Earl Warren: Number 477, Edward Yellin, Petitioner, versus United States. Mr. Rabinowitz, you may continue your arguments.
Victor Rabinowitz: Thank you sir. At the close of the session yesterday, I was discussing the balancing theory which has been adopted by this Court in the Barenblatt, Braden and Wilkinson and other similar cases and was pointing to what I felt was a conflict between the doctrine that had been applied in these cases and the doctrine that had been applied or the results at least that had been reached in cases decided contemporaneously such as National Association for the Advancement of Colored People against Louisiana, Bates against Little Rock, Shelton against Tucker and a few others involving the integration of problem in the cell. May I with all due respect to this Court, suggest that perhaps the explanation of the Barenblatt line of decisions lies in the fact that the ideas and the speech in the assembly which was seeking protection in those cases were ideas, speech in assembly which we hate and which we abhor? Well, the ideas that were seeking protection and the assembly that was seeking protection invades Shelton, the Louisiana case and the others are ideas which today we find tolerable and in some cases even attractive. This of course is not a permissible application of the First Amendment to the Constitution if that amendment is to be given significant content. It is contrary to a long line of decisions running back to the days of Judge Brandeis and I'm not going to quote to Your Honors language which is very familiar to you from decisions by Judge Brandeis, by Judge Jackson, by Judge Black, in Richards against California and in many other cases and by Judge Holmes of course. All of them have pointed out that the primary purpose of the First Amendment is to give protection to the ideas that we abhor and that unless that it is given that interpretation, the Amendment has no a very significant meaning.
Speaker: (Inaudible) Barenblatt?
Victor Rabinowitz: Yes sir. Well, no sir. I don't have to overrule Barenblatt to succeed in this case. I think that I have, as I previously indicated, a reversible -- reversible error with respect to the question of the failure to grant an executive session. I believe further that I have reversible error and that the Court refused to admit the testimony of Professor Emerson on the balancing theory. And I believe further that within the bounds of Barenblatt and within the bounds of the balancing theory which is I said before, I am assuming although I cannot agree with it, that on balance in this case unlike what the Court felt was the situation in Barenblatt. On balance in this case, the balance lies on the side of the petitioner and on the side of the great First Amendment Rights which our for the protection of public discussion in the United States rather than on the other side of the scale which Your Honor has held in Barenblatt, must be weighed against the public and private interest on the other side.
Speaker: The Congress of the United States has no power to investigate on the field?
Victor Rabinowitz: Oh I think Congress of the United States has power to investigate on the field. No one is challenging the right of Congress to call witnesses to take testimony, it has called hundreds of witnesses who have given testimony voluntarily, given testimony freely, have given a tremendous amount of testimony and even --
Speaker: You're not asking us to --
Victor Rabinowitz: Oh I'm asking you to overrule Barenblatt but I haven't gotten to that. I was just about to come to that point now. As I said at the beginning, in its constitutional issues, I feel that this case is undistinguishable from Barenblatt. And from now on, shall we say, I am asking the Court to overrule Barenblatt although I do not believe that anything I have said up to this point requires the overruling of Barenblatt but rather it requires an application of the balancing theory which will throw the balance in this case in the other way, and I'm not arguing what should have been -- how the balance should have been thrown in the other cases because those other cases are not here nor do I represent those other petitioners. I would now like to turn to the constitutional issues which as I say call for a reversal of Barenblatt. I have prepared an argument on this aspect of the case and I had intended to show first that the charter of the Committee Rule 11 was unconstitutionally vague and that it was improper to attempt to give it meaning by a search of legislative history at least in a criminal case. However, proper that might be for historical or other purposes. I had intended to argue further that since the Committee by its charter was limited to investigation of Un-American propaganda and even assuming that we could assign a meaning to that somewhat vague expression. It would give the Committee the power to investigate speech because propaganda is merely another word for speech, and that that was improper. I had intended to argue that this particular hearing had nothing to do with propaganda anyhow. And I had intended to argue further that this was a good case of exposure for exposure sake. After preparing all of this argument with great diligence, I reread the dissenting opinion in the Barenblatt case and I found that everything that I had intended to say were said in that dissent or almost everything I have intended to say were said in that dissent. And for me to repeat all of the arguments that were made there and the decision that was handed down only I think two and a half years ago, what I think to be a -- in position on the Court, it would be merely repeating arguments and words which I have thought -- sure the Court is fully familiar with and I would not omit a word within if I have -- with permission of the author of the opinion, I would like to incorporate that dissent so as to speak by reference into this argument. If I may however, at the risk perhaps of "gilding the lily" add just a few words to what was said in that dissent. The dissent was written in 1959. In the two and half years that have passed since that date, the process of the expansion and the growth of the seeds planted in ACA against Douds against which the dissent won in ACA against Douds and won again against in the Barenblatt case. Those seeds have continued to expand and the doctrine of ACA against Douds has continued to apply further and further so that we have had since Barenblatt, the Braden case, the Wilkinson case in the specific area of congressional committees, the Scales case, Suppressive Activities Control Board case and perhaps four or five other decisions generally in the area of the rights of communist. The second point I would like to make is addressed to the question of exposure for exposure sake which is also discussed in the Barenblatt decision and in other decisions as well. I would like to note here the failure of the Committee to grant an executive session which I have already noted as an indication of the purpose of this Committee in seeking to call people before it for the purpose of exposing them. In the course of the hearing Mr. Tavenner said he didn't interview the petitioner in advance to find out what his testimony would be because he didn't think the witness would cooperate, that's perhaps another way of saying that he didn't call -- he didn't subpoena the witness in advance because he didn't think the witness would testify. And it doesn't seem to me that calling witnesses in a congressional investigation with the knowledge of understanding or belief that they aren't going to testify is the proper way to conduct the legislative investigation; the purpose of which is to get information and not to expose persons for their political belief. In this case, the Committee had a great deal of information on the situation in Gary. It had several so-called cooperative witnesses in Gary. It called about ten other witnesses and as I have said before, it had engaged in nine previous investigations on this general subject and the only difference between this hearing and let us say, the hearing in Buffalo was that one hearing was in Buffalo and the other was in Gary. But for legislative purposes, the fact adduced in both of those hearings was identical. I would like to add just a few words, they're not in the record before this Court but they are matters, I believe of public record or most of them are, as to what happened after this hearing. As I said before, the petitioner received the fourth foundation grant to study at the University of Illinois. When the appearance before the --
Potter Stewart: I thought he was from the University of Colorado.
Victor Rabinowitz: He was originally a graduate of the University of Colorado and he did -- is now doing graduate work at Illinois. He received the fourth foundation grant of the University of Illinois and when this appearance before the congressional committee came to the attention of the faculty at Illinois, an investigation was held, the dean, after a great deal of campus activity on the subject and much distress to the petitioner, the dean after a faculty investigation, found that the petitioner had returned in good faith to the academic world. Subsequently, he received a Nat -- National Science Foundation grant. This came to the attention of Congressman Scherer, who made several speeches on the floor of Congress about how these persons who had refused to testify before the Committee had received government aid and as a result of those features, the National Science Foundation grant was revoked so that the Committee even after the hearing has been pursuing its exposure purposes. Finally, I would like to say one more thing and with this, I shall close. The most important aspect of the First Amendment to the Constitution is I believe not the right of the petitioner to belong to the organization he wants to or to speak or to remain silent. The most important right is the right of the public to hear what he or whatever people may have to say. And it is here that our democracy faces its greatest threat because today, while we have some degree of democratic discussion on high intellectual levels among people who are secure, there is no free in democratic discussion among the masses of the people on the great issues of the day. And this is largely because of fear. Would you advocate peace? Two years ago, 20 or 30 members --
Speaker: What investment is that?
