(The following memorandum was subsequently received from Mr. Rogers for insertion in the record:)

ADEQUACY OF TITLE 18, UNITED STATES CODE, SECTION 1503 TO DEAL WITH OBSTRUCTION OF COURT DECREES

Section 1503, title 18, United States Code, provides as follows:

"Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

This statute has been involved in litigation in a number of cases. The more important court decisions in these cases are collected in the United States Code Annotated, title 18, section 1503, and the pocket part to such volume.

1

With respect specifically to the problem of whether this statute extends to acts which are intended to have the effect of thwarting the exercise of rights or the performance of duties flowing from a decree or order of a court, there are a number of decisions which indicate that in all probability the answer would be negative. Under the statute the question would be whether such acts constitute an obstruction to the "due administration of justice" as that phrase is used therein. Section 1503 punishes as obstructions of justice a number of specified acts which may be summarized as follows: (1) intimidation of witnesses in a United States court or before a United States commissioner, (2) intimidation of a grand or petit juror or any Federal judicial officer in discharge of his duty, (3) Injuring a party or witness on account of his appearance or testimony in a Federal judicial proceeding, (4) injuring any grand or petit juror on account of a verdict or indictment, (5) injuring a judicial officer on account of the performance of his duty, and (6) obstructing or impeding "the due administration of justice."

It has been held that the phrase "due administration of justice" is not one of enlargement but of limitation. United States v. Perlstein, 126 F. 2d 789 (C.A. 3, 1941). There the court said (pp. 792-793):

"If we were construing this statute as a matter of original impression we would have held this phrase to be one of enlargement and not of limitation and would have concluded that the statute was designed to punish the obstruction of Federal justice whether a proceeding was pending or ever became pending in a court of the United States. The courts, however, have held that the obstruction cognizable by the act must be in respect to a proceeding brought in the Federal courts."

In an early case, United States v. McLeod, 119 Fed. 416 (C.C.N.D. Ala., 1902), the court held that the phrase did not bring within it an assault upon a U.S. commissioner on account of his having required the defendant to execute a bail bond; the approach adopted by the court was that since the commissioner had already performed his duty, the assault could not have influenced or impeded the due administration of justice. It stated (p. 419):

1 There are, of course, other statutes dealing with obstruction of justice in particular circumstances, but it is clear that they are not adequate to meet the problem here involved. 18 U.S.C. sec. 1501 punishes obstruction or resistance to the service or execution of process or assault in connection therewith; 18 U.S.C. sec. 1502 punishes obstruction or resistance to an extradition agent: 18 U.S.C. sec. 1504 relates to written attempts to influence grand or petit jurors; 18 U.S.C. sec. 1505, to obstruction of administrative proceedings and congressional investigations; 18 U.S.C. sec. 1506, to theft or alteration of judicial records; and 18 U.S.C. sec. 1507, to picketing or parading in or near a Federal courthouse or building or residence occupied or used by a Federal judge, juror, witness, or court officer.

"As we have observed, unless there is some case pending in a court, or sought to be brought 'therein,' there is nothing as to which 'the due administration of justice' can be influenced or obstructed 'therein.' This statute does not create the offense of obstructing justice in general or in the abstract.”

In United States v. Mannarino, 149 F. Supp. 351 (D.C.W.D. Pa., 1956), the the court emphasized that the purpose of the statute was to insure "the purity of a trial in progress." And, in United States v. Scoratow, 137 F. Supp. 620 (D.C.W.D., Pa., 1956), it was held that the statute did not apply to threats against witnesses in the course of an FBI investigation and prior to the filing of a complaint with a U.S. commissioner. Citing the Perlstein case, supra, the court stated that the act "must be in relation to a proceeding pending in the Federal courts" (p. 621). It pointed out that since section 1503 is a criminal statute, it must be strictly construed and the phrase "due administration of justice" has to be interpreted with reference to the fact that it is qualified and limied "by the enumeration of specific judicial functions *** in the preceding portion of the section" (pp. 621–622).

The most recent holding on the point is Haili v. United States, 260 F. 2d 744 (C.A. 9, 1958). There the court reversed the defendant's conviction for obstruction of justice, consisting of his having associated with a woman on probation, which he knew was in violation of the terms of the probation order. The court rejected the Government's contention that the phrase "due administration of justice" extended to interference with a probation order included in the sentence of the court. It stated, as had the courts in the cases cited above, that "* * * the general words which follow the specific words in the enumeration of prohibited acts in the section here involved must be construed to embrace only acts similar in nature to those acts enumerated by the preceding specific words." The particularly defined acts of interference enumerated in the preceding portion of the statute, the court felt, "* ** all relate to conduct designed to interfere with the process of arriving at an appropriate judgment in a pending case and which would disturb the ordinary and proper functions of the court."

The foregoing demonstrates that the courts would probably not construe the existing obstruction of justice statute as extending to the obstruction of the enforcement of desegregation decrees. While it could be argued that interference with such decrees relates to the previously pending cases and thus disturbes the ordinary and proper functions of the court, in light of the precedents such an argument would probably not be successful.

