Harriet Bouslog Sawyer became a member of the Territorial Bar of Hawaii in 1941. Since then, except for four World War II years when she was in Washington, D. C., she has been engaged in the active practice of law at Honolulu. A large part of her work has been in the courtroom. Prior to 1941 she had been admitted to practice in Indiana and Massachusetts.

On August 29, 1951, a federal indictment was returned in Honolulu against Charles Kazuyuki Fujimoto and Jack Wayne Hall and five other residents of the Hawaiian Islands charging them jointly with violations of the Smith Act, 18 U.S.C.A. § 2385. On Labor Day five days later on the Island of Kauai she was pleading the cause of the defendants before a Labor Day audience, castigating Smith Act cases in general and this case in particular. That speech resulted in no charges against her and the date she commenced representation of defendants in the case is not clear.

The Honolulu Smith Act case went to trial on November 5, 1952. Eventually the trial was concluded and a jury verdict was returned on June 19, 1953, finding the defendants guilty.2 It is definite that throughout the extended trial she was representing one or more defendants. Sometimes she missed sessions; if so, she was busy on legal research incident to the case.

On Sunday, December 14, 1952, during the period of the trial, she went to the town of Honokaa on the Island of Hawaii3 and with the defendant Hall addressed a public meeting primarily attended by members of the International Longshoremen's and Warehousemen's Union. Some segment or segments of that union were financing in whole or in part the defense of the seven. The exact purpose of the meeting does not seem to be clear. Hall and Mrs. Sawyer were apparently the main speakers, although there were others. Based on their own subsequent testimony, it would be fair to characterize the gathering as some kind of an old fashioned "indignation meeting." The speeches of the two resulted in publicity throughout the Islands. The newspaper stories caused the trial judge, Honorable Jon Wiig, to suspend temporarily the trial and question Mrs. Sawyer in open court about her speech at Honokaa. When the colloquy was done, Judge Wiig announced he was not satisfied with her explanation and he instructed the U. S. Attorney for the District of Hawaii to make an investigation.4 (Mrs. Sawyer's explanation and colloquy with the court is set forth as Appendix C.) No proceedings in the district court were ever brought.

Within a day or so after the verdict, a juror, David P. Fuller, Jr., suffered a nervous breakdown and generally became most incompetent. The case was "on his mind;" how much is disputed as is his rationality at the times of various conversations. Visits from Mrs. Sawyer and from Mrs. Sawyer and Hall to Fuller followed. A sister-in-law, Mrs. Ellen Fuller Cabreros, was present as well as Mrs. Fuller and one or more of the Fuller children. As a consequence of these visits and in support of the motion for a new trial Mrs. Fuller, Mrs. Cabreros and Hall all made affidavits as to statements made to them by Fuller,5 the effect of which, if admissible, would be to prove by Fuller's statements to Mrs. Sawyer and Hall what went on in the jury room in the secret deliberations. The purpose was to impeach the verdict. Parenthetically, such affidavits ought to have been stricken from the file of the Smith Act case. (They were merely not considered.) It is hard to believe that counsel did not know of their inadmissibility.

After the close of the trial Judge Wiig orally requested the Hawaii Bar Association, through its president, to look into Mrs. Sawyer's professional conduct during the trial.

This resulted in the association filing on July 8, 1954,6 with the Supreme Court of Hawaii one complaint with the two charges of misconduct in it against Mrs. Sawyer. One charge dealt with the Honokaa speech; the other with the manner of presentation and preparation (the surrounding conduct) of the affidavits. The second charge did not assert falsity, per se, of the affidavits.

"Complaint Under Rule 19

"To the Honorable, the Justices of the Supreme Court of the territory of Hawaii:

"Comes now the Bar Association of Hawaii, an unincorporated association, and on information and belief complains to this Honorable Court under Rule 19 of the Rules hereof as follows:

"That Harriet Bouslog Sawyer, hereinafter referred to as the Licensee, is and at all times hereinafter mentioned continuously has been an attorney-at-law duly licensed and admitted to practice before all of the courts of the Territory of Hawaii and before the United States District Court for the District of Hawaii, and that the said Licensee is now and during all of said times herein mentioned has been a practitioner before said courts.

"That the said Licensee, while appearing as counsel of record for certain defendants in that certain case in the United States District Court for the District of Hawaii entitled `United States of America, Plaintiff, vs. Charles Kazuyuki Fujimoto, et al., Defendants,' being Criminal Number 10495 in said Court, during the course of the trial of said case, to wit, on or about December 14, 1952, did say during a speech to a public gathering in Honokaa, Hawaii, that horrible and shocking things were going on at said trial; that a fair trial was impossible; that all of the rules of evidence were being scrapped so the government could make its case; that the rules of evidence and procedure were made up as the case proceeded; and that unless the trial was stopped in its tracks certain new crimes would be created.

"That said Licensee did during the course of said trial and shortly after rendition of a verdict therein visit a juror who was known by her to be indisposed, and thereafter submitted her affidavit concerning an interview with said juror to the presiding judge under circumstances indicating a failure to comply with standards of professional conduct required of practitioners of law licensed to practice before this Court.

"Wherefore, the Bar Association of Hawaii prays this Court to refer this complaint to the Committee on Legal Ethics and Unauthorized Practice of this Court for investigation in conformity with Rule 19 of the Rules of this Court.

"Dated: Honolulu, Hawaii, July 8, 1954.

   "Respectfully submitted,
        "Bar Association of Hawaii
   "By /s/ Masaji Marumoto,
           "Its President.

"[Endorsed]: Filed July 8, 1954.

"[Title of Supreme Court and Cause.]"

The Supreme Court of the Territory of Hawaii referred the complaint to its Legal Ethics Committee for investigation. Before holding a hearing the committee required the Bar Association of Hawaii to furnish a bill of particulars on the second charge. On September 29, 1954, the bill was filed as follows:

"Bill of Particulars

"Pursuant to an Order entered on September 21, 1954, by the Legal Ethics Committee, the following Bill of Particulars is hereby furnished:

"1. Copy of the affidavit of Harriet Bouslog, subscribed and sworn to before a notary public on the first day of July, 1953, signed by the Licensee Harriet Bouslog and filed in the United States District Court for the District of Hawaii on July 1, 1953, in the case of United States of America, Plaintiff, vs. Charles Kazuyuki Fujimoto, et al., Defendants, Criminal No. 10,495.

"`Affidavit of Harriet Bouslog

"`Territory of Hawaii,

"`City and County of Honolulu-ss.

"`I, Harriet Bouslog, being first duly sworn, on oath depose and say:

"`On Friday evening, June 26, 1953, shortly before 6:00 o'clock I received a telephone call at my home from Ellen Fuller Cabreros, sister of David P. Fuller who sat as a juror in the case of United States v. Fujimoto, et al. Mrs. Cabreros asked me if I could come and see her brother; that he was seriously ill.

"`I went to the Fuller home at 1734 Colburn Street and was taken by Mrs. Cabreros and Mrs. Fuller, into the front bedroom where Mr. Fuller was lying in bed. He appeared to be gravely ill.

"`I talked with his wife, Helen Fuller, in the living room of their home in the presence of Ellen Fuller Cabreros and her friend, Grace Oshiro, and two of the Fuller children. All the members of the family present were upset and in tears at the state of Mr. Fuller. Mrs. Fuller stated that she had called a doctor to examine her husband and informed me that her husband had been ill since the return of the verdict, and particularly since early in the morning of Saturday, June 20, 1953, the morning after the verdict was returned.

