William H. Rehnquist: We'll hear argument next in Number 91-1594, Fred Edenfield v. Scott Fane. Mr. Thomson, you may proceed whenever you're ready.
Parker D. Thomson: Mr. Chief Justice, and may it please the Court: This case involves one specific narrow prohibition by Florida of the conduct of Florida licensed certified public accountants. It is a prohibition imposed by the legislature by statute, and by the State Board of Accountancy which licenses CPA's by rule. The prohibition is of cold call solicitation of new clients... what the statute and the rule called direct, in-person, uninvited solicitation. The conduct is one defined as solicitation which directly or implicitly requests an immediate oral response from the recipient. We're not her... involved, of course, with political speech or artistic speech, we are involved with the most blatant of commercial speech implemented through conduct of the most confrontational.
John Paul Stevens: Mr. Thomson, may I just interrupt on this one question? You... in your brief you do the same thing, you talk about it calls for an immediate response. Would it also be prohibited... your rule also apply to a solicitation by an accountant who did not ask for an immediate response, if he just said I... went in and made the presentation and said, think it over and whenever you're interested, let me know?
Parker D. Thomson: The definition in the statute... I mean, in the rule, is of one that requests an immediate oral response. I believe, nevertheless, that what you have proposed would be barred because the presentation would be direct, in person, and uninvited.
William H. Rehnquist: Is there some empirical evidence that shows this sort of a request was made frequently? The reason I ask, it seems to me, judging from my practice as a lawyer, not as an accountant, in trying to put it in present-day terms, it seems to me if I were trying to get a client and had a presentation to make I wouldn't demand that the person make an immediate response. You're trying to kind of ingratiate yourself with the person, not imprison them verbally.
Parker D. Thomson: The prohibition, Mr. Chief Justice, is of a circumstance, that is an event, a method of presentation. It is not in any way to deter the message. The message may be communicated in writing, on radio, on television, by direct mail, in print, in the yellow pages... in a whole variety of ways, but it may not be communicated in a way that--
William H. Rehnquist: That's not... that wasn't my question.
Parker D. Thomson: --Excuse me.
William H. Rehnquist: My question was, did the State of Florida or agency have some sort of empirical evidence before it that this sort of request, with a request for an immediate answer, was common or prevalent among accountants?
Parker D. Thomson: No, Your Honor. There is no empirical evidence, any more than that there is empirical evidence that was dealt with by this Court in the Ohralik case with respect to lawyers which you mentioned and where also there is a broad-scale prohibition of direct, in... person, uninvited solicitation.
William H. Rehnquist: Does the agency advance any particular reason why it selected this kind of conduct, if there were no empirical evidence why it picked out this demand for an immediate response?
Parker D. Thomson: There are two basic reasons that go to the two basic purposes of the governance of certified public accountants in the State of Florida. The statute with respect to certified public accountants says that the first purpose is to assure the accuracy of audit statements upon which the public relies, and the second is to protect the public from dishonest practitioners. Taking the latter one first, the communication made in this fashion is inherently unregulatable. You simply do not know what was said, the circumstances, the tone, what-have-you, and therefore it is beyond the subject of regulation with respect to the first, which is, after all, the board's primary concern. It is with the attest function, so-called, of CPA's. That is, those activities that are associated with financial statements. In performing that function, the CPA represents the public. He has a public function, because the financial statements that he opines on will be used by the public, and the public assumes the accuracy of the financial statements because of the opinion and then relies on them. That public could be clients themselves, it could be lenders, it could be the securities markets, it can be the persons who purchase and sell securities on the security markets, it can be Government regulatory agencies. It is in effect to sanitize that particular relationship which demands the independence... the nonadvocacy, but the independence of the certified public accountant that this prohibition is placed, and it is not merely the actual independence of the certified public accountant, it is the apparent independence. It is that the public has faith and trust in that independence, whether in fact there has been any actual impairment of it.
Sandra Day O'Connor: Mr. Thomson, does Florida have the same prohibition on the books with regard to attorneys?
Parker D. Thomson: Yes. It is done through the Florida Bar, which is an integrated bar, and a representative of--
Sandra Day O'Connor: How about any other profession in Florida? Is it just these two, CPA's and lawyers?
Parker D. Thomson: --No... Your Honor, I cannot answer your question specifically, but I believe that there are other... there are other of the so-called learned professions in which there are such prohibitions. I think there are ones in respect to engineers. I cannot give it to you--
Sandra Day O'Connor: And no evidence was offered that the in-person solicitation gave rise to overreaching or deception or anything of that kind.
Parker D. Thomson: --No empirical evidence, Your Honor. This prohibition, as the prohibition with respect to attorneys, antedates this Court's decisions, starting with the Virginia Pharmacy decision and Bates, and so forth, by many, many years, and that is the case of... that is the case of attorneys, it's the case of accountants, and it would be the case of all other professionals with which there were similar prohibitions.
Byron R. White: Did the legislature command this sort of a regulation?
Parker D. Thomson: Yes, Your Honor. It is a specific provision of the Florida statute governing certified public accountants, chapter 473 of the Florida statute.
Byron R. White: And the board--
Parker D. Thomson: I might say, Your Honor, that the prohibition in the statute is of direct, in-person, uninvited solicitation. The spin put on it of demanding an immediate response is by rule of the Board of Public Accountants.
Byron R. White: --What was declared unconstitutional?
Parker D. Thomson: The statute and--
Speaker: The regulation.
Parker D. Thomson: --The rules... everything. They were both declared unconstitutional and the State board was enjoined from enforcing them. We submit--
Antonin Scalia: Do you want us to consider the statute as containing that additional qualification, or do you think that was sort of just added by the regulation?
Parker D. Thomson: --I'm clear that it was added. It was a construct of the State board as to how it interpreted direct, uninvited, in-person solicitation.
Antonin Scalia: Is that an authoritative interpretation?
Parker D. Thomson: Oh, yes, it is an authoritative interpretation in that the State board is authorized to adopt rules to carry forward the legislative mandate.
Antonin Scalia: So we should regard the statute, then, as meaning that, as requiring an immediate response.
Parker D. Thomson: That is correct, Your Honor.
Antonin Scalia: That's how you want us to interpret that statute for purposes of this case.
Parker D. Thomson: Well, I believe, as I said, Your Honor, that the statute stands on its own, but it has been interpreted by an administrative agency that has the power to interpret it.
Byron R. White: Well, the court of appeals didn't make much of the immediate response business, did they?
Parker D. Thomson: That is correct, Your Honor. A majority of the court of appeals simply struck it all. It elided the two.
John Paul Stevens: Do you raise any question that... they held the entire statute unconstitutional, the entire rule unconstitutional, is that right?
Parker D. Thomson: Correct, Your Honor.
John Paul Stevens: Do you make any argument that they should have tried to save possible applications of the statute to extreme cases of overreaching or anything like that, or do you say the whole ball of wax is at issue?
Parker D. Thomson: I believe the whole ball of wax clearly is at issue.
John Paul Stevens: Even though it's conceivable that some applications of the rule might be entirely legitimate even under the court of appeals reasoning, if the accountant went and engaged in the very extreme kind of behavior that was in Ohralik, for example.
Parker D. Thomson: That is correct, Your Honor. The statute has been stricken as to all of its applications with one... with one caveat, and that is that the end line of the decision of the Federal district court was that what should be in the business context.
Byron R. White: But other than that let me... well, it's the district court.
Parker D. Thomson: That is the district court, and its determination was affirmed.
William H. Rehnquist: Well, are you asking us to save as much of the statute as can be saved under the Constitution?
Parker D. Thomson: Mr. Chief Justice, we are asking you to save the entire statute under the Constitution.
William H. Rehnquist: Well, supposing we were to conclude that the entire statute couldn't be saved under the Constitution.
Parker D. Thomson: Then we would be asking you to save whatever could be saved. In fact, the statute itself has a what you might call an unzipper clause. It says that the... essentially it says that it's to be interpreted in accordance with the First Amendment, and it is to be limited to the extent that there is a need for it.
Byron R. White: Well, what about--
Parker D. Thomson: It gives the board, in fact, the authority to do that.
Byron R. White: --I suppose there are a lot of CPA's in your State that don't attest.
Parker D. Thomson: The... factually, any CPA may attest.
Speaker: Yes.
Parker D. Thomson: Clearly, there are some CPA's that do not attest. How many--
Byron R. White: But do you think... but the statute covers them as well, doesn't it?
Parker D. Thomson: --Of course, Your Honor. The statute covers any person who performs accounting functions as a CPA, and I submit to Your Honor that to the layman the difference between attest and performing accounting functions as a CPA is a distinction without a difference. Now, in terms of the ultimate... in terms of the ultimate use of financial statements, to be sure, attest has a very significant difference, and it is the ultimate protection of the attest function that is one of, or the most principal requirements and concerns of the statute. But in fact a CPA is a person who performs accounting functions as a CPA... compilations, and so forth... and when you go to the small business that Mr. Fane says that he wishes to secure, corporate and commercial clients that have sufficiently complex accounting and taxation needs to justify the retention of a highly skilled accountant, the difference between an attest function and a compilation function or something else that is accounting services, I suggest is a distinction that the average layman is not likely to understand.
