Braden v. United States

• Citation: 272 F.2d 653
• Decision Date: 12 January 1960
• Docket Number: No. 17705.,17705.
• Parties: Carl BRADEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

272 F.2d 653 (1959)

Carl BRADEN, Appellant, v. UNITED STATES of America, Appellee.

No. 17705.

United States Court of Appeals Fifth Circuit.

December 10, 1959.

Rehearing Denied January 12, 1960.

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John M. Coe, Pensacola, Fla., Conrad J. Lynn, Leonard B. Boudin, New York City, C. Ewbank Tucker, Louisville, Ky., for appellant. Victor Rabinowitz, New York City, of counsel.

J. Robert Sparks, Asst. U. S. Atty., Charles D. Read, Jr., Acting U. S. Atty., Atlanta, Ga., for appellee.

Before HUTCHESON, CAMERON and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant, Carl Braden, was convicted of each of the six counts of an indictment charging contempt of Congress under 2 U.S.C.A. § 192,¹ arising from his refusal to answer certain questions at a hearing of a Subcommittee of the Committee on Un-American Activities of the House of Representatives. He has appealed from the conviction.

Complying with a subpoena, the appellant appeared before the Subcommittee in Atlanta, Georgia. He was accompanied by two attorneys. After being sworn the appellant identified himself as Field Secretary of the Southern Conference Fund, Inc., which, he said, was "a southwide interracial organization working to bring about integration, justice and decency in the South." He was also the associate editor of the Southern Patriot, a newspaper published by the Southern Conference Educational Fund which, said the appellant, "disseminates information on integration in the South and about the people who are working for integration." The appellant testified that the subpoena of the Committee had been served on him while he was visiting in Rhode Island. In reply to a question of counsel for the Committee, he stated that he was visiting Harvey O'Connor, National Chairman of the Emergency Civil Liberties Committee. He was asked to state the point from which he departed to the State of Rhode Island. The appellant expressed the belief that the question was not pertinent to any question that the Committee might be investigating, and that the question was an invasion of his right to associate under the First Amendment. He declined to answer. The Committee counsel gave the appellant an explanation of the pertinency of the question, saying:

"Sir, it is our understanding that you are now a Communist, a member of the Communist Party; that you have been identified by reputable, responsible witnesses under oath as a Communist, part of the Communist Party which is a tentacle of the international Communist conspiracy. It is our information further, sir, that you as a Communist have been propagating the Communist activity and the Communist line principally in the South; that you have been masquerading behind a facade of humanitarianism; that you have been masquerading behind a facade of emotional appeal to certain segments of out society; that your purpose, objective, your activities, are designed to further the cause of the international Communist conspiracy in the United States.

"Now, there is pending before the Committee on Un-American Activities pursuant to its authority, its duty, and its responsibility legislation. Indeed, the chairman of the Committee on Un-American Activity sometime ago introduced a bill, H.R.9937, which has numerous provisions which are being considered by the Committee on Un-American Activities. Some of these provisions undertake to tighten the security laws respecting the registration of communists; some of these provisions undertake to tighten the security laws respecting the dissemination of communist propaganda. Some of these security laws preclude certain types of activities, the very nature of which we understand you have been engaged in.

"In addition to that, sir, there is pending before the Committee on Un-American Activities a series of proposals that are not yet incorporated into legislative form, which the committee is considering. In addition to that, the Committee on Un-American Activities has a mandate from the Congress of the United States to maintain a surveillance over the administration and operation of numerous security laws that are presently on the statute books, including the Internal Security Act 50 U.S.C.A. § 781 et seq., the Communist Control Act of 1954 50 U.S.C.A. § 841 et seq., the Foreign Agents Registration Act 22 U.S.C.A. § 611 et seq., espionage and sabotage statutes.

"It is for that reason and for these reasons which I have just described to you that this committee has come to Atlanta, Georgia, for the purpose of assembling factual material which the committee can use, in connection with other material which it has assembled, in appraising the administration and operation of the laws and in making a studied judgment upon whether or not the current provisions of the laws are adequate and whether or not each or any of these proposals pending before the committee should be recommended for enactment.

