I have a very different view of what the facts are in this case. The majority accept the conclusion of the Hawaii court that appellant “engaged and participated in a wilful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein and in the said pending case, * * * ”1 I am satisfied that there is nothing in the record to support that statement. I think this is one case in which it is peculiarly important that we scrutinize with care the proof as to just what did happen.
If appellant used the precise words and made the exact statements that those who testified against her say she did, there is a serious and substantial question as to whether the judgment below does not violate her rights under the First Amend*214ment. This is no ordinary case. It is the case of one who has a record of defending persons accused of crime, of representing unpopular labor unions, and of even going to far as to appear for Smith Act defendants. I cannot overlook as a judge what I know as an ordinary citizen in common with every one else, that many persons think that one who would handle such cases as has the appellant ought to be disbarred just on general principles. And when the Supreme Court of Hawaii arrives at a conclusion couched in the language just quoted, which finds no counterpart in any word or statement in the record, I consider it my duty to inquire with care whether such statement really represents the facts of the case.
That we are not limited in our examination of the facts is plain since the Supreme Court heard no testimony but heard the case solely upon the written record and “made its own evaluation thereof” “unprejudiced by the report of the legal ethics committee.” Our duty, as a federal court, to find the facts for ourselves in the process of determining whether appellant’s claim of a federal right under the Constitution, has been frustrated by erroneous conclusions of the Territorial Court, is recognized by the Supreme Court of the United States. That Court, when reviewing a state court decision under circumstances similar to those here, insists on finding the facts on which the constitutional right turns, for itself. As stated in Stein v. People of State of New York, 346 U.S. 156, 181, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522: “Of course, this Court cannot allow itself to be completely bound by the state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding.”2
Our power to review decisions of the Supreme Court of Hawaii is substantially the same as that exercised by the Supreme Court of the United States in reviewing final decisions of the highest, courts of the states.3 At least ever since Kansas City Southern Ry. Co. v. C. H. Albers Commission Co., 223 U.S. 573, 32 S.Ct. 316, 56 L.Ed. 556, that Court has stated the rule as follows: “In cases brought to this court from state courts for review, on the ground that a federal right set up in the state court has been wrongly denied, and in which the state court has put its decision on a finding that the asserted federal right has no basis in point of fact, or has been waived' or lost, this court, as an incident of its. power to determine whether a federal right has been wrongly denied, may go-behind the finding to see whether it is without substantial support. If the rule were otherwise, it almost always would be within the power of a state court, practically to prevent a review here., (cases cited) Another class of cases in-which this court will review the finding-of the court as to the facts is when the-conclusion of law and findings of fact are so intermingled as to make it necessary, in order to pass upon the question to-analyze the facts.” Truax v. Corrigan, 257 U.S. 312, 324-325, 42 S.Ct. 124, 126, 66 L.Ed. 254. This rule has been announced on numerous subsequent occasions.4 It is an everyday practice in the-review, by the Supreme Court, of state-court decisions. Thus in Schware v. Board of Bar Examiners, 353 U.S. 232, at page 239, 77 S.Ct. 752, at page 756, 1 L.Ed.2d 796, where Sehware claimed ha-had been denied a constitutional right. *215the Court examined the facts for itself, and at great length, and posed the matter for its decision as follows: “Therefore the question is whether the Supreme Court of New Mexico on the record before us could reasonably find that he had not shown good moral character.” It concluded (353 U.S. at page 246, 77 S.Ct. at page 760): “There is no evidence in the record which rationally justifies a finding that Schware was morally unfit to practice law.” Hence, it was held, the state had deprived him of due process of law.5 Other cases in which the Supreme Court, in considering claims of infringement of constitutional rights, found the facts for itself are Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; and Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167.6
When the facts of this case are thus examined, it should be readily apparent that they do not justify or warrant the conclusion of the Hawaii court above quoted. To assert, as did that court, that the remarks made by appellant, either as charged in the complaint against her, or as shown by the evidence when taken most strongly against her, was a “wilful oral attack upon the administration of justice in * * * the said United States District Court”, and that she “by direct statement and implication impugned the integrity of the judge presiding therein”, is, it seems to me, to use the language of Mr. Justice Frankfurter in the Schware case, supra, so dogmatic an inference as to be wholly unwarranted, and so arbitrary as to be offensive to due process. Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551, 559, 76 S.Ct. 637, 100 L.Ed. 692.
I shall discuss, infra, the question whether, even if appellant had made an attack upon Judge Wiig, she exceeded the bounds of an attorney’s certain right to criticize a court or judge. But that question is a hypothetical one, for, as I shall show, appellant did not attack the court or the judge. I shall first proceed to show what the record states she did say; and when the facts of the case are viewed as they really are, it becomes manifest that the order of suspension is not only arbitrary and a denial of due process, but an unjustifiable infringement upon appellant’s right of free speech under the First Amendment.
The most complete and most nearly contemporaneous account of just what appellant did say at the Honokaa meeting is found in the notes made by a newspaper reporter who attended the meeting and the following day wrote a newspaper account of it. A week later he was asked by his editor to transcribe his original handwritten notes and he did so filling them out and making them understandable to the reader.7 While appellant denies making some of the statements *216found in the notes, for the purposes of this opinion I take the version shown by the notes. The majority opinion, for the purpose of indicating what happened at the meeting, quotes the newspaper account on the ground that the Hawaii court accepted that as accurate. The reporter, at the hearing, some two years after the speech was made, did not testify that the newspaper story was an accurate statement of what transpired. He merely stated that he wrote the story “based upon the notes * * * made during the speech.” My objection to its use is not because it is mere hearsay, but it could furnish an excuse for not examining the facts. No one can claim to know what this case is about unless he has read, with care, the full notes of the speech made by the newspaper reporter. They appear as Exhibit B attached to Judge Chambers’ opinion.
The newspaper account gives no support to the Hawaii court’s conclusions. But in arriving at the facts here it should be noted that the story is distorted, for the reporter has selected, as no doubt most reporters would do, only the most startling portions of the speech, ■ — the parts containing the best headline material.
