of being affiliated with the Communist Party at the time that he said he swore under oath that he was not so affiliated?

That’s a finding that was appealed.

That’s the finding.

That’s water over the dam.

He was convicted.

What questions as to why he might have not testified in that trial or what he’s motivations had been or of interest but I don’t see what relevance they have to the issues now here before this Court in this present case.

Mr. Richard Gladstein: I’m sorry I failed to make myself sufficiently clear.

It is because [Voice Overlap].

Yes, thank you very much.

It’s because the Governments realize on the decision in Dennis to constitute a barrier to Bryson having standing in this case to be heard.

That I considered important for the Court.

I know I can’t attack the finding of guilt and I’m not doing that.

I’m not seeking that.

There’s no, nothing like that has being done.

But I would think that it’s relevant to the exercise of discretion if that’s what it’s involved if Dennis is a relevant decision to consider here.

That will be important to consider what the record was, whatever the jury found.

What the record was concerning Bryson so as to determine whether he compares with or contrasts with the defendants of the Dennis case.

And I wanted to -- one more thing concerning what happened there and that was this.

We called as a witness for the defense the agent of the Federal Bureau of Investigation who was in charge of the prosecution against the Bryson, and he testified that under cover informants and agents of the FBI were and have been throughout this period before and after 1947 within this group that Bryson at one time had been a member of.

That no -- none of this informants, none of these agents testified and nobody came forward to testify against Bryson.

Now, I realize that’s consistent with a policy decision by the FBI that it did not want for reasons of its own which it certainly has a right to make.

He did not want to reveal the identity of someone who was in that Section but its also consistent with the assertion that Bryson has steadfastly made from the beginning and has never deviated from that he was innocent, that he was neither a member nor affiliated with the Communist Party at any time after 1947.

Chief Justice Warren E. Burger: But Mr. Gladstein isn’t that as Justice Stewart has suggested that the issue that’s long since settled and disposed of.

You have --

Mr. Richard Gladstein: I’ll turn away from that.

Chief Justice Warren E. Burger: -- you have used most of your time and you haven’t yet suggested any --

Mr. Richard Gladstein: I’m sorry.

Chief Justice Warren E. Burger: -- reasons why for example United States against Kapp doesn’t apply if we have to overrule Douds we’d have to overrule Kapp also, wouldn’t we?

Mr. Richard Gladstein: I’m sorry.

No, I think that the basic distinction between those cases and this is that those are cases that deal with money transaction.

We are talking here about a statute that involves the political liberties of the individual.

We are talking about rights of the caliber that the First Amendment protects rights that are embraced within the provision that prohibits the passing.

Absolutely prohibits the passing of bills of attainder.

I do not think that this Court’s decisions can possibly equate cases like the Kapp, those decisions which we treat in our brief at all with what this Court again and again has said to be rights that are enshrined.

I didn’t realize that I was taking up so much time and I’m sorry about that.

But I’d better make my points rather fast.

This case I think is controlled by Brown, United States against Brown.

The statute as we took pains to show in our brief by calling from the Government’s brief in Brown.

There the Government argued that 9 (h) and 504 were enacted to serve the same purpose, same substance, only the little difference in form and they were pains to show that the force exerted by 9 (h) was just as forceful just as effective just as punitive as 504.

If that was true then it’s equally true today, 504, I submit is controlling Dennis for the reasons I -- I’m sorry I took so much time to try to develop without a success would not on the facts of these case warrant or would not justify the Court in preventing Bryson from being hurt and moreover, in any event there are the post conviction statutes which entitle him by congressional enactment.

Chief Justice Warren E. Burger: Mr. Beytagh.

Argument of Francis X. Beytagh, Jr.

Mr. Francis X. Beytagh, Jr.: Mr. Chief Justice and may it please the Court.

With all respect, the positions of the several parties in this case are something like ships passing in the night.

The counsel started with the proposition that the basic question here is the constitutionality of Section 9 (h) of the Taft-Harley Act repealed some ten years ago and then proceeded to spend, as the Chief Justice and Mr. Justice Stewart pointed out, most of his time seeking it seemed to me to reopen and discuss again the basic underlying facts which have been found against petitioner at his jury trial some 15 years ago.