"`Mrs. Fuller said that on Saturday morning, the day immediately following the verdict of guilty in the Smith Act case, at about five o'clock in the morning, she found her husband on his knees praying, begging God for mercy, saying he had sinned, that he had lied in the eyes of God; that Jack Hall was innocent and the case was a frame-up; that Jack Hall is a good man; that those people are doing good for humanity and here someone is trying to block them. She said that in the time since, her husband had told her that the jury only looked at the Government's case and scarcely talked at all about the defendant's side and their case; that he asked her and the children to forgive him because he had done something wrong and it was too late; he said that one of the jurors said the defendants were innocent, and when the other jurors said, "Guilty, guilty," that juror threw a book across the room and said they just as well forget about it. Mrs. Fuller said that her husband had wanted to go see the Judge and confess that he had lied, and once or twice tried to leave the house but was too upset mentally and physically and unable to leave the house by himself; that he fell and struck his head. She said that she and other members of her family urged him not to do anything, not to go to see the Judge and to forget about it, that he would only get himself in trouble and would get them in trouble, and that he might go to jail.

"`Mrs. Fuller said that when he tried to leave and was unable to, she and other members of the family put him back in bed and tried to keep him quiet; that he kept shouting and crying and praying saying that the case was a frame-up, that he had done wrong, and told the children and her to stay away from him because he was not clean. She said that his condition seemed to get worse and worse as the days went by until on Friday, June 26, 1953, all day he was in bed and did not move or get up at all, and his voice became scarcely a whisper because he was hoarse from the shouting on previous days.

"`After the conversation with Mrs. Fuller, I went in the bedroom where Mr. Fuller was and asked him if he wished a drink of water. He nodded that he did. During this time, Mrs. Fuller, his sister and her friend were present in the room. Mr. Fuller struggled to talk and make himself heard but because of his weakened physical condition and the loss of his voice, it was difficult to understand what he said. He stated understandably, however, that he wanted help and wanted to get a clear conscience and get the wrong he had done straightened out.

"`Shortly after my arrival, a Doctor Chang arrived. I was not present in the bedroom during the conversation between Dr. Chang and Mrs. Fuller, although I could hear the conversation between Dr. Chang and Mrs. Fuller from the living room. After Dr. Chang had talked to Mrs. Fuller, Mrs. Fuller told me that the doctor said after examining her husband that there was nothing physically wrong with him, that he would have to rest in bed, and that it might be necessary to take him to a hospital unless he would get up to go to the bathroom.

"`After the doctor had left, in the presence of Mrs. Fuller, Mrs. Cabreros and her friend, Grace Oshiro, and Mrs. Fuller's eldest daughter, I gave Mr. Fuller water and he was propped up in bed. Again he tried to talk but seemed to find difficulty in doing so. He said he wanted to talk about the matter and would talk to Jack Hall or anyone at any time to get a clear conscience.

"`Shortly after this I left, believing Mr. Fuller needed rest. I made arrangements with Mrs. Fuller and Mr. Fuller to come to see him the next day with Jack Hall.

"`On Saturday morning I was informed by Mrs. Cabreros that her brother was feeling considerably better and wanted to and would be able to see us.

"`When Mr. Hall and I arrived at the Fuller home about 1:00 o'clock Saturday afternoon, June 27, Mr. Hall put out his hand to Mr. Fuller, Mr. Fuller looked at Mr. Hall for a long time and finally took his hand. Mr. Hall told Mr. Fuller he did not hold anything against him; that he just wanted Mr. Fuller to get well.

"`Mr. Fuller said to Mr. Hall that from the talk of guilty by other jurors in the jury room, he believed he had to vote guilty to protect his brothers because he was afraid they would be fired if he did not. Mrs. Fuller said that both of Mr. Fuller's brothers, Leonore and Harry, worked for Isle-Ways. Mrs. Fuller said that it wasn't right that they only looked at Government exhibits and not at the defendants' exhibits or case. He said it was a frame-up and said he blamed himself. He said that they looked at Government exhibits and any time someone suggested looking at defense exhibits some juror would say, "Later, later," and they never got around to it. He said that he knew and believed the defendants were innocent all the time but was afraid of what would happen if he voted not guilty.

"`He said that the jury in their deliberations decided that the Communist Party was a conspiracy within the first hour after they began their deliberations. He said that the instruction of the Judge which they used to decide this was the one which told them first to decide whether there was a conspiracy, and they decided the Communist Party was a conspiracy. He said he knew from what he heard the defendants were convicted before the case started on ideas the jurors had before the case started. He said he heard two jurors tell the Judge that they were opposed to Communism during the examination. He said that no secret ballots were taken, so everyone knew how each juror voted. He said some of the jurors said the Government wouldn't bring the charge if it wasn't true. He said that at some time he heard it said that if the defendants weren't convicted it would affect Hawaii's getting statehood. He said that the jurors on the side of the Government said that anybody who was a member of the Communist Party must know what its purposes are and are guilty.

"`He said that the jury wanted Kawano's testimony. He said that jurors on the defense side asked for Kawano's testimony to show that none of the defendants ever talked about overthrowing or destroying the government.

"`He said that a juror said a number of times during the deliberations that he had to go to the Mainland and that they should get it over with.

"`He said that if he voted for the defendants he was afraid the other jurors would tell about it and it would hurt his family. He said one of the jurors played cards in the jury room. He said that there was anger and shouting in the jury room between the persons who were for the prosecution and those who were for the defense. Particularly the jurors for the prosecution got angry with the ones who were holding out.

"`He said they didn't take any secret ballot, but anybody on the defendants' side had to speak up and then the others would try to get them to back down. He said that he heard jurors talk about Attorney Gladstein and said he was too smart and that he had defended the Communists in New York and had served a jail sentence. He said that he heard some of the jurors talk about the war against Communism. He said that they didn't consider the character evidence for the defendants.

"`He said the second thing the jury decided was that all defendants were members of the Communist Party. The next thing they decided was that if they were Communists they must have intended to overthrow the government. He said that he himself did not believe Kawano and he heard others say they did not believe Muller. He said that after they asked for the instructions they used the one which told them to decide first whether there was a conspiracy, and right off they decided there was, and then talked about whether defendants were members of the Communist Party. He said there was a lot of talk about Bailey.

"`After this conversation took place, when Jack Hall and I started to leave, Mr. Fuller begged Mr. Hall not to leave and raised his hands above his head and appeared to be praying although the words were not audible. Before leaving, Mr. Hall tried to quiet Mr. Fuller and helped Mrs. Fuller put her husband in bed.

"`Mr. Hall and I again went to see Mr. Fuller on Sunday, June 28, shortly after 1:00 o'clock in the afternoon. We were accompanied on this occasion by Joseph Kealalio. When we arrived, Mr. Fuller was sitting in a chair in the living room. He kept looking at Mr. Hall but did not speak.

"`After conversing with Mrs. Fuller for a very short period of time, we came to the conclusion that it would be better to wait until Mr. Fuller was in better physical and mental condition.

"`When Mr. Hall started to leave, Mr. Fuller again pleaded with him not to leave.

"`Further affiant saith not.

          "`/s/ Harriet Bouslog.

"`Subscribed and sworn to before me this 1st day of July, 1953.

    "`[Seal]   /s/ J. D. Marques,

"`Notary Public, First Judicial Circuit, Territory of Hawaii.

"`My commission expires July 15/53.'"

