Earl Warren: 399, United States, Petitioner, versus Archie Brown. Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. This criminal case here on certiorari to the Court of Appeals for the Ninth Circuit involves the constitutionality of Section 504 of the Labor Management Reporting and the Disclosure Act of 1959. On Section 504, it's reprinted at page 2 of the government's brief. The relevant parts of it read, “No person who is or has been a member of the Communist Party or who has been convicted of a series of major crimes shall serve as an officer, director, trustee, member of any executive board or similar governing body or as various paid employees of any labor organization during or for five years after the termination of his membership in the Communist Party or where it involved his conviction of any of those crimes. Violation of this section is punishable by a fine or imprisonment. And where it is to the background of Section 504 seems relevant. Now, taken as a whole, it was enacted as part of a rather comprehensive view -- review of the National Labor Policy, but a review concerned primarily with abuses in the direction of labor unions and the management of their internal affairs. In the main and again taken in general, now Section 504 resulted from evidence before the McLachlan Investigating Committee which showed that a number of unions had admitted criminal elements into office of the other important paid positions for improper and often criminal purposes to the injury both of the union members and the general public. A part of the remedy Congress concluded was to prohibit convicted criminals for a period of time from holding union office or from holding important paid positions. When I say for a shorthand union office, I don't mean to exclude the others in the string but that's a convenient way to express myself. Now, we're not concerned immediately with convictions of crime. Here, we're concerned with membership in the Communist Party.
Arthur J. Goldberg: Mr. Solicitor General, in this respect the statute as you have now described it is different. We don't have the statute before us which would say that a union officer was convicted for example for violating the Smith Act isn't eligible to serving.
Archibald Cox: No. Indeed -- indeed I believe that isn't one of the crimes listed. Now, this is simply one who is a member of the Communist Party. At the same time, Congress was dealing with the problem of criminals in important positions in labor unions. It reviewed the parallel problem although a somewhat different problem of permitting the Communist Party from taking over positions of power in labor unions also to the injury of union members and the general public. In 1959, as you will recall, the existing law was Section 9 (h) of the Taft-Hartley Act. Now, the statute upheld that American Communications Workers against Douds. Section 9 (a) which was designed to serve the purpose I've mentioned prohibited -- provided that no labor organization should enjoy the use of the facilities of the National Labor Relations Board, unless they were on file affidavits from all its officers to the effect that at the time of making the affidavit they were not members of the Communist Party. And this supplied generally to every officer of every union that wished to take a case before the National Labor Relations Board. In the 10 or 11 years since the enactment of Section 9(a), it had proved faulty for a number of reasons. For one thing on its face, it was an obvious upfront to union officers whose loyalty was unquestioned. It had proved burdensome and unworkable in other respects that I'll outline further on my argument. Accordingly, what Congress did in the Labor Management Reporting and Disclosure Act was to repeal Section 9(h) and substitute the provisions of Section 504 which forbid of -- members of the Communist Party to be officers of labor unions. Now, in the present case, I must emphasize, that we deal only with the prohibition against holding union office and being a member of the Communist Party after the enactment of Section 504 and that one and the same time, the statute has a broader reach in some respect but the evidence at respondent's trial showed very plainly that he was not only a member but a rather active functionary of the Communist Party while he was serving on the Executive Board of Local 10 of the International Longshoreman and Warehouse Worker's Union, and that those events did take place after the enactment of the statute. It's indeed the indictment covering years after the enactment of the statute.
Arthur J. Goldberg: Mr. Solicitor General, can we just pause for a moment on that and see if I read the record correctly. The respondent here, Brown, was an admitted Communist as you have said and participated in its appearance. He was an open Communist. On the other hand, if you say functionary, it is correct, is it not, that he was a working longshoreman --
Archibald Cox: Oh yes, yes.
Arthur J. Goldberg: -- and he was not a functionary in the sense that --
Archibald Cox: No. As I implied that, I was -- I was mistaken.
Arthur J. Goldberg: Yes.
Archibald Cox: Indeed the fact that he was a member is to be taken into account. My case in no way turns under degree of his activity. I guess that was just a little argumentation --
Arthur J. Goldberg: Well, he was -- he was a functionary.
Archibald Cox: Yes. But I don't think our case would be any different. I don't really suggest there any legal consequences turn on that. But the point I am seeking to emphasize is that this is not an instance in which the defendant was indicted for serving as an officer of a labor union because he had been a member of the Communist Party in 1958 and had ceased being a member of the Communist Party. Or even in 1962 and had ceased before coming a union officer being a member of the Communist Party. Here, he was doing both at one in the same time.
Arthur J. Goldberg: Although the statute –
Archibald Cox: The statute -- the statute is broader but I submit that the two questions are clearly separable. And I direct myself only to the question we have here. On the evidence, respondent was convicted. He appealed in the Ninth Circuit. The Ninth Circuit held by a divided both that Section 504 as applied to Communist Party membership is unconstitutional. And since the validity of an Act of the Congress is involved, we brought the case here. As I understand it, there are three issues submitted to the Court in the briefs of the parties. One is whether Section 504 violates the First Amendment because it infringes the rights of freedom of speech and freedom of association. Another claim made by the respondent is that Section 504 violates the Fifth Amendment under some of the reasoning in the Scales and Noto cases. And then a third issue raised by respondent is that this statute is an ex post facto law and the bill of attainder. The real issue, the troublesome issue is whether the statute violates the First Amendment. The other two seemed to me really to be quite simple. Indeed the argument that this bill of attainder or ex post facto law I think is frivolous. At the outset therefore, I shall direct myself to the issue of pre -- freedom of speech and freedom of association and deal with the latter points on the labor. In dealing with the issue whether the statute violates the First Amendment, I want to emphasize at the outset two propositions which I think are incontrovertible. The first is that absent the limitations imposed by the Bill of Rights, Section 504 would plainly be a valid exercise of the power of Congress to regulate interstate commerce. Having chosen to support and promote collective bargaining as a means of encouraging the free flow of commerce and protecting the rights of employees, Congress was certainly entitled to take steps to prevent abuse of the power thus conferred on the union by limiting the likelihood that their energies would be diverted away from any normal trade union purposes to the disadvantage of the public and to the disadvantage of union members. To give one specific illustration that it's only one, the exclusion of members of the Communist Party from office in labor unions is a way of reducing the likelihood of political strikes which would not only disrupt commerce, interfere with the public welfare, but also cause losses to union members without any commensurate hope of economic benefits and might well weaken and destroy the unions and impair their ability to perform the functions that the National Labor Policy gives. The interest in that diversion of union energy, as we say, and the resulting injuries to the public and to the union members certainly matters within the legitimate scope of governmental concern, the legitimate scope of legislative concern. I should also emphasize in this connection that there's nothing noble about the approach of Section 504 although of course as we shall see in a moment it comes closer to affecting freedom of speech and freedom of association than it's analyzed. But the principle that a man shall not serve two masters or attempt to serve two masters, is a very old one. The common law recognized the evil in man's occupying dual positions in which they would be subject to conflicting loyalties. The United States Code is for all instances in which government officials are forbidden to hold interest in private enterprises with which they may have to deal, the provision outlying interlocking directorates is a familiar one and the Board of Governors against Agnew this Court had before it a provision forbidding a partner or employee of an investment banking house from serving as an officer or director of a federal reserve bank. This is in other words a rather familiar technique and here in effect what Congress has done is the same thing. It is said that a man shall not or while he's a member of the Communist Party and therefore presumably subject to loyalty to it and perhaps to its discipline at the same time hold office in a labor union where he may be disabled because of those conflicting loyalties from performing his obligations to the union members and to the public faithfully and wholeheartedly.
Earl Warren: (Inaudible) suppose the Communists held hearings and made a finding that the activities of the Ku Klux Klan against the Negroes were a burden on commerce and were interfering with rights of Negroes to work, opportunities for Negroes to work. And would stir up labor strike, could -- could they have made that finding and included them in with the Communist Party and would you say it was valid?
Archibald Cox: If there were a parallel in the history of our industrial relations, they parallel in the evidence that was available, then I would think that there would be one and only one important difference and that is that this Court has repeatedly recognized that the Communist Party is different from most other organization that it is subject to domination by a power and that this greatly increases many of the threats that it presents. Whether that would be a decisive difference I don't mean to say but I think it's a difference in our favor in this case. I would also doubt, Mr. Chief Justice, so I confess I don't know the evidence whether the record of history would be as persuasive on that point in terms of effect through labor unions as the evidence dealing with the Communist Party because I don't believe that there is any evidence that the Ku Klux Klan has engaged in its activities through labor unions. And I would think therefore that a law forbidding members of the Klan from being officers of labor unions came much closer to being a penalty, a sanction than a prophylactic measure directed at future dangers which is what we think this statute is.
Hugo L. Black: Suppose the state would define as members of the NAACP could not be members of the -- of a labor union. What would you say then?
Archibald Cox: Well --
Hugo L. Black: And they made -- and they made findings, broad findings.
Archibald Cox: Well, I think this Court is entitled especially in a case involving freedom of association to scrutinize the findings and determine whether they have some rational basis. We say here that history supplies and I will relate some of them, a very clear foundation for the congressional conclusion that the occupancy of these dual position does carry a threat to commerce, to union members and to the national welfare. I should emphasize too or also perhaps I stick too much of the word, Your Honor, here that this statute unlike the one you just posed does not forbid members of the Communist Party to be members of a labor union. It does not forbid them to be -- employment or it does not forbid them some paid positions in labor unions also they're only declarative one. This is a rather limited restriction that was the second part that I wanted to emphasize in the beginning.
Hugo L. Black: Do you think that would make the Constitution different?
Archibald Cox: I would think that each -- I would think, yes. I would think that the extent of the prohibition if you broaden it from the holding of union office to being a member of a labor union at all, you are extending the sanction, the prohibition, the regulation, a great deal further than if it has confined the union office. You also apply it to positions which may or may not be positions of potential influence. A union officer and certain paid officials of labor unions, paid employees like organizers, international representatives have far more power than the ordinary union member. And I think all these must be taken into account. The point that I wanted to emphasize indeed, part of which I have made an answer to Mr. Justice Black is that Section 504 does not prohibit the holding or expression of any views or call for the censoring of speech or publication. It does not outlaw any organizational activity or association not even the activities of the Communist Party. It touches, and this is the point I was making before, a very limited class of persons only those who wish to be officers or paid employees of a labor union. And all it does with respect to those persons is put them to a choice. They may join the Communist Party. They may engage in all its activities so far as this statute is concerned, all its lawful activities so far as any statute is concerned or they may be officers of labor unions. The only thing that it is prohibited is occupying both positions.
Earl Warren: Although not all the cost, it goes much farther than that you might apply your argument only to the facts of this case but the statute does go much farther than that. It says that if a man -- if a man has been a member of the Communist Party he is disqualified from this kind of employment for five years --
Archibald Cox: For five years --
Earl Warren: After -- after he withdrew the exit.