Antonin Scalia: Mr. Thomson, can I come back to what you call the... what the unzipper feature of the stat... we do have an overbreadth doctrine in First Amendment cases which says that if the statute is valid in some applications but not invalid in others, it's invalid in toto. Can that doctrine be overruled by simply saying in the statute, by the way, to the extent that this statute is unconstitutional it's no good?
Parker D. Thomson: No--
Antonin Scalia: Can a stroke of the pen do away with our overbreadth doctrine?
Parker D. Thomson: --Well, it's unlikely that any Florida statute can get rid of United States Supreme Court's overbreadth doctrine, but historically the statute came about... it was actually part of the rewriting of the law in 1979, at a time when Bates had been decided, Ohralik had been decided, Primus had been decided. My suspicion, although there is no clear legislative history, of the words, except to the extent that such solicitation constitutes the exercise of constitutionally protected speech as determined by the rules of the board, was designed to pick up issues like Primus in case there were some kind of semipolitical speech rather than the uncontrovertible commercial speech that is involved in this case.
Sandra Day O'Connor: Mr. Thomson, do you think that the overbreadth doctrine applies to commercial speech regulations?
Parker D. Thomson: Well, going back to Bates, it was said that it did not.
Sandra Day O'Connor: And there are other cases that say the same thing.
Parker D. Thomson: There are a series of cases--
Sandra Day O'Connor: So you take it that the overbreadth doctrine is not applicable here.
Parker D. Thomson: --That is my assumption, Your Honor, although this Court has in recent years utilized the term. In some circumstances that might apply. However, I do believe that the cases have said it does not. We submit that solicitation is a form of advertising with two aspects, the message that is conveyed, and the medium in which that message is conveyed. The message of the solicitation is the commercial speech. It is a message that proposes a commercial transaction. The medium in which the message is conveyed is not the message. There are many media through which the commercial message here can be conveyed... as I said, print press, newspapers or magazines, electronic press, radio or TV, direct mailings, laser letters... but it cannot be done in one specific form, and that is, uninvited, in-person solicitation. Each medium has its own unique features. However, all print media permit review of the message except one... the cold call. By the very nature of the cold call, the message that is delivered by this form is not subject to regulation simply because it is not recorded for review. We submit that States have a substantial interest in regulating their learned professions and in maintaining the highest professional standards. We submit that State regulation of professionals and the advice professionals give is qualitatively different than the regulation of claims involving standardized products and services.
Sandra Day O'Connor: Would you say that Florida could have the same kind of regulation for real estate brokers... no cold calls?
Parker D. Thomson: Your Honor, it would pose a whole set of different circumstances. You'd have to... there are various ways that you could define learned professions.
Sandra Day O'Connor: Well, what's your answer?
Parker D. Thomson: Well, Florida recently has defined learned profession... or professions, I should say, in one... in one way that relates to professional malpractice that I think leads us in part towards that determination. I think that there are other thoughts that are involved that also impact... what the Florida court referred to as licensing, specialized knowledge, and academic preparation of at least a 4-year degree. You could incorporate into that academic preparation training, and impart continuing education training that is required of such professions as accounting. You may also desire to include a code of ethics with a disciplinary system with respect to members who breach that code. One criteria that has been offered at times is that a primary emphasis of the profession involved is on social responsibility over individual gains with respect to the accountants, their public function, and one definition, or one restriction that could clearly be looked at, is where the legislature has chosen to apply a privilege to the communications between the users of that service and the service itself, which would be true of accountants and attorneys. We are not suggesting, however, that it would apply beyond the learned professions, and specifically, of course, we are suggesting that it should apply specifically to certified public accountants. I would--
John Paul Stevens: May I ask you one other question before you sit down, Mr. Thomson? Am I correct in understanding that the statute says it's... to the extent that such solicitation constitutes the exercise of constitutionally protected speech as determined by the rules of the board, and then the rules of the board define direct, in-person, uninvited solicitation as those that directly or implicitly request an immediate, oral response from the recipient. Does that mean that, under your understanding of the rules construing the statute, that if the oral solicitation did not request an immediate response, it would not be prohibited by the statute because the rules have construed the statute to limit them in this fashion?
Parker D. Thomson: --At this point of time, Your Honor, yes... that is, that the board has authoritatively determined the meaning of the prohibition. Whether they did it for the reasons that they were attempting to constitute, or determine what constituted the exercise of constitutionally protected speech, is certainly not evident in anything that is clear from the adoption of the rule.
John Paul Stevens: Is there any evidence in this case that your adversary ever engaged in the kind of solicitation as defined in the rule, where he demanded an immediate response?
Parker D. Thomson: It is my understanding that Mr. Fane challenged the rule, and whether he violated the rule in the meantime is unknown to the board.
John Paul Stevens: But he asserts an interest in engaging in solicitations that do demand an immediate response, that's your--
Parker D. Thomson: He doesn't say one way or the other.
John Paul Stevens: --I wonder if he has standing to bring this lawsuit, is what I'm asking.
Parker D. Thomson: Your Honor, this Court... this case is posed, and it went on a summary judgment, as I believe Your Honor knows, and we know from that what Mr. Fane wants to do. Mr. Fane wants to offer his services at rates below the prevailing market rate for CPA's in the community, and he wants to develop a clientele of small to midsized businesses. He wants to explain why he can offer superior service to clients as compared with other CPA's or accountants, and gives some reasons.
John Paul Stevens: All of which he's permitted to do under the rule, as long as he doesn't demand an immediate response.
Parker D. Thomson: Your Honor, that is... that is how the rule is interpreted by the board, without question.
Sandra Day O'Connor: But Mr. Thomson, in any event, this suit was brought as a facial attack against the entire Florida statute in question.
Parker D. Thomson: Unquestionably, Your Honor, and it was submitted on the basis of three affidavits, two by Mr. Fane and one by Louis Dooner, who dealt with--
Byron R. White: If the regulatory interpretation was authoritative, the courts should not have declared the statute unconstitutional on its face, and furthermore, I can't imagine why the... I would... I can't imagine why the board would purport to limit the statute to solicitations that demanded an immediate answer, unless they never wanted to enforce the statute at all, because I can't imagine anybody trying to get a client would ever say... you'd never catch anybody doing that. You wouldn't even can't imagine that anybody would do that. So the statute as construed by the board is... they're just... they just said, but we just don't want to enforce it.
Parker D. Thomson: --I don't believe I could respond to the latter part of your-- [Laughter] I can respond to the former part, that if Mr. Fane had wanted to know whether any specific conduct that he wished to engage in would or would not be permitted by the board, he could simply have asked the board.
John Paul Stevens: Yes, but normally we don't require people to say, can I have permission to make this speech, before they make a speech.
Parker D. Thomson: Normally you may not. Certainly you do not in the area of political or artistic speech, but it may be that this board has endorsed many times with respect to advertising regulatory requirements, or suggested that they might, whereby the advertising is required to be submitted, and of course most bar associations have exactly that, in which there is a prior submission for clearance, and the State Board of Accountancy permits that. They have counsel. Counsel can give informal opinions, and if counsel decides that it has not been determined under the rules of the board, it can submit it to the board for final determination.
William H. Rehnquist: Did any of the affiants who joined Mr. Fane, or did Mr. Fane himself, say that they wanted to make solicitations and demand immediate responses from the solicitees?
Parker D. Thomson: No, Your Honor, they didn't say that. Mr. Fane was the one, and he didn't say what he wished to do with respect to that. He said he wanted to make... he wanted to make direct, in-person solicitations, and he thought that that was the most effective way to sell his message.
William H. Rehnquist: But one would think the board's answer would be, go ahead, so long as you don't demand an immediate response.
Parker D. Thomson: The board wasn't ever asked. The board was sued.
Antonin Scalia: Mr. Thomson, is it possible to have a facial attack on a statute which interprets the statute according to a regulation? I mean, once you say you're going to interpret it according to the regulation, it's no longer a facial attack, is it?
Parker D. Thomson: Well, it seems to me that it's a facial attack on the statute as it's been definitively interpreted.
Speaker: Well, I guess I--
Parker D. Thomson: You--
Antonin Scalia: --Sure, I guess you can have a facial attack on the statute as it's been applied as well, but I wouldn't consider that a facial attack.
Parker D. Thomson: --No, no. It seems to me that those are two very different things. As to whether it has been applied is a factual determination. As to whether it has been construed, and therefore to that extent and to the extent permitted, amended, you would be looking still at the statute as it was on the books.
Antonin Scalia: I thought the whole notion of a facial attack was that you have not given the State an opportunity to elaborate upon the statute through its judicial decisions or through its regulations, but maybe I'm wrong about that. Thank you, Mr. Thomson. Mr. Vladeck. Am I pronouncing your name correctly?
David C. Vladeck: Yes, Your Honor.
William H. Rehnquist: You may proceed.
David C. Vladeck: Mr. Chief Justice, and may it please the Court: Let me start out by describing what this case really was about, and what the injunction that was added in this case provides. No Federal court has declared this statute unconstitutional. Rather, the district court entered a narrow injunction which appears on page 88 of the Joint Appendix, which enjoins the Board of Accountancy in the State of Florida from enforcing the regulation barring in-person solicitation, quote, as it is applied to CPA's who seek clients through in-person, direct, uninvited solicitation in the business context. The district court tried to enter a narrow injunction directed towards the regulation.
