Earl Warren: Number 294, Louisiana ex rel. Jack P.F. Gremillion, Attorney General, et al., Appellants, versus N.A.A.C.P. et al. Mr. Schuler.
William P.schuler: Mr. Chief Justice and Associate Justices. The matter reached as this Court today on appeal from the Eastern District Court for the State of Louisiana. A three-judge court in that proceeding held unconstitutional, two laws of the State of Louisiana and enjoined the enforcement of those statutes. And so under the provisions of 28 U.S.C.1253, this matter was appealed directly to this Court. Actually, this matter involves two separate lawsuits which were consolidated for trial in the court below. The first lawsuit was filed in March of 1956 in the Nineteenth Judicial District State Court. That suit was a suit by the former Attorney General which sought to enjoin the N.A.A.C.P. and its affiliates in doing business in the State because they had failed and neglected to file a membership and officer list which was required by statute of the State of Louisiana, passed in 1924. This --
Earl Warren: 19 when?
William P.schuler: 1924.
Earl Warren: 1924.
William P.schuler: Now, this suit was filed on March 1st, 1956 and 28 days later, the defendants therein, the N.A.A.C.P. and various individuals went in the federal court and moved that the said suit be removed to the federal court. The federal courts on the removal of the petition and the case remained pending or I should say dormant, on the docket of that court now. In 1958, November thereof, there was a new suit filed in the Eastern District of the State of Louisiana by the New Orleans branch of the N.A.A.C.P. seeking to have the constitutionality of Act 20 -- Act 2 of 1924 and Act 260 of 1958, declared unconstitutional and have the enforcement thereof enjoined by the court. These two cases were consolidated at the trial and heard by a three-judge court and the three-judge court rendered an opinion in February 29th of 1960, holding that these two statutes were unconstitutional. The first statute that is the membership list statute on the basis that it conflicted with the First Amendment as interpreted by the N.A.A.C.P. versus Alabama and Bates versus Little Rock cases. The second statute, a Communist affidavit statute, I -- they held it was in conflict with the Due Process Clause of United States Constitution and that it provided for a filing of something which would've be impossible to be within the knowledge of the persons required to file it. Notice of appeal in this matter was filed in April 25th, 1960 and this Court noted the probable jurisdiction on the 24th day of October, 1960. Actually, the primary question involved herein today, is a clash, conflict between the State's police power and between the provisions of the First Amendment of United States Constitution as interpreted by this Court. The freedom of association doctrine, while never so --
Felix Frankfurter: Would you -- I wonder if it troubles you, before you get in to the legal discussion of the State for some particularity. What it is?
William P.schuler: When we (Voice Overlap)
Felix Frankfurter: What it is with reference to which illegal doctrines have to be applied?
William P.schuler: I don't quite follow the question, Your Honor.
Felix Frankfurter: What are the facts of this case? Are there any facts or just an abstract legal question?
William P.schuler: Your Honor, there are some facts that are agreed upon, others that are in dispute.
Felix Frankfurter: It makes all the more important (Inaudible) to have them, I should think.
William P.schuler: The facts are that in 1924, the State of Louisiana enacted a statute known as a membership registration statute. Your Honors are all familiar with the Bryant versus Zimmerman case. Our statute is very similar to the New York statute in that case. It provides that each -- once each year, the organizations or corporations doing business in the State of Louisiana other than business corporations, must file with the Secretary of State a list of the members of the corporation as well as a list of the officers and addresses of the officers of the corporation or association. The second statute involved herein was passed in 1958. It is a statute which requires all affiliates within the State that have parent organizations outside the State, to have filed with the State and the Secretary of State, an affidavit to the effect that none of the officers of the parent corporation are members of the Communist Party or members of any organization, to create subversive by the Attorney General of the United States. Now --
Felix Frankfurter: Under the first statute, Mr. Schuler, under the first statute --
William P.schuler: Yes, sir.
Felix Frankfurter: -- are the required reports filed by organizations. Have they been through 34?
William P.schuler: No, sir. They have not.
Felix Frankfurter: You mean nobody has paid any attention to this statute?
William P.schuler: They did not and I can't find any record of any being filed until about 1956, when this statute was brought into (b) -- was enforced. Now, since that time, we have some 2000 organizations in the State that are complying with the requirements of filing a membership list.
Felix Frankfurter: Does the record show that how it was brought into being as you call it (Voice Overlap) the attorneys of then Attorney Generals is safe for now and I'm going to enforce this and everybody should obey it?
William P.schuler: Your Honor, that is correct. It does not show what the then Attorney General did, but the suit was filed three months later, the present Attorney General took office and he served notice upon all organizations.
Felix Frankfurter: Suit against who was filed?
William P.schuler: The N.A.A.C.P. and the present Attorney General served notice upon all organizations in the State that he would prosecute them if they would not comply with the requirements of this statute and there's -- he has an affidavit in the record which reflects this and he specifically points out various organizations which he told either to file or he would file a suit against them, which resulted either in their filing a membership list or in their disbanding the organization.
Felix Frankfurter: You said, 2000?
William P.schuler: Yes, sir. There -- the statement --
Felix Frankfurter: Where is that?