Now we look at the case somewhat differently.

As we understand it, the basic question here the basic issue that the Court repeals started was faced within principle on which we decided this case as to deal with the question of whether the rational of this Court in Dennis versus United States decided several terms ago applies here.

In short, that rational is simply this.

That one who fains or purports to comply with the law by taking some sort of action that is required by the Government of him but in fact is proceeding falsely or fraudulently in so doing lacks standing when he’s discovered to a fact that fraudulently to challenge the law that he purported to comply with.

That principle was not established in Dennis.

It goes back to earlier cases of this Court such as Kay and Kapp that’s been accepted by every circuit to my knowledge that has considered it.

It simply, it seems to me basic principle of judicial administration.

Any other rule would breed I would suggest disrespect for a law. It would invite avoidance or attempted avoidance of the orderly processes of law when one took it up himself to proceed fraudulently and then said well, yes I did that but it’s justifiable because the statute you see is invalid.

Now as we understand it, principally from petitioner’s brief, he suggests that there are several respects in which Dennis is distinguishable.

He says first that Dennis involved a conspiracy and this case does not.

What’s true as the Court ordered or noted in Dennis.

Some of the petitioners involved in conspiracy they are charged which was conspiracy to defraud the Unites States by doing exactly the same the petitioner did filing false affidavits under Section 9 (h) of Taft-Hartley.

The court noted there that at least some of the petitioners could have been charged under the false statement act that petitioner himself was charged under 18 U.S.C. 1001.

I take it the reason they weren’t, it was because some of the petitioners who allegedly and were found to have engaged in the conspiracy there were not themselves union officers required to file this affidavits, but instead participated with union officers in the conspiracy to file.

We cannot really see that the fact that a conspiracy was charged and was involved in Dennis is a substantial -- it makes that case of substantial difference.

There’s some language in the Court’s opinion in Dennis that refers to the fact of conspiracy but as we understand at that language related basically to a threshold issue in Dennis is to whether the indictment was appropriate there.

And the Court concluded that it was appropriate over strenuous arguments made in the contrary and in the course of that noted that a conspiracy was involved.

Petitioner also notes that the case is now on collateral and not direct review and in that respect differs from Dennis and for some reason that these presents a different situation.

Now, we’re quite aware the increasing breath of the scope for collateral review but we had not thought that we have reached the point where collateral was broader than direct.

And it seems to us that it’s a rather difficult notion to accept that petitioners are in better position with respect to the basic rational on which the Court relied in Dennis.

Individuals involved in Dennis because he is now on collateral and not on direct.

Petitioner also suggests and has argued in great length that his facts are different than the facts in Dennis.

Well, frankly we don’t quite understand that and his brief he relies extensively on affidavit that he filed on a later collateral proceeding and here he is noted that Mr. Bryson terminated all relationship with the Communist Party in 1947, at least in his view.

Now of course that was one of the issues that jury had to resolve and has not indicated that the jury resolve that against him.

In so far as he seeks to reopen and re-litigate those facts, it seems to us that’s not an appropriate question presented in this Court.

Question of supposed ambiguity of the notion of affiliation is also raised by petitioner.

There may well be contacts in which the notion of affiliation with the Communist Party or some other organizations would be a difficult and dubious thing to present to a jury.

But as Mr. Justice Stewart noted in the context here under a very narrow and limiting instruction which is set out in the Government’s brief which followed and was confirmed by this Court’s decision in Killian case pages 6 and 7 of the Government’s brief note 5 we set out the basic construction.

The jury was told that in order for petitioner to have been affiliated with the Communist party, he must have been a member and everything but name.

And as the Chief Justice has indicated, the facts as developed for the jury trial indicated that various incidence from the evidence are related which indicated that petitioner had continued to maintain at least some connection with the party, connection in the sense that a jury could find that he was affiliated with the party when he filed a false affidavit in 1951.

I think that any analysis of the Dennis opinion makes it rather clear that it’s difficult if not impossible for petitioner to say that the Court of Appeals erred in concluding the Dennis was controlling here.