Byron R. White: It banned something besides direct solicitations, something besides those that demanded an immediate response.
David C. Vladeck: Right, that's correct, Your Honor, though--
Speaker: Well--
David C. Vladeck: --If you look at the affidavit Mr. Fane submitted to the district court in which he explained precisely what he wanted to do, it is quite clear that he had no intention of demanding an immediate response. Rather, if you look at the Joint Appendix--
Byron R. White: --So the district court... neither Mr. Fane nor the district court accepted the regulation as a definitive construction of the statute, is that it?
David C. Vladeck: --The word impliedly in the regulations, Your Honor, as we understand it, has always been read by the board to apply to the situation in which Mr. Fane wanted to engage in solicitation, just as the Chief Justice described earlier. That is, what Mr. Fane wanted to do... and this is laid out in the Joint Appendix between pages 13 and 14... is call the chief financial officers of small to midsize businesses and say in essence, I'm new in town, do you have any interest in meeting me so we can discuss the services that I offer? If the phone conversation ended with a no, Mr. Fane would have not pursued it. If he was invited to make a presentation, Mr. Fane would go to the office, the business, and explain the services he can rendered his qualifications, his experience, discuss the business needs of the client and his ability to meet those needs. At that point, he says on page 13 and 14 of his affidavit, the CPA also understands that most businesses will not hire a new CPA without checking his or her references extensively. After all, the decision to hire a new CPA is not made lightly. CPA's are privy to all of the business' financial records, and as a result, know a great deal about the business' strengths and weaknesses. Truly, what Mr. Fane is saying is that he cannot conceivably demand an immediate response.
William H. Rehnquist: Well then, what's this lawsuit about? The board says it wants to impose this requirement only on people who demand an immediate response. You say that's the last thing your client would have done.
David C. Vladeck: Because until this morning, Your Honor, the board has consistently taken the position that the word implicitly in its regulations applies to the situation that Mr. Fane has described. That is, Mr. Fane describes the service he can offer and somehow, under the board's reading of the regulation, that is an implicit request for an immediate response.
William H. Rehnquist: What's your authority for that view of the board?
David C. Vladeck: Well, Your Honor, we laid this affidavit out and we've made our concerns known throughout the course of this litigation, and the board has always said that that conduct would be proscribed. That's the theory under which this case has been litigated throughout. We even--
William H. Rehnquist: How has the board manifested to you its view that this conduct would be proscribed?
David C. Vladeck: --The board has said that any contact between a CPA and someone who is not yet a client poses the fear that there will be an abuse in the solicitation process, or that it will impair the public's perception as to the integrity of financial statements, and therefore the board has taken the position throughout this litigation that any direct face-to-face or telephone encounter between a CPA and someone who is not already a client is proscribed by its regulation.
William H. Rehnquist: Can you document your statement that the board has taken this position that you describe throughout this litigation?
David C. Vladeck: Well, I can document it only in the sense that when we put in Mr. Fane's affidavit, which describes in detail what conduct he intends to engage in, the board offered no response. The board didn't say, we agree with you that that conduct would be permissible. To the contrary, they said that conduct and any conduct like it would be impermissible.
William H. Rehnquist: They said that in a pleading somewhere.
David C. Vladeck: In all of their pleadings throughout this case, Your Honor. The first mention of Mr. Thomson's theory came 10 minutes ago. We've not heard a word about it prior to--
Speaker: Then--
David C. Vladeck: --This point.
William H. Rehnquist: --Then you don't think the board ever qualified the statute the way Mr. Thomson says it did.
David C. Vladeck: That's correct, Your Honor, and Your Honor, I think as one of the other justices points out, if that were the board's reading of its regulations in the statute, then it would apply to virtually no CPA solicitation. CPA's are not like lawyers in the sense that they're seeking one--
William H. Rehnquist: One shot.
David C. Vladeck: --A one time, one shot arrangement with the client. What Mr. Fane wants, and what he said in his complaint, what he said in both of his affidavits, he wants to establish a long-term professional relationship with a client that has some need for reasonably sophisticated CPA services. And as I think Justice O'Connor asked Mr. Thomson before, abusive solicitation practices are not likely to be favorably received, and for that reason the State has been unable to point to any evidence from Florida or from any of the jurisdictions that have long permitted solicitation by CPA's that there's a problem with abusive solicitation.
Byron R. White: In any event, the court of appeals declared the statute unconstitutional, broadly.
David C. Vladeck: Well, I don't read the court of appeals opinion--
Byron R. White: Well, what did it do?
David C. Vladeck: --The court of appeals, Your Honor, opinion ends on page 103 of the Joint Appendix--
Byron R. White: But at least it didn't... it didn't stop to fool around with notions about demanding an immediate response.
David C. Vladeck: --Your Honor, until this morning that issue--
Speaker: All right.
David C. Vladeck: --has not been raised in this case.
William H. Rehnquist: Now, Mr. Vladeck, in the petitioner's brief they refer to the affidavit of Louis W. Dooner, CPA, in his response to Fane's motion for summary judgment on page 7 of the petitioner's brief--
David C. Vladeck: That's correct, Your Honor.
William H. Rehnquist: --And they quote from Dooner's affidavit. It says, the only type of solicitation that a CPA may not engage in is that that places the potential client in the position of having to make an immediate oral response. If that's a fair statement, I don't think your earlier statement is fair that it had never been suggested before that this was the interpretation.
David C. Vladeck: Your Honor, this case has been litigated now for 4 years. We made quite clear at the outset of this litigation, before Mr. Dooner's affidavit was submitted, precisely the conduct Mr. Fane sought to engage in. There has been never any suggestion that that conduct would be permissible under the regulations that the board in fact--
William H. Rehnquist: According to them, the Dooner affidavit was filed in opposition--
David C. Vladeck: --Yes.
William H. Rehnquist: --To your motion for summary... at least you knew then that this was a position that the board was taking, and I'm not sure that is consistent with what you said moment ago.
David C. Vladeck: Your Honor, we've always understood the board's position to be that any unsupervised conduct, nonpublic conduct, or the contact between a CPA and someone who is not yet a client of that CPA, to implicitly call for an immediate response. That is, we've always understood the position, and indeed, I think that's the only--
John Paul Stevens: Let me give you a little further help. That's certainly the way the court of appeals understood it.
David C. Vladeck: --It's certainly the way--
John Paul Stevens: They said that in Florida, in-person solicitation by CPA's is forbidden, period. That's the way they construed it.
David C. Vladeck: --And that has always been the position of the board until this morning. I'd like to get to responding to the first justification the board has offered in defense of this all-out ban, which is that a ban on solicitation is needed to preserve the sanctity of the attest function. There are several points I'd like to make. First is, there is no evidence to support the ban furthers or substantially furthers the State interest in preserving the attest function. While Florida has had a statutory ban on in-person solicitation since 1969, many other States have no ban on in-person solicitation by CPA's, and there is no evidence from any of those jurisdictions that it presents a problem. Many Federal regulatory agencies, most notably the Securities and Exchange Commission, depend very heavily on audited financial statements from publicly held corporations.
Sandra Day O'Connor: Well now, you brought what appears to be a broad sort of facial attack on the statute.
David C. Vladeck: Justice O'Connor--
Sandra Day O'Connor: It had not been applied to Mr. Fane, right?
David C. Vladeck: --That's correct, Your Honor.
Sandra Day O'Connor: He had not engaged in conduct and been disciplined for it. He brought this in advance, this attack, against the whole statute.
David C. Vladeck: Well, Your Honor, he is... we didn't--
Speaker: Right?
David C. Vladeck: --Well, yes--
Speaker: Okay.
David C. Vladeck: --But not against the whole statute.
Sandra Day O'Connor: Do you think the overbreadth doctrine applies to commercial speech?
David C. Vladeck: No, Your Honor, I do not believe that's the case.
Sandra Day O'Connor: Do you think there are any possible, legitimate applications of this statute?
David C. Vladeck: There may be, Your Honor, and--
Sandra Day O'Connor: Then how can the court just strike the whole thing down?
David C. Vladeck: --Well, in the first place, we don't believe the court has. The injunction that has been entered applies only in the business context. Secondly, Your Honor, we don't believe we--
Speaker: Only to what?
David C. Vladeck: --Only to solicitation in the business context. It doesn't apply to CPA's who want to solicit individuals for their personal accounting needs. In further response, Justice O'Connor--
Antonin Scalia: Will you explain that again? I don't understand. What is, in the business context?
David C. Vladeck: --Well, we assume that what the district court judge meant, and defendants have not sought clarification of it, was that Mr. Fane would be allowed to solicit the business entities that he wants to solicit... corporations or other commercial entities... in distinction to what the board claimed was one of its fears, which was that CPA's would solicit unsophisticated individuals, and so the district court's injunction is limited to the business context. Which, if I may, Your Honor, gets me back to my answer to Justice O'Connor's question. We didn't label this as a facial, or as an as-applied challenge. I think if you look at our complaint, it is more clearly an as-applied challenge, because in our complaint, we specify precisely the conduct in which Mr. Fane seeks to engage, and we certainly pushed the district court towards issuing an order that was limited towards solicitation in the business context, or business clients. And in that respect I think the complaint is very much like the kind of challenge that was described by this Court in Fox, which is a narrow tailoring challenge. That is, the kind of challenge that doesn't apply... doesn't seek to have the statute struck down as facially overbroad, but challenges one particular application to that statute, and here, it's for the kind of business solicitation that Mr. Fane seeks to engage in. We didn't label the complaint that way, Justice O'Connor, but I think that's the only fair reading of the complaint, and certainly that's the way it was treated by the district court judge.