"If you, sir, now will tell us, in response to the last outstanding principal question, where you have been immediately prior to your so-journ in Rhode Island with Harvey O\'Connor, who has been identified as a hard-core member of the communist conspiracy, head of the Emergency Civil Liberties Committee, another organization that has been cited by a Congressional Committee as a communist front."

The Chairman of the Subcommittee ruled that a foundation had been laid establishing the pertinency of the question and directed the appellant to answer. The appellant again refused to answer stating that his beliefs and his associations were none of the business of the Committee and asserting that his refusal to answer was "on the grounds of the first amendment of the United States Constitution, which protects the rights of all citizens to practice beliefs and associations, freedom of the press, freedom of religion, and freedom of assembly." He declined to answer many other questions upon the same grounds; adding as an additional ground a claim that the mandate of the Committee was so vague that the subjects it was authorized to investigate could not be determined. The appellant was asked if he was in the Atlanta area in December of 1957, and he gave an affirmative answer. He was then asked, "And did you participate in a meeting here at that time?" He refused to answer and the refusal is charged as an offense by Count One of the indictment. After the appellant had testified that it was a matter of public record that the Southern Conference Educational Fund met in the American Red Cross Building in Atlanta in December, 1957, he was asked, "Who solicited the quarters to be made available to the Southern Conference Educational Fund?" The refusal to answer this question forms the basis of Count Two of the indictment.

Committee Counsel asked the appellant, "Now sir, are you connected with the Emergency Civil Liberties Committee?" He declined to answer and this question is the subject matter of Count Three. He was asked, "Did you and Harvey O'Connor, in the course of your conferences there in Rhode Island, develop plans and strategies outlining work schedules for the Emergency Civil Liberties Committee?" The appellant's refusal to answer this question resulted in Count Four of the indictment.

The appellant was shown a letter² on the letterhead of Southern Conference Educational Fund. He admitted that it bore the signatures of his wife and himself. He was asked, "Were you a member of the Communist Party the instant you affixed your signature to that letter?"

The refusal to answer this question is the charge of Count Five.

Counsel for the Committee stated to the appellant:

"Eugene Feldman — who lives in Chicago, Illinois. He is the editor of the Southern Newsletter. We had him before the Committee yesterday, at which time we displayed to him the application for a post office box made on behalf of the Southern Newsletter, a publication which is developed in Chicago, which is sent to a post office box in Louisville, Kentucky, and then mailed out over the South."

After this statement the appellant was asked, "I would just like to ask you whether or not you, being a resident of Louisville, Kentucky, have anything to do with the Southern News Letter?" The appellant refused to answer this question on the ground that it was an attempted invasion of the freedom of the press as well as the grounds assigned for the refusal to answer the other questions. This refusal to answer is the basis for the charge contained in Count Six.

The appellant moved to dismiss the indictment which motion was overruled and denied. The appellant also filed a motion for a bill of particulars in which the request was made that the Government

"1. State the question under inquiry as to which each of the questions set forth in Counts One through Six is alleged to be pertinent.

"2. State the manner in which each of the questions set forth in Counts One through Six is alleged to be pertinent to the question under inquiry referred to in item 1 above."

There was apparently no order entered on the motion for a bill of particulars. The Government, however, filed a Bill of Particulars as to the information sought in Request Number 1 of the motion in these words:

"The question under inquiry by the Subcommittee of the House Committee on Un-American Activities, on July 30, 1958, as alleged in the indictment, as to which each of the questions set out in Counts 1 through 6 of this indictment is alleged to be pertinent, was:

"`The extent, character and objects of Communist colonization and infiltration in the textile and other basic industries located in the South, Communist Party propaganda activities in the South, and entry and dissemination within the United States of foreign Communist Party propaganda.\'"

No objection was made as to the sufficiency of the bill of particulars as a response to the first request nor was the court asked to require the Government to respond to the second request contained...