But when all the notes are read, an unmistakable picture of just what kind of speech was made, and what it was about, clearly emerges. What we have here is an attack on the methods used in all Smith Act prosecutions, including the one then pending, and hence, implicitly an attack on the Smith Act itself. The notes show exactly what appellant talked about. It was as follows: (a) Men in power are trying to put men in jail for what they think and what they read; (b) the prosecutions are for conspiracy— when the Government charges conspiracy, it has no case — “conspiracy means to charge a lot of people for agreeing to do something you have never done”; (c) The FBI’s special agents, widely publicized as wonderful, spend their time investigating people’s minds, while hundreds of tax frauds go unprosecuted; (d) Among the agents so used were Paul Crouch and Johnson;8 Crouch testified what he was told by generals when he was “galloping over the plains of Russia” at a time when one of the defendants was four years old, while Johnson testified he carried some Communist books from San Francisco to Honolulu, in a duffle bag, and showed the bag to Jack Hall; (e) On the strength of this the Government “for two days reads from books supposed to have been in the duffle bag * * * so jack hall violated the smith act because he saw a duffle bag with some books on overthrowing the government in it. its silly;” (f) Crouch testified to things he couldn’t possibly remember. Yet they use this kind of testimony, (g) “Some of the witnesses testified differently from what they testified previously.” (h) “witnesses testify what government tells them to”; (i) “they will do anything and everything necessary to convict”; (j) “the government has carried on a barrage of propaganda” and “expects people in the jury to have hysteria just hearing about communism is enough to jail”; (k) an account of a Sears Roebuck employee who knew Hall. When he refused to testify against Hall the FBI asked his employer to fire him,— when he was not fired they went to the Los Angeles and Chicago officers of the employer and convinced them he had to be fired; (1) “the government gets away with it by making people fear that if they don’t do as it wants they’ll be branded red and lose their jobs, there’s no such thing as a fair trial in a smith act case, all rules of evidence have to be scrapped or the government can’t make a case”; (m) in the Palakiko-Majors case9 the court would not let a woman testify she heard a police officer say he beat the prisoner, *217because the officer was absent and had no chance to deny it, yet the judge permitted Crouch “to testify about 27 years ago. what was said then”, at a time “when the defendant was 5 years old.” (n) “there’s no fair trial in the case, they just make up the rules as they go along”; (o) A reference to the New York Smith Act case: “the government can’t make a case if it tells just what they did so they widened the rules and tell * * everything including the kitchen sink”; (p) “unless we stop the smith trial in its tracks here there will be a new crime, people will be charged with knowing what is included in books, ideas.” (q) “mentioned los angeles trial in which someone said there was no evidence that someone had instructed persons not to read some books”; (r) “there’ll come a time when the only thing to do is to keep your children from learning how to read, then not only will unions be destroyed but so will freedom of thoughts and action, there’ll be dark ages of thought control when people won’t be able to speak freely In taverns and other places”; (s) “urged audience to * * * explain what a vicious thing the smith act is. people are tried for books written years ago.”
The most interesting thing about this near-contemporaneous record of the speech is that it is devoid of any attack upon Judge Wiig or his court. The only reference to the judge was the criticism of his ruling (item “m” above) on the admission of the Crouch testimony. But this was no attack on his integrity. Aside from this the judge was not even referred to. His name was not mentioned. These notes of the reporter are of special importance here, not merely because they were made when his memory was fresh, but also because, as I shall shortly show, they were confirmed by the other witnesses who testified. In short, the notes are a fair summary of all the evidence.
This record does not warrant a conclusion that the integrity of Judge Wiig was attacked. Everything in it is consistent with appellant’s position that the speech was directed at Smith Act prosecutions and the Smith Act, and not at Judge Wiig personally. Some of the remarks quoted in the notes she denied making, but I assume for the purposes of this opinion she made all of them, just as the notes show.
Take the statement about “some rather shocking and horrible things that go on at the trial.” Have a look at the notes. This remark is made at the beginning, obviously by way of introduction of what she proposed to tell as she went along. The meaning is plain: I am about to tell you some rather shocking and horrible things that go on. What these “horrible and shocking things” were she specified in detail, extending the itemization to Smith Act trials generally. These were: the use of conspiracy counts; the use of such witnesses as Crouch and Johnson; the use of such “silly” testimony as that given by them; the Government’s knowing use of witnesses whose testimony was contrary to that previously given; the Government’s propaganda intended to give juries hysteria. Nowhere is there any “shocking and horrible” thing charged to the judge — the specific acts recounted are charged to the Government; to its means of prosecution, and to the Smith Act itself. No witness testified that in this connection, or at any place in the speech, was there any mention made of Judge Wiig.
The Hawaii court wholly failed to consider the context in which the “shocking and horrible” words were used. Its opinion lumps these words with other supposed quotations from the speech, wholly without any attempt to analyze the phrase as the opening of a 30 minute speech. As quoted by the court, appellant said “that a fair trial was impossible.” On such truncated quotation it is sought to show that this was a remark limited to the Fujimoto case alone, rather than addressed to Smith Act trials generally, as appellant testified. The notes, read in their entirety, as well as the other testimony, fully disclose that she was discussing all Smith Act cases.
The notes show she said: “There’s no such thing as a fair trial in a Smith Act *218case.” After contrasting the exclusion of hearsay in the Palakiko case with the use of Crouch’s testimony about what happened 27 years ago, she continued “There’s no fair trial in the case. They just make up the rules as they go along.” That by this she was still referring to all Smith Act cases is apparent, for she proceeded immediately to illustrate this by describing how this was done in the New York Smith Act case in 1949, with her reference to “everything including the kitchen sink.” These were not different speeches — all occurred in the same 30 minutes. No part may fairly be read out of context.
John D. Morse, a witness called by the prosecutors, who was Industrial Relations Director of Honokaa Sugar Company, testified as follows: “Q. Mr. Morse, do you remember Mrs. Bouslog making any statement as to whether there was such a thing or not as a fair trial in the Smith Act case? A. I remember her saying there was not such a thing as a fair trial in a Smith Act case. Q. And do you remember whether she referred to the conduct and manner in which it was being handled? A. Well, it tied in, I figured it, tied in with any Smith Act case, whether in Honolulu, New York, or whatever it was; that is the impression I got from what she said.”
The next mistake in the Hawaii court’s statement is its recital that she said “that all of the rules of evidence were being scra/pped so the government could make its case.” (Emphasis mine.) So worded it seems to refer exclusively to what was presently going on in Honolulu. But the notes have her saying, immediately following a reference to any Smith Act case: “All rules of evidence have to be scrapped or the government can’t make a case.” (Emphasis mine.)
This remark, too, when read in context, clearly was not directed against the judge. As the notes show, it was immediately followed by her illustration of the distinction between other trials and conspiracy trials by reference to the Pala-kiko habeas corpus case where hearsay was excluded contrasted with the present conspiracy trial where “they permit a witness to tell what was said when a defendant was five years old.” This is the same idea she expressed in her reference to the New York trial. A large part of the talk was devoted to her claim of the excessive breadth of conspiracy trial evidence. As appellant explained to Judge Wiig, this remark about rules of evidence having to be scrapped, referred to the use of declarations of third persons in conspiracy cases. There is no proof whatever that it was used otherwise. And the prosecution witness Ferreira testified: “Q. Just tell the Committee to the best of your recollection what Mrs. Bouslog said. A. She started off telling us about the Smith Act trial; that there was no fair trial in the Smith Act case; that the government — I mean, they made up their rules as they went along in Smith Act trial, and she compared the Majors-Palakiko case with the Smith Act trial, and she also stated that in the Smith Act trial they tried you on a conspiracy, and ‘conspiracy’ was explained to us, not the exact wording, but was something that they tried you for, for your thoughts; in other words, something that some people think, or you might think of, or this person might think of doing some day, but never actually did, but that is how she explained it on this conspiracy.”
The final statement listed in the Hawaii court’s opinion is that referring to-“stopping the Smith trial in its tracks.” Taking it as it appears in the notes, and disregarding a slight inaccuracy in the court’s version, she said: “Unless we stop the Smith trial in its tracks here there will be a new crime. People will be charged with knowing what is included in books. Ideas.” Just what this statement, so recorded by the reporter, meant, is not explained by any proof offered by the prosecutor. The one thing clear about it is that it could have no reference to Judge Wiig. On the face of these exact words I would think stopping the Smith trial in its tracks would mean getting a verdict of acquittal. Or it *219might mean what actually happened to the case. See Fujimoto v. United States, 9 Cir., 1958, 251 F.2d 342. Appellant herself gave an explanation. Denying these were the exact words, she said: “I did state in substance something that is reminiscent of that. I said that the Smith Act' — continued prosecutions un- or the Smith Act can lead to a new crime of reading and thought control, and I quoted, as I told Judge Wiig — I quoted the exact language of the prosecutor in the Smith Act trial in Los An-geles, where he had said that all the defendants did was ask people to read, read, read, and they never told people not to read anything. And I said that I felt that the Smith Act would be repealed as soon as people understood what the Smith Act was.”