Byron R. White: What is the present position of the organization representing CPA's, the American Institute of CPA's?
David C. Vladeck: That's correct, Your Honor.
Byron R. White: Well, what is the present position of that institute? Do they have a rule against in-person solicitation now, or did they ever, or what?
David C. Vladeck: Let me trace the history of the AICPA's regulations.
Byron R. White: Well, you don't need to go through the whole thing. [Laughter]
David C. Vladeck: Well, it's very brief, Your Honor. At present, there is no prohibition enforced by the AICPA with respect to in-person solicitation. This rule has its genesis in the first code of ethics issued by the AICPA in 1917. That code prohibited encroachment, not solicitation. Essentially, the prohibition was for one CPA soliciting the clients of another CPA who happened to be a member of the organization. It did not forbid general solicitation.
William H. Rehnquist: That was called encroachment.
David C. Vladeck: Encroachment, or referred to otherwise as poaching, Your Honor.
Byron R. White: Also called unfriendly.
David C. Vladeck: Yes, also called unfriendly.
Antonin Scalia: Unfair and destructive business practices.
David C. Vladeck: That's correct, Your Honor. That prohibition remained in force until 1948, when the AICPA sweepingly amended its rules to prohibit all kinds of promotional activity... advertising, solicitation and everything of the sort. In 1973, the Justice Department Antitrust Division first contacted the AICPA to explain that it thought the rules were anticompetitive and violative of the antitrust laws. Finally, in 1979, threatened with imminent litigation by the Justice Department, the AICPA withdrew its solicitation ban and issued a report called the Report on Solicitation, which is contained in the Joint Appendix, which takes the position that there is no evidence whatsoever that in-person solicitation by CPA's leads to either of the concerns the State claims to fear. That is, abuse of the attest function, or overreaching by CPA's who engage in solicitation, and the AICPA Report on Solicitation is really the only comprehensive or authoritative study on this issue uncovered by either party. In fact, it was submitted by the defendants in the district court. Let me just take one last attempt to respond to the Chief Justice's concerns about the reading of the regulation. We alleged in our complaint precisely the conduct we wanted to engage in, and in paragraph 13 of our complaint, which appears at Joint Appendix page number 4, we say that Mr. Fane, quote... I'm quoting now... Mr. Fane brings this action because Florida's prohibition on in-person, direct, uninvited solicitation, including initial telephone calls, denies him the opportunity to communicate this and similar information, so on. In the answer, the defendant denied that allegation--
Speaker: Well--
David C. Vladeck: --And it seems to me the denial is inconsistent with the narrower reading that--
William H. Rehnquist: --But I would have... but if you place the way things develop in a trial in the time sequence, I take it first you get the complaint, then the answer, then you get motions for summary judgment, and I think the affidavit I was quoting from in the petitioner's brief was at the summary judgment stage--
David C. Vladeck: --That's correct.
William H. Rehnquist: --Where you accept the positions to be refined over the complaint and answer.
David C. Vladeck: Yes, Your Honor, but the position that Mr. Thomson has espoused was not put forward in any of the other submissions, particularly the brief of the defendant, which--
William H. Rehnquist: Well, but it certainly was put forward in that affidavit--
David C. Vladeck: --Yes, sir.
Speaker: --Don't you agree?
David C. Vladeck: Yes, sir, I would agree. Let me return, though, to the State's justifications here. The other point I'd make is, not only is there no evidence, but there is experience before other jurisdictions that shows that there have not been problems with solicitation activities by CPA's, nor has there been any evidence from Florida during the 2 years that this injunction has been in effect that there have been any problems with abusive solicitation. The defendants never sought a stay of the district court's order. Solicitation at least in the business context has therefore been permissible in Florida for the last 2 years. There has been no suggestion at all that that has given rise to any problems or any difficulties. I'd like to say briefly a word about the time-place-manner doctrine argument that the defendants have made as well. We have explained in our brief why we do not believe the time-place-manner argument applies, and let me just highlight two of our most fundamental concerns. The first is, there's no question in our view that this is a content-based ban. Like all restraints on commercial speech, the solicitation ban picks out the particular form of communication and regulates it, and this Court's jurisprudence has made clear that content-based regulations are not subject to review under the time-place-manner doctrine. In the commercial speech area, we submit they are reviewable under the Central Hudson test which we believes govern, and indeed, all of this Court's prior cases involving lawyer advertising, professional advertising regulation, had been decided under the Central Hudson test, not under the time-place-manner doctrine. The second point that we think is pertinent is that the defendant's argument really seems to make a fortress out of the dictionary by equating the word manner with mode. Here, this regulation seeks to suppress an entire mode of communication, and this Court's opinions by and large have said that where the regulation completely prohibits a particular mode of expressive activity, it ought not to be judged under the time-place-manner standard.
William H. Rehnquist: Mr. Vladeck, supposing that you were in complete agreement with Mr. Thomson that the only way the board sought to... and the only kind of conversation the board sought to prohibit was those demanding an immediate answer, would you still say that that was not a time, place, and manner regulation, if he could communicate everything he wanted to but couldn't demand an immediate answer?
David C. Vladeck: No, Your Honor, I would still say that that was a content-based restraint in that he could say, I'd like you to consider hiring me, I'm extremely well qualified, here are the services I render and the fees I charge, but he couldn't say, and please let me know soon.
William H. Rehnquist: Well, he couldn't say, let me know right now.
David C. Vladeck: He couldn't say, let me... all right, that's fine. I accept your amendment... and that seems to me to be a content-based restriction. That is, you can say everything but those four magic words. And it seems to me that that restriction would have to be judged under the commercial speech test, and it would either rise or fall on whether it passed muster under Central Hudson. It seems to me that that restraint would have far more appeal than the restraint that the board throughout this litigation says it intends to impose.
Byron R. White: Why shouldn't we at least prefer to wait until the board goes after somebody so we know what... know for sure what the Florida prohibition is?
David C. Vladeck: Well, Your Honor, there are two reasons. One is--
William H. Rehnquist: Well--
David C. Vladeck: --There is--
Byron R. White: --Is it all right for us to prefer that?
David C. Vladeck: --There's an interrorum effect. The uncertainty would chill Mr. Fane's speech. If Mr. Fane couldn't go to the court to get a resolution of whether his conduct was permissible or not, Mr. Fane and probably many other CPA's would sit on the sidelines. And let me point out, Your Honor, this isn't the only case that was brought to challenge this restraint. There is another case that is now pending in the Florida State courts that preceded Mr. Fane's case, during which the board has taken what we thought was the board's unequivocal position in this case, which is that any unsupervised contact either on the phone or face-to-face between a CPA and someone who is not that person's client is forbidden under the Florida rules, and so this is not a case, at least in our minds, as to which there is any uncertainty at all as to the board's position.
Byron R. White: They didn't... when... this has already been remarked upon. When you filed your complaint and said what he wanted to do, the board didn't say go ahead and do it.
David C. Vladeck: No. In fact, they have vigorously, vigorously litigated this case at every turn, even though we have... we put it in our complaint, we put it in our affidavits, we have always clearly explained precisely the kind of conduct in which Mr. Fane seeks to engage. Unless there are further questions--
John Paul Stevens: Does the record say anything at all about the rates he proposed to charge as compared with the prevailing rates?
David C. Vladeck: --No. There is an allegation in the complaint that he would charge rates below the prevailing rate in the community, but that was never a central feature in our--
John Paul Stevens: And they never defended on the ground that they have an interest in preventing that.
David C. Vladeck: --Oh, no, Your Honor, they did not. [Laughter]
Speaker: Thank you--
David C. Vladeck: Unless there are any further questions--
William H. Rehnquist: --Thank you, Mr. Vladeck. Mr. Thomson, you have 4 minutes remaining.
Parker D. Thomson: Mr. Chief Justice, may it please the Court: I simply wanted to say that the rule says a communication which directly or implicitly requests an immediate oral response from the recipient--
William H. Rehnquist: Now, where are you reading from?
Parker D. Thomson: --I am reading... it is... it is an appendix to our brief--
John Paul Stevens: A-15 of the blue brief.
Parker D. Thomson: --On A-15.
William H. Rehnquist: A-15 to the blue brief?
Parker D. Thomson: A-15... A-15, Mr. Chief Justice.
William H. Rehnquist: And whereabouts on A-15?
Parker D. Thomson: At the very top of the page: for purposes of this rule, the term direct, in-person, uninvited solicitation shall be deemed and construed to mean any communication which directly or implicitly requests an immediate oral response from the recipient. The Dooner--
William H. Rehnquist: And you're telling us that this regulation was duly enacted by the board.
