request that the temporary restraining order entered in this cause be extended to the close of the Court's business on the 28th day of October, 1970 in order to afford the Court the opportunity to make findings of fact, conclusions of law and to enter the final judgment in the action, it is by the Court this 23rd day of October 1970. Ordered that the temporary restraining order entered herein by the Court on the 14th day of October, 1970 be and the same hereby is extended to the close of the Court's business on the 28th day of October, 1970 and it is Further ordered that the Clerk of Court be and he is hereby directed to record in this Court's docket an entry reflecting the agreement of the parties * to this action made through their counsel that the cause has been submitted to the Court for final disposition on defendants' motion to dismiss, plaintiff's complaint for permanent injunction and the record. And whereas, the court thereafter on October 28, 1970, granted permanent injunctive relief as follows: ORDER Plaintiffs' application for declaratory judgment and permanent injunctive relief having, with consent of the parties, come before the Court on affidavits, and the Court, after briefs and full argument, having field herewith its Memorandum Opinion containing Findings of Fact and Conclusions of Law, it is Ordered that the Public Printer and the Superintendent of Documents be and each is hereby permanently enjoined from printing and/or distributing, or directly or indirectly causing to be printed or distributed, any copy of a Report of the House Committee on Internal Security captioned "Limited Survey of Honoraria Given Guest Speakers for Engagements at Colleges and Universities" or any portion, restatement or facsimile thereof, provided however that in the event said Report or any part thereof shall be introduced into or be mentioned during the course of proceedings of the House or of the Senate this injunction shall not apply to subsequent normal publication or distribution of the Congressional Records in full text, without special reprinting or excerpting of any portion or portions relating to said Report; and it is Further ordered that the complaint be and it is hereby dismissed as to all parties except the Public Printer and the Superintendent of Documents, and the Temporary Restraining Order previously entered in this case is and shall be desolved [sic] upon the service of this Order on the Public Printer; and it is further Adjudged and declared that said Report of the House Committee for [sic] Internal Security is without any proper legislative purpose and infringes on the rights of individuals named therein as protected by the First Amendment to the Constitution of the United States, and that any publication of said Report at public expense, except as herein provided, is illegal. And whereas, on October 30, 1970, the said defendants, Representative Preyer joining, gave notice of appeal and filed an appeal from the aforesaid order with the United States Court of Appeals for the District of Columbia, together with motions for summary reversal of the district court's order or, in the alternative, for the expedited processing of this appeal, with memorandum in support of said motions, requesting that the court of appeals should consider and decide the case before Congress returned from recess on November 16, 1970; And whereas, the court of appeals on November 5, 1970, in disregard of the urgencies of the situation and of the rights and privileges of the House, entered a per curian order denying defendants' (appellants') motion for summary reversal or, in the alternative, for expedited processing of this appeal, as follows: Before: Wright, McGowan and Tamm, Circuit Judges in Chambers. ORDER On consideration of appellants' motion for summary reversal of the District Court's Order enjoining the Public Printer and the Superintendent of Documents from printing or distributing a House document or, in the alternative, for expedited processing of this appeal, of the opposition filed with respect thereto and of the record on appeal herein, it is Ordered by the Court that appellants' motion for summary reversal or, in the alternative, for expedited processing of this appeal is denied. Per Curiam Circuit Judge Wright did not participate in the foregoing order. And whereas, the said report of the Committee on Internal Security, the printing and distribution of which has been enjoined as aforesaid, was authorized to be filed with the House in accordance with the rules and practices of the House; And whereas, the Constitution of the United States provides that each House shall keep a Journal of its proceedings and from time to time publish the same (Article I, Section 5); And whereas, Rule XII of the House, duly enacted as aforesaid, provides that reports of committees shall be delivered to the Clerk of the House for printing and reference to the proper calendar under the direction of the Speaker, and the titles or subject thereof shall be entered on the Journal and printed in the Record; and pursuant thereto the aforesaid report of the Committee on Internal Security has been so entered and referred; And whereas, by the rules and practices of the House, the reports of committees are printed, published, and disseminated for the use of the House, its committees, and the public in accordance with such rules and the acts of Congress for such cases made and provided, particularly title 44, United States Code, section 101 et seq.; And whereas, on order of the House, it is the duty of the Public Printer and the Superintendent of Documents to print, publish, and distribute the reports and other documents of the House in accordance with the order of the House and applicable acts of Congress; And whereas, the printing, publication, and distribution of the aforesaid House report (91-1607) entitled "Limited Survey of Honoraria Given Guest Speakers for Engagements at Colleges and Universities," was duly authorized and submitted for printing to the Public Printer in the normal course of business; And whereas, it is not the rule or practice of the House to print or publish the full text of the reports of its committees in the Journal of the House or the Congressional Record; And whereas, the restraints and limitations upon the printing, publishing, and dissemination of the aforesaid report imposed by the court's aforesaid orders constitute an unwarranted and impermissible obstruction of the execution of the rules and practices of the House and of its legislative processes and procedures; And whereas, it is essential to the due and effectual