Dennis said petitioners are in no position to attack the constitutionality of Section 9 (h) because they sought to circumvent the statute not to challenge it.

Ways are open to challenge the validity of statutes like Section 9 (h) of Taft-Hartley.

It was challenged in the Douds case but it was upheld as we indicate and as the facts before the Court of Appeals indicated a number of union members after the passage of union officers after the passage of Section 9 (h) who were members of the Communist Party determined that the best course of action was for them to formally disassociate themselves with the party and then file when and if necessary those affidavits that Section 9 (h) required.

As the facts also indicate here in 1958 jurisdictional dispute of rules in the union that petitioner was president of and petitioner then took it upon himself to file this affidavit that jury found to be false.

Douds was decided in 1950.

This was -- his affidavit was filed of less than a year later.

I think that the situation is not at all dissimilar from that of the Court referred to in Dennis.

In Dennis, the Court said that in view of these circumstances what petitioners there did was to flout, not simply to overlook the law.

The Court in Dennis further noted that there are appropriated and inappropriate ways to challenge the validity of a statute.

And that even though in some circumstances it may be necessary to violate a statute in order to challenge its constitutionality that a person who fains to comply with it, who purports to act consistent with it cannot then later be heard to challenge it when he has discovered have acted fraudulently.

It seems to me that there --

Unknown Speaker: Let me see if I understand your argument in --

Mr. Francis X. Beytagh, Jr.: Yes, You Honor.

Unknown Speaker: As I understand what you’re saying.

But when a commits perjury where a statute requires that perjury be both be made, that if that statute is itself void he is barred from raising a question.

Mr. Francis X. Beytagh, Jr.: The only thing that I would say yes with the exception of your use of the term “void”, Your Honor.

Unknown Speaker: Well, that is -- isn’t that the challenge he is making?

It is unconstitutional?

Mr. Francis X. Beytagh, Jr.: Well, he is seeking to challenge Section 9 (h) that has not been held unconstitutional but it was --

Unknown Speaker: But it has not been held unconstitutional but he is challenging it as unconstitutional.

Mr. Francis X. Beytagh, Jr.: That’s correct.

Unknown Speaker: As I understand what you’re saying is when a man has come forth to swear something under a law which is unconstitutional, he is barred from raising the question of that constitutionality when he is prosecute for perjury.

Mr. Francis X. Beytagh, Jr.: Well, Your Honor, you say he is forced to take some action --

Unknown Speaker: Well, that’s a statute, that’s a statute.

Mr. Francis X. Beytagh, Jr.: Yes.

Unknown Speaker: The statute said they had to do it, didn’t he?

Mr. Francis X. Beytagh, Jr.: That’s correct.

Unknown Speaker: And he had to do it as I understand that you’re saying that he will know that statute is unconstitutional, therefore has always understood it with no effect.

You could prosecute -- he is bar from raising the question when he is charged with perjury.

Well, I --

Mr. Francis X. Beytagh, Jr.: With all respects Your Honor I don’t think the statute is of simply no effect.

Unknown Speaker: Well, if suppose it’s unconstitutional?

Mr. Francis X. Beytagh, Jr.: That’s a judgment of course this Court has to make.

The Court has already passed.

Unknown Speaker: But you say it can’t make it.

This man can’t raise it?

Mr. Francis X. Beytagh, Jr.: It can’t make it at the instance of this particular individual because what he has sought is to [Voice Overlap] support the legal process.

Unknown Speaker: Well, it depends if he is the one that’s called in the bench.

Mr. Francis X. Beytagh, Jr.: But he had ways available to him.

Unknown Speaker: He had.

Mr. Francis X. Beytagh, Jr.: Just as --

Unknown Speaker: That other way also but how can the Government in good faith and good conscience and in not in fraud tempt to prosecute him for perjury under statute which why the oath that he is charged with it perjuring himself on is unconstitutional?

For me, like the Government is more fraud there than he is?

Chief Justice Warren E. Burger: Isn’t the answer to that in part at least to counsel that if you answer questions of the Government you make an election.

You may elect not to answer at all and challenge the constitutionality of the statue by that course.

But if you answer you must answer truthfully or take the penalties of perjury?