Archibald Cox: Well, I think if we have that --
Earl Warren: If you put it on the basis in what he's -- what he's doing, it seems to me that your statute is -- is far too broad for that.
Archibald Cox: Well, I would submit, Your Honor, that this is a statute where the -- its validity must be judged as applied in this case. But this is not a situation in which the validity of all the provisions of Section 504, as however applied, are before the Court. Now I think the difference is this that where -- that the question that we ultimately come down to here is whether the evil that Congress was seeking to remedy, to prevent the rising is sufficiently great to justify this restriction incidental partial abridgment as the Court called it in Douds as collateral restriction on freedom of speech or association is too great to be justified by the evil within the legitimate congressional concern that Congress was trying to remedy. There is a difference clearly between the cases that Your Honor calls my attention to and the present case. One who is presently a member of the Communist Party at the time he wants to be a union officer is if I may put it in these terms, a far worst risk. The likelihood that he will submit to Communist discipline, the likelihood that he feels a loyalty to the party and consistent with his faithful performance of his duties as a union officer is clearly greater than in the case of one who has been a member of the Communist Party and has bonafidely left the party.
Earl Warren: Well, is there in your opinion a constitutional difference between those two?
Archibald Cox: Yes sir, because I think that the constitutional issue turns here on the degree of the risk created by the man's being an officer of a labor union. If he simply was an officer of the labor union in the past, all we know is that one time he felt some loyalty to perhaps one should say some of the things the Communist Party was doing particularly if you carry far in effect in -- in time. He is nowhere near as bad a risk as a person who is presently a member of the Communist Party. Now, I don't --
Earl Warren: Then believing -- then believing as you do that there is a constitutional difference, now do you believe that if we held with you in this particular case that there would be an implication that the other portion of it was also in accordance with the --
Archibald Cox: Well, I wound think that would depend on how the opinion was written. I am arguing that the only case before the Court is this case. And I am not asking the Court to decide anything about the other provisions of the statute especially those relating to past membership of the Communist Party. I think that --
Earl Warren: But that's what you neither nor do you wish to express the opinion on the other?
Archibald Cox: Well, Your Honor my -- my duty of course in all of these cases of acts of Congress is to defend them. That hardly has any choice of the matter I think where Congress has acted.
Earl Warren: We -- we go rather -- we go rather far, don't we in hypotheticals, in -- in arguments here before the Court both counsel and ourselves do that and isn't it reasonable for the Court to ask how far this would carry us, if we did --
Archibald Cox: Well, I'm quite and -- and I'm sorry I thought I had been responsive. I do not think that upholding our contention in this case would carry you to sustaining or indicating in anyway the validity of the statute with respect to someone who was not a member of the Communist Party at the time he held the violation of the statute -- the -- held the union office in violation of the statute. No, I meant to be perfectly unequivocal about that Your Honor.
Earl Warren: That's what I want to know.
Archibald Cox: And the case it isn't here because of my position. I prefer not to express a personal opinion of it. I certainly can't express an official opinion which is unconstitutional.
Hugo L. Black: You just mentioned the Douds case, unless I misread that too. The argument was made there and the Court held that because the abridgment was so small, it didn't provide for imprisonment of the man who had been a Communist among other things. This one does provide imprisonment, does it not?
Archibald Cox: Provides for imprisonment of a man who violates the statute, yes. There is this --
Hugo L. Black: And that's -- that's because he has been a member of the Communist Party and was also an officer in the union.
Archibald Cox: If that's because he is a member of the Communist Party and an officer of the union in this case at one and the same time (Voice Overlap) and that's the prohibited act.
Hugo L. Black: Am I wrong? Do you -- don't you read Douds as pointing out, very carefully and precisely sure that they were not holding that that it could ever be measured a crime to belong to the Communist Party.
Archibald Cox: Oh! I'm sure they didn't hold that nor we're making any such contention.
Hugo L. Black: Did they -- did they not point that out?
Archibald Cox: It was pointed out in Douds. It was pointed out subsequently by Mr. Justice Goldberg in Aptheker that the statute in Douds was not an absolute prohibition against being a member of the Communist Party and a union officer at one and the same time. And in this respect, the statutes are clearly distinguishable. I'm going to argue as I get a little farther on. I think it comes better than if I may. That when you take the net effect on individual rights, on personal right, that this statute might well be viewed as a lesser infringement on the whole than the statute in Douds. And I shall still argue a little bit further on. Before getting there, I want to make a point. That under a line of cases beginning back with United Public Workers against Mitchell, it's been held that an indirect collateral consequential or partial abridgement as it was set in Douds of the freedoms of speech or association resulting from congressional action directed at some evil conduct that the Congress has the right to deal with is not to be judged simply by whether the statute does have some impact upon speech but it is to be judged by whether the incidental impact on speech cannot be justified by the need for a remedy for dealing with some evil within the scope of congressional concern. We think that's established by United Public Workers against Mitchell and the whole line of cases running through Douds, Adler against Board of Education, Garner against the Board of Supervisors in Los Angeles, that the holdings of those cases were recognized in Speiser and Randall, recognized again subsequently in the -- the case involving a lawyer from Konigsberg against State Bar and that one must make this inquiry by this balancing if you will in this case unless a whole line of this Court's precedents are to be overturned. I turn therefore to examine the public interest which Section 504 is designed to secure and that as I've said of course is to prevent persons whose dominant loyalty is to the Communist Party from subverting labor unions to the wishes of a foreign dominated conspiracy. The factual background was elaborately briefed in the Douds case. The Court after reviewing it concluded, Congress had a great mass of material before it which tended to show that Communists had infiltrated union organizations not to support in further trade union objectives including the advocacy of change by democratic means but to make them device by which commerce and industry might be disrupted when the dictates of political policy required such action.
Arthur J. Goldberg: (Inaudible) assuming then that Congress have enacted statute of this kind where Congress hear cases (Inaudible) and although here as I recall it that they have the North America strike and I don't know what -- what else, some testimony about Korea and the (Inaudible). Now, certainly time passes as now time has passed. The defendant in this case did offer proof which was rejected by the District Judge and it is operative proof he offered show that Local 10 of the Longshoremen's Union has never had a political strike. In fact they haven't had any strike in many years at all and they have been cited by the business groups in San Francisco as the example of a union that creates stability and has good labor management relations. The Court excluded that evidence. They did not permit that evidence to go to the jury. Is it your that when Congress makes a finding no matter how dated is the finding may be, and how limited the evidence may be upon which the finding is predicated that that is binding for all times and that a defendant in a criminal case may not come in and say he did not say it in this case, he disputed the finding originally but let's assume he came and say whether there have been any substance to that. But we mended our ways and they don't practice. We don't believe in political strikes, that the congressional finding forecloses judicial review and that a defendant may not have that issue put before the jury.
Archibald Cox: Well, first Your Honor's abstract the question come to this case in a moment. I take it that it's settled that if there has been an apparent radical change in the circumstances that a previous congressional finding is not binding, there the World War I case is dealing like that in the Chastleton Hotel that --
Arthur J. Goldberg: (Voice Overlap)
Archibald Cox: Yes. Second, I would doubt -- so. And I think there's a bit reasonableness of the finding is always open to scrutiny by the Court. Next point, I would doubt very much whether where the question was rather general one of background that this was an item on which the Court is required to take evidence and make findings on the record. It seems to me this kind of constitutional fact is something that the Court determines by methods according to judicial notice rather than by being limited to specific testimony. Here, I would say, that I do not understand that the evidence went so far as to offer the show that the Communist Party had changed its character and that the findings of the Congress with respect to the Communist Party are a good deal more current than the political strikes that had taken place in the past. And that the record over the past would sufficiently continue. It may go farther back but Your Honor we'll recall that at least there was the case of the Garment Workers in New York in mid-1920s which David Dubinsky is described how against the interest of the union. The Communist infiltrators had protracted that strike and almost wiped out the union as well as the industry. So we go on through a series of these things over a period of time. They're very -- they're described better than I can describe them in the various reports of the CIO committees when the seven -- 11 unions were expelled in the early 50s just about 1950 from the CIO. One of those unions of course was CIOWU. And it was specifically characterized as one which did not operate for the benefit of the American worker but subject to the dictates of a foreign conspiracy. So that I don't think this is a case in which it can be said that there is any real reason to suppose that the basic facts available to Congress on which to make up its minded change.
William J. Brennan, Jr.: (Inaudible) with the statute.
Archibald Cox: There was no -- no finding. No.
William J. Brennan, Jr.: Any -- any cons -- any evidence in this to go?
Archibald Cox: They -- in our brief, we've related to evidence before other congressional committees.
William J. Brennan, Jr.: Well, do you think for -- for the purposes of question Mr. Justice Goldberg has put to you that that we're -- if it's before us at all, we decide this in the context with the 1950 findings.
Archibald Cox: Well, I don't think that -- no. I -- I would think that the view was the Court was not bound by any findings or any record before the congressional committee just as congressmen were not bound by those. I submit that all that material, all the action of the CIO, the knowledge of the labor movement and the people who studied the labor movement which is available in literature are all things on the basis of which congressmen were entitled to make up their mind and which this Court is entitled to take into account too.
Tom C. Clark: So they had the same purpose. The Fifth Amendment had the same purpose if that is allowed.
Archibald Cox: Oh yes, it had the same aim (Voice Overlap). Let me -- let me come directly to the changes between 9 (h) and this Act but to just say a transitional word in order to make my point clear. What I am arguing is that this material concerning the record of the Communist Party in labor unions, the whole mass of it shows that this was a very real evil that Communists have subverted labor union, that they have called very damaging strikes and that all one has to do is to consider the consequences of the East Coast Longshoremen's strike, another that we recently experienced, to realize the extent of -- at which Communist domination of the IOWU has been found to conceive of those two facts and the extent to which unions that are Communist-dominated have followed the Communist line and one can see the character of the evil that Congress was concerned with. Now --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Clearly, we're not. I certainly did not mean to imply anything more than the cause. I'm glad Your Honor brought that out. I -- last thing in my mind. Now, it is said that Congress might have dealt with this evil more narrowly and of course if it could have dealt with this evil more narrowly than this statute which admittedly put some pressure on people to give up associations. It may put some pressure on them to refrain to speak would under the test of Aptheker and other cases, I suppose it would be unconstitutional. Here we say simply that there is no effective narrower way of coming at it. Certainly, the weight until a political strike or until a union has been Communist infiltrated is too late. Indeed, it's very difficult to prove and that of course would be out of the bond by that time. Alright --
William O. Douglas: Do they belong to the union?
Archibald Cox: Oh yes. They can be union members and they can have jobs.
William O. Douglas: The only associations that would have range to be the right to be (Voice Overlap)
Archibald Cox: These two, like in a conflict of interest law.
Hugo L. Black: You're suggesting that the (Inaudible) to send them to jail for year if they do belong to the Communist Party. If they want to do that with the most -- the Court may want to do, hold some official in a union, that's what it does, isn't it?