Victor Rabinowitz: I'm about to expand on it sir. Would you advocate peace? 20 or 30 years ago -- 20 -- two years ago, 20 or 30 members of the Committee for saying Nuclear Policy would call before a congressional committee and examined extensively on their political beliefs. Would you advocate a change in our policy to a Cuba? Last week, this very Committee announced that it was traveling to Los Angeles for the purpose among others of subpoenaing members in Los Angeles of a Committee called, "The Committee for Fair Play for Cuba." Would you advocate abolition of the Committee? I merely called to your attention the decision in the Wilkinson case. On the great issue of the recognition of China, there is hardly anyone to subpoena. We have to go back into history to examine what happened to the Institute of Pacific Relations. The Amerasia Affair, the prosecutions, two, I believe they were of Professor Lattimore (ph). Would you advocate socialism? There is the threat of the Subversive Activities Control Board which may find you a member of the Communist Party or which may find your organization; a Communist Action Organization, a Communist-infiltrative Organization, a Communist Dominated Organization and I hate to predict what maybe the next kind of organization, perhaps a Communist Mislead Organization. Would you engage in the theoretical discussion of communism? Last year, I believe it was or two years ago, this Committee held an investigation of a foundation which gave grants to theoretical discussion of Marxism and also called before it a group of teachers who are teaching at a school of Marxist studies in New York. Furthermore, this situation is not getting any better. At least from the point of view of a lawyer who reads the advanced sheets of this Court, it seems to be getting worse. Such a situation would have been serious enough 50 years ago but in the dynamic world of today, it poses a very serious threat to our existence as a free and democratic nation. There is today a world wide debate going on, all over the world, Vietnam, in Argentina, Western Europe, Cuba, in Africa, a debate on the relative merits of two great opposing forces, two great social systems. I suppose for a shorthand purposes, we can say the capital system of free enterprise and the socialist system of a planned and controlled society. Unless our people can debate this, and debate this not nearly in the magazine section of the New York Times but debate them in their trade unions, on the street corners, in their clubs, in their political parties. We are acting out of the debate and as the democracy, it is doubtful as to whether we can survive. We can't survive perhaps as a military machine but not as the United States that we all know and love. In this atmosphere of fear where issues are debated by people who are either very secure or most people not being secure are debated only with the fear of a congressional committee subpoena or a Subversive Activities Control Board prosecution. Free debate cannot exist. The subpoena may never come, most of the time it does not come. The prosecution under Subversive Activities Controlled Act usually does not happen. But Your Honors, I can tell you that in the last year, I have had 20 people come to me and say, "I was a member of the Communist Party years ago, is it alright for me to use my passport and go to Cuba?" I'm -- excuse me, can't go to Cuba with the passport, go to -- go to Europe. People are frightened and in this atmosphere a free and democratic discussion cannot exist. I have the greatest respect for this Court of course and it is because I have such great respect that I had these last few words. I cannot say that this Court is responsible for all of this that has happened. But I think that if the record is examined objectively, it must be said that it bears its share of that responsibility. Beginning with ACA against Douds, to Dennis, Barenblatt, Wilkinson, Braden, Scales, SACP and a scour of other cases, this Court has thrown its not uncon -- inconsiderable weight on what I feel is the wrong side, had it not done so, had it encouraged and supported the drive to political conformity. It would not have given substance to what one member of this Court has referred to as the "black silence of fear." I myself feel some very slight responsibility for this. Some years ago, longer ago than I care to remember, I argued American Communications Association against Douds and sometimes I think that had I been a better pleader, perhaps I would have won the case and all of these wouldn't have happened. Perhaps, I'm now seeking redemption for my small sin.
Speaker: What case are you residing?
Victor Rabinowitz: ACA against Douds sir. It will take us a generation or two to get out of the utmost of fear -- atmosphere of fear to which we have been passing. I hope that it is not too late to begin now, certainly, it is not too early. Thank you sir.
Earl Warren: Mr. Terris.
Bruce J. Terris: Mr. Chief Justice, may it please the Court. The start of my argument, I would like to state the Government's basic position and the most important issues in all three of the contempt of Congress cases which are being argued today. These basic issues are, first, whether the questions which were asked, the petitioners were in law of pertinent to the subject under inquiry. Second basic issue is whether the petitioners were apprised of the pertinency of the questions which they were asked to the subject under inquiry at the time that they appear before the Committee. The third basic question is whether the Committee's questioning of petitioners violated their rights under the First Amendment and the fours -- fourth basic question is whether the Committee's inquiry had a valid legislative purpose. The Government submits that all four of these questions are squarely controlled by the recent decisions of this Court in the Barenblatt, Braden, and Wilkinson cases. In fact, petitioners in their briefs and petitioner Yellin here in oral argument, seems to agree at least as to the controlling principles. While petitioners indicate disagreement with those cases, they accept their applicability and argue that the particular facts of these cases, the cases which are now before the Court dictate a different result. And therefore, we submit that the issue which is before the Court, both as to pertinency and as to the First Amendment is whether the particular facts make these cases distinguishable from Barenblatt, Braden and Wilkinson. It's the Government's position that the cases which are now before the Court are substantially similar on their facts to Barenblatt, Braden and Wilkinson and insofar as the facts are different, that the cases which are now before the Court are considerably stronger for the Government. I would now like to turn to this particular case, the Yellin case. The Committee at the time the petitioner appeared before it was conducting an investigation of Communist activity in basic industry and particularly the steel industry in the Gary, Indiana area. The Committee had considerable information of a major effort of the Communist Party to colonize, that is to infiltrate basic industry throughout the United States and more specifically, to colonize the steel industry in the Gary, Indiana area. Petitioner Yellin was convicted for refusing to answer four questions, although he refused to answer considerable number more. The first question on which petitioner was convicted was where he resided prior to September, 1957. The Committee explained that this question was designed to establish, the petitioner had lived in the Gary area and that therefore he would likely have knowledge of Communist activities in that area. The second question on which petitioner was convicted was whether he knew of Communist Party colonization in steel unions in the Gary area before 1957. The third question was whether petitioner was a member of the Communist Party on June 23rd, 1949, which was the date that he applied for employment at the steel mill in the Gary area. And the fourth question on which petitioner Yellin was convicted was whether there were Communist Party colonizers in the steel unions in Gary in 1957. And therefore, all the questions on which petitioner was convicted involved with petitioner's own Communist Party activities or that -- or Communist Party activities generally in the steel industry in Gary. The petitioner here on my petitioner's prominent silver does not raise any issue as to pertinency. He does not claim that the questions which he refused to answer were not in law of pertinent to the subject under inquiry nor does he claim that the Committee failed to apprise him of the pertinency of the questions to the subject under inquiry. Petitioner Yellin's major contention is that the Committee's questioning of him violated his rights under the First Amendment. As petitioner admits his basic arguments that the Committee had no valid legislative purpose and that his First Amendment Rights were violated, were answered by this Court in Barenblatt, in Braden, and in Wilkinson. However, petitioner says that his case is different because here, the private interest of the petitioner in silence outweighs the governmental interest of the Committee in compelling him to answer. This Court in the Barenblatt case emphasized the great, the overriding governmental interest in protecting the national security from go -- from Communist subversion and this determination did not standalone. It reflected of series of earlier decisions such as the Dennis case which upheld portions of the Smith Act, American Communications Association versus Douds which upheld the Non-Communist Oath Provision of the Taft-Hartley Act as well as numerous other cases in addition reflected the detailed findings of the Congress in Section 2 of the Subversive Activities Control Act. In Barenblatt, this Court found that this obviously vital governmental interest in preventing subversion justified an investigation by the very same Committee which is involved in this case into Communist activities in educational institutions. And in Wilkinson and Braden, this Court held that the governmental interest in protecting against subversion justified this Committee in investigating Communist Propaganda Activities. Comparing the situation which was before the Court, the situations which was -- were before the Court in Barenblatt, Braden and Wilkinson to this case, the governmental interest here is considerably stronger both education and propaganda are of course areas particularly protected by the First Amendment. Here on the other hand, the Committee's investigation was at -- was in the field of basic industry and particularly to steel industry which is certainly less directly protected by the First Amendment. In addition, while it was reasonable for Congress to believe that the danger from Communist subversion was substantial in education and propaganda. Certainly, the danger there was at less direct to the national security in Communist activity in basic industry. In fact, it has been recognized for 40 years, as it is reflected in this Court's decision in American Communications Association versus Douds that one of the most important steps used by Communist to subvert democratic governments is to infiltrate and control labor within basic industry. Certainly, the Congress could reasonably believe that such attempts by Communist in the United States presented a substantial danger which should be investigated at the least, and if found necessary, legislated against. This Court in Barenblatt also pointed to three other considerations besides the danger of subversion in balancing the governmental and individual interest which were there at stake. First, the Court in Barenblatt noted that the Committee was not attempting to pillory Mr. Barenblatt and this is equally true here. Committee made a considerable effort to persuade petitioner to testify and even explained the pertinency of the questions to him despite the fact that he made no specific objection on the grounds of lack of pertinency. Second, this Court emphasized that Mr. Barenblatt had not been subpoenaed as a result of indiscriminate dragnet procedures, lacking in probable cause for belief that he possessed information which might be helpful to the subcommittee. And again, this is equally true here. Two persons identified petitioner as a member of the Communist Party. These were live persons. This did not come from the files of the Committee including Francis Crawley who identified petitioner as a fellow member of the Communist Party at the University of Michigan at the very same hearing that Francis Crawley similarly identified Mr. Barenblatt. And finally, this Court in the Barenblatt case said that the relevancy of the questions is not open to doubt and this is even more clear in this case. Petitioner was repeatedly told that the Committee was investigating Communist activity and basic industry in the Gary, Indiana area.
Speaker: (Inaudible)
Bruce J. Terris: Yes it did.
Speaker: (Inaudible)
Bruce J. Terris: It's not in -- it's not in the -- it's not in the -- in the record.