Mr. Francis X. Beytagh, Jr.: That’s correct.

Chief Justice Warren E. Burger: That’s what this Court’s held, hasn’t it?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor and there were ways --

Unknown Speaker: Which case did --

Mr. Francis X. Beytagh, Jr.: Our ways are open to.

Unknown Speaker: Which case did it hold it in?

Mr. Francis X. Beytagh, Jr.: The Court has held this Your Honor.

Unknown Speaker: Which case did it hold that in?

Mr. Francis X. Beytagh, Jr.: In the Kapp case, in the Kay case, and in the Dennis case.

Unknown Speaker: Which Dennis case?

Mr. Francis X. Beytagh, Jr.: The one decided three terms ago in 384 U.S. 855, Your Honor.

Unknown Speaker: Well, your point is counsel isn’t it at least I thought it was that it doesn’t make any difference whether the statute is unconstitutional?

Mr. Francis X. Beytagh, Jr.: No, I really don’t think it makes any difference.

Unknown Speaker: Well, isn’t that what you say Dennis holds that it just doesn’t make any difference even if the statute is unconstitutional?

Mr. Francis X. Beytagh, Jr.: Well, in one of the cases that we refer to, I believe it’s the Kapp case.

Agricultural Adjustment Act had already been held unconstitutional.

Unknown Speaker: That’s right.

Mr. Francis X. Beytagh, Jr.: The Court still applied this principle.

Unknown Speaker: As I read your brief you say it doesn’t make if whichever way the constitutional question is decided is conviction for making a false statement withstand.

Mr. Francis X. Beytagh, Jr.: That’s correct.

But --

Unknown Speaker: But that’s maybe for the no standing, isn’t it rather than [Voice Overlap]?

Mr. Francis X. Beytagh, Jr.: Right.

Right but I’m suggesting that in the circumstances here, we don’t have even that extreme situation because as the situation exists right now that statute was upheld in Douds.

Unknown Speaker: Well, that’s going beyond Dennis.

Mr. Francis X. Beytagh, Jr.: Well, that’s one way of looking at it.

That it’s not even reaching the problem presented if you assume the unconstitutionality.

Unknown Speaker: Or are there any cases around here that you know of that supports your -- this present theory of standing because he really was a bad fellow, he has to have standing to raise this argument?

Mr. Francis X. Beytagh, Jr.: I didn’t think I was suggesting that it’s because he was a bad fellow.

Unknown Speaker: Well, it’s the way it sounded to me.

Mr. Francis X. Beytagh, Jr.: It simply that he violated the False Statement Act and that’s what he was charged of violating and that’s what he was convicted, having --

Unknown Speaker: And because he told a lie he shouldn’t be able to challenge the constitutionality of the statute?

Mr. Francis X. Beytagh, Jr.: Well, because he purported to comply with the statute.

Now he is seeking to turn around what he is caught in complying with it in a fraudulent manner.

Unknown Speaker: Well, would you make that argument if it were really true and that statute run if it would make a difference under the false statement statute, whether the statute was unconstitutional or not.

Would you still make this standing argument?

Mr. Francis X. Beytagh, Jr.: I’m not sure that I understand.

I agree with you that it doesn’t matter whether the statute is unconstitutional or not.

So --

Justice Potter Stewart: Well, assume that it did make a difference, whether the statute was constitutional or not?

Would you say that he would be barred from raising the constitutional question just because he told a lie?

Mr. Francis X. Beytagh, Jr.: No, but I think that’s an entirely different situation.

And that’s the situation that we had in Dennis and the situation here don’t involve it.

Dennis stated in conclusion, the governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary deliberate and calculated course of fraud and deceit.

One who elects such a course as a means of self-help may not escape the consequences by urging the misconduct, the excuse because the statute which he sought to obeyed is unconstitutional.

As I’ve indicated, the Government feels that there are policy considerations that support the rational of Denis as well.

If the law were otherwise, it seems to me it would be but an open invitation to individuals to seek to circumvent a law but according to comply with it, in the course of which they would commit a violation of the statute such as the False Statement Act.

Unknown Speaker: Mr. Beytagh, the conviction in this case was for violation of what Titled 18 Section 1001?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

Unknown Speaker: Alright, which is not itself 9 (h)?