Archibald Cox: If it --
Hugo L. Black: Put him to jail for a year.
Archibald Cox: It may if they violate the statute just as if I upon leaving the government should engage in practice against the government in the matter that came before the Office of the Solicitor General, I would certainly be subject to fines and I think to imprisonment.
Hugo L. Black: Well, that's not if they have minor thing, is it? As I understood you, implication was that that's just a minor thing. They just send them to jail for a year if they want to be an officer of the union at the same time.
Archibald Cox: No, Your Honor, my -- what I sought to say was not their going to jail for a year was a minor thing. They viewed as a whole forcing a person to make certain -- make this choice was a minor and indirect interference with freedom of speech or political association. Now, if Congress can forbid this, if it has the right to enact such a blanket prohibition, then I submit certainly it can make no difference of whether that is enforced by quo warranto or by a civil injunction or by a reasonable criminal penalty.
Hugo L. Black: But that --
Archibald Cox: -- of one --
Hugo L. Black: But Douds -- but Douds certainly pointed out to this, didn't it?
Archibald Cox: Yes --
Hugo L. Black: Did Douds point out the difference?
Archibald Cox: But it -- Douds point out the difference. I sought state a moment ago. But it wasn't an absolute prohibition but I was seeking to make a point that if Congress may enact the absolute prohibition, then surely the character of the remedy, the sanction doesn't matter. One doesn't have the right to violate law or pay a little fine and the law is constitutional. But if he violates the law and has to go to jail, then the law is unconstitutional. The validity of the law depends on whether Congress may enact such a restriction.
Tom C. Clark: First of all --
Archibald Cox: But now the differ --
Tom C. Clark: -- the Court filed as to the record here that we have.
Archibald Cox: For -- for making false affidavits.
Tom C. Clark: Well --
Archibald Cox: Now, let me come --
Tom C. Clark: -- for practical standpoint, we submit the statute.
Archibald Cox: Let me --
Hugo L. Black: (Inaudible)
Archibald Cox: There's no doubt about that. But the fact that the Court said it was a different case, I submit, does not show that this unconstitutional. It shows that it's a case that has not been decided. And that's what we have to decide here.
Arthur J. Goldberg: But General, the government in the Douds brief as I remember that I was in the Douds cases as I recall. The government in the Douds case was cited in one of the amicus briefs in itself --
Archibald Cox: Yes.
Arthur J. Goldberg: --that another alternative would be flatly to forbid Communists and persons believing in the overthrow of the government to be officers I believe in organizations. This would have been much more grasped in the affidavit requirement and later raise more difficult legal questions.
Archibald Cox: Quite true. And I have no doubt that the Solicitor General thought it would raise more difficult questions. It perhaps tempers that a little that the government's argument in Douds was that there was no constitutional question at all because this was just a privilege and of course the Court disagreed with that. So the Court did to some extent say that Douds was a harder case than the government viewed it this way. But I -- I concede, I can't argue that Douds is an all force with this. It isn't and the question is an open one. Douds wouldn't have to be overruled to strike to balance the other way here. What I do submit is that if you take Section 9 (h) and take this statute and examine the differences that this on the whole is a much fairer or more effective, more workable statute and I think that Congress could well if included in all seriousness that this on the whole was less of an interference with individual are first to liberty even though it is the blank -- blanket prohibition. Now, let me try to explain the thinking that went in to the differences between this statute in Douds --
Speaker: Could I Ask you a question --
Archibald Cox: -- which of course would test whether my statement is correct.
Speaker: Do you have to know offhand how many prosecutions there have been under the existing statute?
Archibald Cox: I believe that this is the only one. I sought to inquire into this yesterday afternoon and I had to do it by word of mouth so that the records couldn't be checked. But the information I was given was that this was the only prosecution that's filed.
Tom C. Clark: I thought this was the appellees'.
Archibald Cox: It certainly is from the respondent's point of view where he announced that he was making a test case of it and that we were confronted with his desire to test it.
Tom C. Clark: He admitted his damage to you?
Archibald Cox: That's -- in all effect, yes, yes. Alright now let me developed a little of the differences between the 9 (h) and the present statute. The fir -- one difference, one trouble with Section 9 (h) was that it was ineffectual. One have -- one violated it only if he was a member of the Communist Party at the moment he swore to the affidavit and this invited people to resign their membership, make the affidavit and then resume membership. And there are some statements, some testimony to the effect that that happened on a substantial scale. It is also true that there was always the possibility that a strong well-organized union, a union with the economic strength to do the most damage could ignore the facilities of the National Labor Relations Board and retain its Communist member officers.
Tom C. Clark: A matter of fact, some of them did.
Archibald Cox: Some did. I don't want to make too much of that because nearly all the international union and all those reputed to be Communist-infiltrated did come into compliance. No one's ever suggested the mine workers or the typographers the only two internationals that stayed outside had any Communist domination.
Tom C. Clark: Would you say the second one again?
Archibald Cox: The typographers. Second, Section 9 (h) posed an enormous administrative burden. Every time a union instituted a case, you have to check whether all its officers and all the officers of any parent organization of what currently in compliance with these involved stacks of filing cases of hundreds of thousands of affidavits to be checked over. Furthermore, and more important, I think, Section 9 (h) was unsound from the standpoint of labor management relations and inequitable from the standpoint of employees and union members. Under Section 9 (f), union members lost much of the protection of the National Labor Relations Act whenever an individual officer was unwilling to file the affidavit. The officer was not ousted, the danger was not substantially alleviated and the employees suffered the most. Alright, now I would emphasize that this withdrawing protection from employees while it affects economic rights, I submit to you seriously, also affects a right to freedom of association and affects, whether it affects the right to bargain collectively, that too is not simply an economic right or even striking, picketed, are not solely economic rights. And there's an element of individual liberty and association of freedom on that side. Furthermore, since Section 9 (h) simply withdrew the facilities of the Labor Board, this put in many ways the effect of sanction is in the hands of the employer. He could bargain with the union if he wanted to or he could raise the technical objection if he wanted to. Or if he wanted to delay or obstruct proceedings before the Board, he could raise questions of bulk of clients of questions of statutory interpretation as well as take advantage of negligence in filing affidavit. Now, this was, as we explained in our brief a very, very real problem. And as I submit while those may seem technical at the outset, that they do affect the full freedom of association and collective bargaining by employees. Fourth and most important, Section 9 (h) was in the front to union officers generally because it singled them out from the entire community and required them unlike all other citizens how to file oaths that they were not members of the Communist Party. The interest did not being subjected to such an upfront. The interest did not having to take a test oath, I submit. It is certainly very close to a First Amendment right, if it is not in fact the First Amendment right. And it would seem to me that Congress could surely give effect to that consideration in devising a remedy for this evil. Now, if you tote these things up, when it comes to I think is this, one that Section 504 is a more effective measure both administratively and in terms of reaching the people. Second, while it does, as Mr. Justice Black has suggested, put more pressure on the man, the member of the Communist Party to choose between such membership and union officers because it's an absolute prohibition against doing both and not simply a pressure on the union to put pressure on him. And to that extent it is a greater infringement of freedom for association. Still against that have to be balanced of both the gains in terms of the employees' freedom of association, the union members' freedom of association, and the non-Communist officers and the employees being relieved of the necessity of taking a test oath. I would say that whatever when they think of the merits or demerits of this statute that it was a very great improvement over Section 9 (h) on net effect. From an overall point of view despite the clear difference on one point it does distinguish Douds case. But to look at it as a whole, I would argue that this is not a greater restriction than what was sustained in Douds. Now, I would like to take a few moments to deal with other points raised in the court below. One was that this was -- the sanction was a criminal penalty. What I am trying to say is that the fact that this is an absolute prohibition as distinguished from a stimulus is of course relevant. And I've tried to express the reasons for thinking that it is permissible to have the absolute prohibition. If it is permissible to have the absolute prohibition, then I submit most strenuously that it can't matter whether you enforce it by quo warranto or by criminal penalties or by an injunction or by any other means of enforcing that absolute prohibition. Because criminal laws aren't bribes to do and pay the penalty or comply with the statute. The duty is to comply with the statute. The other case where the character of the penalty might be relevant or where the statute is vague and a very heavy penalty would put pressure on one to stay on the right side of the line is not involved here, but in the application of this statute, its meaning are perfectly clear.
Arthur J. Goldberg: General, am I correct that the logic of the argument you're making leads to this conclusion that a man who is a member of the Communist Party in the sense that he could not be convicted of a crime in doing so in this case and that type of man however could not hold union office.
Archibald Cox: Yes, that is correct. I would say that's exactly what is involved and I would say that the Scales case, Mr. Justice Goldberg, is different because in the Noto case because they're forbidding him to hold union office is not a penalty there. That isn't what's concerned at all. It's the cre -- if the statute looks to future dangers --
Arthur J. Goldberg: What about Lovett and cases like that?
Archibald Cox: But Lovett again was regarded as a clear case of a penalty.
Arthur J. Goldberg: What was the penalty in Lovett?
Archibald Cox: Penalty was a prohibition against the government ever paying them. Furthermore, those were singled out three identified individuals. There was no suggestion as I understand it no argument was made in Lovett. That for these three men to work with the government would in some way, threatened the government's operation. I don't understand that that view was presented to the Court.
Hugo L. Black: But I thought it was. I thought the whole argument was. They belong to this Communist front organization. They just happened to be working for the government as I recall it.
Archibald Cox: Well Your Honor --
Hugo L. Black: Did he make reports to that effect?
Archibald Cox: Well, I would -- this is -- I wasn't here reading the opinions. I didn't realize that that was the argument that perhaps it was. There is, of course, another difference and that is that the statute singled out these specific individuals when there were others who had belonged to the same organization and were free to work for the government. The fact that a statute forbids a particular class of people from engaging in certain activities isn't an ex post facto law or nor is it the bill of attainder if the class is large enough.
Hugo L. Black: I thought that was the very idea of the bill of attainder (Inaudible) certain groups, certain groups are marked out.
Archibald Cox: Well marked -- depends whether they're marked out for punishment or marked out for forbidding not to en -- engage in activities which in the future will be dangerous because of those in the group have certain characteristic which if they are in the other position will create conflicting loyalty. Certainly -- certainly the conflict of interest laws aren't bills of attainder. The stat -- federal statute in effect provides and that no attorney now in the Department of Justice may handle the case against the government within five years of his employment that comes before any division of the Department of Justice in which he was employed. Now, that's not a bill of attainder also it's an unidentifiable group, the same way the statute in Board of Governors against Agnew which forbid investment bankers from being officers of a member bank in the Federal Reserve System.
Hugo L. Black: Suppose that -- suppose that penalized them if they wanted to advocate the business of being investment bank, would that make a difference?
Archibald Cox: Then one would have to be quite --
Hugo L. Black: He could get out and made a crime.