Speaker: (Inaudible)
Bruce J. Terris: It's in the petition sir. It's 287 F.2d 292, 287 F.2d 292. And finally, this Court said in the Barenblatt case, the relevancy of the question is not opened to the doubt and as I have said that this is equally true here. Petitioner was told specifically of the subject under inquiry and the questions he refused to answer your concerned is on Communist Party activities or Communist Party activities in the steel industry in Gary. Petitioner, however, claims that this case is different from Barenblatt because the Committee had all the information on Communist activities which petitioner could possibly have supplied. Petitioner contends that the Committee knew where Petitioner reside it before 1957 and that he was a member of the Communist Party in 1949 which was the question sought in the -- which was -- which was the information sought in the questions underlying counts one and three. And Petitioner further claims that the Committee knew from previous hearings concerning Communist activities and basic industry, the answers to the questions involved in Count 2 and 4. Therefore, petitioner argues the Committee wanted only collab -- collaboration which does not outweigh the individual interest in silence. The Government submits the petitioner's first mistake in this argument is a considering only the information which was sought from the particular questions on which petitioner was convicted. The answer to anyone question or even any four questions, they will not be vitally important to the Committee's investigation. In order to determine the interest of the Government in disclosure, one must weigh the purpose of the entire investigation in the Communist activities in the steel industry and the possibility that the witness can contribute to this investigation. And therefore in the Barenblatt case, this Court weigh the Government's -- the Committee's interest in Communist infiltration and education, not the interest of the Government in obtaining the answers to the particular questions on which Mr. Barenblatt was convicted. Petitioner's second mistake is in ignoring the important governmental interest and having a well-informed witness confirmed previous information particularly when the existing evidence is in a controversial area as this one certainly is, and is therefore likely to be challenged. The questions which this Court upheld in Barenblatt, Braden and Wilkinson, all sought information concerning whether the witness was a member of the Communist Party to collaborate evidence of the Committee already had in all three cases that the witness was a member of the Communist Party. And in addition, it is clear that the Committee was not merely seeking in the questions involved in Counts 2 and 4 to confirm evidence that it already had. The previous Committee hearings concerning Communist activities in basic industry and more specifically in the steel industry concerned different although related subjects to the subject of Communist activities in the Gary area for those hearings all involved Communist activity and basic industry in other parts of the country. For example, the Buffalo hearings concerned Communist activity and basic industry in the Buffalo area. The Committee therefore could have a valid interest in seeing whether the pattern which was established in Buffalo also apply throughout the rest of the United States and that therefore, legislation might be necessary. The record also shows that the Committee had little or no information of Communist Party activities in Gary after 1952 from other witnesses and did it hope to obtain this information from petitioner. At the least, Petitioner has never shown that he could not have provided new information and certainly cannot unilaterally determine that he had no new information and that therefore, he need not testify before a properly authorized congressional Committee. Petitioner Yellin also claims that his case is different from Barenblatt, Braden and Wilkinson because here, the trial court excluded the proffered expert testimony of Professor Emerson on the issue whether petitioner's First Amendment rights had been violated. This testimony is included in full in the record at pages 100 to 115 and was in response to the following question. Everyone opinion as to the various factual considerations which have to be taken into account in balancing the competing public and private interest at stake in the circumstances presented. The trial court held that this question asked for an involved legal opinion and that Professor Emerson's answer constituted such a legal opinion. Without going into Professor Emerson's lengthy response in detail and then to summarize at pages 28 to 30 of our brief, we submit that the ruling of the trial court which was approved by the Court of Appeals was correct. The proper testimony consisted largely of legal factors which the Court should consider not with factual evidence relating to those factors. Professor's Emerson state -- Professor Emerson's statement in short reads by the closing argument of very able counsel summarizing his client's legal position under the First Amendment. In fact, Your Honor it does -- parts of itself considerably like Mr. Rabinowitz's closing remarks here today, while such statement it is of course proper when presented by counsel is legal argument, the lower courts will correct and it did not constitute evidence. But even if we are wrong and the lower courts are wrong and Professor Emerson's testimony was properly admissible, we submit petitioner's conviction and nevertheless should not be reversed.
Hugo L. Black: May I ask you just one question in connection with expert testimony? Should I recall that the Government of short time ago argued that expert testimony should be admitted from time-to-time to approve or disapprove obscenity, do you think that had any relation to this point?
Bruce J. Terris: Well, I assume Your Honor that that kind of testimony would go to the question whether -- whether the particular documents were obscene not on the -- not on the standards which should be applied by the Court here --
Hugo L. Black: -- (Voice Overlap) -- I may be wrong and I recall it was an order to determine whether it was offensive to the more reason of the community.
Bruce J. Terris: That's right Your Honor and I -- and I assume that is a -- is a factual question. I don't think that this -- that the question Professor Emerson testified to is the same that what -- what he stated was quite similar to -- if you put the majority opinion in Barenblatt next to the dissent, his testimony once -- he first deals basically with the majority position that there's a great danger to the national security from Communist subversion and then it goes down the line at the dissent that the interest of the individual in silence is greater. I don't think that's the same type of issue which was involved in the obscenity case. But even if there was admissible, the Government's further argument is this -- that petitioner Yellin's contention should anyway be sustained but the testimony was offered solely concerning petitioner Yellin's claims under the First Amendment. And this was a legal issue which this Court in Barenblatt, Braden and Wilkinson decided for itself and therefore, this Court itself consider Professor Emerson's statement which is fully set fort in the record to determine if petitioner Yellin's First Amendment rights were actually violated. And if we so consider Professor Emerson's statement, a fair summary is that a danger of -- that the danger from the Communist overthrow of the United States Government is not substantial but the threat to First Amendment rights from congressional inquiries in the Communist activities is extremely serious. We submit that this statement adds nothing to the competing considerations waived by this Court in Barenblatt, in Dennis and American Communication Association versus Douds. And therefore, we submit that Professor's -- Professor Emerson's statement presented no basis for changing this Court's determination in the earlier cases. The congressional committees can compel witnesses to testify concerning communist activities without violating the First Amendment.
Speaker: (Inaudible)
Bruce J. Terris: That's right Your Honor. That's right. And of course in all these cases, the basic First Amendment rights having considered by this Court is a question of law.
Earl Warren: Well, Mr. Terris, assuming that they're accepted rather the -- the Barenblatt doctrine that there is balancing processes between the rights of individual and the rights of the -- of the Government. Is it your position now that that all that balancing has been done and that there is nothing open to the -- to the defendant in the case of this kind to balance?
Bruce J. Terris: Your Honor I would -- I wouldn't like to say that it's done for all time.
Earl Warren: Well, we'll just say for all cases at this time.
Bruce J. Terris: Your Honor, if petitioners can show that there is any difference today from what from -- as to the factors -- from the factors which this Court considered in Barenblatt, only two and a half years ago that -- that is one thing, but that is not, that is not what Professor Emerson testified to. He basically testified to what the Court should consider. Now, this Court already held in Barenblatt what -- what our lower courts could -- should consider. In addition, his testimonies almost and precisely the same time (Voice Overlap) --
Earl Warren: Would you mind --
Bruce J. Terris: -- this Court is doing --
Earl Warren: -- telling me -- would you mind telling me please, what kind of testimony would be available to a defendant in the case of this kind?
Bruce J. Terris: If you -- as to the -- as to the balancing process?
Earl Warren: Exactly.
Bruce J. Terris: Well, Your Honor --
Earl Warren: Either there is -- there is something available to him where there isn't now. Now, if there is, I just like to know what it is.
Bruce J. Terris: Your Honor, the way the Government sees the relationship between Barenblatt, Braden and Wilkinson on the one hand and any city in Alabama, Shelton and Tucker, Bates and Little Rock and the other which all involved the balancing testing, came out different ways. Is that Court held in Barenblatt that there was great danger from subversion from communism? And the questions as the communism could be asked because of the overwriting governmental interest in that subject. On the other hand, an N.A.A.C.P.in Alabama, in Bates and Little Rock, this Court that found there was no interest of the State in finding out the membership list of the -- of the N.A.A.C.P. And in Shelton and Tucker, this Court found that there wasn't -- there wasn't sufficiency in -- sufficient interest to find out the membership of teachers in all their organizations. Now, it's interesting in Shelton and Tucker, this Court carefully said that it was not deciding that a State couldn't ask questions of teachers concerning their membership in certain organizations or they could -- that the State was not precluded from asking from certain teachers their membership in all organizations. Now, if -- the Government submits that what these cases altogether show is that when the -- when a Committee, when the State or Federal Government is investigating something is serious, is Communist subversion that the governmental interest outweighs the private interest. Now, if the question that was asked was so clearly on its face unrelated to anything to do with Communist activity, I suppose that there would be unconstitutional to ask the question, although it probably also not be pertinent.
Earl Warren: Mr. Terris, may I put it this way through you then? Do -- under the Barenblatt case and the Wilkinson case, is it your position that every witness regardless of the circumstances of his case stands in exactly the same position before the Committee so far as the balancing process is concerned, namely that there is -- there is nothing -- there can be nothing in the -- in the circumstances of any particular case that would change it and that is a matter of rope. We must now say, in every case where a -- where a pertinent question is asked that there is no countervailing interest that -- that can prevail?
Bruce J. Terris: Your Honor, the answer is no. This Court in Barenblatt's gave three considerations which have to be applied in each individual case. One of the considerations was whether the witness was called as a result of dragging and procedures. I've arg -- well, I assumed that there's no absolutely no basis that can believe it he has any information about the subject under inquiry.