William P.schuler: You will find on page 129 and 130, an affidavit by the Secretary of State showing the number of organizations which filed the membership list.
Felix Frankfurter: And the record anyway shows what kind of organizations they are?
William P.schuler: No, sir. It does not.
Felix Frankfurter: Are they all incorporated, or a -- a membership organizations --
William P.schuler: You Honor, they're -- actually, there's no way of telling under the laws of our State.
Felix Frankfurter: The odd fellows have to file one of alliance or the --
William P.schuler: That is correct, Your Honor, Garden Clubs
Felix Frankfurter: I noticed there's a great drought from 1958 of -- in 1958 to 1959, a number of filings have cut into half. From 1957 to 1958 was cut into half.
William P.schuler: The --
Felix Frankfurter: 19 -- 1900 to 1000, in 1959, 572.
William P.schuler: Well, 1959 Your Honor would not really reflect anything because the period of time, the 15-day period within which the applications or the membership list had to be filed, was not yet completed at that time.
Felix Frankfurter: I mean 1957 to 1958, two full years.
William P.schuler: That is correct, Your Honor. There was a dropped, but I have no explanation.
Felix Frankfurter: Because I was interrupting you, you may (Voice Overlap)
William P.schuler: That's perfectly alright. Now, I believe at the present time, are there any factual situations that are not quite clear?
Felix Frankfurter: Well, what -- about what facts is their dispute?
William P.schuler: Actually, the only real dispute in fact, is whether or not there were economic reprisals against members of the N.A.A.C.P. whose names were revealed by the publication of this membership list.
Felix Frankfurter: Did they file the untold list, did they file it?
William P.schuler: Yes, sir. Some --
Felix Frankfurter: What is it -- what is the suit about then that they shouldn't be required to file them in the future?
William P.schuler: Your Honor, they filed them -- some of their organizations within the State filed them for two-year periods. Since 1958, they have refused to file the list with the State basing their contention upon the N.A.A.C.P. versus Alabama case. Of course, it's very curious to note that in every case where we show two consecutive years that an N.A.A.C.P. branch filed a list of its members. It increased the second year over the first. In other words, in New Orleans, they nearly tripled after they filed their first list. In Lake Charles, they over doubled after filing their list.
Felix Frankfurter: Let's see if I understand it. This was a dead letter until -- until the Attorney General in 1956 gave notice --
William P.schuler: 1956.
Felix Frankfurter: -- fairly on this Court? Were the filings made that year in 1956 for 1956, the next year, I'd suppose.
William P.schuler: That's right. There were some made in 1956, some in 1957 and I believe some in 1958.
Felix Frankfurter: Then came the decision of this Court and as a result of that, was it -- and one case result of that and at all events following that, N.A.A.C.P. has refused to file?
William P.schuler: That is absolutely correct. They've refused to file (Voice Overlap)--
Felix Frankfurter: That's -- that's (Inaudible), that is that suit.
William P.schuler: That is correct, Your Honor. A fact that particular proposition is actually in both suits. The only --
William J. Brennan, Jr.: Well, how many organizations identified with the N.A.A.C.P. are there (Inaudible)?
William P.schuler: We have nowhere, none.
William J. Brennan, Jr.: Well -- well, you -- now you've said they didn't file any. What you said, because I misunderstand you?
William P.schuler: I said --
William J. Brennan, Jr.: Filings by several different companies.
William P.schuler: I said that several of the affiliates within the State did file membership lists.
William J. Brennan, Jr.: Well, then, that -- in other words, the statute requires independent filings by each of the affiliates?
William P.schuler: That is correct, Your Honor.
William J. Brennan, Jr.: And how many affiliates in fact filed?
William P.schuler: In one year, we had as many as 11 filed. On various years, it has gone from 1 or 2 to 11 and backed down to none.
William J. Brennan, Jr.: You can't tell whether 11 is the total number of affiliates.
William P.schuler: I would have to go outside the record, I know there are more.
Felix Frankfurter: And have they all quit all the affiliates?
William P.schuler: We have not had one affidavit or one membership list or officer list filed with the States as 1958.
William J. Brennan, Jr.: By any (Voice Overlap) --
William P.schuler: By any affiliate of the N.A.A.C.P.
William J. Brennan, Jr.: (Voice Overlap) laid on other than affiliate for the N.A.A.C.P. , your statute?
William P.schuler: Oh, yes sir. As I stated in --
William J. Brennan, Jr.: No -- no. I mean, are there any N.A.A.C.P. organizations besides the Louisiana affiliates?
William P.schuler: It would operate on the national, if they desire to do business in the State which they do.
William J. Brennan, Jr.: So they would be required to file.
William P.schuler: They would be required --
William J. Brennan, Jr.: What's their member list of -- membership list of --
William P.schuler: Their membership list would only be of their members within the State.
William J. Brennan, Jr.: Within the State.
William P.schuler: That is correct.
William J. Brennan, Jr.: And have they ever filed?
William P.schuler: No, sir.
Felix Frankfurter: You mean they didn't file any -- the result of the 1956 announcement?