Parker D. Thomson: --That is correct, Your Honor, and what I started to say is, I do not want to suggest to this Court that the board is going to look... would look favorably on a request because it is their assumption that it would implicitly respond. They did not intend, I believe, to rewrite the statute as was... to gut the statute, which is what was the suggestion, perhaps, by some of the questions that were previously asked.
John Paul Stevens: In fact, the next sentence in the regulation makes that rather clear.
Parker D. Thomson: Correct.
John Paul Stevens: Uninvited, in-person visits, and so forth, are prohibited.
Parker D. Thomson: Correct, Your Honor, and I did not want in any way to be... to suggest that the Court is going to look favorably on a request with respect to this matter. It is the assumption that normally when that type of solicitation is made that a response is at least implicitly called for, and I do not want to suggest to the contrary. Mr. Dooner's affidavit was before the Court, Mr. Dooner said what he did, and that is in fact the way it went forward for determination by the Federal district judge and by the court of appeals.
William H. Rehnquist: But the second sentence that Justice Stevens just referred to does say uninvited, in-person visits or conversations or telephone calls to a specific potential client are prohibited. Now, does that mean ones that demand immediate oral response, or just across-the-board they're prohibited?
Parker D. Thomson: Your Honor, I believe, reading the two sentences together, that there is an assumption that when such a call is made that it implicitly... at least implicitly requests a response.
William H. Rehnquist: Even though no such response is requested by the caller.
Parker D. Thomson: Absolutely if no response... the question was asked to me before, what if I don't want your response? That was the question to which I responded, in which it was specifically negated, but I do say... believe if the person makes a cold call and says nothing, he expects a response.
Antonin Scalia: It seems to me, Mr. Thomson, that the whole purpose of that which directly or implicitly requests an immediate oral response is simply to distinguish the situation described in the last sentence, indirect forms of... such as giving speeches. When you give a speech, you don't expect somebody in the audience to get up and say, oh, that sounds pretty good to me, can you give me a little more-- [Laughter] Isn't that the only purpose of it, really, and that they're really saying you cannot make person-to-person oral contact?
Parker D. Thomson: Well, certainly, as the words of the statute... as I said before, I do not believe that the board attempted to gut the statute with this rule.
Byron R. White: What do you say the State's interest is in doing that?
Parker D. Thomson: The State's interest is dual. With respect to the attest function, it is to assure the independence, and the apparent independence of the certified public accountant which the board submits is contrary to the advocacy function that would be involved in this kind of... this kind of solicitation. The second is to prevent, because of the unregulatability of this, to establish a prophylactic rule that would protect against overreaching and other misconduct.
William H. Rehnquist: Thank you, Mr. Thomson. The case is submitted.


Earl Warren: Number 451, Joel Rosenberg, Petitioner, versus United States of America.
Edward M. Dangel: Mr. Chief Justice --
Earl Warren: Mr. Dangel.
Edward M. Dangel: -- may it please the Court. The petitioner here was tried upon an indictment that contained two counts, first count, for having transported in interstate commerce a check that was procured by fraud. The second count, for a conspiracy between himself, one Meierdiercks, and an unknown person called Mr. Rice in the indictment. He was found guilty after two trials. The first trial was reversed by the Third Circuit Court of Appeals. The first trial was before the Jencks decision and before the so-called Jencks Act. The reversal by the Court of Appeals was based upon the fact that he was not given FBI material or statements reports, and was not provided with the grand jury minutes concerning two principal witnesses, one Meierdiercks and one Ms. Vossler, Ms. Vossler being the victim of the fraud. The Jencks Act had not been passed. Then, he was tried again before the same judge after the Jencks Act was passed. And during the trial, he was deprived of the material of which we now complain, FBI reports and some statements. And the Court of -- and the judge, I'll go into this much more fully later, claimed he was acting both under the Jencks Act and under the Jencks decision. The Court of Appeals confirmed the conviction and they acted under the Jencks Act and the Jencks decision, although they don't say so. The District Attorney or United States Attorney adheres strictly in his contentions to the Jencks Act. This Court granted certiorari on the grounds, first, whether the rule on the Jencks case was a rule of mere procedure or did it involve the defendant's constitutional rights. Then, again, whether or not a clear violation of the rule was harmless error, whether the conceded error of the trial court and the Court of Appeals found that there was -- there was error, error in withholding from counsel prior statements of a principal government witness could be excused by the Court of Appeals because it found that the defense was not hampered in cross-examination of those witnesses concerning material that's in a sealed envelope that's never been seen by the petitioner. And, another part of the certiorari is that it is proper for a Court of Appeals to determine what use defense counsel might have made of the statements erroneously withheld. The -- the case, when it came up for trial again and prior thereto, the defendant made two motions. The third one, which is not too important for a continuance, the two motions were that he be allowed to inspect before trial the statements of Meierdiercks, who was the principal witness and Vossler, who was also a principal witness and who the judge knew, all the judges knew, had to be material witnesses or the Government had no case. It was first presented to the assignment judge whose ruling was that, because of the Jencks Act, he could not allow the motions at that time. The preposition being stated to him that it would delay the trial and interrupt the trial, and so forth, and a -- the judge said no. He was bound to wait until the witness testified, although he knew and everybody else knew that those witnesses were bound to testify. However, he put a loophole in his ruling to this extent. He said “you may renew this request again to the trial judge.” And, the request was renewed to the trial judge who, as I say, was the same judge who tried the case first, and his remarks in the record show that he knows just what the Government needs because he said the Government cannot prove this case, unless Mr. Meierdiercks testifies. They might leave out Ms. Vossler but I don't see how they could do it. However, he denied the motion again not as a matter of discretion, as I read the record, but as a matter that he was bound to wait until the witness testified. Now, at the trial, Mr. Meierdiercks was not only the main witness, but the only witness who implicates the defendant. And, Mr. Meierdiercks, who himself was a confessed criminal in not only this particular activity but running many, many years with a long criminal career, had made statements to the FBI. The first statement that he made was that he was in no way implicated in any wrong doing. He then made another statement in which he again denied that he had done anything wrong or that he knew the petitioner Rosenberg. Now, there were two interviews with Mr. Meierdiercks before he made a written statement. Those two appear at the bottom of page 46 and they were not given to the defendant. I might say, at this point, that never did the Government asked the judge to edit any reports or material in its possession, although I believe that the Government's brief says that the judge could edit what had to be submitted to the defendant. I don't believe that Mr. Bechtle's objections were based upon anything except the fact that 3500 did not permit these papers to be given to the because they were not signed by Mr. Meierdiercks, they were not approved by him, they were not adopted by him, nor were they verbatim. He rested on 3500. Now, these two reports to the FBI agents are interviews with Mr. Meierdiercks but they were not given to the defendant. I believe they are in the sealed envelope. This -- most of the material that I can tell you about appears in the Court of Appeals opinion at page 94. Judge Hasty has, there, revealed the contents of these papers. Now, what the judge did, he examined them himself. He took charge and he examined them in camera. He never allowed the defendant to know any of the contents and, in connection with Exhibits 5 and 6, he gave part of those exhibits, pages 2 and 4, I believe, of Exhibit 6 and certain parts of Exhibit 5. That's C5 and C6, his own exhibit, the Court's exhibit, but he wouldn't show the rest and the rest, I believe, is also contained in the sealed envelope. There are also two office memoranda of the FBI concerning the progress and procedure of a then-pending prosecution against Meierdiercks. That's also page 95 of the record. There's another paper which contains the detailed physical description and summary and personal history of Meierdiercks. Still, another is a record of an unsuccessful search for certain names on hotel registers on or about the time of the crime. The -- then, he says “these and other miscellaneous items from the prosecution's files were obviously not germane to the request of the defendant.” Why the Prosecution produced them is not clear. Their surrender could not have been responsive to the defense's request or to any proper request for whatever records the Government had, in verbatim text or otherwise, of prior statements of certain witnesses. These were given to the judge. And then, he says there -- in addition, there was a minute or office notation, stating of fact that, on the first questioning, Meierdiercks had denied any involvement and any alleged wrong doing. Then, there was a typewritten copy of a detailed statement of Meierdiercks about the crime. The Court of Appeals says there that the handwritten copy was the original. How do we know that it was the original? It is a -- it is Exhibit 2. It's Court's Exhibit No. 2 or maybe Government's Exhibit No. 2. It's a 10 or a 12-page handwritten statement which Meierdiercks testified -- it's C2, Court Exhibit 2. Meierdiercks testified that, upon questioning by the FBI agent, the FBI agent wrote a lot of things and he was hesitant about it. He wasn't cooperative, and then, he became cooperative, and the statement was finally presented to him and he signed it. And, I saw it this morning in the Clerk's Office and is witnessed by two special agents of the FBI. But, the typewritten --
Felix Frankfurter: You saw it?
Edward M. Dangel: I saw -- I saw that one because that was an exhibit, Your Honor. That was not withheld. The thing that was withheld was the typewritten copy, and I've dared say that a skillful cross-examiner might have been able to show that the typewritten copy was the original and that the FBI agent's copy, the typewritten copy, and, from that, Mr. Meierdiercks attached his signature. All I say is that, if the defendant was entitled to this material, he was entitled to make such use of it as might have been available to him. That is to say, the record at page 96 says, as the Court of Appeals finds, that the handwritten one was the original. Now, I don't know how the Court of Appeals reaches that conclusion. Certainly, they really -- the Court of Appeals reaches that conclusion without any statement from the defendant or without any evidence except as they look at the papers.