Earl Warren: Where do you get a definition like that?
Bruce J. Terris: Well I -- I think that is the meaning of what -- of what this Court said in the Barenblatt case and is repeated substantially in those terms in both Braden -- both Braden and Wilkinson that Mr. Barenblatt was not subpoenaed as the result of it and, “Indiscriminate dragnet procedures lacking and probable cause for belief that he possess information which might be helpful to the subcommittee.” Now, applying that standard, if a witness was just called off the street, they had no -- no indication that he had any information about Communist activity in the particular Communist activity which the Committee was investigating then I think this would probably violate the First Amendment. Now, the two other considerations which are in Barenblatt; one is that whether the Committee was attempting to pillory the witness and another one was whether the questions were relevant. Now, I've argued that it -- in this case as in the other two cases, all three of these standards are met. And then I -- the Government submits that if they are met then as Your Honor suggesting this question that Barenblatt, Braden and Wilkinson establish that the Committee can compel a witness to answer questions which are pertinent.
Earl Warren: Regardless of any other equities of any kind?
Bruce J. Terris: Your Honor, first of all I think those three considerations have the basic equities. I don't know of –- of other equities that should be weighed and – and second of all, I think the –- the basic --
Earl Warren: Well, let's take –- let's take a question of this kind. In -- I forgot in whether it was Wilkinson or Braden and we found that a Committee had taken one witness. I think he was an employee of the Customs Department, all around the country to about entertain different places and they had him testify to the very same thing concerning the same bags of male and what was in -- what was in those bags, particular bags of a male. Now, suppose we had a situation with that kind with – with this defendant Mr. (Inaudible) --
Bruce J. Terris: Yellin.
Earl Warren: -- Yellin.
Bruce J. Terris: I would think that would be pillorying the witness.
Earl Warren: I beg your pardon.
Bruce J. Terris: I think that would be pillorying the witness.
Earl Warren: You do?
Bruce J. Terris: Now, the Barenblatt case doesn't go –- go into detail what pillorying means. But if it was just that, I reserve it. I think it's a different question if there's a substantial length of time between the two so the Committee could have reason to believe that the witness would testify at another hearing. But if it's perfectly clear and they call him once he refuses to answer, I don't think that he can have a legislative purpose to as you say, just drag him across the country and ask him precisely the same questions again and again over a short period of time.
Earl Warren: Would you say a long period of time?
Bruce J. Terris: Well if -- if there was -- if the reason to believe that he had additional information or he might change his mind, yes, I think yes. There might be a very -- very significant difference. The reason I say that is --
Earl Warren: You mean if he claimed the privilege once and they gave him a little time that they could call him again on the theory that he might have changed his mind and then that -- on that basis --
Bruce J. Terris: Well --
Earl Warren: -- they could take him all over the country?
Bruce J. Terris: Well, the privilege Your Honor is the Fifth Amendment, none of these cases are --
Earl Warren: I know that is --
Bruce J. Terris: -- diverse.
Earl Warren: -- that isn't here.
Bruce J. Terris: No, it's the first.
Earl Warren: But it's --
Bruce J. Terris: No.
Earl Warren: It's certainly is pertinent to the discussion here.
Bruce J. Terris: Well, I suppose if he invoked the Fifth Amendment, there have been no prosecutions for a number of years on any witnesses who've invoked the Fifth Amendment, now, what -- so that I assume that he wouldn't be prosecuted. Now, it would be a very improper thing I would think for the Committee to take a witness across the country and do this although I know of no such cases on unwilling witnesses. But if they did it, I don't know what the judicial remedy would be. I think it would be improper in my file -- his First Amendment rights but I can see no way that he would be prosecuted.
Earl Warren: I assume that the -- that the Government did have to show the importance of the investigation it was conducting. And all I'm asking --
Bruce J. Terris: Yes.
Earl Warren: Is -- is there any way that -- that a witness can offer any testimony in order to counter balance that kind of testimony?
Bruce J. Terris: Well, Your Honor, as I say, he -- if he can show that they just picked him up off the street or they pilloried him or that the questions were not -- were not relevant then, yes, he can introduce such argument or evidence. Much of that evidence would come from the transcript of the hearings itself, maybe all of them would. But these it seems to me are the basic considerations and petitioners nor as far as I know anyone else has ever suggested what additional considerations should be weighed. And this Court held that, given all this set of factors -- set of factors in Barenblatt, Braden and Wilkinson which are almost the same factors here except as I've indicated. I think the Government own interest here is even stronger that given the set of factors that the First Amendment isn't violated.
Hugo L. Black: May I ask you question (Inaudible)? As I understand it, you're saying that if there the Committee has some information that a man is a Communist (Inaudible) and they do not, whatever you mean by pillorying than then the fact that it's in the field of communism, leave nothing to be balanced so far their rights to interrogated their concern and they can continue to interrogate them in connection with communism as distinct from something like N.A.A.C.P or somewhat organization.
Bruce J. Terris: I think that's essentially right Your Honor because I think all of it that -- that is to say is that when the facts are essentially the same, the balance always comes out the same way.
Hugo L. Black: Well now, may I ask you this and I -- I maybe wrong but as I understand the rumor about that thing, it exists in order to escape what is said to be a much (Inaudible) that is the doctrine of absolutism. Why is that matter an absolutely as proved under your definition?
Bruce J. Terris: Well, I don't think that what I've suggested is that -- that there isn't a genuine balancing in each case. All that that I suggest --
Hugo L. Black: Balancing of what?
Bruce J. Terris: The Governmental interest versus --
Hugo L. Black: If he's a Communist -- if he's a Communist or they think he's a Communist they want to ask him question, what is that left about?
Bruce J. Terris: Well -- to repeat, what they are balancing is the governmental interest versus the individual. Now, the Governmental interest --
Hugo L. Black: But it isn't all settled finally, completely once and for all, what if he is a Communist so they have reason to believe you. You summon a man without bringing a man under dragnet and they do not pillory him or whatever that means? Isn't it all settled? Haven't they got a right to ask him anything they want to although they might not have a right to ask the members of some of the organizations?
Bruce J. Terris: Well, Your Honor, it is settled when the facts are substantially the same but I --
Hugo L. Black: Those facts, just those fact, why is that not, the doctrine there absolute his position with reference to that question in the First Amendment?
Bruce J. Terris: Well, Your Honor because I don't know of any other considerations which are proper in this Court is held. They are no additional considerations.
Hugo L. Black: I understand your view and I think -- I think you're doing, if I may say so making a fair presentation view points. But all I'm asking is, if that's true why is not that an absolute lists of view that the First Amendment does not apply when the balancing doctrines seems to rest on the idea that there must be no absoluteness protection of the First Amendment?
Bruce J. Terris: Well, without getting into what the meaning of absolute is this --
Hugo L. Black: Well, I don't know either.
Bruce J. Terris: The balancing process which takes place under Barenblatt seems to me to be an actual -- and real balance. It is not es -- it does not establish a rule for all cases regardless. What it does do is say that when the balance is essentially the same, when the factors are the same as in Barenblatt, then the result will be the same.
Hugo L. Black: Well, then why if that's true, is all I'm asking? That's true if a witness is called up the reason to believe he's a Communist, is asked the question -- they asked where you say in the ninth, 13 come now, not repeated time after time, say 100 times same question, just two or three times. And he question is -- the question is communism rather than whether he is N.A.A.C.P member, member of some other organization. Is there anything left to balance or is not true at that time, the Committee is the investigating Committee, that has a right to ask him whatever it would be --
Bruce J. Terris: Your Honor --
Hugo L. Black: -- on that subject.
Bruce J. Terris: -- is there anything left to balance, that is what you balance.
Hugo L. Black: But if there's anything left but what should --
Bruce J. Terris: Well --
Hugo L. Black: -- be left?
Bruce J. Terris: You'll balance the -- you balance the individual's interest in silence which includes whether he was pillorying, whether the questions were relevant and whether he was brought before the Committee as the result of a dragnet procedure. You balanced that against the governmental interest and protecting against subversion. Now, the result all -- and the same facts is always the same. I agree it should be the same.
Hugo L. Black: Suppose, for instance, he was on the indictment and he did not plead the First Amendment, I mean the Fifth Amendment. He's more to plead there. But you kept telling him that he didn't want to testify because there was indictment pending against to somewhere. And that whole question resided around the indictment, would that be admissible on the balancing process?
Bruce J. Terris: We -- well, Your Honor I'm -- I'm assuming here that the Committee head of the -- head of the legislative purpose which it stated, finding out about Communist activities in some particular area. Now, this Court is held that you don't look into the -- to the motives, the -- the beliefs of the Committee. I'd -- I assume therefore under Watkins, Barenblatt, Braden and Wilkinson, all four of the cases that -- that the fact they might have had an improper motive would not make it -- the inquiry invalid under the --
Hugo L. Black: I'm not --
Bruce J. Terris: First Amendment.