No other witness testified as to this statement. But the reporter’s notes tend to confirm her explanation for they show the remark was followed by the reference to reading made in the Los Angeles trial. The confirmatory value of those notes is particularly striking since just two days after the speech, and nearly a week before the notes were typed, and when appellant could not have known what was in them, she gave precisely the same ex-Dlanation to Judfifo "Wiit? "Whothor her explanation that she was advocating repeal of the Smith Act be accepted or not, there is no proof whatever that it had any more serious import.
As a final step in analyzing the evi-dencc I allude to a statement which is not listed in the complaint or the opinion, but which appellee seems to think tends to show appellant was directing her talk against Judge Wiig. This is the statement “They just make up the rules as they go along,” The use of the pronoun “they” is clear enough. It is in the reporter’s notes. All the witnesses who referred to this statement said “they”, or “the Government” in connection with the phrase. That this “they” referred to the Government is clear from the whole context. Previous to this phrase, the notes show appellant was throughout talking of the Government. The Government “when it hasn’t got enough evidence it lumps a number together”; “the government does not say advocated overthrow but says they agreed to”; “the governrnent goes on with testimony for two weeks on what crouch did”; “the proseeution says crouch did this and that”; Government propaganda has been going on “the government says there was an agreement to violate smith act”; as to witnesses telling conflicting stories, “the government knows this but deliberately goes ahead”; “witnesses testify what government tells them to”; “then the government for two days reads from book ; the government has carried on a barrage of propaganda”; “the government gets away with it by making people ^ear • _ When all this is followed by They just make up the rules as they go along ’, it is absurd to say that appellant was now including the judge in the they . Appellee argues that as a matter course it is the judge who makes rules- The trouble with this is that the evidence does not show she made any such statement. And its improbability appears from the fact that when the speech was made Judge Wiig was still reserving ruling on much of the evidence. All significant rulings were made by Judge Wiig late in the case and long after j^e speech.9a
A proceeding of this kind cannot be founded upon such dubious evidence;— a judgment of disbarment or suspension10 cannot be supported by that kind of proof. The power to order disbarment “is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of mis*220conduct, which affect the standing and character of the party as an attorney.” Ex parte Wall, 107 U.S. 265, 288, 2 S.Ct. 569, 589, 27 L.Ed. 552. See accord, In re Spicer, 6 Cir., 126 F.2d 288, 289. “It is settled that charges of unprofessional conduct on the part of an attorney should be sustained by convincing proof and to a reasonable certainty and that any reasonable doubts should be resolved in favor of the accused.” Brawner v. State Bar of California, 48 Cal.2d 814, 313 P.2d 1, 3. This requirement of clear proof is insisted upon by the courts generally.11
In my view there can be no other conelusion here than that the appellant’s speech was an attack upon the Government’s method of procedure in Smith Act cases including the one then on trial at TT , , , i. , ,, c Honolulu; and an attack upon the Smith Apt o-pnpr'illv.12
Upon these facts it is impossible to avoid the conclusion that what appellant had to say did not overstep the limits of that freedom of speech guaranteed by the First Amendment. As I shall hereafter demonstrate, her right to discuss and criticize the mode of prosecution of Smith Act cases extended not only to cases previously tried, but to the pending ease as well. That the Honolulu case was still pending made no difference whatever, as Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, and the cases which followed it, discussed hereafter, abundantly show.
Why appellant chose to make such a speech to that audience and at such a time and place is difficult to comprehend, It seems probable that few, if any, of her audience had any understanding of what she was saying, and it cannot be believed that she thought any one present could do anything about repealing the Smith Act. I assume that the Union, under whose auspices the meeting was held, was being urged to help in the defense. Its Regional Director, Hall, was one of the defendants. A report to the union on the progress of the trial, which had just begun, would of course be in order; and a simple appeal for funds should serve to secure financial aid, if that were her purpose. But this particular speech, which, in view of the temper of the times was bound to cause her trouble, must have been undertaken, I think, primarily as a means of expression a bitter resentment at what she thought were monstrous injustices.
_ . , ,. _ „ , . , But whether I can find reason for that , , speech, and my own disagreement with it are wholly irrelevant. In the words of judge Pound: “Although the defendant may be worst of men * * * the rights of the best of men are secure only as the rights of the viIest and most ab_ horrent aw nrntectert.”13 That is unreasonable, exaggerated, and offensive, does not deny it freedom. Speaking for the Court in Cantwell v. state of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, where the words of the defendant were especially outrageous, Mr. Justice Roberts said: “in the realm of religious faith, and jn that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and *221even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.”14
Freedom of speech is not absolute. It may be limited where the facts show a . „ ... T, , , elear and present danger.15 But most % , „ , , , assuredly freedom of speech does not „ , « , ,, . . , mean freedom of speech that is true, or . ,, T, . , „ sound, or reasonable. It means freedom „ , . , , ,, of speech, period. Freedom means noth- „ , « ,, „ mg unless it includes freedom for those . , . , we hate.16 Freedom of speech is only a ... . ., „ delusion unless it means freedom tor others to express what we detest. Though a speech “stirred people to anger, invited public dispute, or brought about a condition of unrest,” punishment for making it violates the First Amendment. Terminiello v. City of Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 896, 93 L.Ed. 1131. “For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a iiberty-loving society, will allow.” Bridges v. State of California, supra, 314 U.S. at page 263, 62 S.Ct. at page 194. In its broad scope it draws no line, it does not exclude lawyers, or even lawyers who represent the ILWU or persons claimed to be Communists.
T ,, , . ,, , In thus making an attack upon the De- , , „ T . r „,, „ , „ partment of Justice,— the Government „ ■ — tor the manner m which it was prose- ,. cutmg Smith Act cases, appellant listed ., „ ... . , many items of grievance. She criticized „ ,, . , , . ,, the use ot the conspiracy technique;17 * , she criticized the use of agents of I B1 .. , » , T , generally, and of Crouch and Johnson m .. / . .... , „ . „ Particular; she criticized the use of the Government s barrage of propaganda , charged the ^1 with pressuring Sears Roebuck to_ fire a man because be world n°t testify against one of the defendants. She charged that the prosen would “do anything and everyGiing necessary to convict”; that “witnesses testify what the Government tells them to”. She urged her audience to tell “what a vicious thing” the Smith Act is. *222“People are tried for books written years ago.”
As I read the newspaper reporter’s notes of the speech it seems to me that the prime subject of her speech was Crouch, and other Government witnesses, She alluded to her Honolulu Labor Day speech in which she had discussed professional witnesses, former Communists now paid by the Government. She did not otherwise identify Crouch.18 The fact that appellant’s principal complaints related to the use of Crouch and to his testimony, and similar testimony of other witnesses, sharpens up the point that there was no attack on Judge Wiig. The record in the Fujimoto case is here and is available to us. Latta v. Western Inv. Co., 9 Cir., 173 F.2d 99, 103; United States v. Pink, 315 U.S. 203, 216. Judge Wiig did not rule upon Crouch’s testimony until long after the speech, indeed, nearly three months later. Then, on March 10, the court ruled on motions to strike this and other testimony which had been received subject to motion to strike. (Some of Crouch’s testimony was then stricken along with that of some others.)19
One cannot fairly find in this speech any attack upon the integrity of the judge. Proof of any such thing is completely wanting. There is not a scintilla of evidence to that effect,' — far less the “clear and convincing evidence” which such a case requires.