Charles E. Whittaker: Mr. Dangel.
Edward M. Dangel: Yes, sir?
Charles E. Whittaker: Let's see if I understand you. A longhand signed copy was -- or original was, whatever it is, was given to you.
Edward M. Dangel: Yes, it was given to the defendant.
Charles E. Whittaker: And, the Court had it before it, the Court of Appeals, in the record --
Edward M. Dangel: It had it.
Charles E. Whittaker: As well as the one that was submitted --
Edward M. Dangel: In camera.
Charles E. Whittaker: In the envelope and examined in camera.
Edward M. Dangel: Yes, Your Honor.
Charles E. Whittaker: So, do you argue that the Court couldn't be trusted to determine that they were alike?
Edward M. Dangel: I'm not -- I don't say the language isn't alike. All I say is, which is the original?
Charles E. Whittaker: Was that material if you had the --
Edward M. Dangel: Well, I should imagine that, in cross-examination, it might be immaterial as to whether or not Mr. Meierdiercks originated this statement which was written down, Exhibit C2, or whether somebody else originated that statement. This is cross-examination. How frequently do you compare a typewritten copy with a handwritten copy in cross-examination? And then, again, there is no way of knowing whether there was some deviation in that copy. The defendant has never seen it. Is it fair to have the Court of Appeals to make that determination without the defendant seeing it or having an opportunity?
Earl Warren: Was the written -- handwritten statement in the writing of the witness?
Edward M. Dangel: No, it was not. It was in the writing of an F -- of FBI agents --
Earl Warren: Yes.
Edward M. Dangel: Either one or two. And, the only fact on this 10 or 12-page document is that it concerns the witness' signature at the end and witnessed by two special agents of the FBI.
Felix Frankfurter: Were the original and the transcript invoked by the same -- attributable to the same author, the same person?
Edward M. Dangel: We can't tell you really. We can't tell, Mr. Justice Frankfurter. One is typewritten.
Felix Frankfurter: Yes.
Edward M. Dangel: And the other is handwritten.
Felix Frankfurter: And nothing to indicate whether the typewritten --
Edward M. Dangel: Preceded the handwriting?
Felix Frankfurter: I don't care whether it's preceded or followed.
Edward M. Dangel: No, that's correct.
Felix Frankfurter: Was it by the same -- was the same person responsible --
Edward M. Dangel: I --
Felix Frankfurter: For the contents of both?
Edward M. Dangel: I have never seen it, nor has the petitioner ever seen it.
Felix Frankfurter: No, but the judge passed on that.
Edward M. Dangel: The Court of Appeals passed on it, first, the judge, and then the Court of Appeals.
Felix Frankfurter: So, the question on that point is not interpretation of meaning --
Edward M. Dangel: No --
Felix Frankfurter: But merely identity of the symbols.
Edward M. Dangel: Yes. Origination is the --
Felix Frankfurter: What?
Edward M. Dangel: The origination of the paper is important.
Felix Frankfurter: Well, I don't know if the -- why do you say the origination is important?
Edward M. Dangel: Well --
Felix Frankfurter: If one is an identical copy of the other, but you're concerned with, was there a -- was this in contest that there wasn't somebody who wrote something?
Edward M. Dangel: This is a contest as to whether somebody said something.
Felix Frankfurter: Yes.
Edward M. Dangel: It's a contest whether Meierdiercks --
Felix Frankfurter: But it's not invoked -- they both say the same thing. You can't get any change from if they're both identical, can you?
Edward M. Dangel: Well, you can get some change in it.
Felix Frankfurter: What kind of change?
Edward M. Dangel: Well, you get the change as to whether or not this was presented to him for his signature, or whether or not it was written at the time he said it was written because of questioning of the FBI agents.
Charles E. Whittaker: Well, in any event, it was the statement which was in possession and was demanded and was delivered.
Edward M. Dangel: It was not delivered. That's a -- the typewritten copy was not delivered.
Charles E. Whittaker: Well --
Edward M. Dangel: The --
Charles E. Whittaker: The handwritten copy was.
Edward M. Dangel: Yes, that's right, the handwritten copy.
Charles E. Whittaker: And, my difficulty is in seeing that if those were alike, whether you get one copy or a carbon copy --
Edward M. Dangel: It is --
Charles E. Whittaker: Or --
Edward M. Dangel: That isn't the my -- I guess I have not made my point clear. I was trying to make the point that for the Court of Appeals to say that one is the original rather than the other --
Felix Frankfurter: No, but, I mean, if it is.
Edward M. Dangel: Without any -- without the defendant being able to combat that or in anyway explain it or to know about it seems to me to be depriving of him of something that's of value to him. For example, on cross-examination, if the defendant could show that this statement which Meierdiercks signed was merely a copy of what had been previously prepared by somebody, and this thing was just put in front of his nose and “here, you sign this,” it would be of great value as to whether he was telling the truth that he had in -- he had this third or fourth interview with an FBI agent and gave the material which the FBI agent wrote down as he went along, or whether it wasn't a -- something already cooked up. I submit that --
Felix Frankfurter: Well, is this of any --
Edward M. Dangel: It's true to --
Felix Frankfurter: Can I ask this. Is it in controversy that he signed something?
Edward M. Dangel: It's not in -- it's not in con --
Felix Frankfurter: Upon signing something, he made that something here, is that right?
Edward M. Dangel: That's correct.
Felix Frankfurter: Now, what difference does it make whether he made that something here, that that something which he made was a copy of something that had been typewritten or longhanded?
Edward M. Dangel: Well, it would make some difference in cross-examination and in value to his testimony as to whether or not he had originated the thought that were in that paper.
Felix Frankfurter: It doesn't make any difference if he had copied it.
Edward M. Dangel: Well, I s -- well, Your Honor says --
Felix Frankfurter: Unless you say that he was hurshed in signing it, was that in the case?
Edward M. Dangel: No, it was this in -- this was in the case, that he intended a benefit from signing. That is to say, he in -- he, very frankly, admitted that he was incarcerated at the time and that he expected that, by cooperating with the FBI, that he would be shown leniency and consideration.
Felix Frankfurter: In other words, he was going to repudiate that when he signed to that extent, is that right?
Edward M. Dangel: Well, that might be so. I mean, he -- that's not the direct evidence. To go along a little further, Ms. Vossler was an important witness. And Ms. Vossler had written a series of letters to the United States Attorney. Those letters were not shown to the defendant. The judge examined them in camera. And, while he allowed one letter to be introduced or two letters to be introduced, the great bulk of the series of letters were not. Now, the Court of Appeals has examined those letters and the Court of Appeals says that they were of no material value to the defendant. The defendant could not use those letters for any impeachment purposes and, consequently, although there was error in not allowing the defendant to have those letters yet that error was harmless. Now, I submit this all adds -- all adds up to one thing. The Court of Appeals -- the trial judge, in -- in denying new trial and making his rulings during the trial, he has cited his authority, his -- the Jencks Act and the Jencks decision. And, in his statements, he has said to the petitioner, “I'm going to give you more than you're entitled,” but he didn't. He -- it's true that he -- he allowed him to look at the grand jury minutes of Mr. Meierdiercks before Meierdiercks' direct examination was completed. He allowed him to look at some of the statements of Meierdiercks, those that were introduced in evidence, overnight. And, the next day, in a 40-minute recess, he allowed him to look at some of the material of Meierdiercks and some of the material of Ms. Vossler. It's the contention of the petitioner that 3500 is unconstitutional. It -- at first blush, they were to look as if Congress was attempting to usurp the function of this Court. It will look, at first blush, as if Congress were trying to dictate what constitutes due process and that Congress was attempting to dictate what should be considered a fair trial when it came to material in its possession which concerned government witnesses. In the Jencks decision, this Court has empathically said that in-camera examination is condemned. And, doesn't justice require that an in-camera examination in a criminal case should not exist?
Speaker: You read Jencks as going on a constitutional ground?
Edward M. Dangel: I beg your pardon?
Speaker: Do you read Jencks as going --
Edward M. Dangel: No.
Speaker: On a constitutional ground?
Edward M. Dangel: No, I don't believe that this -- I don't believe that the language spells out exactly constitutional except underlying it. It seems to me, fairness of trial, decency to a defendant, it seems to me, that's a constitutional ground, but there is no language in there that says this is on a constitutional ground.I don't read it that way. But, when you get to a criminal trial, the investigation stage ought to be over or pretty near or they've now -- the Government, then, has pointed the finger at the man and said “here, you're the man. You are guilty of this crime.” Should a Government, then, conceal from a man, withhold from a man what material there is? I mean, this is not a question of national security and this is not a question of state secrets. This is a question of the Government accusing a man of a crime. It doesn't involve either one of those things. Haven't we got to the stage now where a discovery is important in a criminal case, pretrial, and otherwise, just as it is in a civil case? Haven't we changed from what used to be a game of tricks in the trial, as Judge Bazelon calls it, a combat by surprise? Haven't we got to the point now where a trial is not only to determine the truth but where all truths, not half truths, are told to a defendant, but he is given the availability? Almost all I have available to him, just as to the Government, whatever material the Government has concerning those witnesses which the Government puts on the stand and said “here, place credence in this man to accuse the other man, and find the other man guilty of a crime.”
