A New Blacklist of 'Radical Pied Pipers'

...Gesell took note of Congressional immunity and observed that "there is no practical remedy if Congress, in its wisdom, chooses directly or indirectly to ignore the court's order...

...Doing what many would argue he had no business to do, the judge also issued an appeal for the vigilant safeguard of free speech and assembly in these "times of stress when our most cherished institutions are threatened by extremists of many different persuasions...

...The decision dismissed the suit entirely against the Internal Security Committee members (two of whom, Democratic Representatives Louis Stokes of Ohio and Richardson Preyer of North Carolina, had never shown much taste for the "Limited Survey" anyway and had chosen not to be represented in the matter) and the Committee staff...

...Thus ended the inquiry...

...It was clear that by filing the lawsuit on the eve of the scheduled publication date for the "Limited Survey," the ACLU hoped to maximize its success in an emergency hearing where immediate full examination of the issues involved would not be possible...

...That was a logical tactic under the circumstances, in a judicial circuit that has been picking and choosing which of the thousands of potentially controversial interventions are worthwhile...

...Rejecting the services of an Assistant U.S...

...SANFORD J. UNGAR is a staff writer for The Washington Post who covers the courts in the nation's capital...

...The product of a "voluntary" survey of some 175 colleges and universities selected from The World Almanac, it sought to test on campuses the statement of Chicago Seven defense attorney William Kunstler that "We raise most of the money for our movement through speaking engagements...

...The tables list the amounts received by the speakers on specific dates but say nothing about where the talks were given or under what circumstances...

...In another case, he had ordered the Washington city government to provide free utilities service for abandoned tenants whose landlords' property had not been properly inspected and policed by the city...

...As legal briefs by the American Civil Liberties Union (ACLU) go, civil action number 3028-70 in U.S...

...Congress...

...There were excoriations of Gesell wherever its members spoke to campaign audiences, and Ichord talked relentlessly of "appealing" the decision even though he was no longer a party to the lawsuit...

...Upon Nittle's admission however, that he had never read the report in question, Gesell bade him sit down...

...Ichord could not have misunderstood more completely...

...A New Blacklist of 'Radical Pied Pipers' by SANFORD J. UNGAR T^he John Birch Society has given notice that it will sponsor publication of a handy new reference work, designed for the desks of vigilant college presidents, angry alumni, and worried parents...

...Congress had already left Washington for its campaign recess when the matter came before Gesell again on October 23 for full argument on the merits...

...Thus, it was only on the third try that the suit went to Gerhard A. Gesell, who in his two years' tenure had developed an activist posture on the bench...

...Court of Appeals (which refused to entertain the Government's request for an emergency review of the decision, but will eventually rule on it) warned against the courts sitting as a censor, supervisor, or conscience over the affairs of Congress, an argument which was bound to be attractive to many on the appeals court and among the public...

...But, as constitutional confrontations often are, this was an accidental, almost innocent, clash between the legislative and judicial branches of the Government...

...It is true that by banning the printing and distribution of the report at public expense, Judge Gesell accomplished a feat that had eluded civil libertarians in and out of Government for decades: He zapped the witch-hunters of the House Internal Security (formerly Un-American Activities) Committee where it hurt most—one of their poorly researched, weakly documented, but potentially damaging dossiers on the people they do not like...

...A declaimer of the old school, Nittle struck a familiar pose by waving the Committee report in the air and warning the judge that he "cannot inquire into the motives of Congress...

...The Birchers have taken on this task because the Public Printer may not...

...The court also rejected out of hand the ACLU's talk of contempt of court proceedings against those who had already published copies of the list...

...Its mass-production title has not been released, but the Society makes no secret of the fact that its new manuscript was originally known—clumsily—as "Limited Survey of Honoraria Given Guest Speakers for Engagements at t Colleges and Universities," a humble report of the Committee on Internal Security of the House of Representatives, whose chairman is Representative Richard H. Ichord...

...Many universities ignored Ichord's request for "cooperation in helping us to fulfill our legislative mandate...

...That request drew a sharp rebuke from Gesell that "members of Congress have the same right to speak as anyone else...

...The list was later reduced to fifty-seven...

...If there is a major disadvantage of the Gesell ruling in the short run, it is that it called attention and gave undue prominence to a Congressional report of extraordinarily poor quality...

...District Court in Washington—filed October 13—was not particularly distinguished...

...Brought on behalf of New York writer Nat Hen toff and others who were astonished and amused to find themselves included in the Internal Security Committee's list of sixty-five "radical pied pipers of pernicious propaganda," the brief seemed hastily prepared...

...Earlier in 1970 he had struck down the District of Columbia's anti-abortion statute...

...The random draw initially sent this case to Judge Joseph C. Waddy, but his schedule for that day was too crowded to permit a hearing on a temporary restraining order...

...The report will reach a wide audience through the courtesy of the Birch Society and others who may opt to sponsor it—a more appropriate umbrella for such a blacklist than the official imprimatur of the U.S...

...The judge's ruling on October 28, after he had been closeted in his chambers for two days, was an ingenious compromise for a judicial activist...

...Disavowing any attempt "to ascertain whether honoraria paid as indicated herein to a speaker inured to the benefit of the organizations with which they are identified," the Committee moved rapidly to its conclusion: The sampling was "sufficient to alert college and university administrators, alumni, students, and parents to the extent of campus speaking in promoting the radical, revolutionary movement...

...The Committee reacted to the lawsuit with a mixture of insult, shock, and rage...