When it is recognized that there was no attack on the integrity of the judge, the whole case collapses. Stripped down to its actual facts the judgment of the Hawaii court means no more and no less than that for such an attack on the Department of Justice, an attorney may be disciplined by suspension from practice, True, the court below never got down to stating the proposition in those simple terms. Its faulty findings were masked with generalities like “attack upon the administration of justice”, and “disrespect for the courts.” Surely no one argues that a lawyer may be disbarred f°r an attack upon the Department of Justice.
The freedom of speech of the First Amendment is a peculiarly American concept. Historians have shown,20 and the Supreme Court has held that this amendment was not, like some other provisions of the Bill of Rights, a mere adoption of rules deeply rooted in English common law at the time of the Constitution. “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the People of Great Britain had ever enjoyed.” Bridges v. State of California, supra, 314 U.S. at page 265, 62 S.Ct. at page 194.21
And this amendment is not only first in number but first in importance of *223those ten amendments. Cut off freedom of speech, or of the press, and you stop the very lifeblood of a democracy which may live and function only if knowledge and opportunity for discussion are available to all. As Madison said: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”22 In United States v. C.I.O., 335 U.S. 106, 129, 144, 68 S.Ct. 1349, 1368, 92 L.Ed. 1849, Mr. Justice Rutledge, speaking for himself and three other justices concurring, said: “The most complete exercise of those [First Amendment] rights is essential to the full, fair and untrammeled operation of the electoral process. To the extent they are curtailed the electorate is deprived of information, knowledge and opinion vital to its function.”
Another reason why attacks on the freedom of an individual to speak must be struck down is the way in which the consequence of a single failure to respect that right may spread, like a mantle of fear, over the whole nation. Suspending one person like Harriet Bouslog Sawyer from the practice for one year is not merely the imposition of punishment on her. In upholding this judgment this court serves notice on all lawyers everywhere to hold their tongues, to watch their speech, lest some court hold criticism of a state or federal prosecutor’s procedures be ground for disbarment, The very thought that such a proceeding as this might be started would be enough to dry up criticism of government prosecutions no matter what abuses may exist. That is why this freedom is of the very essence of liberty. Let the courts tolerate one single instance of punishment for exercising freedom of speech, and all who heard of it, if they be men of caution, will instantly cease to be free, “When you put the hotheads in jail, these cooler people do not get arrested — they just keep quiet. And so we lose things they could tell us, which would be very advantageous for the future course of the nation. Once the prosecutions begin, then the hush-hush begins too. Discussion becomes one-sided and artificial, Questions that need to be threshed out do not get threshed out.” Chaffee, supra, loe. cit. 561.
Infringement of freedom of speech destroys thought itself. Instead of inquiring: — “Are these the facts?” “Do I be-Heve this?” we would be asking: “If I think this way, and say so, will I be considered ‘controversial’, or ‘disloyal’, or ‘subversive’? Will it cause me trouble?” In his recent Reith Lectures at Oxford University George Kennaii noted the Russians’ “systematic abuse of the human intellect”; “the fact is that the Soviet leaders are the first and leading victims of the abuses they have practiced so long on the freedom of the mind.”
The contention here is that appellant cannot claim to be in the position of an ordinary critic of the Department of Justice, for in attacking what went on in Judge Wiig’s court she necessarily in-eluded the judge for he must have permitted it. Evidence criticized, it is said, was necessarily that which the judge admitted. Furthermore^ goes the argument, appellant was violently attacking proceedings in a case in which she was counsel. She was trying her case in a Public meeting, with a view to influenemg the outcome, and this, it is said, is a violation of a lawyer’s professional obligation. This position, I think, will not bear analysis.
in the first place, if we examine what appellant was really saying, it is clear that there was no charging of Judge Wiig with these things. To say she must have been blaming Judge Wiig for Crouch being a witness, or for his testi*224mony is not correct. Of course no one could think the judge selects the witnesses, or thinks up what they shall be asked. The use of the conspiracy form of indictment was, as anyone would know, something chargeable only to the prosecution. I have previously noted, supra, (text opposite note 19), that the important rulings on the admission of testimony came long after the date of this speech; — they certainly were not included in the condemnations of the talk.
But even if rulings admitting evidence, and other rulings on points of law had been the subject of appellant’s attack, nothing is more plain, I think, than that courts are properly subject to such criticism, and freedom of speech in that direction is wjthin the First Amendment protection. While Mr. Justice Frankfurter,^ in his opinion in Bridges v. State of California, 314 U.S. 252, 284, 62 S.Ct. 190, 204, was dissenting, yet it is clear the whole Court would approve his statement: Of course freedom of speech and of the press are essential to the enlightenment of a free people and in restraining those who wield power. Particularly should this freedom be employed in comment upon the work of courts who are without many influences ordinarily making for humor and humility, twin antidotes to the corrosion of power.” And he quoted in a footnote from a speech by Mr. Justice Brewer (314 U.S. at page 289, 62 S.Ct. at page 207): “It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgment subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo, True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still waters is stagnation and death.”
Suppose appellant had said: “They produce these witnesses like Crouch, and he testifies to what somebody said when Aileen Fujimoto was only four years old,” and then added: “and Judge Wiig lets them do it.” We must remember that the test of judicial or legislative power to restrict freedom of speech is the “clear and present danger” standard, The notion that even a direct reference to Judge Wiig, such as that in the sup-posititious statement I have just assumed, could be a clear and present danger to the fair administration of justice jn jU(jge Wiig’s court is manifestly absurd. Such restrictions on appellant’s right to speak as were imposed by this judgment are subject to the condemnatory language of the court in Bridges v. state of California, supra (314 U.S. at page 270, 62 S.Ct. at page 197): “If they can be justified at all, it must be jn terms of some serious substantive evil which they are designed to avert. The substantive evil here sought to be averted has been variously described below, it appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appi-aises the character of American public opinion. For it js a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions, And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect. * * * We must therefore turn to the particular utterances here in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely eonse-quence, and whether the degree of likelihood was sufficient to justify summary punishment.” Then, after discussing the language used in the statements there involved, the Court concluded (314 U.S. at page 278, 62 S.Ct. at page 201): “The words of Mr. Justice Holmes, spoken in *225reference to very different facts, seem entirely applicable here: T confess that I cannot find in all this or in the evidence in the case anything that would have affected a mind of reasonable fortitude, and still less can I find there anything that obstructed the administration of justice in any sense that I possibly can give to those words.’ ”
The same test was applied in Pennekamp v. State of Florida, 328 U.S. 331, 348, 66 S.Ct. 1029, 90 L.Ed. 1295 and Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546. In the latter case, the Court, speaking of the Constitutional limits on the power of a court to punish for contempt, said: “This was strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one ‘who ventures to publish anything that tends to make him unpopular or to belittle him. * * * ’ The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kin-dies must constitute an imminent, not merely a likely threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. * * * But the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Conceivably a campaign could be so managed and so aimed at the sensibilities of a particular judge and the matter pending before him as to cross the forbidden line. But the episodes we have here do not fall in that category. Nor can we assume that the trial judge was not a man of fortitude.”