Hugo L. Black: -- referring to motive. I'm referring whether there's anything else that kind of bring up something else that might entitle the man to say, “When you go to balance this, the Government just don't let me alone on this particular question because it is an interest and not -- the Government sender is not sufficient to go that far with reference of this question even in the field of Communist.
Bruce J. Terris: Well, Your Honor I -- I think that that would not make a difference that he was under indictment. However, that was not a question which is before the Court in any of the cases perhaps that would be an additional factor that would have to be balanced. It's certainly not before the Court in any of the cases, which are now pending in this Court.
Speaker: (Inaudible)
Bruce J. Terris: Pardon me?
Speaker: Do you have other case here?
Bruce J. Terris: Yes, but I don't -- I don't believe they involved however to the First Amendment. Turning now to petitioner Yellin's contentions under Rule IV of the Committee's own rules that the Committee violated this rule and therefore, he could not properly be convicted for refusing the answer of the questions. He claims that he had the right to appear in executive session rather than in a public hearing under Rule IV (a). Now, Rule IV (a) of the Committee's rules which is at beginning of the petitioner's brief and is also quoted in the Government's brief at page 37, states that if the Committee and, “Believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation or the reputation of other individuals. The Committee show interrogates such witness in an executive session. We submit that it is clear that Rule IV does not convey any rights or at least no legal rights which are rever -- reviewable in a court on a witness for the rule makes the determination whether a witness shall appear in an executive session, depend on the belief of the Committee, not on any objective facts. In addition, Rule IV (a) does not convey out of witness the right and again -- or certainly not any legal right reviewable on the courts that have the Committee make a determination whether he should appear at an executive session or at public hearing. House rule 11 (g) makes Committee hearings normally public, Rule IV of the Committee's rules merely provides for an exception when the Committee has a certain belief, but even if the Committee's rule, Rule IV (a) did give witnesses a legal right which was reviewable on the courts clearly a congressional committee has broad discretion to determine whether a witness should be heard in executive session or the public hearing.
Potter Stewart: Before exercising the discretion, do you think the petitioner was entitled to have the Chairman of the Committee at least read his telegram and know what was in it?
Bruce J. Terris: Well one of the -- well --
Potter Stewart: His counsel's telegram.
Bruce J. Terris: What the major difficulty with that Your Honor, even assuming that the answer to that is yes, he has that right. The telegram was not sent until over into approximate two weeks after the -- after the witness was subpoenaed. It arrived and I think also was sent the same day on February 6th. The hearing was to take place on February 10th. The Chairman and the -- and the entire subcommittee had left Washington for Gary. They did not see the telegram. Now, mistake was made at that point. The staff director of the Committee answered the telegram, he had no authority to do so, but he answered it saying that the request was denied. Now, in this situation, we don't think the Committee was anymore chargeable with fault than the witness was. In addition --
Earl Warren: But you argue another case Mr. Terris at where the -- where the rules the Committee say that the -- that the Committee itself may issue subpoenas that these very people such as one he sent the telegrams to have the power to --
Bruce J. Terris: No. No Your Honor.
Earl Warren: -- to issue --
Bruce J. Terris: I don't believe that so I think that those subpoenas had to be signed by the Chairman of the Committee.
Earl Warren: Well, I thought -- didn't we have a case recently there were (Voice Overlap) --
Bruce J. Terris: The case was before the Court -- I think the fact is that the Chairman had -- no I think the Chairman -- or at least he had to authorize them and it was perfectly clear in that case the -- the Shelton case is the case you're thinking of Your Honor and -- and the Chairman did authorize the subpoena in that case.
Earl Warren: Well, I thought --
Bruce J. Terris: Here, the chairman did not authorize rejecting --
Earl Warren: Shelton, was that the New York Times case?
Bruce J. Terris: That's right. Yes, Your Honor.
Earl Warren: Well he -- he has changed it didn't he?
Bruce J. Terris: No, no.
Earl Warren: He stated --
Bruce J. Terris: No.
Earl Warren: -- when he got there. I thought he got to the New York -- New York Times and asked --
Bruce J. Terris: I don't want to reargue -- reargue (Voice Overlap) --
Earl Warren: No, no. No, no, but I mean the --
Bruce J. Terris: Yes,
Earl Warren: -- other one --
Bruce J. Terris: -- yes. He didn't just change it.
Earl Warren: I thought he --
Bruce J. Terris: No, he called --
Earl Warren: -- got --
Bruce J. Terris: -- the Committee.
Earl Warren: there and found out that there was no Shelton by that name so he just -- he just gave it to another Shelton.
Bruce J. Terris: Well, there were few steps left out in between Your Honor.
Earl Warren: Left out, alright.
Bruce J. Terris: He found out that there wasn't any Shelton there but then he called the Committee, that matter was brought to the attention of the Chairman. The Chairman said go ahead and -- and served that -- the only Shelton who was on the new side of the Times and that then the subpoena was -- was changed. So returning to Mr. Justice Stewart's question, we think that Committee was no more chargeable for fault than the witness himself. In addition uphe --
Potter Stewart: But perhaps not -- perhaps it's not so much a matter of fault, it's just a matter of a -- whether or not, the petitioner was entitled to have the many exercise -- his discretion that have been informed way rather than uninformed.
Bruce J. Terris: That's right. As Your Honor is suggesting, they did exercise their discretion and at least in an uninformed way by -- because the Chairman testified that they had determined not to hear the witness in --
William J. Brennan, Jr.: Did you just say, they exercised their discretion in an uninformed way?
Bruce J. Terris: Well I -- but I say uninformed that they were uninformed as to the request.
William J. Brennan, Jr.: Which is to say then they did not exercise their --
Bruce J. Terris: No, no.
William J. Brennan, Jr.: -- discretion on the request.
Bruce J. Terris: On the request, they did not. They exercised their discretion not to hear the witness in executive session. Now, let me point out when I say was un -- they were uninformed of the telegram. The telegram contains no information which would justify holding the -- hearing the witness in executive sessions.
Potter Stewart: Simply a request --
Bruce J. Terris: It's just a --
Potter Stewart: -- it's just that, wasn't it?
Bruce J. Terris: -- request and it does not indicate anything which would come under Rule IV.
Potter Stewart: No factual basis for the re --
Bruce J. Terris: That's right.
Potter Stewart: -- in the telegram itself.
Bruce J. Terris: That's right. There's nothing to indicate the Rule IV applies because the telegram merely says that he'd like not to appear at a public hearing because -- because of the publicity which of course -- which the course is obvious. Now, Rule IV requires in order to have a witness appear in an executive session either that his testimony will endanger national security or that it will unjustly injure his reputation.
William J. Brennan, Jr.: Well, might that not -- might not be involved in the suggestion that the right and executive session would void publicity?
Bruce J. Terris: Well, that might be involved but all -- what I was addressing my --
William J. Brennan, Jr.: And wouldn't the reasonable --
Bruce J. Terris: Interpretation of the telegram?
William J. Brennan, Jr.: The interpretation that would be that?
Bruce J. Terris: Just publicity -- publi -- the thing is Rule IV doesn't say that mere publicity isn't up. It has to be unjust injury to his reputation. And in fact, the Committee soon, it could reasonably believe that there would be no unjust injury to his reputation. They already had heard sworn testimony in public session that -- that petitioner Yellin was a member of the Communist Party.
William J. Brennan, Jr.: I mean --
Bruce J. Terris: And it --
William J. Brennan, Jr.: -- that -- this all supposes. This went through the Committee's mind and you've already told us they didn't even know --
Bruce J. Terris: Well --
William J. Brennan, Jr.: -- the requirements.
Bruce J. Terris: There is testimony in the record that the Committee does not consider it unjust injury to a witness' reputation, to have him identified as a Communist.
William J. Brennan, Jr.: Certainly, you can't say that's the reason he was denied an executive session here by the Committee, can you?
Bruce J. Terris: Well, the Committee denied its appearance in an executive session. Now, it's hard to believe that it didn't know that he would be identified, that there would be a suggestion after session that he was -- that he was a Communist. Now, that is certainly not a very -- a very subtle thing for the Committee to have -- to have thought about. And apparently, they decided and exercise their discretion.
Earl Warren: Well, isn't it?
William J. Brennan, Jr.: What is this decision?
Bruce J. Terris: This decision was prior to the hearing.
William J. Brennan, Jr.: Why didn't --
Earl Warren: Isn't this reasonable --
Bruce J. Terris: -- by the Committee.
Earl Warren: -- to suppose that they didn't -- isn't reasonable to suppose they didn't consider that at all because I understood Mr. Rabinowitz, Congressman Walter, the Chairman of the Committee who -- who testified at the trial said he had never seen the telegrams, never heard of them until that day in court.
Bruce J. Terris: Your Honor, I've -- I had not mean to suggest that when the Committee denied the appearance of petitioner in executive session that they had its request in front of them -- his request in front of them. They did not -- the Committee did not have this request in front of them. What I'm saying is that when they denied -- when they'd decided to have him appear in public session, which is the normal practice under the -- the rules of the House of Representatives. That when they decided that, they could hardly have failed to know that there was going to be a possibility that there would be -- at the hearing that he would -- there'll be suggestion he was a Communist. After all, that was the basis for calling him.