"The Complainant Bar Association neither affirms nor denies the truth or falsity of the allegations and facts contained in the affidavit filed by the Licensee Harriet Bouslog. The Complainant informs the Committee that the above-recited affidavit, its contents, and the manner in which it was obtained furnishes the basis for the charge against the Licensee Harriet Bouslog and that the Complainant will introduce evidence in elaboration of and in corroboration of the charge indicating a failure by the Licensee Harriet Bouslog to comply with standards of professional conduct required of practitioners before this Court and which unprofessional and unethical conduct is condemned in Opinion 109 issued March 10, 1934, by the Committee on Professional Ethics and Grievances by the American Bar Association and by Judge Prettyman in the case of Rakes v. United States, [4 Cir.] 169 F.2d [739] at pages 745 and 746 and other related cases."

The committee's hearing commenced on November 24, 1954, and after several adjourned sessions was concluded on December 8, 1954. The committee's report was signed on June 9, 1955, and filed on July 1, 1955. The findings sustained the charges. (This report is hereinafter set forth as Appendix A.) The Supreme Court forthwith issued an order to show cause to Mrs. Sawyer.

After a return on the order to show cause, the Supreme Court determined that the hearing before it should be one de novo. However, it was stipulated that the court should make its determination on the record before the committee. No new evidence was received and that court saw no witnesses as such. The court on April 6, 1956, sustained the charges and entered judgment the same day. The judgment suspended Mrs. Sawyer from practice for the period of one year. The judgment has not yet become effective.7 The Supreme Court's opinion is reported at 41 Haw. 270. Express reference is made to that decision. Therein many of the procedural events are listed which are not herein listed.8

Now, what did Mrs. Sawyer do and say at Honokaa and what did she do when she took and presented her affidavit to the U. S. District Court for the District of Hawaii? The Supreme Court hearing the case on the written record had the same record for investigation as we do; no more. No intendments can be given it on the ground it heard and saw the witnesses in person. But still the record tells a story and a clear story that overwhelmingly preponderates to sustain the charges.

On the Honokaa meeting we quote the newspaper article written by the reporter Yoshio Matsuoka in the next edition of the Hilo Tribune-Herald, a newspaper published at Hilo on the Island of Hawaii. We do not suggest that the respondent is to be disciplined because of or for a newspaper article. However, she might have expected her remarks were such as would be publicized. The reason we quote the story from the newspaper is that the findings of both the committee and the Supreme Court implicitly sustain the accuracy of the published item. So far as applicable to Hall and Mrs. Sawyer, it reads as follows:

"Smith Act trials are aimed at destroying unions and `must be stopped,' Jack W. Hall and Harriet Bouslog Sawyer asserted here yesterday.

"Mr. Hall, ILWU regional director now on trial on Smith Act charges and Mrs. Sawyer, an ILWU attorney, addressed an estimated 250 persons in the People's theater.

"Sponsored by the ILWU unity defense committee, it was one of a planned series of such meetings to tell communities the `true facts' of the cases since sponsors alleged newspapers cannot be depended upon to tell the facts.

"Mr. Hall, speaking for 15 minutes, claimed it was the opinion of the working press in the trial that if the trial were stopped now, the defendants would be acquitted.

"He declared the prosecution has presented no evidence against the defendants in six weeeks of trial and quoted unnamed `reporters' as saying `if this is all the government has, what kind of case is this?'

"No jury in the islands would convict on such evidence, he said, and added he was `certain' there are `some courageous people' in the jury.

"He characterized some of the `things that go on' at the trial as `unbelievable' and `frightening.' He said such trials `can be stopped and have to be stopped' to halt further `scare prosecution directed against our union and its members.'

"Mrs. Sawyer, speaking for a half hour, spoke of `some rather shocking and horrible things that go on at the trial.'

"There's `no such thing as a fair trial in a Smith act case,' she charged. `All rules of evidence have to be scrapped or the government can't make a case.'

"They `just make up the rules as they go along,' she told her listeners.

"`Unless we stop the Smith act trial in its tracks here' there will be a `new crime,' that of knowing what's in books and will lead to `dark ages of thought control,' asserted the chic and attractive woman lawyer.

"She referred to reading by the prosecution of books `supposed to have been in a duffel bag' owned by a witness, Henry Johnson. She urged her listeners to tell others `what a vicious thing the Smith Act is.' Persons are `tried for books written years ago' by others, she said.

"Mr. Hall said Mr. Johnson was a witness `just so the government can read a bunch of books.'"

As witnesses, the bar association presented the newspaper reporter and seven other people who were in the audience. Matsuoka had not his original notes of the meeting but did have an expanded version he had made within a few days after the incident from his original notes at the request of the newspaper's editor. These notes were admissible as recorded past recollection. (The notes are set forth as Appendix B.) The association's witnesses from the general audience seem to have been timid and of course there had been a period of 23 months between the incident and their testimony. These people did not impeach Matsuoka, but substantially corroborated him. The meeting was largely made up of persons in the I.L.W.U. with which organization Mrs. Sawyer was closely associated. We find great significance in the fact that she produced not a single member of the audience to confirm her version. Of the eight other speakers, she brought only the defendant Jack Wayne Hall to testify in her behalf. We think it is not to over-simplify if we say the substance of the testimony of Hall and Mrs. Sawyer as to the event of Honokaa was that her speech was just generalities, a shotgun attack on the Smith Act in general. Generally, the two were very evasive. Hall's explanation was most suave but is unconvincing even on paper. If their versions were accepted, their speeches were strictly professorial or something like that of a Sunday School teacher explaining to her class what they would see just before she took the class into a courtroom.

It seems clear enough that she said at Honokaa:

1. That horrible and shocking things were going on at the current Smith Act trial in Honolulu.

2. That the trial was not a fair one.

3. That "they" just made up the rules as "they" went along.

4. That unless the Smith Act trial at Honolulu was stopped in its tracks there would be a new crime — people will be charged with knowing what is included in books.

With great deftness Mrs. Sawyer's counsel interweave the defense versions of the testimony into the bar association's evidence pointing the other way. They argue that her talk was just general, couldn't have been anything else, and specifically did not refer to the trial before Judge Wiig or to Judge Wiig.9 Without quoting the record extensively, we say the short way (but not the only way) to negative this contention is to quote a statement (during the course of the hearings) by Mr. J. Garner Anthony, able counsel who represented her before the committee:

"Mr. Anthony. I will say to the Committee right now — I have read these speeches and I would agree with the conclusion implicit in Mr. Dodge's question, namely that this was a talk about what was going on in the Smith Act trial here in Honolulu. Now let's not fool ourselves about that. We're lawyers here."

In context, when Mr. Anthony says, "This was a talk," he was referring to the Honokaa speech.

It is quite true that Mrs. Sawyer's harsh comments did not incorporate Judge Wiig by name. On this circumstance the respondent relies heavily. But there is a totality about a trial, a unit of the judicial process, which is entitled to protection from those who get their license from a judicial temple, especially those who are engaged in the particular trial. During its progress the courtroom is the only proper forum for a lawyer to vindicate his clients. We cannot accept the plea that Judge Wiig was not called by name or identified as thin and six-feet-four. Such a thought is really one that the judge's person, not what he represents, is entitled to protection.

Far different is this from the contempt cases of the Times-Mirror with its editorials and Bridges with his telegram.10 This is not a contempt case. The Times and Bridges were not court officers charged with the duty of keeping the temple clean. Nor was this a case of a lawyer unconnected with the case commenting at a public meeting or a lawyer who had carried his case past the point of decision, now carrying his cause to the people. Nor was it private grousing among friends to which we assume all lawyers are entitled when legal events are not going their way. It was a public meeting.