Mr. Francis X. Beytagh, Jr.: That’s correct.

As I pointed out earlier that the charge here was not that the petitioner had violated the very statute he seeks to challenge is unconstitutional but in the course of purporting to comply with statute which he now says is unconstitutional.

He violated a general statute applicable to a variety of circumstances by falling -- filing a false affidavit.

Our analogy is that exists in the law apart from Dennis and Kay and Kapp.

It’s long been established, this Court held in the Williams case the one who takes the stand and commits perjury in the course of a prosecution later held invalid can be tried for that perjury.

Moreover, the Government needs statutes like Section 1001 in order to fulfill its varied obligations of obtaining information in order to carryout a variety of programs.

Unknown Speaker: But you are assuming that, that would apply to all kinds of case this was reference to false statement?

You said in order to obtain this necessary information.

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor

Unknown Speaker: First Amendment has some rights in the Constitution, didn’t it?

Submit and bestow some rights on the people?

Mr. Francis X. Beytagh, Jr.: Of course, Your Honor.

Unknown Speaker: With reference to exposing their political views?

Mr. Francis X. Beytagh, Jr.: Well, this --

Unknown Speaker: Compelling them to have one political view rather than another?

Mr. Francis X. Beytagh, Jr.: What we are maintaining Your Honor is --

Unknown Speaker: What was this oath about?

Mr. Francis X. Beytagh, Jr.: In order to be a member.

In order to hold office in the union under the statute that’s been repealed some 10 years ago.

An officer had to file an affidavit to the effect that he did not support the Communist Party.

He was neither a member nor affiliated with the Communist Party.

The purpose of Congress in enacting that provision is what counsel has indicated --

Unknown Speaker: Suppose he had to make an oath that he was not affiliated with the Republican Party and had not cast the vote for it?

Mr. Francis X. Beytagh, Jr.: Well, I want to be --

Unknown Speaker: Will that be required of him?

Mr. Francis X. Beytagh, Jr.: I would have more difficulty with that Your Honor in light of the --

Unknown Speaker: Why would you?

Mr. Francis X. Beytagh, Jr.: Because the Congress --

Unknown Speaker: It was political.

Mr. Francis X. Beytagh, Jr.: Because the Congress made a number of findings on which it premised its legislative judgment here regarding the nature of the Communist --

Unknown Speaker: But, Congress has made any findings yet that’s for them to concern for justifying and interfering with the man’s political faith in view of the First Amendment, and has -- could not make any violation in my judgment.

What he is trying to do is to challenge prosecuting him from making that statement?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

Am I suggesting that there were ways that he could have properly proceeded to challenge its law but he didn’t do that.

Instead he filed his affidavit which purported to comply with, which the jury found was false.

Unknown Speaker: You were trying him for making on his ground.

You are trying him for making a statement which could not be required of him constitutionally under the law, and you want to prosecute him.

Mr. Francis X. Beytagh, Jr.: Well, again Your Honor in the Douds case, the Court held that --

Unknown Speaker: Which Douds?

Mr. Francis X. Beytagh, Jr.: American Communications Association versus Douds decided in 1950 just prior to the filing of this false affidavit held that the statue Section 9 (h) was valid and was constitutional.

Unknown Speaker: Do you have to stand on Douds?

Mr. Francis X. Beytagh, Jr.: No, we don’t have to stand on Douds Your Honor.

We --

Unknown Speaker: I should think, I wouldn’t want to per se.

Mr. Francis X. Beytagh, Jr.: Well, we suggest in our brief that there are ways of distinguishing the Court’s holding in Brown which held the successor statute Section 504 Bland and Griffin invalid.

Whereas of distinguishing Brown --

Unknown Speaker: But isn’t your basic proposition Mr. Beytagh, even if Douds was wrong, even if Douds ought to be overruled nevertheless, that’s not the issue that’s involved here.

The issue here is whether 9 (h) is constitutional or not?

Even if it was unconstitutional, we’re dealing with an indictment under the different statute?

Mr. Francis X. Beytagh, Jr.: That’s correct.

Unknown Speaker: Is that a basic proposition?