...Gesell wrote that he was unconvinced by assertions of the report's theoretical free-lance usefulness for any future anti-subversive legislation...

...The truest free speech purists, such as I. F. Stone, objected, too, complaining that any decision which cut back on anyone's right to say and publish anything (even with tax money) must be avoided...

...But then we have all lived with uncomfortable heroes and villains before, and, as Judge Gesell noted, these are not ordinary times...

...And much will be said for and against the landmark opinion—the first time in our history that a judge has prevented publication of a Congressional document—which ignores its simplicity and its subtlety...

...But Gasch was on his way to attend the World Series in Baltimore that afternoon, so a judge with free time had to be found...

...He declared that it appeared to have been "issued solely for the sake of exposure or intimidation" and thus must not be produced at public expense...

...Unusual as it may be, the Public Printer and Superintendent of Documents are permanently enjoined from printing and distributing the report, which consisted primarily of a list of sixty-five "radical revolutionary" speakers who have appeared at colleges and universities in the past three years...

...By anyone's calculations, the ACLU's odds for success were low...

...A Justice Department brief filed with the U.S...

...and others explained that they did not monitor their students and the speakers chosen by them that closely...

...He issued a temporary restraining order against publication of the report by the Government and appealed to "the conscience of the Congress" to understand that his was a limited foray into examination of legislative business for the purpose of protecting free speech...

...It is to be expected that Judge Gesell's ruling in the U.S...

...Instead, the order was directed solely against the Public Printer and Superintendent of Documents, banning their production and distribution of the blacklist in any form beyond the normal publication of the Congressional Record, and even forbade reprints from that...

...Judging from the criteria, that was a rather small honor roll...

...Ten days of non-publication had made both sides somewhat bloodthirsty, and Lawrence Speiser of the ACLU went so far as to ask that Gesell totally prohibit all members of Congress from printing or distributing the report, or even quoting from it in a campaign speech...

...Federal Judge Gerhard A. Gesell in Washington, acting on a lawsuit brought by some of the sixty-five, restricted publication of the report at Government expense after determining that it is a blacklist with "no valid legislative purpose...

...Attorney experienced in such matters, Ichord sent along his legislative counsel, Alfred M. Nittle, to face the challenge...

...some wrote back with polite statements of non-participation...

...Among the fifteen active judges on the District Court—whose calendars bulge with everything from rape trials to challenges to Defense Department contracting procedures—are many judicial conservatives reluctant to get involved in the kind of case that can be kicked back and forth to the Court of Appeals for a year or two...

...There was never any chance that the Ichord Committee's "Limited Survey" was destined for the Superintendent of Documents' best-seller list...

...One District judge does not hesitate to tell crusading lawyers who appear in his chambers that a "personal rule" prohibits his enjoining the Government from doing anything...

...The day following the judge's ruling, Ichord distributed copies of the report, made up largely of the list of "radical revolutionary" speakers, to the press but pledged to have the matter "litigated to the fullest extent...

...He appeared to welcome the opportunity to consider the sensitive question of whether the Internal Security Committee's blacklist threatened freedom of speech...

...Those who brought the suit had a "legitimate grievance" about the blacklist and its potential effects, Gesell determined after lengthy argument...

...But future review of the case appears certain to focus on the more central issue of the separation of powers and just when a court may be considered to have crossed the "thresh-hold" into the authority of another branch...

...Ignoring the Internal Security Committee's cries that this was comparable to "burning the books of Congress," the judge declared that such a Congressional report is subject to judicial scrutiny...

...When the Committee staff measured the 1,168 speakers' names that were submitted by ninety-five colleges against its own notorious caches of "public source material" on "radicals," it came up with sixty-five bona fide "pied pipers," from Mu-hammed Ali to Jessica Mitford...

...That automatically (and temporarily) transferred it to Oliver Gasch, an Eisenhower appointee who was the motions duty judge for October...

...The Committee, surprising no one, misunderstood again...

...At a Capitol Hill press conference, Judge Gesell "zapped the witch hunters of the House Internal Security Committee where it hurt most . • •" Ichord denounced Gesell's ruling as "tyrannical...

...Things were simplified for the report's potential audience, with such helpful hints as a description of the Black Panther Party as "a black extremist organization, consisting for the most part of hoodlum-type revolutionaries...

...For its own part, the Justice Department—by now handling the case, after seeing that the Committee could not defend itself as well as it attacked others—saw it all as a classic case concerning the speech-and-debate clause, Article One, Section Six of the Constitution, which protects the right of Congressmen to publish whatever they want in the course of deliberations...

...The report proposes, discusses, and recommends no legislation but merely presents the speakers' names annotated with organizational affiliations in a variety of tables...

...District Court for the District of Columbia, now on its way through the appeals process, will be a cause celebre for a long time to come...

...Putting it more eloquently perhaps than many of the sixty-five "pied pipers" themselves might do, he frowned on "the increasing tendency of the legislative branch to investigate for exposure's sake" and pleaded that "the marketplace of ideas cannot be closed and all branches of Government must in the last analysis depend on the common sense of citizens...

...It was easy to qualify—for example, by being affiliated with the Yippies or with the National Committee to Abolish HUAC (that was how poet John Ciardi and civil rights activist C. T. Vivian made the list...

...Instead of reading the list of speakers into the Con-gressional Record—as Gesell acknowledged he or any other member of Congress might do with impunity—he chose to file the report with the Clerk of the House of Representatives and request that 6,000 copies be printed...