Archibald Cox: Well first, I don't think it would make it into a bill of attainder. It would raise --
Hugo L. Black: I -- I wouldn't if it marked it out to them of a particular group.
Archibald Cox: It marks them out --
Hugo L. Black: Just think out that that you people can't do this.
Archibald Cox: That depends whether he --
Hugo L. Black: You people can't advocate --
Archibald Cox: It depends whether there is a -- there's a First Amendment question of course. But it depends on whether the characteristics of the group are related to the position they want to occupy in a way that having the two creates danger of a future evil. Now of course you can't --
Hugo L. Black: I suppose neither the distinctions is the one on which you've based the statement that the charge of this that the bill of attainder is frivolous.
Archibald Cox: I -- I -- this -- these are, yes Your Honor.
Hugo L. Black: But with that viewpoint, I would think that would be right.
Archibald Cox: Well, I submit this is what the cases have come to us and just as the early cases on bill of attainder we're very specific in saying that the characteristics which disqualified people from practicing, holding professions in Missouri or from being an attorney at the bar of this Court could not in any sense be thought of as desirable qualifications for the office. That they had no relation to each other, now of course any statute that takes a particular group that the statute says that “No man over 30 years old shall be officers of labor union.” It would be very hard to relate that characteristic to any danger that might result from there being in office. But all conflict of interest statutes of course identifies certain groups to which they apply. The question is whether there's a reasonable relationship between the two things. And it's on that point that I sought to emphasize the history of this problem in the labor movement.
Earl Warren: Very well. Mr. Gladstein.
Richard Gladstein: Mr. Chief Justice, may it please the Court. I quite agree with the Solicitor that the three basic issues presented here have to do with the validity or invalidity of this statute under the First Amendment, under the First Amendment, and the Fifth Amendment, and under the provisions that prohibit the adoption of bills of attainder or ex post facto laws. I'm satisfied he is understating the case when he says that the First Amendment presents for him a real troublesome issue and I'm more than satisfied that he's completely wrong when he characterizes as frivolous. Our contention that this Section 504 is plainly a bill of attainder, and I am led to believe that he is not as acquainted as perhaps he ought to be with what takes place when a man is indicted, arraigned and tried in a cri -- Court of Criminal Justice when he says that there is no, no presentation here of serious questions under the Fifth Amendment. Now this section, may it please Your Honors, became law on September 14, 1959. On that day, my client who had been working as a longshoreman on the San Francisco Waterfront for nearly 25 years, was already a member of the executive board of his local union, Local 10 of the IOWU whose membership varied between four and five thousand during the period that we're concerned with. He had been elected in the November 1958 elections for one year term on a -- on a Board that comprises 35 working longshoremen that comprise that Board plus six officers who are not working longshoremen that is to say they -- they work for the union and perform services for it, a total therefore of 41 people. So that when this law was adopted by Congress on September 14, 1959 and it had as a provision in it becoming effective of that day that it was a crime for him to continue in office as the elected representative of the men who had voted for him in a full and fair, and free election. He was presented with certain choices. He, could of course, and I take it this is what the counsel argues he should have done. He could have resigned from the Communist Party but of course that wouldn't do any good with it. Because the provision in 504 says that you may not hold union office if you are a member of the Communist Party or if you have held such membership at any time within five years. So resigning from the party would have availed them nothing. He could of course have resigned from the executive board of the union. And this apparently is what the government thinks he should have done. In doing so, he would have surrendered not only his right to continue to serve the man who had imposed their confidence in him and selected him in a full and fair election as the man they wanted to represent them, but he would have also had to surrender their right, wouldn't he? Because he would have had to frustrate the election process in which the four or five thousand members of his union had participated by saying, “Well, I can't serve as your officer.” “Why not?” “Well Congress has said I can't.” “Well we decided that you should.” So he remained until the end of his term. And as a matter of fact, the membership proposed him for reelection in 1959 and he was reelected and served for the year 1960 and they reelected him again. And he was serving his third term on the board at the time the indictment was returned in May of 1961.
Arthur J. Goldberg: That you haven't considered --
Richard Gladstein: Since what Your Honor?
Arthur J. Goldberg: (Inaudible)
Richard Gladstein: Well, it happens he is not a member of the executive board now. That's what -- what you want to know now, he's not.
Arthur J. Goldberg: That (Voice Overlap).
Richard Gladstein: I think he ran but was defeated (Voice Overlap). I think he ran and was defeated Your Honor.
Arthur J. Goldberg: (Inaudible)
Richard Gladstein: Now, it is interesting -- I'll have more to say about this later. It is interesting to hear an argument to ask this Court to trench deeply into First Amendment rights upon the basis that there just is no other way. Congress has no other way of dealing with this terrible criminal enterprise from which we have so much to fear and that's why you have to accept Section 504 even though it does these additional things that weren't present in 9 (h). You've just got to let them have it.
Speaker: According statute it provided from keeping injunctions for rather --
Richard Gladstein: I consider that's different. I --
Speaker: Is that different?
Richard Gladstein: I consider it so and I -- I will make an argument on that subject.
Hugo L. Black: Can you send them to jail because of that?
Richard Gladstein: No, you can't (Voice Overlap) well that's -- that's really different. That's the just the same as saying that the men were sent to jail for filing -- for filing false -- for filing false affidavits under 9 (h). Anybody can get or sent to jail under any statute for filing false affidavits with the government. That has nothing to do with the comparison between 9 (h) and 504 for example and I would point out, I will enumerate point by point the distinctions that Chief Justice Vinson laid out in the Douds case which were also noted by Mr. Justice Black here this morning, at least five basic ones that distinguish that section and implied that Chief Justice Vinson would not have upheld Section 9 (h) -- 9 (h) where -- where they're present those five characteristics that I found in 504.
Tom C. Clark: What that is in violation of injunction if that has to deal without a jury trial.
Richard Gladstein: Well, I -- I grant that there are contempt powers. I grant that there are contempt powers for violation of the injunction. I would welcome and I think anyone would welcome an opportunity to be heard before a judge in an injunction process where one can present evidence that go to the equities of the case and listed evidence to show. For example that Brown presented no threat whatsoever, that his union didn't have power to nor any intention to call a strike, that notwithstanding when somebody said here before the Congress as to what somebody else did 15 years ago who was in -- in the Communist Party that my clients could produce evidence. I would be satisfied with that because I'm satisfied that the Court without a jury would have not issued an injunction. But of course if you gave us a -- what you call a jury trial, what they call a jury trial --
Byron R. White: You don't think that involves any acceptance or non-acceptance of the domination by a foreign government.
Richard Gladstein: I -- I don't understand you. I have to --
Byron R. White: Well, those members -- members of the -- perhaps members of the Communist Party have not in the past nor was anybody proved that they had ever engaged in the political strike that what if you accepted the fact that -- that they were under ordinance. What is the proof of that?
Richard Gladstein: Well if you accept that then you might as well be very candid about it and say we won't have any trials at all. Why bother to go through a criminal trial or the injunction proceeding. Why not just by edict either imprisoned immediately all Communist or maybe execute them in the problem because if what you assume, if you -- if you have to assume that they always are going to be under orders of a foreign government if that's the basis upon which you legislate then you could never get a fair trial.
Byron R. White: Well then you say that -- you say then that we must assume here a party that -- that they're not in the order.
Richard Gladstein: No sir. On the contrary I say don't make any assumptions. Just let Archie Brown, the defendant in this case --
Byron R. White: So this --
Richard Gladstein: Have a trial --
Byron R. White: Congressional findings -- congressional findings in this regard are irrelevant.
Richard Gladstein: I beg your pardon?
Byron R. White: Congressional findings on this point are irrelevant.
Richard Gladstein: Well, I think they're irrelevant as far as Mr. Brown is concerned in a criminal case, yes.
Hugo L. Black: Do you think that hereafter insofar as getting of the trial according to due process of law whether you charged with an attempt have to prove all the elements of it beyond the reasonable doubt?
Richard Gladstein: Exactly.
Hugo L. Black: And that Congress cannot deprive him of that right.
Richard Gladstein: Exactly, because if it were true logically, if -- if the fact that a man has been a Communist is enough to justify all of the things that read with governors, why bother to have a trial. Why bother to have a treason trial, a sedition trial, or anything else? The findings are going to be made you see. We must support them or we must recognize them. But if we do that, the only thing that happens is that apart from the fact that Congress would be exercising -- exercising the judicial authority in matters where it's -- the judiciary that should resolved this -- these things. But in addition, we might just as well forget that there is a First Amendment to the Constitution of the United States.
Arthur J. Goldberg: Mr. Gladstein, did I understand it correctly is that outside of your other constitutional points that Brown was entitled to go to trial under an evidentiary record and instructions which sent to the jury that if he was not that type of Communist who would be convicted under the Smith Act, that he would not violate this statute because Congress could be presumed to mean when they said Communist here what they meant in the Smith Act both in the criminal statute.
Richard Gladstein: That was my contention with -- with an alternative. That is to say either that it -- it would require evidence on the part of the government to establish that Brown held union office with the intent to engage in the kind of criminal enterprise discussed under the Smith Act or to -- to utilize the obvious objective of Congress in 504 with the intent of urging or causing or developing political strikes, the kind of thing that the Congress was worried about it. Yes, certainly that that was an issue of fact to be decided. The government's position as it's here was not only it that not that relevant but either an effort on our part to offer proof accepting the burden of the negative was not relevant and therefore there was no way by which we get (Voice Overlap).
Speaker: (Inaudible)
Richard Gladstein: Yes. But I've forgotten exactly what office he held. However, he was the member of the -- of the State Committee in California. He was -- and he attended -- there was evidence that he had attended a national committee meeting in the -- or convention in New York City --
Speaker: There's no good deal of that fact to get at. (Inaudible)
Richard Gladstein: Oh no, there's -- there was never any contention that he was --
Speaker: Well, what was that?
Richard Gladstein: There was never any contention but that -- that as to whether he was an active actual member of a Communist Party.
Speaker: But that mean he was then known. He was --
Richard Gladstein: Knowing what?
Speaker: Knowing that he was a member of the Communist Party?
Richard Gladstein: Knowing that he was a member of the Communist Party, yes. And that's what the -- that's what the trial court felt was always necessary that he knew -- that he was knowing in the sense that he knew he was a member of a party and that he knew in the sense that he knew he was serving on the executive board. However, as we argued the knowledge, the knowing aspect which makes criminal belonging to the party is that which has to do with an intent or a commitment towards some evil that the Congress has legislated against, not the mere fact of Communist Party membership per se.
Hugo L. Black: Suppose you would agree that the Congress did make it a crime to engage in a conspiracy to bring about unlawful strikes whatever strikes (Voice Overlap).
Richard Gladstein: I wound assume that. I would not argue --
Hugo L. Black: (Voice Overlap) whether they're Communist or not.
Richard Gladstein: I would -- I would accept that.