Felix Frankfurter: The Government couldn't have the same right of discovery as the stuff when the defendants comes with possession, he could have?
Edward M. Dangel: Some things, yes, sir, Mr. Justice Frankfurter.
Felix Frankfurter: What?
Edward M. Dangel: Yes. If I were tried for arson and I had in my possession in the courtroom a fire insurance policy. The Government could compel me to produce that policy.
Felix Frankfurter: The Government -- a very able Court of Appeals says the co --we reverse the conviction in which the Government has merely served notice on the defendant to produce the original as the basis of introducing secondary evidence, and that was held, I'm not sure properly, thought broadly, an invasion of the privilege against self-incrimination --
Edward M. Dangel: Well, I'm --
Felix Frankfurter: Before it.
Edward M. Dangel: I'm reminded of the Massachusetts case which is -- such an evidence is admissible upon secondary evidence admissible upon the defendant's refusing to produce the policy which was in its possession.
Felix Frankfurter: But -- it is in the federal courts, but I have to point -- the point of that case was that it was made in the presence of the jury --
Edward M. Dangel: Oh I see.
Felix Frankfurter: And, thereafter, all careful district judges of the United States or careful US Attorneys asked the Court to excuse the jury so they could do it in the absence of the jury. I'm suggesting the extent to which, from my point of view, very properly, protection is made and this is not -- you can't search, you can't -- your large statement about going after the truth is a large, big statement --
Edward M. Dangel: I know.
Felix Frankfurter: Isn't it?
Edward M. Dangel: I know. It is. The whole truth is what I -- is --
Felix Frankfurter: Yes.
Edward M. Dangel: Is what it comes down to.
Felix Frankfurter: The whole truth.
Edward M. Dangel: Yes, and --
Felix Frankfurter: And it isn't what trials are about usually, are they?
Edward M. Dangel: I beg your pardon?
Felix Frankfurter: That isn't what trials -- that isn't the nature of an adversary proceeding, the whole truth.
Edward M. Dangel: Well, I -- it ought to be.
Felix Frankfurter: It ought to be, but it --
Edward M. Dangel: It ought to be. I just --
Felix Frankfurter: But you're standing in the defendant side, I should say --
Edward M. Dangel: Well --
Felix Frankfurter: As much -- at least as much as I'm afraid it's done.
Edward M. Dangel: Well, I -- in a criminal case, however, I should think that anything that's available to the defendant, if it's in the possession of the Government, and that bears upon the credence --
Felix Frankfurter: Including hearsay evidence?
Edward M. Dangel: Including hearsay evidence in the --
Felix Frankfurter: Although it's not admissible?
Edward M. Dangel: I'm sorry, but it's of an -- it's of advantage to the defendant in this way, that if the hearsay evidence --
Felix Frankfurter: Evidence -- Prosecutor must give evidence or materials in his possession which, here, the conscientious Prosecutor wouldn't dare to offer in evidence.
Edward M. Dangel: This --
Felix Frankfurter: Correct?
Edward M. Dangel: This is a matter of production. It's not a matter of admissibility and, if the --
Felix Frankfurter: No, but the whole question of the range of impeachment is a question of admissibility.
Edward M. Dangel: But I -- do you intend the Jencks decision to be confined to impeachment or don't -- do you intend the Jencks --
Felix Frankfurter: Well, we're talking here about impeachment. All these things are impeachment --
Edward M. Dangel: I agree that, up to this point, I've heard --
Felix Frankfurter: They're all impeachment.
Edward M. Dangel: But, I -- I, however --
Felix Frankfurter: If any different considerations apply when it isn't what Judge Swan called the negative aspect of this evidence to which -- toward impeachment?
Edward M. Dangel: However --
Felix Frankfurter: It's a very different thing if you want to have affirmative evidence to disprove perjury, for instance.
Edward M. Dangel: Well, first, production, and then, admissibility. I submit that if there is corroborative evidence in some of those statements, the defendant ought to be entitled to have it, regardless of impeachment. I'll just finish on the question of unconstitutionality. The time, this --
Felix Frankfurter: That seems to be relevant.
Edward M. Dangel: Excuse me.
Felix Frankfurter: I am suggesting that if the Court knows in advance that there are limits to the purposes to which evidence may be important, that it may be a good reason for not calling to it.
Edward M. Dangel: But this is production. I tried to draw the distinction between production and admissibility. I, first, think the defendant sees it, then, the judge passes on it. That's a different proposition. Second, I'd like to point out, on unconstitutionality, this statute gives a time when the defendant is going to get these papers. As you, Mr. Justice Frankfurter, have pointed out, in the middle of a trial you're asked to examine a witness of State. You're going to keep the jury and going to keep the judge waiting, and you're going to hurry off to give the officer in any room to look over this stuff and, for the first time, determine. You are being deprived. The defendant is being deprived of the opportunity of preparing his case properly if you have to wait until that period. The third thing is the limitation of the papers. That the witness -- it must be a paper that's signed by him, that's adopted by him, that is in a verbatim transcription. If that's the situation, then I -- I submit that Congress has attempted to state what is due process and what is a fair trial, and I believe that Congress has gone too far. Thank you.
Earl Warren: Ms. Rosenberg.
Beatrice Rosenberg: May it please the Court. The issue in this case is very much narrower than would appear because of what actually happened on this trial. Now, let me say just a -- one word about the fact because it, again, said the background of what happened here must be done. This is a case which the Government's main witness, Meierdiercks, went to Ms. Vossler. He testified, at the direction of petitioner and offered to buy her leases, certain oil leases that she had. In the meantime, according to Meierdierck, at the direction of petitioner, some other persons who was never identified also came and fitted up. So that, eventually, they agreed to about $35 an acre and, presumably, she was going to sell all her leases for $57,000. Well, the subject came around discussion of her taxes, capital gains on that, and Meierdiercks said, “Well, if you give us 10% down now, cash, this can be handled as if it was profits of an oil company which has a deduction and, so, that will cut down your tax. But, you must give us this 10% first before the sale.” As a result of that, Ms. Meierdiercks -- Meierdiercks and Ms. Vossler went to Philadelphia where she backed. She drew out a certified check for $5700 and gave it to Meierdiercks. Now, he testified that he, in turn, gave it to petitioner. The petitioner went to Washington and bought some leases for -- he wasn't present. He testified that was the arrangement. The petitioner bought the leases and -- for Ms. Vossler for $500 or $1000 and then got the balance of the certified check in cash, and then, part of that money was given to Meierdiercks. Now, Ms. Vossler testified as to her dealings with Meierdiercks, but she never saw petitioner.She never identified him. All that she could do was corroborate Meierdiercks as to her testimony -- as to his dealings with her.
Charles E. Whittaker: When you say corroborate, do you mean not to tell what were the durations that she had to find?