The significance of these three cases, (Bridges, Pennekamp, Harney) is that although they dealt with contempt proceedings, the basis of the decision in each ease was the constitutional limitation, The same absence of a clear and present danger which voided these contempt orders would make the Hawaii court’s judgment in this case a prohibited restriction on free speech even if the speech had expressly included the judge in the supposi-titious manner indicated. I take it no one will contend that conduct which could not validly be punished as contempt may nevertheless be disciplined by suspension from practice,
The three cases last mentioned also completely dispose of the suggestion that attack may not be made on proceedings in court in a pending case. The Supreme Court dealt with that question at length. Of course, the possibility of clear and present danger to the functioning of a court of justice from certain speech or publication could occur if they were directed to pending proceedings.23 But the ffcts of this case present no such situation. That a speech in a town of 1000 population,24 in the island most distant from Honolulu posed a clear and present danger to the administration of justice in Judge Wiig’s court, is inconceivable, There is neither finding nor argument to that effect made here,
As for the circumstance that appellant was counsel in that pending case, this is wholly irrelevant. If it were not for Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474, and if appellant were being proceeded against in the United States District Court for Hawaii for contempt of that court (she was not, and Cammer says she could not be), then her connection with that case might have meaning. But that it has no significance here even the Hawaii court seems to have recognized, for this circumstance is not even mentioned in its conclusion.25
Finally, what of the suggestion that while a newspaper or a layman may criticize prosecuting officers, and attack courts and judicial officers, yet the constitutional free speech protections do not extend to such actions by a lawyer? I do not here refer to utterances of a lawyer *226which (a) threaten the judge’s person or reputation,26 or (b) charge that the court or judge has knowingly misused its powers in a particular case,27 or (c), assert that the judge is corrupt or politically motivated.28 There is no such case here, as I have shown. Actually Judge Wiig was not even criticized, much less attacked.
But in respect to such criticism, as was here made, no suggestion has ever been made that a lawyer’s criticism is any less protected than when made by a layman or a newspaper. Indeed, everything that has been said authoritatively about the First Amendment is to the effect that the rights there granted are universal and all-covering. “For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.” Bridges v. State of California, supra, 314 U.S. at page 263, 62 S.Ct. at page 194.
,, , , , , I think it would be a sad day when a court held that a lawyer has any less right to criticize the Smith Act, or the use of conspiracy indictments, or of professional witnesses, or the results and decisions m the Yates and Dennis cases, than any other person. For the lawyer is, above all other persons, the one best equipped by training to discuss such controversial questions. To say they may be discussed by laymen, but not by lawyers is untenable.
Rather than saying that the right of a lawyer to criticize or attack current judicial procedures is less than that of a layman, there is reason for belief that the lawyer’s speaking out on such matters serves a public purpose. Court proceedings, especially criminal proceedings, have an impact on fundamental rights, It is essential that the people be informed on such rights. Lawyers are equipped to discuss them. They know, what Judge Learned Hand has said: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”29 Professor Thomas Reed Powell has been quoted as saying, Nine men in Washington cannot hold a nation to ideals which it is determined to betray.”30 I see no way in which it can be held that a President of a Bar Associati°n may discuss these things but person bolding appellant’s views may not.
This case bears a striking resemblance to the threatened disbarment in 1938 of one Edward Lamb, a Cleveland lawyer, said to have been a “labor lawyer”, While the case never came to trial and was not reported, the part taken in it by the then Solicitor General Robert H. Jackson can be found reflected in a later decision of the Supreme Court to which I shall hereafter allude — a decision of importance here. Lamb, during the trial of a cag6) and in the courtr0om, said directly tQ ^ judge; „We were hijacked through thig court alI day yesterday; and j wm teU yQU nQW j don>t intend to be hijacked all day today» The judge might havg punighed him for contempt. but did not do ga However; pr0Ceedings were b ht to disbar him. The Solici_ ^ General came to Lamb-g aid; as he concluded from the record Lamb did not degerve disbarment. Jackson was criti. cized for going on Lamb’s committee. He wrote a letter in reply to that criticism. When the letter was made public the disbarment was dropped. The letter precisely fits the situation here. Mr. Jackson noted that the court had an ade*227quate remedy for any contempt. “For some reason this remedy was abandoned.” Then followed the declaration of a rule which the author, as an Associate Justice, later wrote into an opinion: “Mere contempt of court has never been considered cause for disbarment.” Mr. Jackson proceeded: “Hot words, even to • i -i , n j • c-u-a judge, do not usually deprive one of his livelihood. If you are familiar with the history of the Bar, many instances of contempt without disbarment will occur to you. Elihu Root and Willard Bartlett were, with other bar leaders, adjudged to , . , , „ , , ,, be m contempt of court when they were defending William M. Tweed. No one suggested that either of them should be disbarred. Instead, one became a great leader of the American Bar, and the other became Chief Judge of the New York Court of Appeals.31 * * * In Lamb’s case, however, the Court allowed the time for appropriate remedies for Lamb’s contempt to pass, and the Bar Association then proposed disbarment, which would drive Lamb from his profession for life and deprive him of a livelihood. I know of no adequate explanation of this fierce and vindicative proposal except that Lamb is a labor lawyer.”
* * * * * *
„ _ , m/sest tkatenf® of La*f ?r°ceeds fro+m a to break doyn the judicial system. This, it seems to me, , _ _ . ’ ' shows a lack f understanding of the regemente of a judicial system. We can havf n+° worthy judicial SySt!m W6 prote^ the right oi advocates champion tne causf ,oi a^ pef on who be' comes involved m the machinery of the J aw‘
******
“I do not expect a breach of conduct which would be passed, generally, with a small fine or an apology to be made the excuse for depriving a labor lawyer of his right to practice his profession, or to deprive labor of a representative who has zeal in its cause, even if the zeal is sometimes misdirected.” The full text of the letter is in the margin.32
*228In this letter Mr. Jackson suggested that the reason for that proceeding was that Lamb was a labor lawyer. Appellant here was a labor lawyer.33 She was also a lawyer for alleged Communists, In alluding to that I do so only for the purpose of suggesting that this circumstance is the reason I feel we should examine the facts with the greatest of caution lest our detestation of Communism obscure our vision. I make no suggestion here similar to the strictures of Mr. Jackson. I feel sure that this proceeding was instituted in good faith.
But there is one advantage we today have over the prosecutors as they stood in December, 1952. For since that time all of us have learned much about Communism, and that it is a more deadly peril than we had thought. . Now we are learning that the way to fight Communism is not by aping its denial of liberty, or its suppression of freedom of speech, When this proceeding was started a generally held notion of our national peril was epitomized in the cry, “Who promoted Major Peress?” When we thought of Communist we thought only of the neigh*229bor next door whose ideas we did not like. But today we know that the real threat comes from a different direction and it is an open one: “We’ll bury you!” Free men cannot be buried, But if we insist on chipping away our heritage of liberty and freedom then indeed we shall be in danger of losing the decisive battle, — that for the minds and hearts of men. Mr. Justice Jackson put it well when he said: “I have not been one to discount the Communist evil. But my apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else.”34
The Affidavit Concerning the Juror
The second charge in the complaint relates to appellant’s alleged misconduct in interviewing the juror in the Fujimoto case after the verdict had been returned. After alluding to the fact that “it has not been uncommon, if not in fact common practice,” for attorneys to interrogate jurors after rendition of verdict by them, and adding that any one who “hereafter . . . interrogates one who has been ... a juror of a trial jury”, as to any occurrence in the jury room or as to what may have been persuasive in reaching the verdict “acts at his peril”, the court then concluded: “However, in the instant matter, this court will let its hereinbefore expressed disciplinary order — suspending the said respondent licensee from the practice of law in the territorial courts for one year and requiring her to pay costs — suffice, although also deeming gross misconduct her said repeated interviews with and interrogations of David Fuller.” (Emphasis mine) I think it is plain that the court below simply took no action on this charge. Judge Chambers said: “To us, this is a statement that the penalty for the two charges is imposed concurrently —the same penalty for both charges.” The court might have said that, but it did not.35
Even the majority concede that if the case were to be reversed on the first charge this second one would have to be referred back to the territorial court. It is my view that there is no justification for any such remand or for any order other than a flat reversal and dismissal of the whole proceeding.