Earl Warren: I suppose Mr. Terris under those circumstances, the question of a -- of an executive session for the purpose of protecting a witness would never come.
Bruce J. Terris: No that --
Earl Warren: Would never come up unless -- unless there's some -- was some request such as was made here.
Bruce J. Terris: No. Apparently, it does come up because in this very case without knowing of the request, the Committee decided not to have him appear in an executive session.
Earl Warren: Is their affirmative evidence --
Bruce J. Terris: Yes.
Earl Warren: -- to the effect they decided not to have it --
Bruce J. Terris: Yes.
Earl Warren: -- or if they just subpoenaed him to testify in a public session?
Bruce J. Terris: There is affirmative evidence in the record from the Chairman of the Committee that they decided not to hear the witness at an executive session.
Potter Stewart: Where does that appear in the record --
Bruce J. Terris: I think it's -- in page up here. It's at the top of the page, three -- page 70 of the record, it's the third line. Well, the Committee already passed in the question of whether or not we would hear Mr. Yellin at a session and -- and that would -- and that was discussing at an executive session if you'll notice the question of --
Hugo L. Black: And as I recall, and my recollection may be wrong, one -- one statement was made that the Chairman of Committee said that if he had known about it, it might have been different here.
Bruce J. Terris: It might have been different, yes.
Hugo L. Black: Is that what he said?
Bruce J. Terris: Yes. He did say. That's on the same page Your Honor.
Hugo L. Black: On the same page?
Bruce J. Terris: The situ --
Hugo L. Black: What page is that?
Bruce J. Terris: But, let -- let me say, however, that the petitioner's contention is a -- certainly suggest an incredibly technical reading of the -- of the Committee's rules, all the Committee's rules -- first of all, the Committees, well, don't say that you have a right to have this issue determined by the Committee. Second of all, they don't say that particular facts exist that the witness is entitled to have -- to be testified in executive session. It merely says that if they have -- if the Committee has a belief which I assume is the most subjective kind of word one could possibly use that then -- then the witness will be given the opportunity to appear in an executive session.
Earl Warren: Well, what is the Rule IV, isn't a rule to manifest fairness and to give a -- give a witness an opportunity to -- to present his cause in that regard?
Bruce J. Terris: Yes. I agree Your Honor. The reason for the rules is --
Earl Warren: And he didn't have that opportunity here, did he?
Bruce J. Terris: Well, part of my answer is -- what I said to Mr. Justice Stewart that he had the opportunity and --
Earl Warren: But he didn't suggest --
Bruce J. Terris: -- partly through his form, partly through the Committee's fault that -- that the two of them didn't get together very well. Now, aside from that, the fact that he didn't have this opportunity in this very no -- non-mandatory permissive rule to reverse petitioner's conviction on this basis, seems to me a very technical reading of the Committee's rules. I'd like to suggest to the Court that this is not a proceeding in the -- in the District Courts. These things aren't done on a very legal basis. The things tend to be done on a basis of negotiation and -- and discussion. To apply the kind of rules that one might apply and they did in the District Court, seems to -- seem to me to -- to be a very serious mistake with the coordinate branch of -- of the Government.
Earl Warren: Well, under your -- under your interpretation so far as protection of a -- of a witness is concerned, this rule means nothing.
Bruce J. Terris: You mean legal rights protected in the Court?
Earl Warren: Any protection. It --
Bruce J. Terris: Oh I think it has --
Earl Warren: -- means nothing because --
Bruce J. Terris: -- no, I think it has -- it has considerable protection to tell them --
Earl Warren: What -- what is -- what is that protection?
Bruce J. Terris: It tells the witness that if he presents evidence to a Committee which fall into any of the three categories and the Committee believes that they will hear him in executive session. In fact, they did hear -- they do hear people in executive session.
Earl Warren: Didn't he offer to do that and -- and did --
Bruce J. Terris: No, there's no --
Earl Warren: -- summarily did not.
Bruce J. Terris: There's no indication that he offered to do it. His telegram merely says that he'd be exposed to publicity. Now, I suggest that the Committee understood that. There was no possible way you will hear in public session in which are not exposed to publicity. So he did not offer to pres -- to present evidence under any of these three considerations.
Earl Warren: How many admirations would a man have or wanted in -- wanting an executive hearing other than to avoid the publicity of a -- of arbitrary?
Bruce J. Terris: No, one of the -- the reasons that he has to give is that it was unjust injury to his reputation or the injury of others, unjust, not injury to his reputation. It is not enough that he would be identified as a Communist. If he is a Communist or the Committee reasonably believes he's a Communist, the Committee believes and it seems to me this is a fair interpretation of its -- of its rules and this in the record that is not unjust injury to his reputation. It's injury but -- but the Committee believes that -- that this is just. And in fact, he'd already been identified, as I have said in public session, as a member of the Communist Party, the very same public session to which Mr. Barenblatt was identified.
Hugo L. Black: Well, if that's the fact that they believe solely he's a Communist, he has no right to be heard as in executive session. Why isn't that simply exposing him in order to expose him?
Bruce J. Terris: Because the Committee hopes that he will testify and I assume that one of the reasons that it hopes to testify is that there is some additional pressure to testify from appearing at a public session. I don't know whether it's a matter of psychology, this -- this is true but apparently, that is one -- one of the beliefs for the Committee. They don't want to put a premium, in other words, for witnesses not to talk and that would be the premium.
Hugo L. Black: Certainly, it does indicate, it doesn't matter. They want something beside the information. They could get --
Bruce J. Terris: I don't think it does indicate that Your Honor.
Hugo L. Black: -- the information in executive session, doesn't it?
Bruce J. Terris: Pardon me?
Hugo L. Black: They could get the information in executive session.
Bruce J. Terris: Well, they could -- you mean they could fail to get the information. He would say -- he would --
Hugo L. Black: He would be for some reason that he'd love to testify, avoid the public at the executive session.
Bruce J. Terris: But they think that the additional pressure --
Hugo L. Black: Is that open to prove or it does have to assume that?
Bruce J. Terris: Well, I think -- I don't know whether it's true or not. But then he gets a reason of -- reasonable assumption that the theory is, I suppose that there is some pressure not to invoke constitutional privileges when asked questions about communism, maybe the very same pressure that -- that is invoked --
Hugo L. Black: But they weren't trying to get him not to raise constitutional privileges I'm --
Bruce J. Terris: They --
Hugo L. Black: -- sure.
Bruce J. Terris: -- yes, of course they were.
Hugo L. Black: They were?
Bruce J. Terris: They want to get -- getting him to -- to testify to -- you don't have -- after all the first person doesn't -- isn't required to raise his First Amendment rights, of course --
Hugo L. Black: I know, but you mean that -- you mean that the Committee, Congress, putting pressure on people, trying to keep them from raising a constitutional privilege?
Bruce J. Terris: What do you mean by pressure, I think to -- that the --
Speaker: They're trying to get with your testimony.
Bruce J. Terris: Right, which is the normal --
Speaker: (Inaudible)
Bruce J. Terris: That's right, which is the normal duty that a person has in his country just to give testimony when he's asked for a properly constituted authority. Now the --
Hugo L. Black: But he also has, doesn't he a privilege that the Constitution gives it to him to exercise that privilege without any pressure by Government to get him to break to the -- not to exercise a privilege?
Bruce J. Terris: We aren't at the --
Hugo L. Black: And he had that?
Bruce J. Terris: I would agree but it seems to me the -- the minimal pressure of saying, "You're going to have to exercise your privilege in public." Let me take the example of a court. Would it be wrong for a court to make a witness that they were -- that they wanted to testify, appear before the court and invoke his Fifth Amendment right without -- when he told them in private, "I'm going to invoke my Fifth Amendment Right," would the have to say, "Whether we won't call you." Well this would put an actual bonus on -- on people to not -- to just tell people, "I'm going to invoke my First or my Fifth Amendment right or some other right." The Committee doesn't want to -- to give people this encouragement. He wants to say, "Well, you can invoke it but you're going to have to invoke it in public.” And it doesn't seem to me that that -- that's first of all, unconstitutional, or second of all, even unfair.
Hugo L. Black: What's that -- it depends on the same extent on what weight and appraisal you put on the value of a constitutional privilege, doesn't it? Or rather --
Bruce J. Terris: Well Your Honor --
Hugo L. Black: -- the Court would do that.
Bruce J. Terris: I don't think so --
Hugo L. Black: Or rather the Court would do that?
Bruce J. Terris: I don't think so Your Honor. I think that this is -- this has been a -- this is traditional in this country, the witness is called. He invokes his rights and if he's right is -- and if it's properly invoked, that's the end of it. But I don't think it's enough where witness to say, "Well, I'm going to invoke my -- my constitutional right so just don't bother me anymore."
Hugo L. Black: I understand what you say now is that if he appeared and wants to tell to the Committee, he is invoking it -- that intake and they're not supposed to ask him a 100 questions thereafter on the same line.