William P.schuler: No, sir. Only certain affiliates within the State filed that list.
William J. Brennan, Jr.: That is both?
Hugo L. Black: May I --
William P.schuler: I didn't --
William J. Brennan, Jr.: The locals.
William P.schuler: Yes, the certain locals or affiliates of the national body.
Felix Frankfurter: Women's advisory are -- something like Women's Advisory Committee obviously.
William P.schuler: Well, I don't know what it's exactly like.
Felix Frankfurter: Well, I don't either. I'm just drawing out of the air.
William P.schuler: No, it's -- I guess what you might call sort of like a local union and a -- and a national. It's an affiliate of the national body and follows a policy in constitution thereof.
Hugo L. Black: You've referred to the Attorney General's announcement of it. Where is that published in the record?
William P.schuler: On page 132, 133 and 134, an affidavit by the Attorney General.
Hugo L. Black: Is that the way all of this started?
William P.schuler: No, sir.
Hugo L. Black: Where is that announcement that you're talking about?
William P.schuler: The Attorney General made it general and -- and just by conversations, by references in newspaper that he was going to enforce the law. This affidavit in here is an affidavit by the Attorney General as to the means and methods he took to communicate his policy to the public at large.
Hugo L. Black: What I'm interested in is in -- is there any statement in here that shows why he said he would decide it to enforce that law?
William P.schuler: Of and I would say, it would be his duty. It's his duty under the statute.
Hugo L. Black: I understand that but did -- did he make any statement about it?
William P.schuler: No, sir. To the best of my knowledge, he did not.
Hugo L. Black: Well, why -- what do you mean by the 1956 announcement then?
William P.schuler: I did not. I said if a suit was filed in 19 --
Hugo L. Black: Several times -- several statements were made to the Attorney General, 1956 announcement. Has -- was there any such announcement?
William P.schuler: Your Honor, as I say, it all depends on what you consider an announcement. As I said, the Attorney General in his affidavits set forth that he made announcement generally to the public that he was intending to enforce the statute which under his -- under the laws setup, he was required to do. He advised organizations for the fact that they would have to file a list. I think the affidavit more than speaks for itself.
Hugo L. Black: But I -- I -- all I was interested in was to see if you had that so-called 1956 announcement that the Attorney General made --
William P.schuler: I believe, Your Honor --
Hugo L. Black: (Voice Overlap) said why he had decided to enforce that it was -- was in here?
William P.schuler: No, sir.
Felix Frankfurter: Mr. Schuler, when if -- if the 1956 -- the 1956, there was action taken by the then Attorney General Fred LeBlanc. When did the present Attorney General enter office?
William P.schuler: May of 1956.
Felix Frankfurter: Oh, the suit was started by his predecessor --
William P.schuler: That is correct.
Felix Frankfurter: -- and continued it and then he -- so that the announcement really was what you would say the effective announcement by taking of -- by starting a litigation. So far as the record shows that Justice Black had tried to elicit, there is no statement. No, no release of whatever these modern terms are of talking.
William P.schuler: Well, if -- if you're going to address it up into a formal statement --
Felix Frankfurter: But, I don't -- I don't --
William P.schuler: I don't believe there is any such thing.
Felix Frankfurter: Either Justice Black nor I would dress up or dress down, I just want information.
William P.schuler: Your Honor, as I say, in the affidavit, the Attorney General sets forth the means by -- the means he took in order to inform the public of his intention to follow the laws of the State of Louisiana.
Felix Frankfurter: We have your statement that an act passed in 1924 laid dead on the statute books of Louisiana. Attorney General Fred S. LeBlanc started the suit in 1956, is that correct?
William P.schuler: That is correct with one thing I'm not sure, whether or not, there was any compliance there would immediately in 1924.
Felix Frankfurter: Anyhow, we don't have a deal.
William P.schuler: It -- I can say with a -- a shortness that there was no compliance from 1950 until 1956.
William J. Brennan, Jr.: Well, I notice is that a newspaper or something in the record. I suppose that's the most reliable evidence, but this is a newspaper dated January 5, 1957. Its branches in New Orleans, Shreveport and Lake Charles, filed this earlier to comply with the 1924 state law requiring such rules to uphold that national garden church groups. The old law, originally aimed at the ku klux klan was used last year to outlaw the pro immigration organization in the State.
William P.schuler: Yet, I would say it was used to enjoin it from doing business because they failed and refused to file their list in conformance with the law.
William J. Brennan, Jr.: Well, I think -- is -- is there any suggestion here that this old law was revived only to require the N.A.A.C.P. to file?
William P.schuler: It has been contended by the plaintiffs herein, however, I find nothing in the record to show that was the only reason and I would say that the evidence would belie that since as I say, the Attorney General has vigorously seen to it that other organizations within the State had to make equal compliance with the law as reflected by the organizations that have filed in accordance with that statute.
Felix Frankfurter: Mr. Schuler, may I ask you merely as a historical fact carrying no innuendo, just as a historical fact if it's an ascertainably historical fact. Was the klan a lively organization in Louisiana between 1924 and 1930s?