, K ^ould bf hai’d.to find a more fo°Uf"haiJ° than tbl8 sf,cfd °ne relatlllg tb® afJdavlt * shal toucb uP°n that sbor«y> but first 1 make as to ^hether we may Lew actlon of the Hawau cou^ uP°a that second charge if we assume that jt took any'
A reading of the majority opinion indicates that the court has no doubt of its power to review such a decision for it proceeds to review it at length. I thoroughly agree that we have such power, Our jurisdiction arises under § 1293 of Title 28.36 Most of what I have said heretofore demonstrates that we have here a case of violation of the Constitution. The Court of Appeals for the First Circuit operates under the same jurisdictional statute. It has often held that in a case which presents a federal question, the whole proceeding is reviewable, and *230the court has jurisdiction to decide “whatever questions of local law may be presented regardless of amounts in controversy.” Riera v. Mercado Riera, 1 Cir., 152 F.2d 86, 92.37 Moreover, this is a case “where the value in controversy exceeds $5000 exclusive of interest and costs.” It is shown here, and the fact is not controverted, that one year of appellant’s practice has a value to her of more than $5000.38 That such facts give us jurisdiction was recognized by this court in Whittemore v. Farrington, 234 F.2d 221. That was a case in which jurisdiction depended upon the value in controversy. The court found such jurisdiction was lacking because the most it could discover by way of value was some $1600 which one Edmund Leavy would have lost in trustee’s fees. But in its footnote 7, (at page 225) it recognized the general principle applicable here: “For the general principle that the measure of the value in controversy, for purposes of testing the jurisdictional amount, in suits wherein the plaintiff seeks specific relief rather than damages, is the value of such relief to the plaintiff, see Hunt v. New York Cotton Exchange, 205 U.S. 322, 27 S.Ct. 529, 51 L.Ed. 821. In First State Bank v. Chicago, R. I. & P. R. Co., 8 Cir., 1933, 63 F.2d 585, 90 A.L.R. 544 the rule is applied to an action brought to abate other actions.”
The same principle is often applied in passing upon the jurisdiction of a United States district court where it is dependent upon amount in controversy. Thus in an injunction suit designed to protect a business or property the necessary amount in controversy may exist notwithstanding there may be no prayer for damages. See Hunt v. New York Cotton Exchange, 205 U.S. 322, 336, 27 S.Ct. 529, 51 L.Ed. 821; Bitterman v. Louisville & N. R. Co., 207 U.S. 205, 225, 28 S.Ct. 91, 52 L.Ed. 171; Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111. I see no possible excuse for saying that the right to practice law is a privilege which is priceless and beyond value and hence there cannot be a value in controversy. If disbarment is sustained, Mrs. Sawyer will lose more than $5000 and that is all there is to it.
Appellant cannot be disciplined in the Hawaii court for conduct in connection with a case in the federal court which federal law holds proper. This case bears no resemblance to In re Isserman, 9 N.J. 269, 87 A.2d 903. In that case, the conduct condemned, besides the rape conviction, was iniquitous no matter where carried on. Here the Supreme Court of Hawaii expressly recognized that interviewing jurors after verdict was common practice for lawyers in Hawaii. Yet if Judge Chambers is right, it proceeded to impose a suspension of practice on appellant for following that common practice, all because of its rule stated to be a guide for counsel “thereafter”. But Such an order reaches even greater heights of absurdity. It suspends for conduct in connection with a federal case which the federal courts have recognized to be proper.
An able discussion of the propriety of procuring post-verdict affidavits from members of a jury is that of Judge Learned Hand in Jorgensen v. York Ice Machinery Corp., 2 Cir., 160 F.2d 432, 435. That was a case in which the court considered at great length affidavits of jurors presented in support of motions for new trial disclosing the deliberations in the jury room while the case was under submission. The court held that whether a new trial should have been granted was a matter within the judge’s discretion, but the court assumed the propriety of procuring the testimony of the jurors as to what happened. Citing Mr. Wigmore’s work on Evidence, the court criticized, as does Mr. Wigmore, the oft-quoted statement that jurors may not *231“impeach their verdict.” The court cited McDonald v. Pless, 238 U.S. 264, 268, 35 S.Ct. 783, 785, 59 L.Ed. 1300, which discussed the propriety of the use of affidavits of jurors as to what happened in the jury room. That case stated: “Both of those decisions recognize that it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.’ ” Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917, furnishes an instance in which the court held that affidavits of jurors were properly used to show overt acts in the jury room which are accessible to the knowledge of all the jurors.39
Since jurors’ affidavits may thus be used on motions for new trial, a lawyer may of course interview the juror for the purpose of procuring the facts and the affidavits; otherwise they would be unobtainable. Of course it was the appellant here who made the affidavit. That affidavit is subject to the infirmity that it is hearsay. Even so, it would not be inappropriate to furnish such information to the judge; he might wish to pursue the inquiry himself. Cf. Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435. But the appellant is not charged with the offense of presenting hearsay. (If that were an offense the ranks of the legal profession would indeed be decimated.) The impropriety charged here is Mrs. Sawyer’s interview with the juror. Let it be conceded that if the juror Fuller had sworn to everything that was in appellant’s affidavit, his testimony would not have furnished any basis for a new trial. But this is the first time I have ever heard it suggested that an attorney may be suspended from practice for attempting to present evidence of doubtful relevance or competency. The court below is without power to discipline appellant for acts done in a case in a federal court which, under the decisions of the federal courts, she had a right to do.
Suppose appellant had done much worse things. Suppose she had even been guilty of contempt of the court, The rule established by In re Isserman, 345 U.S. 286, 290, 73 S.Ct. 676, 97 L.Ed. 1013, and 348 U.S. 1, 75 S.Ct. 6, 99 L.Ed. 3, is that a lawyer is not subject to suspension or disbarment in any court merely because he has been convicted of contempt.40
Under Title 28, § 2106, we may direct the entry of such appropriate judgment as miiy just under the circumstances. The only appropriate or just judgment here ls.one dismissing the proceedings.
As is elsewhere apparent, the fore-soing part of this opinion was written and circulated prior to the writing of JudSe BARNES’ concurring opinion, What I have said above sufficiently discloses why my view of the facts differs from that which he expresses. Assuming that the dissenter normally writes lasf> f have only one word to add:
I think Judge BARNES in, as it were, dissenting from my dissent, has misunderstood my version of the facts. It will be noted that I said: “In my view there can be no other conclusion here than that the appellant’s speech was an attack upon the Government’s method of procedure in Smith Act cases including the one then on trial at Honolulu; and an attack upon the Smith Act generally.” I did not say or suggest that appellant was not discussing the pending case. This is further plain from the fact that I treated at length, with reference to the Bridges, Pennekamp and Harney cases, the consequences of the appellant’s attack relating to a pending case. Essentially my point *232has been that the speech must be read in context, and the context was all Smith Act cases, including this one. I cannot agree that an attack on a pending case is by reason of that fact an attack on the judge who presides in it.