Bruce J. Terris: Well, as a matter of fact he doesn't end it. That's never has and I don't think it should. Well, I forgot in which of the witnesses. I think it's -- which of the petitioners, I think it's Mr. Silver. Yes, it was Mr. Silver. He told one of the investigators when he -- when he was interviewed by the investigator that he was going to invoke his Fifth Amendment right. The Committee called him anyway. He didn't invoke his Fifth Amendment right. Now, he did invoke the First Amendment but he testified to a considerable extent about his own activities. He didn't go into detail but he said he was a Communist. Now, this is the kind of example. It doesn't to me this is wrong, assuming not unconstitutionally wrong and it is not -- and I don't think unfair. Now in conclu --
Speaker: (Inaudible)
Bruce J. Terris: Oh yes. All three of the petitioners had counsel and they actively participated in the hearings although at times, they were cut short by their ordinary rule of the Committee that they aren't supposed to conduct the debate directly with the Committee, although such debates did frequently take place for a considerable period of time. In conclusion on this point, I would like to emphasize the contrary to what Mr. Rabinowitz said. Petitioner was not convicted because of the confusion over the executive session. Rule IV (a) does not require that the Committee allow a witness to appear in executive session and certainly not in the circumstances of this case. And even if the Committee had allowed petitioner to appear in executive session, there's absolutely no indication that he would have had answered the questions which the Committee asked him. And of course if he refused on the same grounds which be here in the same posture except for the fact that this one argument under Rule IV would -- would not be in the case, so that there is nothing to the argument that the only reason we're here is because of -- of this confusion over the sending of the telegram, they're sending of it to the wrong place at the wrong time or the Committee should have listened more carefully at the hearing or any of the -- any of the confusions which admittedly did take place.
Earl Warren: Does the Committee ever have witnesses who will testify in private but who won't testify publicly?
Bruce J. Terris: I don't know Your Honor. I think maybe the reason I don't know is that those witnesses probably don't testify him.
Earl Warren: I beg pardon?
Bruce J. Terris: Maybe those witnesses don't testify publicly, maybe they tell everything they have and the Committee is satisfied. I don't know what --
Earl Warren: But they do take the private questions (Voice Overlap) --
Bruce J. Terris: Oh yes, oh yes. And they interviewed for example Mr. Silver and I -- and I gather -- I think this is only an inference from the record that he didn't -- they didn't talk to him.
Earl Warren: Oh yes.
Bruce J. Terris: So they -- they often to do but they didn't do in this case. They didn't interview petitioner Yellin in this case and to be frank with Your Honor and -- and then the first reason they didn't was that he was in Denver and then the interviews were being conducted in Gary. Now, there's also some confusion on the record about whether they would have interviewed him if he had been in Gary. There's some talk that they wouldn't have anyway because they didn't think he would talk. But in any event the actual reason they didn't was because he was in a different city. Petitioner's last document goes only to -- to the questions involved in Counts 2 and 4. He claims that they were too vague to support his indictment and therefore too vague to support his conviction. Now, of course the first and conclusive answer is this goes only two counts even if he's right on it, the other two counts are valid and that -- since there was an concurrent sentence, the conviction would have to be sustained. The second answer is that he did not raise this issue in his petition for certiorari and therefore, this would be for the Court. And the third answer is that his contention on his merits without substance, as far as I know no -- no indictment under the contempt of Congress statute has ever explained the meaning if the questions. The only two questions which are -- there is any doubt -- the only two words that there's any doubt about it, the words colonization and colonizer and it's very difficult to understand how petitioner could have been confused about them. Admittedly, they've -- they are some -- there are words of art that petitioner admits that he was present during the lengthy testimony of the previous witness in which he went into detail what these questions and what these words meant. And in fact, the previous witness specifically defined the word colonize and the petitioner was in any doubt at his trial and/or petitioner's counsel, all he would have had to do is read the transcript of the hearings and he would -- have certain be fully satisfied. However, petitioner argues that this isn't enough that has to be in the indictment. It isn't enough --
Earl Warren: Just what -- just what does colonization mean? I don't know is infiltration or (Voice Overlap) --
Bruce J. Terris: Well, that's the start but apparently --
Earl Warren: -- what does it mean?
Bruce J. Terris: Infiltration is the start of the definition apparently, the more -- the more full definition by those in the Communist Part and in the Committee who seemed to understand each other is that -- that the party had a program which began in 1948 of what it called colonization. What they did is they sent college graduates or at least people in college who had a considerable amount of training in the basic industries, steel, transportation and textile mills, automobiles and the like. These people concealed the fact that they had excellent educations from the workers in order so that they would attain a position of importance in the labor movement and would be able to influence them which of course, they would have trouble doing if they've told that they were members -- they had good educations. In fact, they might not even get a job because companies of course would be suspicious that people who want to become permanently not just for summer job, steel workers on -- on the regular line right at the -- right at the furnace. So they can -- now, this is exactly what happened to petitioner Yellin and that's what the Committee had evidence of this. His application for employment in 1949 in the Carnegie Illinois Steel Company in Gary, did not disclose that he had been to New York -- City College of New York and the University of Michigan and had -- and had virtually an AA average and so that -- that's precisely the subject that the Committee was interested in. Thank you Your Honor.
Earl Warren: Mr. Rabinowitz.
Victor Rabinowitz: I would like first to go into this executive session thing because I think the facts can be cleared up. Mr. Walter testified that at some time, presumably at the time the subpoenas were issued, although that is not altogether clear. The Committee had decided that it would call Mr. Yellin in executive session, I mean in public session. And the reason he said was that this man was a Communist. He had deceived his employer and that they thought they had -- they had a lot of information about him. Now of course, the rule does not list these reasons as reasons for an executive session. The rule says that an executive session shall be called when it will result in unjust publicity so that apparently in making the original determination to call Mr. Yellin and 15 other people I suppose in public rather than an executive session, whatever the reasons where they had nothing to do with the rule. The standard used by the Committee or by Mr. Walter in making this determination was tended that I'm not included in the rule at all. Then, on behalf of Mr. Yellin, I sent a telegram and it was as clear as anybody ever is in a telegram. I asked for an executive session and I said that the reason was that -- well, I'll quote, “Testimony needed for a legislative --
Earl Warren: Well, what page is it?
Victor Rabinowitz: Well, it's in page -- it's in the record at page 37 but it's -- I mean at page 287 (n) but it's almost illegible there. It's in my record, in my brief rather at page 5, the -- the copy in the record is -- is very bad reproduction. Testimony needed for legislative purpose can be secured in executive session without exposing witnesses to publicity. Now, this raised as sharply as I could. I thought the standard that was set forth in the rule which says that a -- an executive session will be held when the Committee feels that the interrogation of a witness might unjustly injure his reputation so that in the telegram, the rule was not referred to by number but it seemed clear that the purpose of the telegram was to call to the attention of the Committee, the rule.
Byron R. White: Could you say that to?
Victor Rabinowitz: I said that to counsel for the Committee. I normally in dealing with -- opposing parties deal with counsel.
Byron R. White: Do you raise the question when the Committee itself object to (Voice Overlap) --
Victor Rabinowitz: I tried to raise it at the hearing but I was told to sit down in view a fashion and I sat down because I have found that the better practice when the Chairman of the Committee tells me to sit down. I do that.
Byron R. White: I mean do you ask the Committee in so many words that he would be requesting or demanding or otherwise asking for --
Victor Rabinowitz: Well, what -- what I did was say I would like to have these telegrams in the record. Oh that was the formulation that -- that I --
Byron R. White: What telegram was that?
Victor Rabinowitz: This telegram that I just read together with the answer denying.
Byron R. White: Did you identify the telegram so --
Victor Rabinowitz: Oh yes.
Byron R. White: -- he would understand.
Victor Rabinowitz: I said there has been an exchange of telegrams and I -- I would like to have them included in the record of Congressman Walter in effect he said sit down.
Byron R. White: The telegram is on what? Did you say what it was? They did at least in Committees I suppose. They're unlikely probably.
Victor Rabinowitz: Well, what I said was Mr. Counsel -- addressing myself again to Mr. Tavenner. “Mr. Counsel, I wonder whether it would be possible to read it to the record the exchange of telegrams between myself and the Committee in connection with the witness' testimony. I would like to have it appear in the record.” And that Congressman Walter without reading the telegram and it doesn't appear on the record but let me state with a show of impatience said, “Go ahead.” And I said, “I pressed again I sent the telegrams. I want them to appear. I want to -- I want it to appear at the exchange of telegrams occurred.” And he said, "You know the privileges given by this Committee have appeared it before often -- before it often enough. You know it as well as anybody, go ahead Mr. Tavenner," and I took that as my cue to sit down and I did it.
Hugo L. Black: Well, did you later discuss it within on cross-examination of it, I mean at the --
Victor Rabinowitz: At the trial?
Hugo L. Black: Yes.
Victor Rabinowitz: Oh at the trial, he said he didn't know what the telegrams were. He hadn't seen them until the day of the trial. He said he thought it was an application for an adjournment without grounds and that was why he told me to sit down.
Hugo L. Black: He didn't tell you what's they were, is that it?