William P.schuler: I would say that the passage of this statute in 1924 sounded the death knell of the clan in the State as a real active organization after the statute had very rapidly passed out of the picture.
Felix Frankfurter: You mean the passage of the Act was so effective that --
William P.schuler: Yes, sir.
Felix Frankfurter: -- that called it out?
William P.schuler: It did.
Felix Frankfurter: Alright. I'm not -- I'm -- [Laughs] you cannot imagine how ignorant I am of what took place in -- in Louisiana between 1924 and 1935 --
William P.schuler: Oh, Your Honor, I'm --
Felix Frankfurter: (Voice Overlap)
William P.schuler: -- I'm rather ignorant too, I wasn't born then.[Laughter]
Felix Frankfurter: Well, our knowledge were limited to the date of our birth, would be awfully ignorant, even more so than we are.
Earl Warren: May I ask you this? Does the Act require all of the fraternal organizations --
William P.schuler: It does, Your Honor.
Earl Warren: -- to file every Masonic Lodge, every Knights of Columbus Lodge, every Elks Lodge, every --
William P.schuler: Your Honor, I would have extreme doubt with regard to the Knights of Columbus and the Masonic Temple Lodge, since they could very easily come under the definition of a religious order or they're not a church. I think the Knights of Columbus and the Masonic Temple are -- Masons are close enough to being a religious organization to be exempt under the provisions of the statute.
Hugo L. Black: So the Masons are religious org?
William P.schuler: Well, You Honor, I know that everything that they have in the Masons to a larger extent, deals with -- I -- I would say regard in church principles.
Earl Warren: Well, let's take -- let's take lodges like the Elks Lodge and the --
William P.schuler: They have to comply.
Earl Warren: -- and the Moose and Eagles and lodges of that kind, do they all comply?
William P.schuler: That is correct, Your Honor. As a matter of fact, I believe the record will show that the Ladies' Garden Clubs comply too.
Earl Warren: All the college fraternities?
William P.schuler: To the best of my knowledge, I don't know.
Earl Warren: It seemed to me with only 517 registering in the year 1959 that that could hardly be so because there were --
William P.schuler: Your Honor, there are --
Earl Warren: -- I imagine there are many college fraternities --
William P.schuler: As I attempt --
Earl Warren: -- to be restrained, if you didn't count anything else.
William P.schuler: As I attempted to explain, Your Honor, the registration period for that year had not closed on the date that the court order that the Secretary of State to produce that information. The organizations that desired to file still had several weeks. After that total was given within which to file the membership in their organizations and come within compliance, so that figure could not be used at all.
Earl Warren: Alright.
William P.schuler: Getting -- I think we have -- well, there's one more question really that comes up. The question as to whether or not, there was any -- any economic reprisals or intimidation as a result of the publication of these names and lists. As I've stated, the State here is in rather bad position to prove anything. The only thing we know about the members are the information that the organizations have filed with us. As I say however, each organization, N.A.A.C.P. affiliate within the State that did file a membership list for a two consecutive year period, shows that the second year, their membership increased substantially over the first year. Thus, it's rather hard to say that the filing of the membership acted as a deterrent upon membership because they actually increased after each filing. Now, there is some evidence given by affidavit to the effect that persons were discriminated against. The affidavits are very general, a man comes in, we have some several of the gentlemen who were officers in various branches of the N.A.A.C.P. who came in and filed affidavits to the effect that they had been discriminated against. In order to go behind these affidavits, the State of Louisiana took the deposition of these individuals. And almost without exception, the testimony elicited from them while under interrogatories and examination, show that these affidavits that had originally filed were no sense correct. They -- people who had stated that they were discriminated against upon cross-examinations said that nobody ever talked to him about their membership in the organization. In fact, one gentleman who said he had been discriminated against was drawing an old age pension from the State when he wasn't entitled thereto, he testified that he and his wife who were members in the organization, had never been reproached, nobody had ever discussed the matter with him. Yet, his affidavit said that he had been discriminated against.
Felix Frankfurter: Mr. Schuler, why was all these information elicited on affidavit from depositions rather than your testimony?
William P.schuler: Your Honor, because that's the only way the District Court in our district will allow us to try a preliminary injunction suit.
Felix Frankfurter: You mean all preliminary injunction --
William P.schuler: That is correct.
Felix Frankfurter: -- must require an affidavit?
William P.schuler: We have requested on several occasions to try them by other manners and our District Court says that it does not try preliminary injunctions other than by affidavit.
Charles E. Whittaker: (Inaudible)
William P.schuler: Your Honor, they -- one newspaper in Coushatta published some for the Red River branch of the N.A.A.C.P. Generally, I don't believe they were published. The only fact -- the only way, I was able to derive information as to the number of members in the various organizations on particular years, was to go to the Secretary of State's office and count off the number of members that appeared on the -- on the list in that particular year.
Charles E. Whittaker: There is a public record?
William P.schuler: Yes, sir.
Charles E. Whittaker: Were there any publications by newspapers with others of the memberships of other institutions or associations?
William P.schuler: I'll be honest with Your Honor, I don't know.