We reject the clear and present danger rule of third party contempts which is called upon in Bridges v. State of California. How could we accept the notion that before a lawyer in the very same case could be disciplined his voice would have to rise to a mighty cacophony reaching the point of causing the audience (a clear and present danger) to march on the courthouse, or to set up such a howl that the judge would be terrified? Maybe for others, but not for counsel of record.

Nor is this a case of a lawyer under strain making an ill-advised speech who later in calmer moments appreciates his error and is humble about it. Respondent is adamant that she only exercised her constitutional right. So, on that she stands or falls. In our view, she falls.

1. The specification that Territorial Statute (Section 9701, Re.Laws Hawaii 1945) was applied by the court below,11 so as to deprive appellant of liberty and property without due process of law.

(a) The findings and conclusions are wholly without evidentiary support and unreasonable inferences from the evidence.

(b) Respondent was arbitrarily singled out and adjudged by standards of misconduct other than the usual accepted standards of American Law.

(c) Respondent was arbitrarily singled out and adjudged by standards of proof other than the usual and accepted standards of clear and convincing evidence.

As to this point, with its three subdivisions, our idea is that, respondent's present view of the evidence just isn't correct. And upon her view of the evidence her challenge rests. Respondent overly dissects the evidence and puts too innocent a gloss on it. We find the evidence as a whole amply and adequately justifies the findings and conclusions. We see no evidence that respondent was arbitrarily singled out.

On subdivision (b) of the point respondent quotes Circuit Judge Soper in In re Ades, D.C.Md., 6 F.Supp. 467, at page 481, as follows:

"An attorney does not surrender, in assuming the important place accorded to him in the administration of justice, his right as a citizen to criticize the decisions of the courts in a fair and respectful manner, and the independence of the bar, as well as of the judiciary, has always been encouraged by the courts."

Also, Ex parte Steinman, 95 Pa. 220, 238, 40 Am.Rep. 637, is quoted:

"Because a man is a member of the bar, the court will not, under the guise of disciplinary proceedings, deprive him of any part of that freedom of speech which he possesses as a citizen. The acts and decisions of the courts of this state, in cases that have reached final determination, are not exempt from fair and honest comment and criticism. It is only when an attorney transcends the limits of legitimate criticism that he will be held responsible for an abuse of his liberty of speech. We will understand that an independent bar, as well as an independent court, is always a vigilant defender of civil rights." In re Troy, 43 R.I. 279, 291, 111 A. 723, 727-728.

These cases themselves turn on respondent. Note that Judge Soper says an attorney has the right to criticize "the decisions" of the courts in "a fair and respectful manner." Note that Ex parte Steinman12 says, "The acts and decisions of the courts of this state in cases that have reached final determination, are not exempt from fair and honest comment and criticism." This subdivision (b) falls entirely when one reaches the conclusion that the comment was unseemly and certainly at the wrong time.

As to subdivision (c), respondent relies heavily, among other things, upon statements of Professor Rodell of the Yale Law School and again upon her most favorable view of the evidence. We would uphold Professor Rodell's right to say from his Yale vantage point just about what he wants to say. But when he speaks he is not simultaneously harassing the very court in which he is trying an unfinished case. Remove respondent's innocent view of the evidence and again the point is without significance.

2. The point that "the statute, inherently and as applied, without appropriate standards, deprives petitioner of freedom of expression contrary to the provisions of the First and Fifth Amendments. So construed and applied, the statute in operation and effect creates a prior restraint and censorial control over the public utterances of lawyers in derogation of the independence of the bar and the due administration of justice."

We are not familiar with any law that requires a statute for the discipline of lawyers to categorize in detail the lawyer canons. Further, we see no contravention of the First and Fifth Amendments. When one concludes that during the trial the lawyer of record is under restraints not applicable to the public in general, and perhaps not even applicable to the defendant, the point is answered.

The sub-point listed on the Sixth Amendment: "To have (that is, a defendant) the Assistance of Counsel for his defense," we hold has no merit. To be fearless, is not to lay down by night a barrage on the court. Such conduct is the antithesis of bravery or "the Assistance of Counsel." The Sixth Amendment does not say such counsel can be entirely uninhibited. Here again on this point (2) respondent's own view of the evidence is the projection from which the respondent makes her argument.

3. The third point is: "The judgment of the territorial court was beyond its jurisdiction and contrary to sound policy governing the relations between local and federal courts because it creates a standard of conduct intimately affecting the administration of justice in the latter. In reviewing that judgment this court will make its own evaluation of the facts and determine its own standard."

In short, the point says: Whatever Mrs. Sawyer did was none of the business of the territorial court because the conduct concerned the federal court. But the state (here the territory) is the primary jurisdiction that sponsors a lawyer, that mainly presents him to the public. It has an interest. Even had the conduct been in open federal court, still the state has an interest. See In re Isserman, 9 N.J. 269, 87 A.2d 903. Cases may arise like the Isserman type in which the state will feel it should stand by and let the matter be entirely handled on the federal side of the street. But that lends no support for an argument that we should say a state or territory cannot act. Rather should the territory be commended than chided.

Point five is that the judgment of the Territorial Supreme Court is arbitrary and excessive. This last point must necessarily assume that the conduct was relatively innocuous. Respondent was an officer of the court. The term has vitality and is not a transparent euphemism.

In all facets of this case in this court there has been the spectre of jurisdiction. This court does not have general jurisdiction to review the work of the territorial courts of Hawaii.13 Our only scope is narrowly defined by statute. We do not have the plenary powers here that we might naturally have in such cases as Lavine's (In re Los Angeles County Pioneer Society) 9 Cir., 217 F.2d 190.

If we have the jurisdiction it hangs by the narrowest thread. We think on the line of such cases as Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, and Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810,14 when the charge is made that respondent has been deprived of due process of law under the fifth amendment and that the result impinges on her rights under the first amendment, we are justified in taking the case to look at it to see if the claims of such deprivation have any validity. In that sense we have jurisdiction. Then we take the case and, in our view, we find that there was no deprivation of constitutional rights. Thus we complete the chain, and one can then logically argue: therefore we never had jurisdiction.15 On the whole, after examining the record it is our view that the respondent's position basically has little right to be more than a claim that the territorial court took a different view of the evidence than hers and the judgment is a little too harsh. Such claims we wouldn't hear. So, within the limits of permissible advocacy, we suppose, we find the claims on appeal expanded to include claims of deprivation of constitutional rights, claims which we hold are not solid.

On the second segment of the case, the Fuller affidavit, Mrs. Sawyer's counsel meet it by ignoring it completely in their opening brief. Finally, in their closing brief they say that it is moot because the Supreme Court imposed no punishment thereon. As to that point, we cannot agree. The court at page 425 of its opinion in 41 Hawaii reports (having first announced the suspension of one year in consequence of the Honokaa speech) then proceeded to the matters incident to the Fuller affidavit and finally concluded with: "However, in the instant matter, this court will let its hereinbefore expressed disciplinary order suspending the said respondent licensee from the practice 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."

To us, this is a statement that the penalty for the two charges is imposed concurrently — the same penalty for both charges. However, there is a tinge in the pronouncement which possibly indicates that had the Fuller charge been before it alone it might have not imposed a full year's suspension on that charge; we do not know. If we were reversing the case on the findings and penalty on the first charge, we would (because the matter is not clear) refer the matter back to the territorial court to determine clearly and anew what sanction it intended to apply on the second charge.

The evidence sustains the second charge as appears from the findings of the court's committee and the court itself to which reference is made. It is quite evident, however, that on the second charge alone the respondent would not be able to maintain intact, without breaking, the very thin thread on which we have held there are points which give us the jurisdiction to test the record.