I just wonder why you argue should depend on Douds you don’t have to do that.

Mr. Francis X. Beytagh, Jr.: Well, I’m seeking to respond to Mr. Justice Black’s inquiry.

We’re not willing to concede that Douds has been overruled.

[Voice Overlap] I would try to rely on the elaboration in our brief far over than anymore at all argument?

Unknown Speaker: You’re the one that mentioned Douds.

I wasn’t the one who mentioned Douds.[Laughter]

Mr. Francis X. Beytagh, Jr.: But you’re the one who mentioned that the statute was unconstitutional and I suggested that the Court --

Unknown Speaker: Well, you are the one that mentioned Douds and that’s what you have --[Laughter]

Mr. Francis X. Beytagh, Jr.: But Douds --

Unknown Speaker: Now you have to defend it.

Mr. Francis X. Beytagh, Jr.: But Douds was the case that held to the contrary of your sub-position Your Honor.

As Mr. Justice White and Mr. Justice Brennan have suggested, we feel that petitioner’s convictions should be upheld regardless of whether the Court feels that Douds should be reach de novo rule here or not.

Section 9 (h) is no longer on the books.

It hasn’t been for 10 years.

Petitioner is asking this Court to reach back and hold unconstitutional statute that Congress itself has repealed some 10 years ago.

Petitioner also is asking the Court as we understand it to apply the decision in United States versus Brown retroactively.

He is not suggesting any compelling reasons for doing so but it seems too soon that that’s been done.

Moreover, statutes that are enacted and later held invalid or repeal, do have as the Court held in the Chicot County Drainage District case and has held over and over again.

They do have an operative effect and they are of some significance for the time that there are in existence?

It seems to us that as Mr. Justice Brennan pointed out since there simply is no element of the separate crime of violating 18 U.S.C. 1001, the False Statement Act involved in the matter relating to the validity of Section 9 (h) that petitioner is conviction is a valid one and should be upheld basically has been indicated.

We stand on the Dennis rational and we suggest to the Court that the Court of Appeals properly conclude the Dennis controlled here unless this Court is willing to overrule Dennis.

We think that petitioner’s conviction was properly upheld below and the judgment of the Court of Appeals should be affirmed.

Unknown Speaker: Are you arguing in the -- that Dennis case should be overruled?

Mr. Francis X. Beytagh, Jr.: Of course not, Your Honor.

Unknown Speaker: That his contention is still wrong?

Mr. Francis X. Beytagh, Jr.: I suggested Your Honor that even if the Dennis case is overruled there are circumstances in this particular situation here which it seems to me don’t warrant the court’s exercise of its power to reach these questions that is raised here.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Beytagh.

Mr. Gladstein you have three minutes left.

Rebuttal of Richard Gladstein

Mr. Richard Gladstein: Your Honor, well I thought I have used all my time?

Chief Justice Warren E. Burger: You have three minutes.

Mr. Richard Gladstein: I’ll try to take less.

I think the basic inquiry that I sensed here I hope in our brief, that inquiry is this.

Does Congress have to pay attention to the Constitution of the United States?

Congress makes the laws.

It has a right to make laws of general application. It has the right and it does have a duty to pass those laws.

They’ve got to be general laws.

What right does Congress have at anytime under any Government --

Chief Justice Warren E. Burger: Well, couldn’t you test --- couldn’t you test out the constitutionality of all those things when you were trying this case, 15 years ago?

And weren’t they passed on?

Mr. Richard Gladstein: Well, I can’t recall Your Honor whether they were all presented.

I’m sure they were.

I’m sure they were all rejected in the District Court and in the Court of Appeals.

It never were heard here.

This Court never granted the position for certiorari.

Congress passed along that we suggest clearly violated the prohibition against bills of attainder.

Now, if that’s true.

If that law is unconstitutional or for other reasons, First and Fifth Amendments which we argued then it seems to me the threshold inquiry is where you stop to the minute you determine that Congress has offended the Constitution.

If that’s true than Congress’ enactment should be nullified and it doesn’t matter at all what the citizen is required to do under the coercion of unconstitutional statute.