John M. Harlan II: Is it fair to say as a matter of the earlier colloquy that there's nothing in this record to show or had -- was the State reactivated this statute in 1956?
William P.schuler: There --
John M. Harlan II: Other than the general (Voice Overlap) --
William P.schuler: I can find nothing in the --
John M. Harlan II: -- Attorney General to enforce the law.
William P.schuler: I can find nothing in the statutes specifically designated other than the fact that it's a general requirement of law that the Attorney General does this.
John M. Harlan II: Oh, there was a reactivation of the statute --
William P.schuler: That is correct.
John M. Harlan II: -- dead letter, that's all I was --
William P.schuler: That is correct. It's -- it's not denied or whatsoever. Now, getting down to -- if we're clear on the facts, the law on the subject I think can be primarily divided into two categories. While the Court has not done it, it seems to me that your freedoms of association cases are divided into two categories. The first is the -- what I call the communal right to freedom of association which is the right not to have to produce membership list of an organization and the second is a personal right which keeps a person from having to give information as to his own personal affiliations with organizations. The first category of cases since it's most appropriate to the matter here today should be discussed first. There are four cases that this Court has decided previously relevant to this one field. Now, Bryant versus Zimmerman, N.A.A.C.P. versus Alabama, Bates versus Little Rock and Uphaus versus Wyman. Now, they're split 50-50 on the effect of the First Amendment upon the production of this list. Both the Zimmerman case and the Uphaus case required the production whereas, the N.A.A.C.P. and the Bates case do not. However, I believe there's a great distinction between the case today and the Bates and Alabama cases. This Court decided in both of those cases that there was no justification whatsoever for the production of the membership list. In the Alabama case, they said that all the State intended to prove by the production of the list under subpoena duces tecum was business that the N.A.A.C.P. had done within the State. And the N.A.A.C.P. in its answer admitted that it has done that business. Therefore, there was absolutely no necessity for the production of the list to prove something that was admitted in the answer. The second case, the Bates case was a local taxation statute. In this --
Felix Frankfurter: Before we get on with the cases, I'd like to go back a little bit to the fact that it's found by the District Court. What do you do with the -- there aren't specific finding, were there specific finding --
William P.schuler: No, sir.
Felix Frankfurter: -- that will be most -- extract them from the per curiam opinion, is that right?
William P.schuler: That is correct, Your Honor.
Felix Frankfurter: Well, then that these three judges, two of them your local -- Louisiana judges are --
William P.schuler: All three of them are --
Felix Frankfurter: All of them, yes, I beg your pardon, all of them. Page 176 to 179. They say on page 178, Mr. Schuler, “The documentary evidence submitted by the N.A.A.C.P. shows that some members after exposure as members have been subjected to certain economic reprisal.” The Court going -- onto say that a large part of the membership of school teachers and after the injunction, every one of them resigned from the N.A.A.C.P. And the footnote says that after the 1955 injunction, not only did the branches declined a number which might not be significant, but the total membership declined from 13,000 to 6000. It doesn't quite fit in with the figures that I gathered from you perhaps erroneously.
William P.schuler: Your Honor, the -- those figures are figures submitted by the N.A.A.C.P. from the national headquarters. We have no way of verifying or -- the figures in any way. The only figures we submitted were the figures that were available to us, the list that had been filed with the State.
Felix Frankfurter: You mean as they contradicted these figures?
William P.schuler: I don't know.
Felix Frankfurter: Well, is there --
William P.schuler: There's no way of telling.
Felix Frankfurter: They must have done something that those figures contradict -- according to your figures, you say their membership increased.
William P.schuler: Of the figures that are available to us, the membership did increase.
Felix Frankfurter: You mean whether the figures available to you are figures of that the N.A.A.C.P. old and the affiliates submitted.
William P.schuler: That is correct.
Felix Frankfurter: Although, the declarations against interest if they contradict their own testimony.
William P.schuler: Your Honor, I think that can be reconciled and that I believe the N.A.A.C.P. has alleged they had 40 some affiliates within the State. Now -- and on the most populous year, only 11 of those affiliates filed. What happened to the membership of the 29 affiliates that did not file, I'm in no position to guess that conjecture or report to this Court.
Felix Frankfurter: All I'm suggesting is this that we've got to decide which I have to dispose of the case on the basis of this record.
William P.schuler: I understand that.
Felix Frankfurter: Now, here's a decision by three judges, locally, all of them has been properly, like -- three -- all three them, local judges and they give me these findings, the practical purposes or the finding, as much so as if they had appendix 1,2,3, enumerated set of findings. Isn't that true?
William P.schuler: Yes, sir, but I don't believe the facts justified the decision of the Court, that's why I'm here.
Felix Frankfurter: Well, there's nothing in the record that contradicts that you say -- you say that the Court didn't allow you to contradict and that's what in effect you're saying.
William P.schuler: That's a --
Felix Frankfurter: Is that what you're saying?
William P.schuler: That is entirely correct. There was no way -- the only contradiction that we were able to achieve was that when affidavits were filed with regard to specific happenings. We went out to depositions of the parties therein and the depositions of the parties showed that the affidavits filed were incorrect that they had built up large things out of practically nothing. The records replete with the change of the attitude of witnesses between an affidavit that they filed without cross-examination and what they testified to when they're brought in, put under oath, and under cross-examination, asked questions.