Hugo L. Black: And you are claiming that they then would have to prove that he had made engagement to that conspiracy.
Richard Gladstein: Certainly.
Hugo L. Black: You are arguing here in ref -- reference to bill of attainder and due process that the Congress can't make that finding for the court and jury.
Richard Gladstein: Yes, all I have to do is repeat the First Amendment, the Fifth Amendment, the provision on -- against Bill -- bills of attainder that is as simple as that Mr. Justice Black and I can't see any escape from it. Certainly yes, certainly Congress could have adopted the law denouncing as a -- as a criminal conspiracy those who engage in certain activities or attempt to engage in them or reach others to engage in -- but that isn't what they did. And as -- as Mr. Justice Black says, why confine it to Communists?
Speaker: Do you think -- do you think that the Congress (Inaudible) no man could own a stock in this corporation should be (Inaudible).
Richard Gladstein: Well, that gives me trouble only in this respect. First, of all it -- it's wholly irrelevant that question but I may say so sir with all deference, for this reason, have nothing to do with the exercise of the First Amendment rights at all as it is like in the Agnew case. We're not talking about the conflict of interest situation whatsoever. We're not talking about a man who is supposedly placed in the difficult position of choosing between the service of -- service to two masters. We're not talking about that at all. We're simply talking about --
Speaker: Well I understand that.
Richard Gladstein: Well --
Speaker: It does not provide the prosecution of this man as a mem -- as a member of the Communist Party.
Richard Gladstein: That's right sir.
Speaker: (Inaudible)
Richard Gladstein: Yes.
Speaker: (Inaudible)
Richard Gladstein: Because the upholding -- because the -- because if the holding of officership in the union. Our argument is just as much entitled to constitutional protection under the First Amendment as the holding of membership or office of the Communist Party. If I understood, Mr. Solicitor, correctly to say this morning that the First Amendment protects a person in this company against const -- the Congress putting him in jail because he -- he becomes a member and officer in the Communist Party. If that's true then it is my contention that --
Speaker: (Inaudible)
Richard Gladstein: I say if -- if one may have -- if one may claim constitutional protection to hold office in the Communist Party it is my contention that I have at least as much constitutional protection to hold union office, office in a union, an American union one to which my fellows elected me and which is engaged in lawful pursuits and which is participating in some of the most important responsible politica -- political events in the country why would the Constitution -- why -- why should the Constitution, the First Amendment particularly give less protection to me in the holding of union office or the right to hold union office if my fellow workman elect me then it would to somebody who is -- who is elected to be a member or an officer in the Communist Party. Now, if that's -- if -- if that argument is valid and I submit under this Court's decisions it has to be valid. This Court has upheld again and again the associational rights of the NAACP even though that is not a usual form of political party. This Court has also upheld the individual rights of members on individual records whether --
Tom C. Clark: They're having conflicts there, I assume.
Richard Gladstein: Conflicts as what sir?
Tom C. Clark: With your allegiance to one, when officer to the union, your allegiance to the union.
Richard Gladstein: But in a --
Tom C. Clark: When you're an officer of the Community Party, your allegiance to the Communist Party and Congress found that there is a conflict.
Richard Gladstein: Well, I don't think these are questions that Congress has either any prerogative or -- or any expertise or even any constitutional right to decide anymore than to say that if I -- and I -- I'm an adherent of a particular religion and I devowed them that this makes me subject to the difficulty if I hold office, public office, union office, that I will be serving two masters and not so long ago I seemed to remember such an argument being made in the colloquialism of the street, the vernacular as to whether or not our country could afford a President of the United States who might be placed in that kind of situation. Our Constitution doesn't recognize anything like that. And for the same reason, for the same reason if Archie Brown is known to the members of his union as a man who believes in being a Communist and that appear apparently is his legal right and apparently has run for office on it. Nobody has ever prosecuted him under the Smith Act of anything else. And they like him well enough to want him to be one of the 35 men on the -- on the executive board, I don't think Congress has the slightest pride under the Constitution, to tell them or him anything about service to two masters and --
Speaker: Suppose they like him to be a stockholder of a corporation.
Richard Gladstein: But I -- a stockholder is not a First Amendment question. And I think we have to recognize that there is that difference. I -- I don't like --
Arthur J. Goldberg: Suppose Mr. Gladstein, Archie Brown had been convicted of violating the Smith Act, suppose the statute had been enlarged to cover that type of fellow, would he ran for office and said, “Here I am, I'm Archie Brown. And I was convicted of violating the Smith Act. I admit that I committed a felony and I want to run for office and be elected”, would you make the same argument here?
Richard Gladstein: No, because then of course his situation would fall in the same category as this -- these other cases where a man can disqualify himself from the right to hold office or run for office, remove himself so to speak from that arena by virtue of his own personal misconduct and all of these cases where a man have been convicted this was the evidence, it was being taken to support 504, they've had the judicial trial. They have the chance to prove presumably that the --
Byron R. White: What if he said they want to prove it over, I've changed.
Richard Gladstein: Oh no --
Byron R. White: I've changed. I'm a new man.
Richard Gladstein: No, he doesn't. He has never had the chance to --
Byron R. White: You cannot bar me just making an argument or an inference from what is likely.
Richard Gladstein: Mr. Justice White, Archie Brown has never even had the chance to be -- to show what -- what he was like as an old man, and now be a new man.
Byron R. White: Let's talk about -- let's talk about the example that Mr. Justice Goldberg gave you, not another one.
Richard Gladstein: Oh, well --
Byron R. White: What about -- what about Archie Brown has been convicted to be -- and he -- and he comes in to say, “I'm a new man. Now don't bar me from union office unless you prove and give me a jury trial on now whether I -- give me another trial now.”
Richard Gladstein: Well, I'm not arguing it and I'm not required -- and I don't think that that is the situation. Well, obviously it's not the situation. That's clear because he's never been tried and convicted of anything. I guess that would be an argument that could be advanced to Congress that there ought to be some kind of a period of time which to -- to let a man show that he has what -- done sufficient payments -- payments accor -- according to Congress. They seemed to think that if a man leaves the Communist Party and that's five years passed that he loses the taint and the contamination enough so that there it's alright. And of course as my brief argues, they didn't take any evidence on that. I don't know what they -- what -- how they established that. I don't know how this Court would. I don't know how you established a thing like that. He takes a wisdom that Solomon wouldn't claim, 5 years, 10, 30, 50, what would the Court say if Congress said, “Well you have to wait 50 years after leaving the Communist Party before you can become a union officer.” It is -- it is -- I want to make this clear. If this statute abridged the rights of no more than one person in the United States, that would be sufficient in my view to condemn it. But in as much as it is the government's contention that the size of the group effective is of some moment it seems to me the Court should appreciate the fact that you probably have about a quarter of a million to a half million persons to whom this section applies. And the reasons for it are readily apparent when you make a comparison between Section 9 (h) and Section 504. We no longer have a section which applies to the officers of the union and presumably if that's just the titled officers of president, the secretary or the treasurer, we have the section now --
Earl Warren: We'll recess now. Mr. Gladstein, you may continue your argument.
Richard Gladstein: I have said that if only one person in the United States suffers an abridgment of First Amendment Rights by virtue of this statute that would be enough to condemn it. But in as much as the Attorney General and the Solicitor considered that the size of the group affected is of some consequence and apparently it was to this Court in the Douds case, may I call Your Honors' attention to a statistic at the government's brief, page 42, note 13 which tells us that in 1957 there were 22,405 local unions which had complied with the 9 (h) non-Communist affidavit requirement. This does not tell us how many officers there were which -- which did so. We know from our record that there are 41 officers and executive board members, numerous trustees and others who fall within the statute. Perhaps our locals are a little larger than the average. But if we took as an average ten, that's the president or vice president, the secretary, the treasurer, the sergeant at arms, the business agents, the organizers, the members of the Board of Trustees, the members of the executive board, ten a very conservative figure for each of those unions. The statute now would apply to 224,000 people in the United States, that however, that figure they concede is inadequate. First of it's back in 1957 and second, it didn't include the United Mine Workers and the Typographical Workers Union who never did comply. We have a figure that Your Honors will find at page 20, note 8 of our brief which reports an announcement by the United States Department of Labor that is at the beginning of this year, there are 52,000 local trade unions in the United States. If you apply the same average of ten again, very conservative, you have over a half a million men and women to whom Section 504 is applicable.
Arthur J. Goldberg: (Inaudible)
Richard Gladstein: Oh, that doesn't mean that they aren't -- it isn't applicable for this statute applies equally to one who is not a Communist but might wish to become one tomorrow or one who is not a Communist today but was one within five years last passed or one who is a Communist at the present time. Or let me put it to the Court differently. Is it only a significant thing that this Court should be told that Congress, laboring with this tremendous difficulty solved it because there was no other way, no less drastic way by means of adoption of this statute, and yet we are told that this is the only prosecution under Section 504 that has occurred in the United States since the adoption of the Section in 1959, well that's six years ago.
Potter Stewart: Well, that might prove the very point that this has been a very, very effective sanction.
Richard Gladstein: Its none use.
Potter Stewart: And if that has solved the problem.
Richard Gladstein: Its none use?
Potter Stewart: No. The fact that there are -- this is the only case so far where a Communist was elected to a union office.
Richard Gladstein: It would seem to me that -- that the inference is the other way around. One must assume therefore what? That Archie Brown is the only person in the United States among half a million who hold some kind of union office who is a member of the Communist Party.
Potter Stewart: Exactly, exactly.
Richard Gladstein: Well, that's an assumption. But again it's not a fact that has been proved. And that would mean that the mere passage of the law apparently is supposed to be enough to -- to condemn anyone's First Amendment rights. Of course --
Tom C. Clark: Before that's done together as I read in your brief (Inaudible).
Richard Gladstein: I wasn't --
Tom C. Clark: The government wouldn't have supposed to hold that prosecution until they have an effective (Inaudible).
Richard Gladstein: Well, of course, I wasn't looking for any test case. I defended the man who required a defense because he was indicted, and arraigned, and was brought to trial. That the government chose not to prosecute others or perhaps it will answer Mr. Justice Clark's question as to whether or not this is the only one in the United States, I don't know. But if it's true then how -- how great must -- is this problem really that the Congress is supposed to be struggling with that it becomes necessary to invade the First Amendment rights.
Hugo L. Black: Is anything in the brief which indicates that the government does deliberately refrain from prosecuting these people?
Richard Gladstein: No.
Hugo L. Black: But they had waited to do this with the test case?
Richard Gladstein: No, nothing like that at all. There's -- there's nothing in the briefs or anywhere else. All that we know is, insofar as we know this is the only case under 504 involving the Communist Party.
Hugo L. Black: I suppose we could assume and I certainly do assume. The government has done its duty in the prosecuted the late cases if they had them.