. The paragraph in full reads as follows: “Upon its finding and conclusion as stated, supra, this court deems that in saying what she did in her speech to a public gathering at Ilonokaa, Hawaii, on December 14, 1952, as aforesaid, when there was then pending in the United States District Court for the District of Hawaii a case under the Smith Act, to-wit, the case entitled ‘United States of America, Plaintiff, vs. Charles Kazuyuki Fujimoto, et als., Defendants,’ being criminal number 10,495 in said court, she engaged and participated in a wilful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein and in the said pending case, within the territorial boundaries of the Territory of Hawaii, and thus tended to also create disrespect for the courts of justice and judicial officers generally, contra to the obligations and duties assumed, as incident to the license, by her and by every person to whom a license has or shall have been issued by this court to practice in the courts of the Territory of Hawaii. She has thus committed what this court considers gross misconduct.”
. “But the prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say which the Congress, by the Act of 1867, provided it should not have.” Brown v. Allen, 344 U.S. 443, 500, 73 S.Ct. 397, 443, 97 L.Ed. 469.
. Cf. Prensa Insular de Puerto Rico v. People of Puerto Rico, 1 Cir., 189 F.2d 1019, 1021, which examines the history of the same jurisdictional Act.
. Such, for example, as Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293, 61 S.Ct. 552, 85 L.Ed. 836; and Fiske v. State of Kansas, 274 U.S. 380, 385, 47 S.Ct. 655, 71 L.Ed. 1108.
. The concurring opinion, rejecting the state court’s finding that petitioner was “a person of questionable character”, called it “so dogmatic an inference as to be wholly unwarranted.” 353 U.S. at page 251, 77 S.Ct. at page 762.
. Cf. also, Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, whero it was held conviction under an ordinance was a violation of due process in view of the fact, which the Supreme Court found, that petitioner had no knowledge of the requirements of the ordinance. Another recent case which shows the same approach where there was a claimed denial of the right of free speech, is Staub v. City of Baxley, 355 U.S. 313, 318, 78 S.Ct. 277, 280, 2 L.Ed.2d 302. The question was the sufficiency of the pleadings to present the point in the state court. It was asserted this was a question of local procedural law. The court held: “Whether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law and * * * the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under tbe name of local practice.”
. The original handwritten notes, taken at the meeting, had been given to the FBI *216by the reporter. They were not produced and the record shows no serious effort by the Bar Committee to obtain them.
. The Fujimoto record indicates this was not Manning Johnson but a Henry Johnson.
. See Palakiko v. Harper, 9 Cir., 209 P.2d 75.
. This I develop later. See text opposite footnote 19 infra.
. Appellant claims that in her caso suspension means the same as disbarment, since Rule 15(d) of the Territorial Supreme Court, adopted October 3, 1955, requires a lawyer once suspended to start all over, proving Ms worthy character, and passing a new bar examination Apart from that I see no difference, for the purposes of this ease, between a disbarment and a suspension.
. The cases are collected in 7 C.J.S. Attorney and Client § 33, pp. 784-785.
. So far as her attack on the Smith Act is concerned, it is of interest that she conld not have foreseen that if she would but hold her fire, she might have saved herself some trouble. Her timing was poor. The decision in the Tates case (Yates v. United States), 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, if we take the words of Judge Chambers for it, left that Act “a virtual shambles”. Fujimoto v. United States, 9 Cir., 1958, 251 F.2d 342. At any rate, her clients ^ free‘ ^0f $e, majority f t^.?onlJ wll° sat JudSe 0h“®-Íers dld not concar la,hls statement that Aet was, a Gambles. Nor would I. AU Tatf dld Tas. to show that the Act Punished only incitement to action, and not mere advocacy of doctrine.)
. People v. Gitlow, 234 N.Y. 132, 158, 136 N.E. 317, 327.
. In Near v. State of Minnesota, 283 U.S. 697, at page 718, 51 S.Ct. 625, at page 632, 75 L.Ed. 1357, Chief Justice Hughes made the same point by quoting from Madison. “Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It lias accordingly been decided by the practice of the States, that it is better to leave a few of its , , , . . . , noxious branches to their luxuriant , growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits. And can the wisdom of this policy be doubLed by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source the United States owe much of the lights which conducted them to the ranks of a free and independent nation, and which have improved their political system into a shape so auspicious to their happiness? Had ‘Sedition Acts’ forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day under the infirmities of a sickly Confedcration? Might they not, possibly, bo miserable colonies, groaning under a foreign yoke ?”
. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.
. Cf. Girouard v. United States, 328 U.S. 61, 68, 66 S.Ct. 826, 829, 90 L.Ed. 1084, quoting Mr. Justice Holmes in the Schwimmer case (United States v. Schwimmer, 279 U.S. 644, at pages 654-655, 49 S.Ct. 448, at page 451, 73 L.Ed. 889). “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
. A classic discussion of that subject is that of Mr. Justice Jackson in Krulewitch v. United States, 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790.
. He was the Paul Crouch, who with Manning Johnson and Matusow, were described in Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, as “three perjurious witnesses.”
. , ,, ^ ~ The record there shows that the Government’s case was built largely around Crouch ana his testimony. He was the i , t-t j., . , lead-ofc witness. He was on the stand a tvt , tvt , from November 12 through November 24, , , . , , ’ and his testimony covers 962 pages. As ^ .. i - * ■ ^ ± i the Government briefs m that case show the case was based upon the theory of Marxism-Leninism. The briefs em- , . , _ , , , . pliasize the importance attached to proof of that theory by the prosecution. Crouch was the witness on whom they depended for this proof. He testified as an expert on the Communist Revolution and the theory of the Communist Conspiracy, the Comintern, the Red Army, and Red Army materials. According to the witness he himself was on an executive committee of the Communist International to draw up a plan for infiltration of the armies of the capitalist countries. The witness testified he arrived ^ th0 govi0t Uni(m ^ 1927 He _ „ ((ri , , was asked: "Q. And while you were . in Kussia, what did you do and did you _ , „ «„ , meet any person?” When this was ob- . , ^ _ . ,, jected to, upon Government counsel’s statement that he would later “tie the tegtim0ny in” the witness was allowed . , .. . , to proceed subject to motions to strike,
. Zechariah Chaffee, Jr., “Free Speech in the United States”, Chap. 1.
The Court quoted (314 U.S. at page 264, 62 S.Ct. at page 194) Madison’s *223statement that “The state of the press * * * under the common law, cannot * * * be the standard of its freedom in the United States.”
. Letter to W. T. Barry, August 4, 1822.
. The language above quoted from Craig v. Harney, supra, is that “conceivably” in a matter pending, a campaign could “cross the forbidden line.”
. Hammond’s World Atlas, 1955 ed., gives Honokaa’s population as 1021.
. This is the conclusion quoted in footnote 1, supra.
. Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646.
. Duke v. Committee on Grievances 65 App.D.C. 284, 82 F.2d 890.
. Cobb v. United States, 9 Cir., 172 F. 641.
. Hand, “The Spirit of Liberty.”