Beatrice Rosenberg: That's right, but they were corroborative of his version of what he did. That's all I meant by that. Now, that was basically the picture and, at the first trial, the Court had examined Meierdiercks' grand jury testimony and statement to the FBI and had said there was one item that it thought significant to the defense. It didn't find anything else contradictory. That was before Jencks. It went up on appeal. By that time, the Jencks decision had come down and the Court of Appeals reversed. Then, this case came on for retrial at the time, as the statute had been passed, but there was this reversal of this case. When it came up, there was, the petitioner said, a pretrial demand which was denied on the ground that Jencks didn't require in the statute for a bad pretrial production. The judge said that it was clear that Meierdiercks would be called. That the Government, as he recalled, the case -- couldn't possibly have a case without it and, therefore, he would arrange to have both the grand jury minutes and the sworn statement of Meierdiercks turned over to the defense. At the conclusion of the first day of trial, which was not literally within the statute because Meierdiercks had not completed his direct testimony, but it was felt that, since he was such an important witness and known to be such, that would do it. And, this was done, and then, what happened appears in the record at page 47, a little bit later. The defense attorney said “as I remember the first trial, Meierdiercks testified that he was interviewed several times by the FBI, but all the Government turned over to me is one signed statement.” And, the United States Attorney said “now, this is a situation. We do have reports of -- or summary of interviews in addition to the signed statement. And, as we read the statute, the defense is not entitled to that.” That was the United States Attorney's position, but what the Court said was “you had better turn them over to me and I will look at them, and I will decide whether I think the defense is entitled to them.” At this point, you see, the United States Attorney had taken position that all he had to turn over was a signed statement. The Court had said “I want to see the summary.” At this point, the United States Attorney turned over its file and the Court went through it, and then, after doing that, the Court turned over to the defendant in this case the summa -- the FBI summary of its very first interview with Meierdiercks, that's C4. And then, it turned over -- it said -- the Court's letter, it said R70-71, and it's printed on page 13 of our brief. The Court also turned over a note that had been added to the copy of the signed statement. The Court said, when it turned it over, “I have had the FBI report dated July 12, that's the date of the signed statement, marked C4. This report contains a copy of the statement of May 12 -- I'm sorry, May 12, which I understand has been delivered to you, and then, it has the following materials” and it turned over the note that had been put on the copy, which was an additional fact recalled by Meierdiercks. And, it did not turn over certain other documents in the file. Those -- it's sealed. It's perfectly clear that the Court did turn over the summary of interviews with Meierdiercks. What was not turned over is described by the Court of Appeals in its opinion, we printed that on page 14 of our brief, that one of the documents contained no reference to, much less the texts of any summation, text or any summation of anything said by either witness. Two were office memoranda concerning the progress of a then-pending prosecution against Meierdiercks. Another is a physical description of Meierdiercks. Another is an unsuccessful search of certain names on hotel registries. Now, the Court also noted that there was an office notation of the fact that Meierdiercks, when arrested, had denied all implications in the crime. But, the inter -- the summary of the interview where that was done had been turned over. So that, in other words, what the Court of Appeals found was that, after Meierdiercks, everything had been turned over except material that was in no sense attributable to Meierdiercks, in no sense whatsoever, except insofar as there was a copy attached to that report of the statement -- of the longhand statement which we have sought. Now, as to Ms. Vossler, she, as I say, never identified petitioner. She was merely the victim of this and she dealt only with Meierdiercks and with a man named Mr. Rice who was never identified. She never saw petitioner. She didn't name him. As to her, the Court delivered -- the Government delivered to the Court immediately and turned over a report which she had signed, which gave a detailed statement of what had occurred in January. It also turned over certain other summary which were detailed that Ms. Vossler has applied, including then, like her speculation as to how the defendant might possibly have gotten her name, in which she named an individual who never was shown to have any significance of the crime and in which she -- and which happened also to contain facts that she hadn't identified certain other individuals. The Court turned all that over nevertheless, and then, he said “the United States Attorney has also turned over to me,” because the United States Attorney had turned over his file in view of this dispute as to what should be done, “certain letters and I will look at those letters, and I'll see if they had anything to do with the case.” And, so, he went through that group of letters and turned over two which are C13 and C14, which the defense has seen, which have some mention of the case. They were letters written after Ms. Vossler had testified at the first trial. But, the Court of Appeals found that the Court didn't turnover, and which the Court of Appeals thought should have been turned over, were the letters which was described by the Court of Appeals as follows. And that's at page 16 of our brief, 96 of the record. A letter to the Prosecutor by Ms. Vossler just before the second trial of the case in which she expressed concern that the lack of time had made her recollection of details hazy, so that, she would have to rely upon her previously detailed statement to refresh her memory. Now, this was written by Ms. Vossler and, in the very broadest, it may have related to her testimony. But, it had absolutely no -- this is the only statement that had anything possibly to do with the case. And, it is, I think, seriously questionable whether this can be said to relate to the subject matter of her testimony, but this is the sole iss -- the sole document which the Court of Appeals found among the sealed exhibits which could possibly have been said to be relevant insofar as they were not duplicated. And, as to that, this is what the defense said about what they wanted to do with the report that they got, and this is at page 64 of the record. The question was -- the defense had asked for more time to study the reports of Ms. Vossler, and the question was, well, the Court said “do you de -- intend to deny that these things happened?” And, trial counsel said “may it please the Court, we are not denying the allegation that Ms. Vossler is making from the stand, not in the least, but there are certain things that she has not testified to that are contained in these other reports. There are certain items which we must assume are as truthful as the statement she is making here, and we want to get all this in the record,” and that's what the Court -- that's what defense counsel did. The transcript which hasn't been printed shows that he had her read her signed statement and had her read pages of these -- all reports to refresh her recollection so she could give details. So that, the failure to produce even if, since time is going short, it could possibly be deemed the statement, the failure to produce this one letter saying that her recollection was hazy can't be considered prejudicial error in view of the fact that whole statement of the defense was “we want to use these statements because” -- at one point, he had said, “we want to use these statements to get in this material which she hasn't testified to,” and that brings me to the question of harmless error in relation to these problems. This Court, in the Kotteakos case, went through the whole history of the harmless error statute which, as to criminal cases, is embodied in Rule 52. And, we -- there is one sentence of it that I think summarizes what that whole history said, and that is that the object of the statute was simple to substitute judgment for automatic application of rules, to preserve review as a check upon arbitrary action and essential unfairness in trial but, at the same time, to make the process perform that function without giving men, fairly convicted, the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record. Now, this, as the Court went on to the say in Kotteakos, is easier to say than to apply. But it seems to me, the important thing is that it does involve judgment and, so, it can't be said that just because we don't know what the defense might have done with something if, in the judgment of the whole case, whatever the defense would have done with it, it really has no significant relation to the case, there must be judgment. And, in this case, as it happens, we don't even have to speculate about what the defense would have done. We know. The defense said “what we want to do, we know Ms. Vossler is telling the truth.” They repeated that in argument to the jury. They said “we're not denying Ms. Vossler is telling the truth, but she didn't implicate petitioner.” They said “what we want to do with these statements is to put in the fact that she forgotten.” Then, on that basis, it can't be said that the fact that they didn't have a letter which takes it -- isn't really a statement in any sense of the word, but which merely reflects the fact that, in time, her memory had gotten somewhat hazy, something the defense absolutely knew and relied upon to get in material which is only very remotely relevant. In view of that fact, it is clear in this case, it seems to me, that judgment -- there's hardly judgment involved. But, even in a somewhat other type of case, it does become necessary to look at possible errors, if there could be, in relation to the whole case and that there cannot be any kind of an automatic rule saying, merely because we do not what a defense might have done --
Potter Stewart: Ms. Rosenberg, assuming that this letter was a statement, as defined in Subparagraph (e) of the statue, in passing that question, assuming it was such a statement, aren't we dealing here with a statute enacted by Congress which imposes an absolute duty upon a district judge? It speaks in terms that the Court shall, on motion, of the defendant or the United States to produce and the Court dis -- the Court shall order it to be delivered directly to the defendant. In other words, you are making a -- it may be a very valid argument, but shouldn't it have been addressed to Congress before it enacted to this statute which imposes an absolute duty and allows the Court no discretion at all, if it is a statement within Subparagraph (e)?
Beatrice Rosenberg: Well, Your Honor, I don't think that even a violation of constitutional rights or a statutory right that it's less open in Kotteakos but, nevertheless, for example, let's take a motion to suppress which should have been granted as to, let's say, two grains of narcotics, a theoretical case. When one can't cover those two grains and 42 other grains, which are completely proofed, that is, as I read the Kotteakos decision and the history which it embodied, let me say that the Kotteakos decision does leave open the question of, possibly, a constitutional or statutory right. But, if you read the history they had set forth and what Congress is trying to do and what, in a sense, the appellate function is, it seems to me that even so, even if it's a constitutional right, ther -- it doesn't mean that an appellate court is still not automatically, just finding that, required to reverse. No matter how insignificant the error, no matter how unimportant the witness or, as in this case, in a situation where we know that what the defense was trying to do was to improve her recollection rather than show that it was hazy. And, it seems to me that, therefore, there has to be judgment. Now, there are certain things, of course, that change the judgment. If -- if you're dealing with something like a confession, and that's the example the Kotteakos case gives, there is something the -- there can always be a doubt if you don't have the defending admitting -- the defendant admitting it himself. Therefore, the courts have said a confession, by and large, is so inherently difficult, that no matter how great the proof, we will reverse if we find the confession was not properly given. But, that's a very different thing from saying that this witness or, in some of the other cases, where you have a situation where, if that material was used to the ultimate reach that any possible person could reach it, even so, it simply really didn't go to the issues in the case. There is no doubt about the fact that where you have room for doubt, room for difficulty, it's one thing. But, here, you have a case of a judge who did as he said, “lean over backwards.” There isn't any question in the world that if he thought this letter would have been the slightest bit useful to the defendant, he would have handed it over. But that, in view of all that they had and in view of the little that was not given to them which, as I say in this case, we know that they didn't intend to use then, it seems to me, an appellate court would not be doing justice if it reversed on such ground. There's one other topic that I think I should cover because it wasn't reached and it was raised to enact this matter of pretrial discovery. Jencks didn't involve pretrial discovery.
Felix Frankfurter: Jencks wasn't (Inaudible)
Beatrice Rosenberg: Well, it wasn't raised in petition for certiorari. It's here only in the sense that the question on which this Court granted certiorari includes a question where the Jencks is a rule of mere procedure or involved a defendant's constitutional right. And, apparently, the petitioner has said that constitutional rights include the right to pretrial discovery. I was about to say that in the Government's view, this question is not properly here because it was not raised. And, in turn, it was not argued in petition for certiorari. I can also say that, it seems to me, the language could not be clearer. And the legislative history just confirmed the absolute clearness of the congressional decision that these, according to statements that are involved in this legislation, shall not be produced until after the witness has testified. Now, of course, it is true that Rule 16 and Rule 17, as interpreted by this Court in the Bowman Dairy case, reached documents of another kind that don't involve statements by the witnesses but, as the statements of government witnesses. The statute and the legislative history is decisive that Congress made the decision that those should not be produced until trial, that they should not be produced pretrial. And, it seems to me, clearly a subject matter on which Congress had the right to legislate because the right to get this material pretrial was not known before. And it was the subject of controversy at the District Court level just in a sense, it was a -- something just beginning to be talked about before the statute was passed, and then, Congress made a definite decision between two conflicting points of view on that issue and decided that these should be produced at the trial.