Appellant contends that her punishment applies a different standard to her than has been applied to other lawyers in Territory and that the penalty is too severe; that instead of automatic reinstatement at the end of a year she will have to apply anew — be investigated and take the regular bar examination. Circuit Judge McKinley, sitting pro tem on the Supreme Court, voted for disbarment. That would have been permissible, we think. Many disbarred attorneys become reoriented and again make their way back into the bar.

If the respondent should show some genuine remorse and some appreciation of her error, it might be that the Supreme Court of Hawaii would ameliorate its decision. But so long as she conceives that she has a right to litigate in a given case by day and castigate by night (or at recess) the very court, the honored place in which she is working, berating the conduct of the trial which she will resume on the morrow, she does not deserve to practice law.16

We find applicable here much that is said in In re Howell, 10 N.J. 139, 89 A.2d 652, 653. There Attorney Howell under great provocation by a newspaper editor sought the editor out and severely beat him with both a riding crop and a rubber hose. This was conduct far removed from litigation. The court, per curiam, quotes Canon 29 of the Canons of Professional Ethics of the American Bar Association to the effect that a lawyer should "strive at all times to uphold the honor and maintain the dignity of the profession and to improve not only the law but the administration of justice." The court continued, "An attorney's responsibility is to the courts, the profession and the public, and his misconduct may be of such a nature as to engender disrespect for the law which is his basic trust."

Mr. Justice Brennan, then of the Supreme Court of New Jersey and now of the Supreme Court of the United States, wrote a concurring opinion in the Howell case in which Chief Justice Vanderbilt joined. In it he said,

"We are a society governed by law, whose integrity it is the lawyer's special role to guard and champion. In that society there is no place for a personal code of justice. The preamble to the Canons of Professional Ethics observes `The future of the Republic, to a great extent, depends upon our maintenance of Justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.' Canon 29 obligates every member of the bar to `strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.' * * * His office is a very badge of respectability and his conduct sullies the office. He `invites and merits stern and just comdemnation.' Cf. Canon 32. His conduct perforce imperils not him alone but the honor and integrity of his profession which depends for its very existence upon public trust and confidence.' * * * Discipline must be imposed not primarily to punish him but to give assurance to the public that the profession is deserving of its trust and confidence and will demand that all lawyers meticulously adhere to the high standards imposed by the profession upon itself."

It is true that Lawyer Howell had entered a non vult or nolo contendere plea in a trial court to a charge of simple assault and battery; thus the doing of a criminal act was implicitly conceded. But we would think simple assault and battery was a crime not involving moral turpitude per se. The New Jersey Supreme Court had to go on and examine de novo the special facts of the case, and it did.

Here in Mrs. Sawyer's case the Supreme Court's findings bring us to the same point: she did that with which she was charged. And it should be noted that Howell was abject in admitting his error. Notwithstanding his contrition, the court suspended him from the practice of his profession for six months.

Mrs. Sawyer's conduct has neither the ameliorating circumstance of Howell's rage being instantaneous with perhaps great provocation (and, with only 40 minutes to cool down), nor of his later recognition of his error.

We agree that the censured conduct of respondent was grossly improper.

To the Honorable Chief Justice and Associate Justices of the Supreme Court of the Territory of Hawaii:

The Legal Ethics Committee, pursuant to a letter from the Honorable Edward A. Towse, dated July 8, 1954, has investigated a complaint filed by the Bar Association of Hawaii and makes this report of the charges, facts and conclusions of the Committee pursuant to Rule 19.

The two charges made in this complaint have to do with (1) the alleged improper conduct of Mrs. Harriet Bouslog Sawyer, referred to in this report as "Mrs. Bouslog," in making a speech at Honokaa, Hawaii, on December 14, 1952, and (2) the alleged improper conduct in connection with her interview of the juror David P. Fuller, as more fully set forth in the Bill of Particulars dated September 29, 1954.

The Committee finds that Mrs. Bouslog was one of the attorneys appearing for certain defendants in the United States District Court for the District of Hawaii entitled "United States of America, Plaintiff, against Charles Kazuyuki Fujimoto, et als., Defendants," being Criminal 10495 in that Court; that on December 14, 1952, during the course of the trial, she made a speech at a public gathering at Honokaa, at which she said, among other things, that horrible and shocking things were going on at the trial; that there was no fair trial in the case; that they just made up the rules as they went along; that unless the Smith Act trial was stopped in its tracks in Honolulu there would be a new crime.

With respect to the charges in paragraph III, the Committee finds that after rendition of the verdict in Criminal 10495, mentioned above, Mrs. Bouslog visited one of the jurors, David P. Fuller, Jr., while he was in a very poor mental and physical condition and thereafter submitted her affidavit concerning an interview with the juror to the Presiding Judge.

While the affidavit of Mrs. Bouslog indicates that on the first occasion he was gravely ill, the Committee finds that she did not fully disclose to the Court the condition of Mr. Fuller, nor the fact that she had attempted to get affidavits from Mrs. Fuller, who refused to sign one, and could not get an affidavit from Mr. Fuller because of his condition.

The Committee is of the unanimous opinion that the Bar Association of Hawaii has sustained the allegations in paragraphs II and III of its complaint and that Mrs. Bouslog, in imputing to the Judge unfairness in the conduct of the trial, in impugning the integrity of the local Federal courts and in other comments made at Honokaa, was guilty of violation of Canons 1 and 22 of the Canons of Professional Ethics of the American Bar Association and should be disciplined for the same.

The Committee is likewise of the unanimous opinion that it was improper for her to submit her affidavit concerning the interview with the juror Fuller to the Presiding Judge under the circumstances under which it was submitted. There are differences of opinion within the Committee as to whether her interviews with juror Fuller were proper, as to whether they were in violation of Canon 23 of the Canons of Ethics and as to whether she should be disciplined, although the majority think she should be disciplined with respect to the charges in paragraph III.

Dated: Honolulu, Hawaii, June 9, 1955.

       Respectfully submitted,
          /s/ C. Dudley Pratt,
                Chairman;
          /s/ Milton Rodes,
          /s/ Clifton H. Tracy,
          /s/ E. C. Peters,
          /s/ [Indistinguishable],
               Of the Legal Ethics
               Committee.

I concur in the findings of the Committee that the conduct of the respondent was, with respect to the Honokaa speech and with respect to the matters concerning the juror, improper.

I do not concur in the conclusion that the other members of the Committee have reached with respect to the recommendations we should make to the Court.

This is a proceeding under Rule 19 of the Rules of the Supreme Court. This Committee's authority to act and its duties are set forth in that Rule.

On completion of the hearing the Committee shall file with the Court its findings of fact, conclusions of law and recommendations as to action to be taken by the Court in the matter * * *

I do not believe the italicized words mean only that this Committee should merely recommend that disciplinary action should or should not be taken. I believe that the Rule means that this Committee has a duty to go further and recommend the nature of the discipline it feels is proper.

I would recommend that, for the improper conduct of Mrs. Bouslog with reference to the Honokaa speech, she be suspended from the practice of law for such period of time as the Court may deem just and proper. I believe this to be by far the more serious of the two charges.

I would recommend that, for the conduct regarding the juror which this Committee has found to be improper, she be reprimanded.

Dated: Honolulu, T. H., June 9th, 1955.

         /s/ R. G. Dodge.
[Endorsed]: Filed July 1, 1955.

Matsuoka's "Notes"

Notes on Mrs. Harriet Bouslog Sawyer's speech at People's theater, Honokaa, Sunday, December 14.