exercise and discharge of the constitutional functions and duties of the House, and the promotion of wise legislation, that no obstruction or impediments should exist to the publication of such reports of the House as the House may deem fit or necessary to be published; And whereas, it is essential to the working of our parliamentary system and to the welfare of the Nation that the speech, debate, and proceedings in the Houses of Congress be made known to the country; And whereas, it is expressly provided by the Constitution of the United States that for any speech or debate in either House the Senators and Representatives shall not be questioned in any other place (Article I, Section 6); And whereas, the foregoing provision of the Constitution, thus succinctly stated, arose out of a time-honored struggle for liberty and was adopted from the English Bill of Rights of 1689 which declared in unequivocal language: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament"; And whereas, a report of a committee of the House filed with the House is speech or debate or Representatives in the House; And whereas, by the express provisions of the Constitution, Article I, Section 6, aforesaid, the courts are enjoined against questioning, are are denied juris diction to question, any speech or debate in either House and may not censor, disparage, inquire into the contents of, or otherwise question, limit, or restrain, the speech or debate of Representatives in the House; And whereas, the speech and debate of Representatives in the House is absolutely privileged, subject only to the control of the House, and is a privilege intrinsic to the right of the House to preserve the means of discharging its legislative duties; And whereas, it is a fundamental principal of a free constitution, incorporated in the Constitution of the United States, that the legislative, executive, and judicial powers be separated (see The Federalist, Nos. XLVII and XLVIII); And whereas, the House of Representatives is invested with the power to prevent and punish such contempts of its authority and privileges as is necessary to preserve the means of discharging its legislative duties, and that this power rests upon its right of self-preservation to enable the public powers given to it to be exerted; a power indeed which has been recognized in the precedents of that Court by which the inferior Federal courts of the District of Columbia are bound [see ANDERSON V. DUNN, 6 Wheat. 204 (1821); IN RE CHAPMAN, 166 U.S. 661 (1896); MARSHALL V. GORDON, 243 U.S. 521 (1916)]; And whereas, the chairman of the said Committee on Internal Security has this day reported to and filed with the House a report of the said committee entitled, "Report of Inquiry Concerning Speakers' Honoraria at Colleges and Universities" (House of Representatives Report No. 91-1607); And whereas, at a meeting of the said Committee on Internal Security duly held and called on December 3, 1970, at which a quorum of the said committee was in attendance and voting, the said chairman was duly authorized and directed to file said report; And whereas, said report was made in accordance with the rules of the House and upon the subject committed to said committee pursuant to the provisions and mandate of House Rule XI and resolution of the committee duly adopted; And whereas, the said report this day filed is upon the same subject matter as the prior report (No. 91-1607) of said committee, hereinbefore mentioned, and may be construed as a "restatement" of the whole or a part of the prior report, the printing and distribution of which was permanently enjoined by the hereinbefore mentioned order of the court dated October 28, 1970: Now, therefore, be it Resolved, That (1) In accordance with the Rules of the House of Representatives and the acts of Congress made and provided, the Public Printer and the Superintendent of Documents shall forthwith print, publish, and distribute, and they are hereby ordered forthwith to print, publish, and distribute to and for the use of the House of Representatives, the Committee on Internal Security of said House, and those entitled to receive them, the usual number of copies of the report (No. 91-1607) of said Committee on Internal Security titled, "Report of Inquiry Concerning Speakers' Honoraria at Colleges and Universities," which has this day been duly reported to the House. (2) All persons, whether or not acting under color of office, are hereby advised, ordered, and enjoined to refrain from doing any act, or causing any act to be done, which restrains, delays, interferes with, obstructs, or prevents the performance of the work ordered to be done by paragraph numbered (1) hereof; and all such persons are further advised, ordered, and enjoined to refrain from molesting intimidating, arresting, imprisoning, or punishing any person because of his participation in, or performance of, such work. (3) Copies of this resolution shall be forthwith furnished by the Clerk of the House to the Public Printer, Superintendent of Documents, and the clerks of the United States District Court and of the United States Court of Appeals for the District of Columbia.-Congressional Record 41013-41016 (December 10, 1970) EXHIBIT 11 (Brief on Behalf of Congressman Ichord in Hentoff v. Ichord) BRIEF FOR APPELLANTS United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 24,761 NAT HENTOFF, ET AL., APPELLEES v. RICHARD H. ICHORD, ET AL. [ADOLPHUS N. SPENCE AND ROWLAND APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROBERT C. MARDIAN, Assistant Attorney General, KEVIN T. MARONEY, Deputy Assistant Attorney General, BENJAMIN C. FLANNAGAN, GEORGE W. CALHOUN, Attorneys, Department of Justice. INDEX Issues Presented Statement of the Case___. Statement of Facts... Argument: I. The permanent injunction violates the Speech and Debate II. Legislative Purpose... III. Motives_____ IV. First Amendment Rights. Page 1 1 3 13 20 25 27 Beranek v. Wallace, 25 F. Supp. 841 (N.D. Ind. 1939). Birnbaum v. Willcox-Gay Corp., 17 F.R.D. 133 (N.D. Ill. 1953)- Coleman v. Miller, 307 U.S. 433 (1938)___. 35 35 29 18 Dallas v. Atlantic Refining Co., 189 F. Supp. 815 (D. Del. 1960)_ 31 33 16 35 Holiday Inns of America, Inc. v. B & B Corp., 409 F. 2d 614 (3rd Cir. 1969)__ 31 Humble Oil and Refining Co. v. Harag, 262 F. Supp. 39 (E.D. La. 1966). 35 Humphrey's Executor v. United States, 295 U.S. 602 (1935) __ 18 18 15, 19 Konigsberg v. Time, Inc., 288 F. Supp. 989 (D.D.C. 1968) – – 39 Leonardo v. Leonardo, 79 U.S. App. D.C. 258, 145 F. 2d 849 (1945)__ Liberty Lobby, Inc. v. Pearson, 129 U.S. App. D.C. 74, 390 F. 2d 489 (1968). |