It was suggested that suppose Congress did this to the Republican Party and counsel said he’d have more trouble.

But supposing it is a Socialist Party.

Mr. Justice Jackson in the Douds case have -- have no trouble saying that the Congress can’t do this with the Republican Party of the Democratic Party or the Socialist Party.

We know from history that the Socialists were expelled after being lawfully elected to the New York legislature.

Congress has no more right and the States have no more right to pass a bill that lumps all of the people in a political group no matter what there opinions are and precisely because they’re unorthodox, hated, unpopular, precisely those are entitled to the protections of the bill of attainder in the First Amendment and it must have been for those reasons that the framers of the Constitution put those provisions.

Justice John M. Harlan: Are all that Congress has done in years you say is -- are dealing with the Government and a like?

Mr. Richard Gladstein: No, Your Honor is talking about Section 1001.

But this case is based upon the underlying statute of 9 (h).

Without Section 9 (h) or some other Section of law, without some other Section of law, 1001 has no meaning in itself.

Congress can’t just pass a law saying answering any question that anybody ever asked you, you must be connected to some power that Congress has.

In this case, utilizing the commerce power or purporting to do so, Congress passed Section 9 (h) and then it simply used as an alternative method of permitting prosecution or enforcement, the use of 1001.

It could just as easily have put such a provision in 9 (h).

It does it all the time.

Justice John M. Harlan: I don’t think that’s actually the way I’m looking at.

Mr. Richard Gladstein: Why, Your Honor?

Justice John M. Harlan: All that the Congress has done here is to say irrespective of whether to translate it a little bit.

Irrespective of whether what they did in Section 9 (h) is good or bad.

If you’re living with the Government, you cannot lie to the Government as a means of avoiding Section 9 (h).

If you want to attack it, go and attack it the other way.

Mr. Richard Gladstein: I suggest that the more basic question is that when dealing with its citizens, Congress has no right to enact the statute which deprives them of their constitutional liberties particularly in the field of politics.

Unknown Speaker: May I ask you one other question as you heard my brother Harlan suggests.

Suppose Congress passes a series of laws, as it might well do in some time making you apply all the kinds of relief with reference to your political leads and persuasions and what you’ve done, is the man then to be denied the privilege of challenging at law on the ground that he lied?

Mr. Richard Gladstein: That’s what they say and if this Court should ever close its doors in that kind of a situation, then the Constitution would have lost its vitality for many, many people in the country.

Justice John M. Harlan: I think it’s pretty broad statement.

That would suppose the Government’s position would be the same on Mr. Justice Black’s hypothetical?

It passes the law, it violates the First Amendment and the prosecution is lying about to an agency that has jurisdiction whether it’s a Republican Party, the Democratic Party, the Communist Party or anything else.

Congress has long been inspiring doing it.

Mr. Richard Gladstein: Mr. Justice Harlan haven’t you assumed part of -- in your statement when you said an agency that has jurisdiction --

Justice John M. Harlan: Well, I was thinking jurisdiction in the broad sense punitive, colorable jurisdiction --

Mr. Richard Gladstein: Well, it is my contention that there just isn’t any jurisdiction if the statute upon which power is being exerted is itself violated with the Constitution.

Unknown Speaker: May I suggest to you that if Congress can do that whenever it gets heated up over some political question, it has a way to set millions of traps for citizens who ought not to be convicted?

Mr. Richard Gladstein: All that history shows that the bills of attainder in England and in the colonies were precisely used and that’s the one distinguishing feature about them.

They were all politically inspired and utilized against political groups.

Chief Justice Warren E. Burger: Is there anything Mr. Gladstein in any of these hypothetical situations that you have suggested that would prevent a citizen from challenging the constitutionality on First Amendment grounds or any other grounds when he refused to comply with the law, anything at all?

Mr. Richard Gladstein: Well, this Court has reviewed cases of both types in Unites States against Brown to show their unconstitutionality, but here of course, we’re told by counsel that a year before my client filed the affidavit, this Court had held that 9 (h) was constitutional.

Chief Justice Warren E. Burger: Fine.

Thank you.

Mr. Gladstein and Mr. Beytagh, we thank you for your submission.

The case is submitted.