Felix Frankfurter: Now, I haven't -- it was the first time that I'm paging, thus leafing around and just leafing your brief. Has your brief set forth in deadly parallel columns or in appropriate way that that the record doesn't -- contradicts or at least, just does not justify the conclusions of the forth?
William P.schuler: Oh, yes, sir. My brief certainly does.
Felix Frankfurter: Where is that?
William P.schuler: Your Honor, I go into the testimony of the various witnesses. They contradict their testimony on pages 27 through 32 of my brief. This just picks out excerpts, but I don't believe these excerpts are out of context. I believe that out of the record itself, you can see that they really show the true attitude of the situation at the time that they could --
Felix Frankfurter: Did you as -- as the record -- is the State argued before these three judges, before the District Court that the only way -- the only way to search the accuracy of these allegations or affidavits would be to put witnesses on the stand and have them cross-examined in the hearing of the judges?
William P.schuler: Yes, sir.
Felix Frankfurter: Where is that in the record?
William P.schuler: Your Honor that that is not taken down in the record. There was no argument in the record at all. Actually, a lot of the witnesses --
Felix Frankfurter: You had no argument at all?
William P.schuler: Well, I say we had argument -- oral argument on --
Felix Frankfurter: Did you -- did you put the point you've just put to this Court that that court, namely that this case may well do. You haven't challenged the relevance of the issue of discrimination resulting from the requirement of filing the report, do you?
William P.schuler: Your Honor, may I say --
Felix Frankfurter: Suppose -- just answer that if you -- you couldn't have.
William P.schuler: Yes, we -- we charged that the --
Felix Frankfurter: No, but if -- if -- did you deny the relevance -- did you say that it doesn't make any difference even as a result of filing, they would be discriminated? Do you make that -- take that position or do you take that (Voice Overlap) --
William P.schuler: No, sir. We -- very -- as much as we could, we attempted to controvert all testimony that had been introduced.
Felix Frankfurter: Did you thereby acknowledge the relevance of their claim that this resulted in unfair discrimination against them?
William P.schuler: No, I didn't acknowledge that. No, sir.
Felix Frankfurter: What?
William P.schuler: I did not acknowledge --
Felix Frankfurter: I don't mean the proof of it, but the relevance.
William P.schuler: I deny both.
Felix Frankfurter: Alright, then you say that even if you could prove that they were right or prove that they were wrong, doesn't make any difference, is that what you're saying?
William P.schuler: To -- to a --
Felix Frankfurter: Are you taking that position here?
William P.schuler: Your Honor, it's hard to take a definite position because as this Court has held so many times, you have to weigh and balance --
Felix Frankfurter: Well, but --
William P.schuler: -- the particular effects.
Felix Frankfurter: I'm asking you is that on a -- a factor to be balanced?
William P.schuler: Oh, it's going to have to be balanced. Yes, sir.
Felix Frankfurter: Alright. Then you -- then you admit the relevance?
William P.schuler: It's relevant. Yes, sir.
Felix Frankfurter: Alright. Now, did you then say to the Court in an appropriate way that since this is an issue properly before the Court, you must have opportunity to disprove the establishment of that issue?
William P.schuler: Your Honor, that was taken up with all three judges and the ruling on that was this was only a hearing on a preliminary injunction, that it was only necessary that the defendant or that the plaintiffs herein show a prima facie case. That if the question of intimidation became a real issue that we always had the right to go back on the permanent injunction and try it by oral testimony. That's not only the ruling on this case. That's the ruling on every case of this nature we have tried in the State for the past five years.
Felix Frankfurter: Well, never mind all the other cases. In this case, was the ruling of the Court that for purposes of a preliminary injunction, will take as proof, allegations in an affidavit. Is that the position of the Court?
William P.schuler: Your Honor, that is not only the ruling of the Court. It is the rules of the Court.
Felix Frankfurter: You mean formulated rules.
William P.schuler: That's correct.
Felix Frankfurter: Did you then say, very well, we will try to show those trials on the permanent injunction? Have you made that endeavor?
William P.schuler: No, sir, we have not, Your Honor, because we felt that even though we were not allowed to cross-examination -- cross-examine the witnesses in the State on the stand at the time the hearing went on, we went further, we went out, went 300 and somewhat miles to Shreveport to locate witnesses who made affidavits for the other end of the State and took oral deposition from them and put those in the record.
Felix Frankfurter: Let's -- let's see if you and I can come to an issue. As I understand you, your claim is that under the rules of the District Court for the Eastern District of Louisiana, claims made by a plaintiff seeking a temporary injunction will be taking as established for purposes of granting the temporary injunction. Is that right?
William P.schuler: No, sir. I say they are taken solely by affidavit. There's no oral testimony.
Felix Frankfurter: Yes, I know, but in anything they say in an affidavit will be accepted as true, is that it?
William P.schuler: Unless it is contradicted in a -- other affidavit then the court weighs the two.