She followed Samuel M. Bento, who said he wanted to say good morning to the Tribune-Herald, pointing generally toward the paper's reporter from Hilo and the paper's Honokaa correspondent who were sitting side by side. Mrs. Sawyer preceded Jack W. Hall. She began speaking at 11 a. m. and ended 11:30 a. m.

Notes on what she said in the order of how she proceeded: The trial is really a trial of Jack Hall to which has been added six others. It's to get at the ILWU.

Said she wanted to tell about some rather shocking and horrible things that go on at the trial.

She was appointed some years ago (3 or 4 years ago) by a court to defend a man who had no money to hire his own counsel. He was charged with pimping and procuring. The complaining witness in the case was a woman who had been in business 20 years in the territory who claimed she had reformed and repented but this vicious man had driven her back again into the business. It turned out that the hotel where he had kept her had 27 doors unlocked. Likened this to pukas in the Smith act.

Said men in power are trying to put men in jail because of their thoughts. and books written before he was born.

One of the reasons Jack Hall is on trial is because it is said he once got a book, the Communist Manifesto, written in 1898, before Jack Hall was a gleam in his father's eye.

She quoted from manifesto: a spectre is haunting Europe; the spectre is communism. she explained spectre means ghost. said spectre still seems to be haunting people today.

She turned next to conspiracy. noted there was a conspiracy trial in 1937 of filipino brothers. conspiracy to advocate violence and criminal sindicalism. explained conspiracy means agreement. government never has used conspiracy when it had a case. when it hasn't got enough evidence it lumps a number together and says they agreed to do something. the government does not say * * * advocated overthrow but says they agreed to. conspiracy means to charge a lot of people for agreeing to do something you have never done.

touched on myth of agents of fbi. they're supposed to be extra special. radio programs, movies, publicity tell how wonderful they are. but when you see hundreds of tax fraud cases go by and when they spend most of their time investigating people's minds it's time to cut them down to size. said she had told this to a honolulu gathering. labor day? fbi agents should be called federal cops. said has slogan: put away your thoughts here come the federal cops. cops push people around.

paul crouch. difficult to understand why he's witness. but he was here in 1924; because he was once in Hawaii, so guess that's why. he testified what he did in russia in 1927. he told what he was told by generals etc. usually you cannot testify on what people told you when there is no chance for those to be cross examined. aileen fujimoto was four years old then. what has crouch's galloping over the plains of russia got any bearing on her. jack hall was 13. but the government goes on with testimony for two weeks on what crouch did between 1927 and 1941 without ever mentioning the defendants.

he told of infiltration of the armed forces and plots . . . it used to be the idea that a man is responsible for what he did and said — not what someone else did. not a single one of the defendants was of age at the time he's talking about. the jury is not going to pay attention to what Crouch says. but it's the old smear. The prosecution says crouch did this and that and we (prosecution) say the defendants are communist party members so they must have done the same.

but government propaganda has been going on for 10 years

before the jurors went into the jury box.

it's enough to say a person is a communist to cook his goose.

the government says there was an agreement to violate the smith act which was passed in 1940. then the defendants agreed to violate it before it was passed. crouch said he was at a communist meeting in 1941 and saw five or six people there. it was the first time he'd seen them. but he was satisfied when he came to honolulu 12 years later that one was Koji Ariyoshi. she urged audience try to recall what they did 12 years ago. said she can't recall details. god knows no one has a memory that good. yet they use this kind of testimony.

why? because they will do anything and everything necessary to convict.

some of the witnesses testified differently from what they testified previously. the government knows this but deliberately goes ahead and have him say things in order to convict. mentioned izuka in reinecke trial testimony. said something about izuka saying he didn't know the party advocated overthrow of government until he got out of party.

witnesses testify what government tells them to. just as they read portions of books like overthrow the government and leave out the rest which says czarist government showing it dealt with russia.

johnson testimony. said he came back from san francisco with communist books and literature in a duffle bag. he said when he got to Honolulu he told Jack Hall the names of some of the books. then the government for two days reads from books supposed to have been in the duffel bag. they're not dealing with what jack hall said. on cross examination johnson said he did not tell the names of the books but just showed jack hall the duffel bag. so jack hall violated the smith act because he saw a duffel bag with some books on overthrowing the government in it. it's silly. why does the government use your money and mine to put people in jail for thoughts

the government has carried on a barrage of propaganda for many years and expects people in the jury to have hysteria just hearing about communism is enough to jail. said has a friend who worked for sears roebuck and has family of three children and wife. he made a terrible mistake one time. in 1941 he lived in the same house as jack hall. the fbi wanted him to testify. he said i feel jack hall is one of the finest people i have known. apparently the fbi didn't like this. so they suggested to sears and roebuck to fire him because he wouldn't cooperate with the government.

he wasn't fired so they went to the Los Angeles and Chicago offices of sears and roebuck and convinced them he had to be fired. he was fired because he refused to be a stool pigeon and informer. 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.

referred to her habeas corpus move in the palakiko — majors case (Palakiki v. Harper, 9 Cir., 209 F.2d 75).

said a woman came to her with report she heard vernon stevens say he beat a confession out of one of them. she testified but the supreme court refused to let the evidence in because vernon stevens was not here and had no chance to deny this. with the same situation a federal judge sitting on a federal bench permits crouch to testify about 27 years ago. what was said then. in the previous case it was the life and death of one. and yet here they permit a witness to tell what was said when a defendant was five years old.

there's no fair trial in the case. they just make up the rules as they go along. the first smith act case was in 1949 of the new york top leaders, Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. attorneys contended they should have the right to say what they did from 1924. medina permitted them to say what the defendants themselves did from 1934 on. but the government can't make a case if it tells just what they did so they widened the rules and tell what other people did years ago, including everything including the kitchen sink.

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.

mentioned los angeles trial in which someone said there was no evidence that someone had instructed persons not to read some books.

said 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.

she urged audience to go out and explain what a vicious thing the smith act is. people are tried for books written years ago.

The Sawyer Explanation to District Judge Wiig

Extract from Transcript of Proceedings in United States v. Fujimoto.

(The Court convened at 1:15 p. m.)

(Jury absent.)

The Court: Mrs. Bouslog, when were you admitted to practice in this Court?

Mrs. Bouslog: In the year 1941, your Honor.

The Court: Do you remember the date?

Mrs. Bouslog: The certificate, your Honor, hangs in my office, but I believe it was some time in December in 1941. I was notified that I had passed the bar examination in the Territory, as I recall, after Pearl Harbor. So I believe it was the latter part of December in the year 1941.

The Court: I have before me a newspaper clipping from the Honolulu Star Bulletin of Yesterday afternoon in which it purports to quote statements made by you on December 14, 1952, at Honokaa, Hawaii, at a meeting. Do you have anything to say as to the newspaper report?

Mrs. Bouslog: I do indeed, your Honor. I want to say that I welcome the opportunity to state to the Court the substance of what was said at that meeting, and I assure your Honor that the excerpts wrested from the context will not reflect the substance of the context of that speech. Of the words, attributed to me in quotes, I recall clearly that I did say, `There is no such thing as a fair trial in a Smith Act case.' I explained, your Honor, the reason for that statement. The reason, I said, was that ideas and books are on trial in a Smith Act case, and that years of propaganda which preceded the enforcement of the Smith Act both by the Government and by the Commercial press has created such an atmosphere of hysteria that the very word "Communism" has become such a deadly label that it is almost impossible for jurors to put out of their minds all they have read and heard outside the courtroom. In substance, your Honor, I said in respect to this statement no more than defense counsel said in the motion on file before this Court for a transfer of the place of trial. In substance, I said no more than what Justices Black and Douglas, dissenting, said concerning the Smith Act in the Dennis case (Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137).