Richard Gladstein: I would think so rather than wait and endanger the foundations of the republic while a test is going up in the courts that they would go after everybody whom the FBI told them was a member open or concealed who also occupied union office. Presumably, we certainly know that they have such -- such informants, the one appeared in this case and testified forth. Well, it seems to me that we have to first understand clearly that the abridgement of the First Amendment rights is -- is automatically achieved by this statute and no better way of showing that I think exist than to contrast what was said by this Court through the opinion of the Chief Justice in the Douds case and this statute. Your Honors will find at pages 38 to 39 of our brief the five basic points of difference. The first is that under Section 9 (h), there was no specific prohibition against the persons holding union office although they were also Communist Party members. No discharge in the union office was required, that's the first. Here of course the prohibition is absent. Second, in the Douds case, stress was placed upon the fact that the statute resulted only in an indirect conditional partial abridgement of speech. That is to say it discouraged membership in the Communist Party to the extent that labor unions might be pinched not to elect the Communist through office. So the Court said that was a partial unconditioned -- conditional and indirect abridgment, a little one. The third, Douds pointed out that there was no punishment involved. He said specifically 9 (h) does not prevent or punish by criminal sanctions the making of speech or affiliation with any organization or holding or any belief. Well, of course here, the Communist Party membership is one of the two elements of the offense. Two things that are required, one is Communist Party membership and the other is the holding of union office. So here you have just the opposite of Douds. You have a punishment for membership in an organization. Fourth, the handful of people to which Douds applied was brought out in this manner. The Chief Justice said it touches only a relative handful of persons living the great majority of persons of the identified affiliations and beliefs completely free from restraint and at least those few who are affected, free to maintain their affiliations and beliefs subject only to possible loss of position. Now there, what was being referred to is the fact that under 9 (h), the choice to which the Solicitor referred this morning inactively I may say when he said Brown was given a choice. He was not given a choice. Under 9 (h), a man was given a choice. He could disaffiliate from the Communist Party and remain a union officer. Presumably Congress was giving him that choice. But here, the Congress has taken away that choice because it has established a five-year period during which he is not to be permitted despite this affiliation from the Communist Party to be a union officer.
Speaker: Supposing the statute it had been drawn in terms of the Smith Act namely, that anyone who believed in the forcible overthrow of the government could not be an officer of the union. What would you say to that?
Richard Gladstein: Well, that would -- that would do this. That would allow if -- if there is a reasonable connection between membership in a union and overthrow of the government or any entertaining ideas about this -- about which there would be some question. But if we came closer and said -- and took the -- the congressional object here which is to prevent political strikes which it has said don't do any good for anybody in the country and could only serve the interest of the foreign power. Alright, let's assume now, that Congress to safeguard the channels of Congress of commerce against that threat as the statute which said that those who advocate, believe in, organize conspire to engage in political strikes however defined could be subject to criminal prosecution.
Speaker: No, I just said overthrow the government.
Richard Gladstein: Well, even -- even that -- even that if I were to -- if I were to assume that -- if I were to concede its validity it wouldn't be -- it would be -- it would still mean Section 504. It does not satisfy the requirements of the Constitution for there is no evidence here that this defendant, this individual on this record, entertained any ideas of any kind or engaged in any ideas of any kind that constitute criminal enterprise. In other words, the Noto case, if I may just with -- in the Noto case, Your Honor said, that it is on a particular evidence in a particular record that a particular defendant must be tried and either convicted or acquitted and not by what is supposed to be the tenets of the Communist Party or what's present in some other record, congressional or judicial.
Arthur J. Goldberg: As a matter of fact, if I read this record correctly you may then offer a proof did you not, the Dean -- Professor Keeves where in Brown's qualifications to work on the document of challenge in arbitration made the finding that Brown did not believe in the overthrow of the government by force and violence.
Richard Gladstein: Yes -- yes, we have a finding this man was at one time the employer's association objected to his being registered as a -- as a longshoreman under the claiming that his Communist Party membership committed him to believe in the overthrow of the government that that was inconsistent with concerned for private property interest. There was an arbitration held before the then dean of the law school at Boalt Hall, Captain Keeve, who held on the evidence that the case was not made out and that Brown did not believe him, was not a member of the party who believed in the overthrow of the government by force.
Speaker: But of course if this statute is validly written that evidence was properly excluded.
Richard Gladstein: If it's -- well, if the statute is validly written that no evidence and this is my complaint that no evidence is admissible to defend this man against the criminal charge in the criminal court.
Tom C. Clark: Except that -- if he was a member of the Communist Party.
Richard Gladstein: Well yes. But if this -- if this statute is valid, then the Congress can equally say that it becomes a crime for a man who is a Communist -- who is a member of the Communist Party to also hold office in church. Or anything else, any other field whatsoever, why not? If one is going to a taint, an entire group which is exactly what Mr. Justice Black pointed out and so did Mr. -- the Chief Justice in the Douds case. And that comes to the fifth point of the distinction between 9 (h) and 504. And I'm quoting the language of the Chief Justice. He said that the distinction was emphasized by the fact that members of those groups identified in 9 (h), are free to serve as union officers, if at anytime they renounced the allegiances which constituted the bar to signing the affidavits in the past, past conduct actual or threatened by their previous adherence to affiliations and beliefs mentioned in 9 (h) is not a bar to resumption of the position. In the cases relied on by the unions on the other hand, this Court has emphasized that since the basis of disqualification was past action or loyalty nothing that those persons proscribed by it's terms could ever do would change the result. Here the intention is to forestall future dangerous acts. There is no one who may not by voluntary alteration of the loyalties which impel him to action become eligible to signing the affidavit. Well of course, that's not true here and that's why it is eminently correct that the observations made and in the dissenting opinion of Mr. Justice Black are true. This is a bill of attainder because just like the cases after the Civil War and just like Lovett, there is nothing that Brown can do to change the fact that he has been a member of the Communist Party and it's precisely for that reason which the Congress adopted this count.
Arthur J. Goldberg: Well, the priority is the openly and we have this record not proposing to change of membership of the Communist Party -- you have -- it's that I'd like to take you back for a moment. You said that it gives it figures and several, might be managing this category that on page 144 of the record and witness testified, a lady who's been a member a the Communist Party and did advise through the FBI. She testified that the decision for Archie Brown to accept nomination for the national (Inaudible) that's being proposed and I take it would have been a full time job was rejected by the party, that's been customarily because Archie has been elected to an office of this union, (Inaudible) of what we -- logical interest of this government, that the government would have not (Inaudible) have ignored it, not taking election and we have Archie Brown (Inaudible), is that all?
Richard Gladstein: Well, that's what she testified to. All I can say is that the --
Arthur J. Goldberg: Is that what you (Inaudible).
Richard Gladstein: The -- (Voice Overlap) well, the evidence is that he was a member of the executive board when this Act was adopted and the evidence is that the -- that the Act was discussed and analyzed in the union by the union president, by the lawyers and all of the correspondents between the secretary of labor and the union president's office and our office was made available to the members and they made a decision that they wanted Archie Brown to stand for reelection. Now, we don't have evidence saying precisely that that this was -- this was intended by the union to be a test case. That's what -- that's the only evidence of the record Mr. Justice Goldberg, so I can't -- I can't say more than that. Now, what is this bill of attainder that -- that this Court held in the -- in the classic cases? Man who had -- man who had supported the southern states, the Civil War was told that he couldn't practice law and unless he took a note that he had never done so, something he couldn't change or to be a minister or anything else. And this Court laid -- laid out clearly and then the Lovett case where the pains and penalties were the loss of salary. Now, here I would like to emphasize there's more than a question of loss of salary. The First Amendment places this Court has said certain rights in a preferred position. Those rights are the rights to freedom of speech, to freedom of the press, to freedom of assembly, to freedom of religion. Of course, there are rights to hold a stock interest in corporations and -- and to earn a living and to do many, many other things. And there are properly protections that attach to those. But this Court has pointed out that there is a difference in the quality between these rights. The First Amendment rights are the most important in the life of a free nation. And therefore, the Congress may not because there is a ban in the First Amendment. The Congress may not adopt the statute which abridges those rights. Now, my client, this Court has held that to be a Communist is merely an exercise of his constitutional right. He could be foolish, unwise, full hearty, whatever it is. He has a constitutional right to be foolish then by being a member of the Communist Party without more as long as that party does participate in some lawful activities or had some lawful purposes. As long, in other words, as it is then found to be in fact, nothing but a criminal enterprise in and of itself. Similarly, my client is a member of an officer of a trade union. I have urged in the brief and have said here earlier today certainly, a man who is a member of a trade union has as much right to the protection of the First Amendment of our Constitution to hold office in that union as he has to be a Communist. Now, if that's true how can Congress by taking speech and adding it to speech say that it's going to forbid the man from doing one or other on pain of a surrendering at least one and not even giving him a chance to make the surrender. It's exactly what it amounts to. And I think it's clear that the government has to concede that if this is true, if that's all there it is, speech plus speech remains speech then the statute is dead and should be declared so by the Court. This statute is condemned by the First Amendment. This is why they urged Your Honors to distinguish the statute from the Smith Act cases and others by calling it conduct intertwined with expression of speech. And they cite in this Court's recent decision earlier this term Cox against Louisiana which involved a leader of some 2000 people who picketed in or near, near a courthouse and interfered with judicial proceedings. And there this Court held that Louisiana could properly regulate such conduct because it was conduct, it was picketing. Now, they claim there is an analogy and we say now that we -- we can't -- we ask where is the analogy between Archie Brown sitting down at the executive board meeting of this union with the other 35 members to discuss some union business and the man who leads 2000 pickets of -- near a courthouse. And Your Honor asked me, do I -- do I consider that injunctions and the proceedings would be different? Yes, certainly because there, he would be receiving an order to show cause and it would be directed toward him and he would have a hearing at which he could offer evidence concerning what he believes, what he stands for, and it would be on the basis of that where a judge would decide whether he should be enjoined in order to keep him away from union meeting. It's my --
Speaker: Could statute prevent him from believing anything?