A question has been raised concerning the constitutionality of 18 U.S.C. § 1503, particularly under the first amendment. The only decision discussing any attack on the constitutionality of the statute is found in Anderson v. United States, 215 F. 2d 84 (C.A. 6, 1954), certiorari denied, 348 U.S. 888. There, it was asserted that the section was invalid because of vagueness. But the court summarily dismissed the attack, as follows (215 F. 2d at 90):

"Whenever it is contended that an act of Congress is unconstitutional for vagueness, the act itself must be carefully examined to ascertain its definiteness. After all, other cases are helpful only if they bear true analogy. In the case at bar, it is perfectly apparent that no unconstitutional vagueness inheres either in the statute or in the indictment."

No court has specifically had to consider whether section 1503 might violate the "free speech" clause of the first amendment, since it is apparent that the amendment does not protect the obstruction of the processes of the law. In Kasper v. United States, 245 F. 2d 92 (C.A. 6, 1957), certiorari denied, 355 U.S. 834, the court of appeals upheld a conviction for contempt of court where the individual involved had urged a crowd to disregard court orders and to exert pressure upon school officials until Negro pupils were eliminated from a school previously ordered desegregated. While the case arose in a slightly different contevt since the charge was contempt, rather than obstruction of justice, what the court said is equally applicable to the instant problem:

"The right to speak is not absolute and may be regulated to accomplish other legitimate objectives of government. The first amendment does not confer the right to persuade others to violate the law. Giboney v. Empire Storage Company, 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834. The speech here enjoined was clearly calculated to cause a violation of law and speech of that character is not witin the protection of the first amendment, Dennis v. United States, 341 U.S. 494, 71 S.Ct. 587, 95 L.Ed. 1137 Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267; Beauharnias v. People of State of

40361-59-pt. 1———16

Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031."

Accordingly, it is very clear that neither section 1503 nor S. 955 violate the free speech guarantees of the first amendment.

Senator CARROLL. I would like to make one further observation and perhaps ask a question. At the outset of our discussion, I was under the impression that you said that perhaps the Attorney General ought to be given a right-as is true, in the right to vote case-of having jurisdiction to intervene in the Federal court in school segregation cases. At least I got the impression you were considering it favorably. You said it ought to be given serious consideration, and later on I asked specifically, because I thought you were drifting away from that position. I asked specifically whether or not the administration would consider or would seek such a right from the Congress for the Attorney General. Is there any desire on your part to assume such powers if the Congress should be willing to consider giving them?

For example, we have bills introduced by Senator Douglas, Senator Clark and others which embody part III. They might consider limiting them to the right of intervention in school cases. Would you consider meeting them at that point-between a full part III section and no extension of equity jurisdiction?

Mr. ROGERS. I see what you mean. You mean would we favor the part III concept, limiting it to public schools?

Senator CARROLL. Just to the public schools.

Mr. ROGERS. I would have the same doubt for the reasons I have expressed about that.

Senator CARROLL. Would you resist if we put it into a bill? Would the administration resist such a proposal?

Mr. ROGERS. Well, I would want to see the proposal, Senator. I don't feel that when there is a doubt about these things, about additional legislation, that

Senator CARROLL. Has this matter ever been discussed, may I ask? I am not prying into executive privilege. Do you think this is a matter of sufficient importance that it might be discussed?

Mr. ROGERS. I will tell you, Senator, we have discussed almost every conceivable proposal that can be made in this field. I think we have literally discussed 150 different kinds of proposals and the one we have submitted to the Congress is the one we sincerely believe is in the best interest of the country today.

Senator CARROLL. Have you discussed this all by itself-not all part III across the board, but just this one idea?

Mr. ROGERS. Yes, Senator, we have discussed this by itself and we discussed limiting this in many other ways; and we, I think, are of one mind that because there is some doubt-and for the reasons that I have mentioned about whether it would help or hinder-we should not support it at this time.

Senator CARROLL. You would rather follow the criminal statute approach than you would the equity jurisdiction approach?

Mr. ROGERS. I don't quite like the way you state it. We prefer the bill we have sponsored to any other bill.

Senator CARROLL. I think that is all.

Senator ERVIN. We thank you very much for coming.

Mr. SLAYMAN. General, just two other technical questions about S. 955. When you use the word "threat”—I am well aware that

was taken from section 1503-but when you use the word "threat," you have in mind standard common law criminal definitions of threat? Mr. ROGERS. That is correct.

Mr. SLAYMAN. And you don't intend to interfere with freedom of speech?

Mr. ROGERS. Not at all.

Mr. SLAYMAN. And what you contemplate is a threat of force, not a threat of economic reprisal or economic coercion?

Mr. ROGERS. That is right. We contemplate that the well, put it this way: This is not a new statute. It has been construed over the years. There are a lot of cases on it and we know that the holdings in those cases would apply to this language because it is the same lan

guage.