The balance of the words other than the ones I have just quoted — which I recall clearly having said — the balance of the words attributed to me in quotes, either I did not say or they are so torn from context as to wholly distort my speech as a whole. Apparently Mr. Walsh is not satisfied to try my clients on sentences or parts of paragraphs ripped from context but he desires to try me on sentences, on portions of sentences and words extracted from the context in which they were said. This, I am sure, that this Court will not permit.

My speech was extemporaneous, an extemporaneous speech, your Honor. I have no notes as to the exact words or the full content. Upon learning, however, this morning from my colleagues that your Honor was going to give me an opportunity to state the substance of the remarks which I did make, I dictated to my secretary the substance of the speech.

I began my remarks by explaining what the Smith Act is and how the prosecution goes about trying a Smith Act case, reading excerpts from books that were written many years before the defendants in this case were born. I spoke of the difference between a Smith Act case and the ordinary criminal case in which a person is tried for what he has done, not for what he thinks — what is in his mind. I explained what a conspiracy is and showed how it can be used to charge a group of persons with agreeing to do what the prosecution cannot prove any single individual did.

In this respect, your Honor, my explanation was drawn from the criticism of the Senior Circuit Judges of conspiracy charges which we cited to your Honor in the brief which we filed and indeed quoted the language of the Supreme Court itself on conspiracy and calling it a dragnet.

My remarks at the meeting at Honokaa concerning the rules of evidence were directed towards the conduct of the prosecuting attorneys in Smith Act cases, how they use a conspiracy charge for the very reason that it permits them to introduce evidence that would not be admissible under the ordinary criminal charge.

I said that in Smith Act conspiracy cases the prosecution had gone beyond the scope of the rules of evidence, even in other conspiracy cases. My remarks were no more in substance than has been stated to this Court in the memorandum filed by defense counsel, submitted in support of the motion to strike the entire testimony of the witness Crouch. In fact, your Honor, my objective in the speech at Honokaa was to state in ordinary language that laymen would understand the content of the decisions of the courts cited in that brief.

The second half of my speech — after speaking generally concerning the tactics of the prosecution in the Smith Act cases and the Smith Act — was devoted to a discussion of the evidence on which the prosecution in this case is seeking to convict Jack Hall and the other six defendants in this case. I used several illustrations. One, I used the testimony of Paul Crouch about riding horses on the Russian plains and talking to a Russian general in 1927. I pointed out the defendants couldn't have possibly cross-examined the Russian general, first, because he had been dead for many years, and second, even if he weren't it would probably be impossible since he is a Russian. I pointed out at the time that Paul Crouch was in Russia, Eileen Fujimoto was five years old and Jack Hall, aged thirteen, was just ready to start high school in Southern California. Yet I said Crouch's testimony of his plotting to infiltrate the Armed Forces and to commit acts of espionage and sabotage while in Russia in the year 1927 was being used against the defendants in this case.

Another illustration that I used from this trial was the testimony of Henry Johnson who testified that some time in 1945 or 1946 he showed Jack Hall a duffle bag and told him it contained Marxist literature. That, although Johnson admitted on cross-examination that he didn't tell Jack Hall what books the duffle bag contained, in effect the fact that Jack Hall had seen the duffle bag was used as a basis for introducing numerous books in evidence which Johnson testified the duffle bag contained.

Another illustration I used was that of the testimony of Ichiro Izuka who testified under oath in the Reinecke case that he didn't learn until after he left the Communist Party that it advocated the use of force and violence, and that therefore his testimony was of no value to the prosecution to prove the crime charged against these defendants but that nevertheless the prosecution called him and used him in this case to testify to matters completely at variance with his sworn testimony in prior cases.

To illustrate the difference between the application of the rules of evidence in ordinary cases and in Smith Act cases, I told how the Supreme Court of the Territory of Hawaii had refused in the Palakiko and Majors case which involved a question of life and death to permit the testimony of Mrs. Frances Hughes of an admission by Detective Vernal Stevens that he had struck Palakiko before he obtained his statement on the technical ground that no foundation was laid because Vernal Stevens was out of the Territory.

Yet in Smith Act cases I pointed out the prosecution puts on witnesses to testify to things that were said and done by third persons not only on the mainland of the United States but in other countries halfway around the world, and even though the defendants here do not know, have never had any contact with the third persons mentioned and never heard of them before this trial.

I closed my case or my speech by saying that a new crime is being created, the crime of reading. I quoted exactly from, to the best of my recollection, from the closing argument to the jury by the prosecution in the Los Angeles case, in which the prosecution said the defendants asked people to read, read, read, and that they never at any time told people not to read anything. I said that if Smith Act prosecutions continue, the only safe thing will be not to know how to read. And that Smith Act prosecutions, unless stopped, will lead to thought control. I said further that the Smith Act can be stopped here in Hawaii if enough people began to understand the danger of such prosecution.

As the Court can see, my remarks were directed towards the conduct of the prosecution and were not directed towards the Court. By that I do not mean to say that the defense counsel in any way recede from the position that was taken in the brief filed in connection with the Crouch testimony, in which we believe we have cited authorities showing that your Honor had admitted evidence which is not admissible even in the ordinary conspiracy case.

I feel, your Honor, that when the words — and you will note in some cases they are single words — are put back into the context of the whole speech that it must be clear to your Honor that there was no contempt of this Court involved in the speech and that the criticism was directed to the conduct of the prosecution in Smith Act cases.

The Court: Before you sit down, I would like to ask you, did you say at that meeting that things go on at the trial, referring to this trial, that are unbelievable and —

Mrs. Bouslog: No, your Honor, that was not even attributed to me, I believe. That, I believe was not attributed to me even in the newspaper account.

The Court: Did you say that some rather shocking and horrible things were going on in this trial?

Mrs. Bouslog: I have no recollection of that statement. I did undertake to explain in factual terms exact testimony that has taken place in this case, of which I gave the four illustrations which I have cited to your Honor. I have no recollection of those words.

The Court: Did you say that all rules of evidence have to be scrapped or the government can't make a case and just make up the rules as they go along, or words to that effect?

Mrs. Bouslog: No, your Honor. I explained in the substance of my speech that I paraphrased for the laymen the rules of evidence contrasted with the kind of offered evidence by the prosecution in Smith Act cases, all of which is set forth in the memorandum to your Honor in which it is shown that there is a great — that the prosecution seeks great leeway from the ordinary rules of evidence.

The Court: You realize that this trial is still pending?

Mrs. Bouslog: Yes, your Honor.

The Court: And has been pending now for six weeks?

Mrs. Bouslog: Yes, your Honor.

The Court: That you are counsel of record?

Mrs. Bouslog: Yes, your Honor. And may I say, your Honor, that I think there is not one word of what I said at Honokaa that is in any way, that in any way shows any contempt for this Court, that my remarks were directed, as I said, primarily to the conduct of the prosecution in a Smith Act case. And, of course, more learned and more prominent people than I have said much stronger things concerning the techniques of the prosecution in all Smith Act cases beginning with the Dennis case and all of the pending cases. And those remarks in context were directed generally to the Smith Act cases. Only the specific illustrations from this trial related factually to what goes on in this courtroom.

The Court: Well, Mrs. Bouslog, I am not satisfied with your explanations to the Court. I think this matter requires further investigation. I am going to instruct the U. S. Attorney to make a further investigation of this matter and if he finds under the provisions of Rule 42(b) [18 U.S.C.A.], a Notice and Order to Show Cause should issue, then he will do so.