“Tti this connection we must remember that the strength of the Constitution is not in the written instrument, nor in the laws enacted to carry it into effect, nor even in the judiciary which interprets and enforces the laws, but in the minds and hearts of the people.” Judge John J. Parker, American Bar Association Journal, Jan. 1958.
. See Chaffee, Free Speech in the United States, Chap. X.
. These matters were described somewhat more in detail in Mr. Justice Jackson’s opinion for four of the members of the Court in In re Isserman, 345 U.S. 286, 290, 293, 73 S.Ct. 676, 97 L.Ed. 1013. The four judges were the majority who set aside the disbarment order at 348 U.S. 1, 75 S.Ct. 6, 99 L.Ed. 3.
. " June 7, 1938.
“Mr William R Dalev
Cuvahova Building
Cleveland Ohio
“Dear Sir * '
iiT , , .. ..... - •‘I have your letter criticizing me for - . authorizing the use of my name m connection with the protest against the disbarment proceedings involving Edward Lamb. I usually ignore criticism, on the theory that friends require no explanation, enemies will accept none, and others do not care. Since your criticism has been so painstaking as to lead you to read the record in the case, I shall depart from my usual rule.
“The language of Lamb to the effect that he had been hijacked and did not intend to be hijacked again is not approved or defended by the committee of which I am a member, as you would see if you had read its statement. Neither do we assume to sit in judgment on the conduct or rulings of the court.
“The court had an adequate remedy for any contempt. If I were presiding and was not conscious of having provoked such language, I should hold a counsellor in contempt and fine him appropriately and commit him until it was paid, This would be proportioned to the offense, would be an adequate humiliation to any lawyer, and would vindicate the dignity of the court. For some reason tllis remedy was abandoned. Timely and fairly USed’ ii; W01lld liave been 110 affair *awyers generally, even if the penalty might seem to them excessive or the of- . tense excusable,
íf,, „ . M(ire C(f1te“pt of court bas neyer be(f confdered cimae for disbarment. Hot . even to, f. do3 nat usually depnTe one f 118 ^ehhood. If yon are faimhar W1Ü1 tbe blstory oi ,tbe -T17 °f 00ntemp1: Put tobwmant will occur to you. Elihu E°ot and, ™rd Bartlett were, with other bar leaders adjudged to be m contempt of court when they were defending William M. Tweed. No one suggested that either of them should be disbarred, Instead, one became a great leader of the American Bar, and the other became Chief Judge of the New York Court of Appeals. Recently in the District of Columbia a lawyer was found guilty of contempt and' punished, and immediately *228tliereafter was elected to high office in the American Bar Association. Not long ago a leader of the New York Bar was adjudged in a Federal Court to have been ‘studiously contemptuous’ even characterizing parts of the court’s charge as a ‘stump speech.' He paid his fine and no one suggested that disbarment be inflicted or even considered. A government lawyer was fined for contempt in the same case — nor was he deprived of office or of standing at the Bar. Many other instances could be cited.
“In Lamb’s case, however, the Court allowed the time for appropriate remedies for Lamb’s contempt to pass, and the Bar Association then proposed disbarment, which would drive Lamb from his profession for life and deprive him of a livelihood. I know of no adequate explanation of this fierce and vindicative proposal except that Lamb is a labor lawyer. That offensive and habitual activity on behalf of labor is the cause of his prosecution is affirmed by examination of the petition for disbarment with its allusion to ‘class hatreds,’ and is further confirmed by the reference in your letter to ‘corporation baiters.’
“This raises an issue wider than the relative proprieties of the lawyer and the judge. I take it that you will grant that in the economic struggle labor is entitled to have its lawyers. If from habitual representation of labor causes they become known as ‘corporation bait-ers,’ I know of no reason why they, any more than their counterparts who become exclusively ‘corporation lawyers’ should be disbarred. I do not think of any specialty in law practice, but I grant the right, and will defend the right, of a lawyer to devote himself to labor representation as his specialty, if he desires.
“You suggest that the defense of Lamb proceeds from a desire to break down the judicial system. This, it seems to me, shows a lack of understanding of the requirements of a judicial system. We can have no worthy judicial system unless we protect the right of advocates to champion the cause of any person who becomes involved in the machinery of the law. I know of no group today that needs competent lawyers to defend it in the courts more than labor. May I remind you that of eleven Labor Relations Board eases on which the Supreme Court has passed, seven of them — more than two-thirds of them — the Supreme Court held to have been unlawfuly and improperly decided against labor by the lower court judges. The burden of a labor lawyer in our courts is not easy,
“My position on the committee is that I shall defend the right of any mem-her of our profession to appear habitually, if he desires, in labor causes, and the right of a man at the bar to become a ‘labor lawyer’ as well as to be a ‘corporation lawyer.’ I expect him to pay such penalty as would be exacted from the lawyers on the other side if they were guilty of similar conduct. I do not expect a breach of conduct which would be passed, generally, with a small fine or an apology to be made the excuse for depriving a labor lawyer of his right to practice his profession, or to deprive labor of a representative who has zeal in its cause, even if the zeal is sometimes misdirected.
«I, with the others, will leave no stone unturned to see that this effort does not succeed and to focus public opinion on the effiort if it is persiste(j in.
“Sincerely yours “■Rnhoi-r tt ToUmr, ”
„. . , . , Advocate = Robert H. Jackson ’ by Eugene Gerhart, p. 152.
. See Ackerman v. International Longshoremen’s & Warehousemen’s Union, 9 Cir., 187 F.2d 860.
. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 227, 73 S.Ct. 625, 637, 97 L.Ed. 956 (dissenting opinion).
. Convincing proof that the Hawaii court did not think it was passing on the second charge is the fact that Chief Justice Towse signed the opinion. It was his view that his court could not entertain this charge, and that it should be dismissed “as an interference with the administration of justice in the United States District Court for the District of Hawaii and a possible usurpation of the power thereof.”
. “1293. Final decisions of Puerto Rico and Hawaii Supremo Courts.
“The courts of appeals for the First and Niutl1, C5rcuits Í*51 hfVB .^«diction of appeals from 315 declslons of the ¡supreme courts of Puerto Rico and Ha-wan, respectively m all cases involving the Co^titution, laws or treaties of the Umted States or any authonty exercised there-™dc.r’ “ all habeas corpus proceedings, and in all other civil cases where the value m controversy exceeds $5,000, exclusive of mterest 311,5 costs”
. “We are not prepared to say that all of these federal questions are colorable and frivolous. Thus regardless of how we decide them, we have jurisdiction under § 128 of the Judicial Code, supra, not only to consider them but also to go further and decide whatever questions of local law may be presented regardless of amount in controversy.”
. This proof was made by affidavit in accordance with Title 28, § 2108. See De La Torre v. National City Bank of New York, 1 Cir., 110 F.2d 381, 384, approving this procedure.
. The whole subject of the use of such affidavits by jurors is treated at length by Wigmore, 3d Ed., Vol. 8, §§ 2352, 2354.
. ■, , ,, . . “We do not recall any previous in-A , , . . , . stance, though not venturing to assert ^ ^ ’ . , , , that there is none, where a lawyer has been disbarred by any court of the United States or of a state merely because he had been convicted of a contempt.” 345 U.S. 292, 73 S.Ct. 679. This is the opinion of the four Justices who were * ... . 0,0 Tt a 1 mr 0 ri* c the majority at 348 U.S. 1, 75 S.Ct. 6. _ . . ' OA See footnote 34, supra,