Mr. SLAYMAN. General, I want that on the record because I am aware of what you said. I want to have it stated clearly, though, because if there is one point the Senators have discussed with me time and again, it is the question of free speech.

Mr. ROGERS. That is right. You are perfectly right.

Mr. SLAYMAN. Thank you.

Senator ERVIN. We will now recess until 2:30.

(Whereupon, at 1 p.m., the hearing was recessed, to reconvene at 2:30 p.m. the same day.)

AFTERNOON SESSION

Senator CARROLL. The committee will come to order.

We are pleased to have with us today the Honorable Robert G. Storey, Vice Chairman of the Civil Rights Commission, dean of the law school of Southern Methodist University, and the former president of the American Bar Association.

Dean, we are glad to have you here. Do you have a prepared statement?

Mr. STOREY. Yes, sir; I have a short one, sir. Shall I proceed, Mr. Chairman?

Senator CARROLL. You may proceed, if you will, please.

STATEMENT OF ROBERT G. STOREY, VICE CHAIRMAN, COMMISSION ON CIVIL RIGHTS; ACCOMPANIED BY GORDON M. TIFFANY, STAFF DIRECTOR, COMMISSION ON CIVIL RIGHTS

Mr. STOREY. Mr. Chairman, Mr. Slayman, and gentlemen, I have a very short prepared statement which I ask your indulgence in reading. My name is Robert G. Storey. I am serving as Vice Chairman of the Commission on Civil Rights. I am a member of the Texas bar and, among other responsibilities, am dean of the law school at Southern Methodist University in Dallas, Tex.

The Commission on Civil Rights is by law composed of six members, appointed by the President, by and with the advice and consent of the Senate. The Civil Rights Act of 1957 further provided that not more than three of the members shall at any one time be of the same political party.

At the present time, however, there are only five members of the Commission. One vacancy exists because of the recent death of the

Honorable J. Ernest Wilkins, who also served as Assistant Secretary of Labor.

Serving on the Commission at this time, in addition to myself are: The Honorable John A. Hannah, of East Lansing, Mich., president of Michigan State University, who is Chairman of the Commission. The Reverend Theodore M. Hesburgh, C.S.C., president of the University of Notre Dame.

The Honorable John S. Battle, former Governor of Virginia.
The Honorable Doyle E. Carlton, former Governor of Florida.

A few days ago the President sent to the Senate the name of George Mr. Johnson, former dean of the law school of Howard University, as a replacement for the late Mr. Wilkins.

The staff director of the Commission is Gordon M. Tiffany, former attorney general of New Hampshire.

With your permission, Mr. Chairman, I would like to insert into the record at this point the detailed biographies of each of the members of the Commission and of the staff director.

Senator CARROLL. Without objection so ordered.

Mr. STOREY. Thank you, sir.

(The document referred to follows:)

COMMISSION ON CIVIL RIGHTS, WASHINGTON, D.C.

JOHN ALFRED HANNAH, CHAIRMAN

Born: October 9, 1902, Grand Rapids, Mich.

Married; one daughter, three sons.

Education: Grand Rapids Junior College, 1919-21; University of Michigan, 1921-22; Michigan State University, 1922–23, B.S.

Honorary degrees: D. Agri., Michigan State University, 1941; LL.D., University of Michigan, 1944; HH.D., University of the Ryukyus, 1952; L.H.D., University of Florida, 1953; Dr. Sci., Michigan College of Mining and Technology, 1953; LL.D., University of Rhode Island, 1954; LL.D., Central Michigan College of Education, 1955; LL.D., Albion College, 1957.

President of Michigan State University since July 1, 1941

Assistant Secretary of Defense for Manpower and Personnel, February 1953 to July 1954 (on leave from Michigan State University).

Chairman, U.S. section, Permanent Joint Board of Defense, Canada-United States, 1954.

President, American Association of Land Grant Colleges and State Universities, 1948-49.

Member: Board of Visitors for the Air Force Academy; Board of Consultants for the National War College; American Universities Field Staff, board of trustees; Association of the U.S. Army; Board of Visitors, Air University, 1955-56, Chairman, 1957; Board of Visitors U.S. Military Academy, 1955-58. Chairman, board of directors, Federal Reserve Bank of Chicago, Detroit branch.

Board of directors, Michigan Bell Telephone Co.

President's Citizen Advisory Committee on the Fitness of American Youth. Made survey of foreign aid programs in the Far East for the Senate Foreign Relations Committee, 1956.

Church: Episcopal.

ROBERT GERALD STOREY, VICE CHAIRMAN

Education: University of Texas and Southern Methodist University, B.A.; honorary degrees, LL.D., Texas Christian University, 1947; Laval University, 1953; Drake University, 1954.

Professional: Partner, Storey, Armstrong & Steger, Dallas, Tex.; dean, Southern Methodist University Law School; president, Southwestern Legal Foundation.

Public service: Assistant attorney general of Texas for criminal appeals, 1921-23; member, national executive committee, American Legion, 1921-22;