Mrs. Bouslog: I will say to the Court that I am happy to have any investigation made of what I said. I think perhaps that it is rather unfortunate that the Court refers it to the prosecution whose conduct I was criticizing in the case rather than to an impartial person.

The Court: Well, in that respect, Mrs. Bouslog, if you feel that there is any partiality on the part of the U. S. Attorney, I have no reluctance whatsoever to refer the matter to an independent attorney. I think you should know that throughout this trial I have done everything that I could to assure to the defendants a fair trial. Counsel for the defendants naturally have disagreed with me on some of my rulings on evidence. That is only natural. Or the admission of documents in evidence. But in every other matter that has come up since the time the jury was selected, the matter of fair play on giving the defendants the benefit of the doubt, I have almost consistently done so. It is very surprising to me to read this article in the newspaper after one of your associate counsel, Mr. Wirin, took occasion a week or so ago to come to my chambers during a recess and state that he had been advised or had heard — I didn't ask him the source of his information — that Judge Wiig would not give the defendants a fair trial, and he wanted to state to me at that time that in his opinion the defendants were receiving a fair trial. Again, Mrs. Bouslog, I have done everything I could in this trial to prevent any outside influences from entering into the presentation of evidence and the matters that go to the jury. So when this case is in their hands it will be decided upon the evidence and what has taken place here in the courtroom.

This publication in yesterday afternoon's paper is the first that I have seen which is contrary to what I had hoped for, what I had hoped would continue throughout the trial. The factual reporting of the principal or the Honolulu Advertiser and the Honolulu Star Bulletin had been, I think, fair. I have noticed no editorial comment or other comments which would in any way have an effect upon giving a fair trial to these defendants. And this caused a great deal of concern when it was called to my attention by Mr. Walsh yesterday afternoon. I trust that nothing will happen from here on which will affect this trial in any way. Will you please call the jury?

Mr. Barlow: Am I to understand, your Honor, that I am going ahead with the investigation?

The Court: Yes.

BARNES, Circuit Judge (concurring, in whose concurring opinion Judges HEALY, FEE and CHAMBERS concur).

I agree with Judge CHAMBERS in his holding that the respondent's conduct was grossly improper.

Unquestionably, this Court has jurisdiction in this cause where constitutional objections are raised as to a disbarment proceeding, because the question of according due process of law to the lawyer is always involved. Therefore, this Court has the authority to examine the proceedings. The panel which first heard the cause and now the whole court, with one dissenting judge, agree to this proposition.

Due process of law, both substantive and procedural, was accorded. As the opinion of Judge CHAMBERS shows, the Hawaii Bar Association filed with the Supreme Court of Hawaii a complaint against Harriet Bouslog Sawyer, which contained two charges of professional misconduct. Since Mrs. Sawyer was duly and regularly admitted by the Supreme Court, she was an officer of that court and responsible to it for alleged professional misconduct. In accordance with its own Rule 19, that tribunal referred the cause to its Committee on Legal Ethics and Unauthorized Practice for investigation, which required the Bar Association to furnish a bill of particulars. The Committee held several sessions of the hearing and filed a report containing findings sustaining the charges. The Supreme Court issued an order to show cause, which was directed to and served upon Mrs. Sawyer, who filed a return thereto. Thereupon, the Supreme Court held a hearing de novo. Mrs. Sawyer was accorded the right to and did appear at that hearing in person. She was given the opportunity to be heard, and took full advantage of the occasion. Mrs. Sawyer was given the right to be represented by counsel. Eminent and able counsel of unblemished reputation did in fact vigorously represent her.

The record as a whole, at a minimum, shows that there was not only adequate but substantial evidence to sustain a judgment cancelling her license. Furthermore, irrespective of the dissents, we believe the evidence clearly convincing and sufficient to sustain the judgment beyond a reasonable doubt.

The Supreme Court then suspended Mrs. Sawyer from the exercise of her office, which it had conferred upon her "during good behavior," for professional misconduct, ascertained and declared upon adequate and convincing evidence by the judgment of that tribunal after she was afforded opportunity to be heard both personally and by counsel.

The Supreme Court of Hawaii is not a court organized under Article III of the Federal Constitution, but rather under Article IV, section 3, clause 2 of that instrument.1 The power of Congress to restrict or abrogate appellate review from such a tribunal is paramount.2 There is doubt whether appellate courts organized under Article III can be constitutionally burdened with review of administrative functions or housekeeping regulations or determination of a legislatively controlled tribunal.3

Even in cases where Congress has permitted review of the territorial Supreme Courts, the appellate courts of the judicial system proceed with extreme caution where local customs, practices or the subtle influences or nuances of customary local law may be present.4 The same caution should be employed in a parallel situation if local custom of a legislative tribunal dictated that its licentiate should not obstruct the course of justice in another court.

I read the original Matsuoka notes (not the newspaper story thereafter written) as a direct attack upon Judge Wiig's conduct of the trial and his rulings therein; that Mrs. Sawyer charged that "this" was not a fair trial; that Judge Wiig's rulings on evidentiary matters were unfair; that Judge Wiig, with the government prosecutors, "make up the rules as they go along;" that in this case all rules of evidence were "scrapped;" that the conduct of this Smith Act trial was a crime that had to be stopped. How such charges can be characterized as being "devoid of any attack upon Judge Wiig or his Court," or to constitute "not even a scintilla of evidence" of an attack upon the integrity of Judge Wiig, as does my brother, Judge POPE, is beyond my powers of comprehension.

Whether such acts charged to Judge Wiig were "shocking and horrible" is beside the point. Mrs. Sawyer chose to characterize them as such.

To conclude that Mrs. Sawyer was referring to Smith Act cases generally, and to "all Smith Act cases," but was not referring specifically to this one case then on trial, is to my mind nonsense. Her attorney at the trial clearly understood "that this was a talk about what was going on in the Smith Act trial here in Honolulu. Now let's not fool ourselves about that. We're lawyers here." Mrs. Sawyer said: "Unless we stop the Smith [Act] trial in its tracks here there will be a new crime." Mrs. Sawyer was then and there referring to but one Smith Act case; the Smith Act case then before Judge Wiig. Any other interpretation flies in the face of reality and renders the English language not understandable.

The point urged by Judge POPE that "Judge Wiig did not rule upon Crouch's testimony until long after the speech," seems to me to compound the offense rather than excuse it. If the court had not yet made its ruling on admissibility, even more reason existed why Mrs. Sawyer should not attempt to influence the court's subsequent order by inflaming her audience outside the courtroom during the trial's progress. This was a criminal trial by jury who were not impounded but were permitted to mingle with the community when the court was not in session. Even customary media of communication are restricted to "fair comment" in reporting the proceedings.

To me this case no more involves "freedom of speech" in its constitutional sense than do the rules of court which permit a judge to require an attorney (whether he represents Smith Act defendants or the government or any other litigant) to take his seat in a courtroom, and to refrain from further statement. An attorney, acting as such during the trial of a case, must be subject to certain restrictions upon what he may say or do. To that extent he has lost a certain freedom of speech, and a certain freedom of conduct. To that extent such loss of freedom is a necessary adjunct to the intelligent and orderly enforcement of all litigants' constitutional rights, including those clients the disciplined attorney represents. The attorney need not give up his complete freedom if he prefers not to act as an officer of the court in the trial of a case. When he purports to so act, whether through preference or in response to duty, unless he is to be bound by the reasonable rules of the court governing all cases tried therein, he advocates that anarchy should rule.

I concur in the affirmance.

POPE, Circuit Judge, with whom HAMLEY, C. J., concurs (dissenting).

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 Amendment. 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 Schware claimed he had been denied a constitutional right, the 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 found 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, because 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