Richard Gladstein: It prevents him from engaging in -- yes, it does. It prevents him from engaging in his associational rights with his members on the executive board. To that extent it does. If free -- if the assembly of people in association with each other for the purpose of exercising together free speech and free press is a First Amendment right then certainly it does. Well, of course it doesn't prevent him from speaking on the privacy of his home but it prevents him from speaking at the executive board meeting as an officer. No, that's the First Amendment point and the bill of attainder point. I want to say about the Fifth Amendment point simply this. There's -- this is a criminal case. There was this man who was indicted. He was arraigned. There are certain safeguards that our Constitution provides for a criminal case. It's difficult for me to -- to perceive the -- this distinction that is made or -- by a counsel that sort of assures that if the Congress' laboring with the problem, well then what difference does it make what form of force they used. I supposed that we must concede that not only as a matter of philosophy it's desirable that the government -- well, that that government rules best which rules least but also that consistent with our Constitution, there are things which the Congress may not do. And the reason they may not do is not because this Court says or anybody else, but because the Constitution which was adopted by the people says so. Now, they make certain arguments that this statute must be treated as though Congress is merely concerned with -- with a special unique position regard to trade unions. And they say that unions occupy kind of a unique position in our country. Now, as a matter of fact they claim that they even use the expression that unions are vessels of national economic policy. We challenge that. We think that the Government of the United States with all deference is the vehicle or vessel or servant of the people of the United States. And that every arm of government in whom power is given and entrusted, it's for the purpose of serving the needs and requirements and desires of the people of the United States and such at least is the form of our government. And it makes no sense at all to say that Congress has some special responsibility in regard to trade unions. They, as our brief shows, existed before Congress ever was convened existed in this country. And they developed out of special and peculiar conditions of American conditions and developments, and the right of men to join together and form in unions antedates Congress. And certainly it's embraced within the rights of freedom of speech, press, assembly and association contained in the First Amendment, and that --
Arthur J. Goldberg: Would you say that (Inaudible)
Richard Gladstein: I -- I would again say that the Congress by its legislation can influence in one direction or another, no question about it. And I'm not -- I'm not complaining that the Congress undertakes to protect -- to protect against abuses. What I am saying is that it's a mistake to think that because Congress has done so, therefore the unions and union members are in the position where they don't have a right to complain about constitutional rights being taken away, that's the point. In other words --
Arthur J. Goldberg: (Inaudible)
Richard Gladstein: Well, he has to say this Court has -- oh, I think this Court has plainly said in the recent Railroad Brotherhood case, the Virginia case, the opinion by Mr. Justice Black before the Court plainly holds that the rights of the members of the railroad union I guess that would cover the longshoremen's union too. Those are protected by the First Amendment just as much as the rights of the members of the NAACP in the cases this Court has decided there and in respect of other organizations as long as these are organizations of people who are engaged in lawful activity for legitimate purposes this is what a democratic participation on the part of the people and our type of government means. Now, if we are fearful of abuses of privilege then as Chief Justice Hughes said in the De Jonge case for unanimous court deal with the abuses. Let -- let the Congress curtail the abuses but not curtail the rights which it does when it says you can't be an officer. Let Congress adopt the law that says that you can't do this that or the other thing while being an officer of the union. Let it say whether it's a Communist or not Communist that nobody has a right to -- to hold office in a union who believes in the overthrow of our form of government by unconstitutional or any other means or who believes in the destruction of private property or something else which is clearly within the province of the Congress or legislator but not simply by taking a position, a status because that is a bill of attainder. It obtains all of the people who have ever belonged. The argument that Congress had no other way, it is difficult for me to think that in a country whose resources are so vast which has at its -- at its command unlimited resources both of personnel and wealth to acquaint the government with all information necessary as to the existence or nonexistence or tendency of a danger of a political strike. It is difficult for me to believe or should this Court accept in the absence of some evidence that no other way lies open than to -- than to pass a law which amounts to amending the First -- Amendments of the Constitution for this reason. We have FBI. We have all kinds of police officers and agencies. We have men who represent and constitute the eyes and ears of the law enforcement authorities. We know from experience, we know from this record that we have both professional and volunteer informants who are members of the Communist Party presumably the same thing is true in unions. Nobody could question of that any government has the right in the interest of self-preservation to make known to itself to keep up with all of the information that's relevant to self-preservation, and presumably that's done. Well then how or why is it necessary to adopt a law without any foundation in fact with all of these assumptions creates a conclusive irrefutable presumption that my client no matter what the evidence, no matter what the proof must be condemned as a criminal if he wants to remain a union officer? The argument is an unrealistic one. It is one that's concocted, it is one that is not in accord with facts and for the best -- the best answer was to a question that was asked, was the Congress presented with anything new in adopting the 1959 provision? And the answer is no. It all goes back to the Allis-Chalmers, and North American strike situations about which testimony was given back in the 1947. It seems to me that if 504 is to be upheld, this Court would then have to close its eyes to holdings in its own opinions case after case, these are listed in our brief. We're dealing with criminal cases we remind Your Honors of these cases where in a particular trial involving a particular person who was a member of the Communist Party no criminal conviction has been sustained in the absence of satisfactory proof of personal activity on his parts which shows personal approval of some criminal enterprise, personal effort subscribing personally some -- to some activity or something that Congress could necessarily and properly legislate against as an evil. This we do not have in this case and the statute doesn't permit it. The statute contains an ipse dixit. It merely says that we would use the names and that will be sufficient. And as we say in effect that is transferring the trial of Brown to the halls of the Congress and trying him in abstentia without any evidence that relates to him and then saying you do not dare to be a union member. I don't think it's fanciful for me to say as I have that if the Congress can apply this five-year provision, it can apply a 30-year provision, I mean what's the difference? Where is the evidence that justifies five? Where was the evidence that justified the Congress in adopting this in Section 504. It wasn't in Section 9 (h). It was one of the points that Chief Justice Vinson made so forcibly. He said there's nothing that anybody can't do simply by changing his allegiance and wants to just affiliate from the Communist Party. That no longer is true. I have some comments of the Solicitor. It is true that it is -- his duty I certainly and the last person to raise any question of criticizing it or suggesting what his duty is but as -- as he -- said it's that the Solicitor's duty to certainly make out of whatever defense can be made for congressional enactment but it is the duty of the Attorney General too to see to it, it seems to me that the rights of the people under the -- under the Constitution are defended that has been done Mr. Justice Goldberg's opinion in the recent case quotes testimony given by Mr. Pickford when he was an assistant attorney general who made clear in a -- when a bill -- when a bill of the same kind was being considered said that it was not good policy and would -- would probably be unconstitutional to condemn and apply criminal punishment against a man where there's no evidence allowed or required to show anything done by him that shows criminal intent or criminal activity. I think that is true here. I do not understand the argument that 504 is a lesser infringement than 9 (h). And I think that the Solicitor was compelled in fact virtually to abandon that position when in answer to Mr. Justice Goldberg's quotation from the prior brief where the brief pointed out in 9 (h) that criminal punishment at an absolute ban would be more drastic, he had to concede that that was the government's position then. Now, apparently I don't know how he can consider that 504 is a lesser infringement, if it puts a man in jail for holding a union office when 9 (h) did not do so and didn't require him to do anything as a matter of fact, it seems to me that it's turning things upside down to suggest that it's a lesser --
Tom C. Clark: It had filed the affidavit --
Richard Gladstein: Pardon?
Tom C. Clark: It had filed the affidavit.
Richard Gladstein: Not unless you want -- if that is, he could file -- if he wants to be truthful, he could file an affidavit by disaffiliating or if he wants not to file the affidavit, he didn't have to.
Tom C. Clark: He had to file a noncommunist affidavit you know that.
Richard Gladstein: No (Voice Overlap), oh no, he didn't have to at all. The only thing that happened was that if he didn't the local union or the union whatever it was to which he belonged was not permitted access to the labor board facilities.
Tom C. Clark: That was in fact -- that was the laws for the NLRB facilities.
Richard Gladstein: That's very different thing however from imprisonment --
Tom C. Clark: Of the privilege to all the union members.
Richard Gladstein: Yes, that's what the Congress did and --
Tom C. Clark: Then they could prosecute him if he filed a false affidavit.
Richard Gladstein: Well, they could prosecute anybody under any circumstances for filing a false affidavits, certainly, that that's -- that's not material to the point here. I'm not contending that anybody has the right to -- to file a false affidavit or that there shouldn't be criminal punishment for filing a false affidavit. On the contrary, criminal punishment should be imposed precisely for criminal conduct and my complaint is that there is no criminal conduct here. And criminal punishment is being imposed. That's my point, that there is opposition, that there is something that somebody said before the Congress as to what supposed to have taken place in 1948 somewhere in Pittsburgh. And my client who lives in San Francisco and works there wants to know why he has to go to jail because somebody said something before the Congress and without being given the chance to meet any claim that he has done anything wrong except to be what, a Communist? This Court has said he has a constitutional right to be one. Except to be what? A union officer? You come very close to saying just recently that if the right to be a union member is a First Amendment right and you said so, you have the right to select once -- once leaders is part of the union members rights, well then it's a -- it's a necessary corollary isn't it that it's a part of that constitutional right for the man to stand for office and if elected take it. Now, if that's in the First Amendment what have we done? We have allowed the Congress under this law to say, “It's alright if you want to use this First Amendment right but only that one.” “Oh, it's alright if you want to use this First Amendment right, that's alright, but only that one. But don't try and use them both.” I don't understand that the Congress has been given that kind of authority and that's what this section amounts to.
Arthur J. Goldberg: Mr. Gladstein would you straighten me out on the point of fact that has been assumed here by you and by the Solicitor General that Mr. Brown was always a known member of the Communist Party. But in going through this record, I don't find anything that would indicate that that knowledge was communicated to his fellow members of the union who elected him to office until Mrs. Thompson took the stand at the trial and identified him as a Communist.
Richard Gladstein: No.
Arthur J. Goldberg: Is -- is that correct?
Richard Gladstein: No, no.
Arthur J. Goldberg: Am I wrong about that?
Richard Gladstein: Yes. There would -- there's testimony by four long time leaders of the union who had known Brown and knew him by reputation on the Waterfront as a Communist, as a member of the Communist Party. That he had never made any secret of it and that those references are -- you'll find references in our brief.
Arthur J. Goldberg: Answer me, was that after Mrs. Thompson testified?
Richard Gladstein: Yes. It was af -- well of course that they -- this is part of our defense and she testified for the prosecution.
Arthur J. Goldberg: I asked that it may not be relevant and I thought that the fact issue that was being made at the trial originally was whether in fact he was a member of the Communist --
Richard Gladstein: No -- no issue on that.
Arthur J. Goldberg: There's no wrong about that?
Richard Gladstein: No issue was ever made of that on the contrary if the outset where I said that we -- we made no issue of that. He -- he had been known and in fact ran for the -- ran for office as a Communist trying to be elected governor of the State of California on one occasion.