Felix Frankfurter: But you say in this case, you weren't in a position to contradict except through cross-examination and examination. Is that right?
William P.schuler: And affidavits of our own.
Felix Frankfurter: Yes, I know, but those do not adequately enable you to disprove the allegation.
William P.schuler: No, sir, they do not.
Felix Frankfurter: And so really, your case down here comes to the validity of the District of the Eastern District to have such a rule, is that it?
William P.schuler: It does. If this Court is -- if this Court will decide that the -- it is necessary to have intimidation in order to have the First Amendment apply herein.
Felix Frankfurter: But you just said that you yourself regarded as relevant, as relevant that discrimination follows the disclosure in the report, didn't you?
William P.schuler: I think it's relevant then.
Felix Frankfurter: Alright. Well, if it's an issue, it's relevant then you ought to be allowed to -- to meet the issue.
William P.schuler: Your Honor, there's one other issue that I'd like to get to very quickly. That is the second part of our statute which requires that the organizations filed a list of their officers. In our State, there is no requirement whatsoever that these organizations register with the State in any matter shall perform. In other words, you can start an organization, it can operate and other than this statute, you have no idea who the officers are, who the members are or anything about the organization whatsoever. We feel that even under all the decisions of this Court, including Bates case and Alabama case that we have a perfect right to know who the officers of the national and affiliate organizations are and that this information is not protected at all by the First Amendment and a right of association.
Potter Stewart: How about the -- or are you going to get to the second statute involved?
William P.schuler: The second statute, I will get to -- that I could've gotten to it a lot better if we had an interpretation by our own state court. The local court down in New Orleans is, I -- I'm talking about the federal court, decided that the statute was unconstitutional because it placed a burden upon people in the State of Louisiana that they had no way of performing, that is tell what member -- what organizations other people belong to. Well, I think the statute is susceptible of that interpretation. I believe it's also susceptible of a constitutional interpretation. The statute makes no distinction as to who should file the list. I say if our Court had to determine that statute, they would say that the individuals who were the officers of the national association would have to make those affidavits which would in turn be filed by the local organization as a prerequisite to doing business in the State. Now, that would be my interpretation of it and I think it would run right along the lines of the noncommunist affidavits that you have to file in order to do business with the National Labor Relations Board. But as I say, since our state court never had the possibility of interpreting the statute, that's only -- an interpretation I believe could be placed on it.
Earl Warren: Is that Act 260 --
William P.schuler: That is Act 260 of 1958. That's correct, Your Honor.
Earl Warren: Well, I understood that the -- from the opinion here that the Attorney General conceded that the State was not interested in pressing the argument as the constitutionality of the --
William P.schuler: I believe the Court was a little liberal on -- with the words of the Attorney General. I believe I argued that matter myself and what I told the Court was that there are absolutely no statutes similar or exactly similar to our statute herein and that frankly, I just couldn't give them any law to sustain the statute and that I didn't care to -- that I couldn't argue it any further. As I say, primarily, I was interested in the other one. But as I say, this statute, I did not concede the constitutionality of it or the unconstitutionality. In fact, I'm prohibited by law from so doing within the State.
Hugo L. Black: May I ask you about the other statement on page 178?
William P.schuler: Yes, sir, certainly.
Hugo L. Black: (Voice Overlap) Mr. Justice Frankfurter asked you about where they said that one ground that they found in Louisiana statute, a lot of teachers belong to the organization. The Louisiana statutes denied an employment to them, if they believed in integration of the racism in public schools.
William P.schuler: Well, Your Honor, there, I would say, are probably three answers to that.
Hugo L. Black: Was there such a statute?
William P.schuler: There was such a statute on the books. Number one, I believe it was declared unconstitutional in a previous Court of Appeal decision case, LSU -- Ludley versus Louisiana State University. Second, the statute has never been enforced either before or after the Ludley decision and third of all, unlike the school boards in --
Hugo L. Black: But how could they know it wouldn't be enforced, you waited 25 years to enforce it but --
William P.schuler: Well, Your Honor, as I say, I believe it was declared unconstitutional in the Ludley versus LSU case.
Hugo L. Black: Well, they -- they couldn't be assumed to know that it was unconstitutional, could they?
William P.schuler: Well --
Hugo L. Black: Their names were exposed.
William P.schuler: Your Honor and may I get to the third point --
Hugo L. Black: Yes.
William P.schuler: -- unlike Shelton versus Tucker, the teachers are not hired on a yearly basis. They have teachers' tenure and in event, this tenure is attempted to be interrupted. They have a hearing before the Board, court proceedings which could eventually come all the way up to this Court for a determination of their rights under this particular statute and determine the constitutionality thereof.
Hugo L. Black: That would be a pretty heavy price to pay to belong to an organization.
William P.schuler: Your Honor, that -- all I'm doing on that is attempting to ferret out the distinction between the case of Shelton versus Tucker and the cases handed down this Monday with regard to membership in the bar associations of our various states. Thank you, Your Honors.
Earl Warren: Mr. Carter.