Victor Rabinowitz: At the trial -- at the hearing, I did not say this is a request for executive session. I had assumed that since I had set the telegrams to Mr. Tavenner, Mr. Tavenner was standing in front me and I had received the response from the Staff Director of the Committee saying that the request was denied that this was a communication between me and the Committee and the Committee knew what was in the telegram so I sent them. Well, I got an answer. I confess that I did not at that time think about the question of whether within the internal workings of the Committee, Mr. Arens, who conduct about half of these hearings, have authority to deny this.
Hugo L. Black: Where's this telegram hide it and tight and put in the record or put into record?
Victor Rabinowitz: No. They're not in the record at all.Not in the record of the hearing. They are in the record of trial --
Hugo L. Black: Of course in the hearing.
Victor Rabinowitz: No sir. They don't --
Hugo L. Black: By whom were they turned over? To whom were they turned over?
Victor Rabinowitz: Well, they weren't turned over to anybody. I sent one and of course kept an office copy for myself.
Hugo L. Black: I mean when you -- when this colloquy came up, did you hand them to anybody or did they refuse to take it?
Victor Rabinowitz: Well all I said was, I wonder whether it would be possible to read it to the record of exchange of telegrams. I had the -- my office copy of the one I sent then I have the original, the one that I received, and I wish to read them into the record so that I could bring to the attention of the Committee the fact that this exchange of telegrams had occurred.
Hugo L. Black: What is the rule to which Mr. Walter called your attention when he said, “You know the rules of the Committee?”
Victor Rabinowitz: Well, it's not a written rule. It's just a rule of practice --
Hugo L. Black: What is it?
Victor Rabinowitz: The rule of practices that counsel shouldn't talk to the Committee but should only talk to his witness. Anytime counsel attempts to address the Committee at any of these hearings, the general rule is except to stating his name. The general rule is -- well, it varies -- well, it depends on whether Mr. Walter is conducting a hearing in which case the rules are very strict, though Mr. Doyle was conducting a hearings in which case the rules are pretty liberal, Mr. Doyle being less a impatient man. But generally speaking, the rule is that counsel is not supposed to talk to the Committee. He is supposed to talk only to his witness, to his client and that of course is a whispered conversation that takes place at the witness table. Generally speaking, arguments of law and so forth and so on are supposed to be made, objections to the jurisdiction of a Committee at least of the privilege and so forth and so on, are made by the witness. What frequently happened, I supposed always happens in practice at least it does may have had before the Committee is that counsel reviews this with the Committee, with the witness if the witness is good enough. He recites what has been told or what he believes ought to be said. If not, he reads the statement which he and counsel have worked out in advanced and the situation varies in a great deal. In Mr. Yellin's case, you can tell by reading the transcript, he spoke off the cop. He wasn't thrown up constantly and he argued with the Committee as to the lack of jurisdiction and so forth. In -- as we will see in the Silver case, Mr. Silver said, “I want to incorporate by reference everything that the previous witness said because the previous witness had read a long statement.” And the practice in this respect varies but one thing does not vary. Counsel can't do anything talking, that's clear. Now, after these telegrams were read, the witness proceeded to testify. Now, counsel, one the Government is mistaken in one respect. He stated not once but three or four times that by the time Mr. Yellin testified there, it was already a testimony before the Committee that he was a Communist. That's not so. The first witness who testified was Mr. Lautner who never heard of Mr. Yellin or at least gave no indication that he did. Mr. Yellin was the second witness. There were subsequent witnesses who identified Mr. Yellin that having once been a Communist, but this was after Mr. Yellin testified and not before it. Counsel says both parties were at fault. I suppose that the witness was at fault because he didn't send the telegram quickly enough, at least that's the only clue that I can think of. Well, the witness was in Denver, I was in New York, the hearing was in Gary, the Committee was in Washington and it isn't easy to make full connection quickly under those circumstances. Perhaps it would have been better if I have sent the telegram before I sent the telegram as quickly as I could and under circumstances of distance that were involved here, as soon as I can get authorization from my client to do it since I get --
Potter Stewart: I think the distance has to do with it when you're talking about telegram.
Victor Rabinowitz: Well, it has to do with the fact that it becomes difficult to confer with the witness except over long distance telephone.
Potter Stewart: Yes then there's such of that.
Victor Rabinowitz: Could discuss with him the reasons why such a telegram -- why you think such a telegram ought to be sent, whether he would like to appear in executive session first and some of the questions. And as I say I -- I know that theoretically a long distance telephone conversation is as good as a face-to-face conversation but it rarely is --
Potter Stewart: But were you -- were you -- there was no prospect that you were going to have a face-to-face conversation. You didn't have one before you sent the telegram, did you?
Victor Rabinowitz: No, I believe we worked it out in the -- I don't remember frankly how much time allots me to interview the day he was served with the subpoena. I don't think that appears on the record. It may have been only a very short time and I -- I frankly don't recall. (Inaudible) for the sake of -- of argument anyhow, I can see that -- maybe I was at fault here.
Potter Stewart: Injured as -- there are some questions about whether or not you sent it to the right person?
Victor Rabinowitz: Well I -- I sent it for counsel for the Committee. I didn't know Mr. Walter was going to preside it this hearing and normally as I said before, I'm an attorney and in dealing with opposing parties, I ideal with attorneys --
Potter Stewart: Was it -- that was Mr. Tavenner?
Victor Rabinowitz: Tavenner, yes sir.
Potter Stewart: And then there was a --
Victor Rabinowitz: A response from Mr. Arens. Now, Mr. Arens, title was Staff Director and later had developed and Mr. Walter said, he never had any authority to reject this and this was all the misunderstanding of the kind, and as -- as has been pointed out the -- Mr. Walter said that at one point -- Mr. Walter said, "If you had sent the telegram to me or perhaps we wouldn't be here." Now one -- one that appearing at page -- record -- record page 69 he said, “I am sure this could not have happened, had you addressed your telegram to me?” And at record page 70 he said, if he had known of the request for an executive sessions so that the Committee could have given the due consideration, we might have a different situation today. Now, maybe it was a little bit of the fault of the Committee but I'm willing to excuse both faults. I'll excuse the fault of the Committee and they'll excuse my fault. I don't want to send the Committee to jail. I don't think it ought to be punished for its fault but I don't believe that my client ought to be punished for his fault either. And if we would at fault, this is a criminal trial and I think that that is a pretty good reason for letting the defendant off.
Potter Stewart: Was it try to convicted of -- either sending a telegram too late or sending it to the wrong person, he was --
Victor Rabinowitz: No, but this is the --
Potter Stewart: He was tried and convicted of refusing to answer questions directly (Voice Overlap) --
Victor Rabinowitz: Yes, and the question is whether his rights were violated in connection with this request for an executive session, and this is so far as our present discussion is concerned, the reason for reversal that I am pressing. Now, I would like to get on to the balancing question and here I am very grateful to counsel for the Government because I have heard here for the first time what I assume is the authoritative government view out of what the balancing rule means. Express -- I must confess much more clearly than this Court has ever expressed it, and I think it's a clear view. I think it -- it's easy to apply. I think it destroys much of the First Amendment and I don't believe that the Court ought to accept it. As I understand the situation, the Court has decided that for the present according to counsel, the public interest in this kind of investigation is overwhelming. Now, I don't know for -- how long for the present exists and I don't know when it is that I get an opportunity to show that the present has changed. Now, the Court decided in Barenblatt on the basis but no evidence in the record at all incidentally. I assume the Court did it by taking judicial notice of the threat of Communist subversion, that as of that day, the threat of Communist Subversion was so great that the Congress had this -- this overpowering. I forgot the word that counsel used but it was a very strong one overwriting I think interest in -- in this investigation, overwriting government interest was the word he used. But when does it change? When do I get an opportunity to show that this situation is no longer overwriting? That fact is that we do live in a dynamic world, things do change. I tried to do it. I tried to do through Professor Emerson's testimony. What did he say? Well, he said he doesn't think there's much threat and he went into reasons. He said there's very little communism for once in the trade-union movement today. He said that in the academic world as far as he knows, there's practically no communist influenced. He said that most communist have been driven out of the Government. He said that we have no social unrest in the United States to speak off or that the social unrest that does exist which is mostly in the South. It does not seem to be leaning in the direction of communism that the Negroes have taken other methods of securing redress of their rights and that there appears to be no rebirth or -- or strengthening of communism in the South. He said he find no significant opposition by way of another political party to the major political party. He said that in his opinion the strength of the Communist Party was very small as a result of the laws that it did pass what she detailed. He found that there was very little religious and religious institutions very little Communist strength. And, the situation we believe has changed. When do we get a chance to show that the thing has change? Now, just one word more, on the other side namely the right of the individual, his side of the scale as I understand the Government's position, the only right that the individual has is that the Committee should be nice to him. No talk about free speech, no talk about the assembly, no talk about free press, no talk about the right to express his views, he just is entitled to be treated as a gentlemen and not pillorying. Well, I think this is reducing the First Amendment to rather small (Inaudible). Thank you.