Arthur J. Goldberg: You have those record references handy. Don't bother I can give it to them --
Richard Gladstein: Yes sir. They -- they are this. I -- Your Honor will find a reference to the testimony. I didn't call that out in my brief but it'll be very close to the portions that I do have in the statement at page 4, the bottom -- and at top of page 5 Your Honors, will find references to pages 173, 184, 190, and 193 where his reputation for -- his good reputation for law abidingness was given by four witnesses who'd known him for 20 or 25 years and they too testified some if not all that he's reputation also was that he was known and widely known as a Communist. Now, I think I can conclude by -- by pointing out what the breadth of the statute really means. I'm not bothered to call the Court's attention of the fact that this statute is so wide of any mark that Congress really is -- has the right to try -- to do. It is so far from re -- being a real effort to try to come to grips of the problem. That there's even a provision that it's a crime for a man to work for General Motors as a labor -- labor consultant if he's been a member of the Communist Party in the last five years. Now, it of course it doesn't make it a crime for General Motors but it is a crime for somebody to be a labor consultant or employee for various organizations, employer associations that deal with unions. Now, how ridiculous can it be? What could there have been to justify something like that. If General Motors wants to hire somebody who's been a member of the Communist Party maybe precisely because if he has -- he has some expertise about things like that in the union. Why he shouldn't have the right to? Not that I -- they haven't hired me to make this argument but it is true that this statute bends it. I submit that under all of the decisions of this Court this statute goes farther. So far as I know that any in the history of the country, it is a dangerous and pernicious type of statute. It should be declared unconstitutional on its face. This Court of Appeals held that it was under the First and Fifth Amendments. I ask, Your Honors, to do the same and in addition to name it for what it is so that proper guidance can be given that it's a biil of attainder and an ex post facto law contrary to the provisions of the Constitution. We have vital interest in this country of course. But it's not only the Solicitor and Congress who have those interests to support, to defend, the people do too. And that includes the right to participate in the political life of the nation which includes the trade unions and the other organizations of the people. Certainly, punished for crime, certainly stop the political strike, the minute it gets going, if -- if that's what we don't want, if there's a law against it, we have ways of doing that. The president has powers.
Earl Warren: You may finish your statement.
Richard Gladstein: President has the powers to enjoin, intercept and take all kinds of steps to prevent the threatened danger which is being used an excuse for abridging First Amendment rights. Thank you.
Earl Warren: Mr. Solicitor General?
Archibald Cox: Mr. Chief Justice may it please the Court. There are just two points that I'd like to deal with very briefly. It has been intimated perhaps I should say during the argument that there might be a question whether this statute could be construed as not applying the Communist Party membership in the broad sense of any knowing membership but narrowed as in the sense of the Smith Act. I wouldn't say that was impossible, I find two, quite real difficulties with that any such construction that I would like just to mention. One is that was never the construction as I understand it given the Section 9 (h) of the Taft-Hartley Act that it was always assumed to at least cover on -- no membership when you knew you were a member. And this -- the legislative history shows rather plainly was intended as a substitute and I think that I reflect what the legislative history says and not some personal knowledge or impressions I got that everyone assume that the two were coextensive. Second, there is this difference. The Membership Clause of the Smith Act, of course, was concerned directly with membership in an organization intending to overthrow the government by force or violence. Now, I suppose it's quite possible that what might be a knowing Communist and the intent to manipulate a union through his office in the union to serve Communist purposes without intending to overthrow the government by force or violence. So that the narrowing would not be directed to the evil with which this statute apparently was directed. I think those are things that ought to be taken into account in weighing that question. The other thing to which I'd like to direct myself is to try once again with the risk of reputation to come down to what seems to me to be the truly fundamental interest here, the question here that I can do it best by referring to the argument that there has been no proof of personal guilt. There certainly has been proof of personal guilt in the sense that the defendant did the things that the statute forbids. He had a trial on those questions. He had an opportunity to prove that he didn't do them. The jury found that he did them. Of course, they were hardly controverted. But certainly there was a fair trial in terms of showing the things that the statute forbid. What the -- what can be said is that well, no one was forced to prove that this man intended to abuse his position in the union for the purposes of the Communist party. But I suggest without thinking that this answers the whole case. That nothing in the Fifth Amendment requires proof before you can punish certain things which create a danger of harm that this man will in fact do the harm or to take a -- simple example, I suppose that I can be arrested and prosecuted for driving, if I do it under the influence of intoxicating liquor and it's no defense to say that I drive better under that condition. I equally -- suppose that I owned stock in the civil aeronautics enterprise and became a member of the Civil Aeronautics Board. I couldn't say the government has failed to prove that I'm not the sole of owner who wouldn't possibly be influenced by my stock ownership in the Civil Aeronautics Enterprise. The question here so that I -- I think really that proof of personal guilt problem isn't it -- the question here is whether the danger in the combining of these two enterprises -- two positions. First, whether they have a reasonable relationship to the evil that the Congress was trying to deal with whether there is in fact a reasonable ground to believe that there is arrest that gets over the Fifth Amendment. Second, whether the evil is great enough to counter balance the indirect restriction upon freedom of association and if it is as we have submit then that gets, it's over the First Amendment. But I think those are the issues on which the case must ultimately turn.
Byron R. White: Mr. Solicitor General what is that the risk of --
Archibald Cox: The risk that a man who is subject to -- who has loyalties to the Communist Party and subject to a degree to its discipline will use his position in the union to subvert the union from -- through trade union purposes, to the goals of the Communist Party as it has been found that this union has done for example.
Byron R. White: Like -- like what -- like, was it called that the Congress might --
Archibald Cox: Political strike is a prime illustration.
Byron R. White: Is that what (Voice Overlap) the likelihood of political strike?
Archibald Cox: I think -- I think sir, I think that is the major, when I think there are other instances where the union --
Byron R. White: What is -- what is a political strike?
Archibald Cox: Well, I have in mind a strike like the North American strike that called as the response to the dictates of the Communist Party rather than because they believe it will be in the interest of the members of the Union. The same is the strike in the -- of the -- in the cloak and suit industry in New York in the 20s, of the Allis-Chalmers strike in 1940 and 1941 during the time with Stalin-Hitler Nonaggression Pact.
Byron R. White: Which over it's really the political strike we've got to --
Archibald Cox: Well I -- I think that's the major thing. But I think also Your Honor --
Byron R. White: Well are there -- are there some lawful end to the Communist Party that the -- that this --
Archibald Cox: Well, I think there are many --
Byron R. White: Without preserving --
Archibald Cox: I think there are many times where the desire of the Comm -- the aims of the Communist Party may coincide with the goals that the employees would have even if there were no Communist.
Byron R. White: Well what if that -- what if that's why is the Communist?
Archibald Cox: Well, I think that they're -- I acknowledged that it is possible that Brown or any other person may not himself in any instance attempt to misuse his union position just as a particular man may own stock in the Civil Aeronautics Enterprise and be a member of the CAB and never misuse his position as a member of the CAB. It's (Voice Overlap) that the risk are shown by his three or two grade.
Byron R. White: And so it's the -- so it's the strength of the inference between being a member of the Communist Party and the inference of these -- that these untoward circumstances will occur, events will occur that --
Archibald Cox: Judged -- judged in the light of history -- industrial history or including the things that were available to Congress as a result of the CIO investigation of the Communist Unions in 1950, yes.
Byron R. White: It was just a circumstantial evidence question. I mean (Voice Overlap) --
Archibald Cox: It's a matter where the Congress could draw -- it's a matter where the Congress could draw this conclusion from the materials available to it, yes.
Byron R. White: Or you mean the Congress can -- can base the -- the claming of the crime on that inference.
Archibald Cox: I don't think the Congress bases the finding of crime --
Byron R. White: Well, can be allow the court -- well he can allow the Court or order of the Court to base it's -- or the Court has --
Archibald Cox: No, it's whether --
Byron R. White: -- find its membership -- or the Court has to find his membership in the two organizations at the same time.
Archibald Cox: Yes, just like the --
Byron R. White: And Congress then --
Archibald Cox: Just as --
Byron R. White: And Congress then - and Congress then say to the Court, you must therefore conclude why.
Archibald Cox: Yes. Just as -- just as the Congress might pass a statute and I don't think its criminal but making it criminal for a civil service employee to be an officer of a political party. The Congress doesn't make anybody guilty of a crime. Congress says they're doing certain things shall constitute a crime. And if you don't do them you're not criminal. If you do, you are. And that as I understand is true of almost every regulatory statute. It singles out certain people to regulate and says if you -- if the people in this class do certain things, they're guilty of crime but that doesn't mean that the Congress finds them guilty of crime. Congress imposes the provision.
Hugo L. Black: Now suppose, as I understand that you're arguing that the interest in preventing political strikes is sufficient to outweigh the right of the public and freedom of association and the right of the individual's freedom of association. Now, if that is, why would it not be far more serious and more greatly outweigh the right of those freedoms for men to run for a political office called on the people to elect him. Why can't they do that?
Archibald Cox: Well, it seems to me that this Court in the -- in the Maryland case and in effect held that that could be done, didn't it?
Hugo L. Black: Not that I know of.
Archibald Cox: Wasn't that Gerende?
Hugo L. Black: If -- if the Court held that I didn't know it.
Archibald Cox: It was one that -- well --
Hugo L. Black: I know the case very well, G-E-R-E-N-D-E. Gerende.
Archibald Cox: Yes.
Hugo L. Black: Then it does follow and I will suppose it would --
Archibald Cox: Well, I did not --
Hugo L. Black: I think it's necessarily follows that if being a member of the Communist Party, they should keep labor union from elected as an officer. By reason of the possibility of political strike that that outweighs the right to freedom of association and freedom of speech. It would necessarily follow that Congress could forbid members of the Communist Party to run for public office like a Communist would.
Archibald Cox: Well --
Hugo L. Black: I think -- I think that people would take care of it and that's what I thought the Constitution provide it. But I didn't think the Congress could.
Archibald Cox: I think the character of the question of the balance and the issue I was trying to focus attention on is the same. I'm not quite satisfied with the opportunities for danger are exactly the same in each instance.
Hugo L. Black: Not exactly the same. There'd be more wouldn't it? Won't it be great --
Archibald Cox: Well I'm not sure, Your Honor. I'd like to say that that --
Hugo L. Black: That's right. I agree that you cannot be sure.
Archibald Cox: At least I wouldn't say that it was frivolous.
Earl Warren: But generally if we conceive that power to -- to Congress. Where can we stop, where can we say that this power of Congress conflicts with First Amendment rights in order to protect the rights of the individual?
Archibald Cox: Well you can --
Earl Warren: Mostly, we would not say that the government always wins and the Congress wins.
Archibald Cox: No. No, I take it as that it would be possible for one to say that to draw a line between a statute which forbad holding union office and being a member of the Communist Party at the same time to say that that was constitutional and to say that it was unconstitutional to forbid a man to be a union member and the member of the Communist Party at the same time or one could -- if he didn't draw the line there, he could say that it was unconstitutional to forbid a member of the Communist Party to hold employment at the same time he was a member. I think each of these things must be judged on its own facts and that the two alternative statutes I've suggested would be more vulnerable than the present statute because the sanction, the pressure to get out of the Communist Party would be much greater and the opportunities to work harm would be much less.
Earl Warren: Well, how could we draw the constitutional line between the right to hold this position in the union and the right just to be a member and exercise a -- the other rights of the membership in the union. Well, how do we draw the constitutional line between those two situations?
Archibald Cox: Because you would prior -- I mean do it in your decisions and you would do it I would urge if it were to be such a line because you found that the Congress could not reasonably believe that the danger -- that the harm a man could do as a result of divided loyalties, would be sufficiently great as a member of a union to justify what it would be for a far greater restriction on his freedom to association. I think this is the business of drawing lines which as it is often been said, is the stuff of constitutional law.
Earl Warren: Very well.