Robert L.carter: If the Court please, I -- I think that at least in terms of -- of the interpretation of the facts that Mr. Schuler and I are somewhat at odds and if -- with your permission, I will spend some time in attempting to explain what I concede to be the facts in this case, in respect to its present posture. In 1924, as Mr. Schuler indicated, this statute which is the membership filing statute, the old statute, was enacted. It apparently accomplished this purpose and laid on it until 1956. In 1956, the Attorney General LeBlanc brought action in the state court against the N.A.A.C.P. charging that it had failed to comply with the statute which require the filing of membership list and therefore that the organization should be dissolved.
William J. Brennan, Jr.: When they say brought actions, Mr. Carter, was there any allegation that this failure followed a demand for filing?
Robert L.carter: No, sir.
William J. Brennan, Jr.: It was just an action --
Robert L.carter: There was no demand.
William J. Brennan, Jr.: -- out of the blue of which --
Robert L.carter: Yes.
William J. Brennan, Jr.: -- N.A.A.C.P of nothing?
Robert L.carter: Yes, that's right. This -- this action was filed, there was no demand that any list to be filed, no demand that there'd be any compliance with this law. Now, that statute -- of rather that case was -- was then in the state courts of East Baton Rouge. We filed a petition to remove the case to the federal court. While this -- we -- although, we had complied with 44 -- 40 -- 1446, the state court nonetheless, proceeded to hear the case and to issue an injunction against the operation of the organization.
Potter Stewart: Well, does the State, N.A.A.C.P. or one the -- one of the local branches or the national or what?
Robert L.carter: Well, they issued it against -- they've dissolved all N.A.A.C.P. operation and functioning in the State, prohibited until we had complied with the -- with the --
Potter Stewart: Who were the parties?
Robert L.carter: -- with the organization.
Potter Stewart: Who -- who was the defendant?
Robert L.carter: The defendants were -- were the New York Corporation and several of the officers and -- and members and -- and employees that worked in -- in Louisiana.
William J. Brennan, Jr.: What is the state organization, Mr. Carter?
Robert L.carter: Well, there are -- doesn't -- that there are several branches. There about -- there were in 1955, some 65 branches which were in New Orleans and various (Voice Overlap) --
William J. Brennan, Jr.: Now, they are branches of the New York Corporation or --
Robert L.carter: They are unincorporated affiliates of the N.A.A.C.P. in New York.
Felix Frankfurter: Did the N.A.A.C.P. , what kind of a corporation is it?
Robert L.carter: It's a -- it's a membership corporation --
Felix Frankfurter: New York Corporation.
Robert L.carter: A New York Corporation.
Felix Frankfurter: Now, in order to do business in Louisiana, does it have to get a permission from the circuit?
Robert L.carter: No, sir. We do not and --
Felix Frankfurter: You do not.
Robert L.carter: This is conceded. You don't --
Felix Frankfurter: Pardon me?
Robert L.carter: We -- we do not have to file any or do -- do anything or to do business in Louisiana.
William J. Brennan, Jr.: We know statute like the Alabama statute.
Robert L.carter: That's right. In fact I, if I'm not mistaken, I think this is conceded in -- in the answer which the Attorney General had spoken.
William J. Brennan, Jr.: Now, in addition to these 65 affiliates, Mr. Carter, is there some supervening state organization?
Robert L.carter: There is a -- an organization called the -- the Louisiana State Conference of N.A.A.C.P. branches, which is merely a -- an overall organization which seeks to carry out on the statewide basis, the -- the activities of these 65 branches.
Felix Frankfurter: That's not a corporation, is it?
Robert L.carter: That none of -- none of the --
Felix Frankfurter: Just way of connecting together these loose bodies.
Robert L.carter: That's right. Well, the only corporation involved in the N.A.A.C.P. is the New York Corporation. All the other affiliates aren't corporation.
William J. Brennan, Jr.: But the injunction sought in the state courts would have or whatever the relief was by injunction or otherwise, would've dissolved all of the affiliates, is that it?
Robert L.carter: All the affiliates.
William J. Brennan, Jr.: And this conference, state conference.
Robert L.carter: All affiliates, any kind of any N.A.A.C.P. activity was prohibited by this injunction.
Felix Frankfurter: Was the -- was the suit to dissolve these collectives or to make them file reports or both, which was it?
Robert L.carter: The suit was to dissolve them until they had filed (Voice Overlap) --
Felix Frankfurter: Until but the purpose was to get filings.
Robert L.carter: That's right.
Charles E. Whittaker: So that judgment was void wasn't it, Mr. Carter?
Robert L.carter: That judgment was -- was declared void in a -- on appeal on the grounds that it had -- it had come after removal had been affected and therefore was in violation of 1446. Now, at that point, we -- we went in -- back into the federal court to seek to enjoin the state proceedings and the proceeding further with the case. Federal court indicated that it could not, even though it agreed with us that the State had -- that the state court was incorrect. That it could not do anything about this, that we had to prosecute in our -- our appeal into the Louisiana courts in which we did. Now, after the Louisiana Court of Appeals ruled that the judgment was void and what had been done was void, nothing was done about this -- this case that had been removed. It stayed in the courts until 1958, this new statute which required the filing of affidavits was enacted.