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In that case, Life magazine published an article entitled: "The Mob: The Congressmen and the Hoodlum." The Court denied plaintiff's request for an injunction and stated "to enjoin any publication no matter how libelous, would be repugnant to the First Amendment to the Constitution." And, in Alberti v. Cruise, 383 F. 2d 268 (4th Cir., 1967), the court refused to issue an injunction even in the face of tortious conduct, such as defamation or harassment. Even where property rights are involved, courts generally will not issue an injunctive order restricting the fragile right of free speech. Birnbaum v. Wilcox-Gay Corp., 17 F.R.D. 133 (N.D. Ill., 1953). Injunctive relief will be granted only where extraordinary and unusual conditions have been found to exist. Rampton v. Fox, 235 F. 2d 883 (10th Cir., 1956). The reason for such decisions is that there is no power, the exercise of which is more delicate, more dangerous in a doubtful case, and which requires greater caution, deliberation, and sound discretion, than the issuing of an injunction. Time, Inc. v. T.I.M.E., Inc., 123 F. Supp 446, 457 (S.D. Calif., 1954).

Courts have also held that an injunction will never issue to restrain an act which does not give rise to a cause of action. United States v. Koch Bros. Bag Co., 109 F. Supp. 540 (W.D. Mo. 1953); Beranek v. Wallace, 25 F. Supp. 841, 844 (N.D. Ind. 1939). Nor will injunctions lie to allay a litigant's fears; there must be evidence of a real injury threatening. Humble Oil and Refining Co. v. Harag, 262 F. Supp. 39, 44, (E.D. La., 1966); Worthington Pump and Machinery Corp. v. Douds, 97 F. Supp 656, 551 (S.D. N.Y., 1951); and Hersey Creamery Co., v. Hershey Chocolate Corporation, 269 F. Supp. 45, 59 (S.D. N.Y., 1951). And, an injunction cannot be granted where the injury is merely anticipatory. Veatch v. Wagner, 116 F. Supp. 904, 907 (D. Alaska, 1953). More on point, nothing in the Constitution authorizes anyone to prevent the Congress from publishing any statement. Methodist Federation for Social Action v. Eastland, supra.

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CONCLUSION

For the foregoing reasons, the defendants respectfully submit that the order of the district court granting a permanent injunction and declaring the Report unlawful should be set aside, and the case remanded with instructions to dismiss the complaint as to the remaining two defendants.

ROBERT C. MARDIAN,

Assistant Attorney General,

KEVIN T. MARONEY,

Deputy Assistant Attorney General, BENJAMIN C. FLANNAGAN,

Attorney, Department of Justice,

GEORGE W. CALHOUN,

Attorney, Department of Justice,
Washington, D.C., 20530,
Attorneys for Defendant-Appellants.

71-846 - 76 - 23

Exhibit 12

WITHDRAWAL OF APPEAL IN HENTOFF AND OTHERS AGAINST ICHORD

(By Hon. Richard H. Ichord of Missouri, in the House of Representatives)

Tuesday, April 6, 1971

Mr. ICHORD. Mr. Speaker, I wish to advise the House that I and other Members, who appear as appellants in Hentoff-et al. v. Ichord et al., case No. 24,761, U.S. Court of Appeals for the District of Columbia Circuit, have instructed the Department of Justice to withdraw our appeal.

You will recall that on October 23, 1970, during a recess of the House, a judge of the U.S. district court, the Honorable Gerhard A. Gesell, acting at the instigation of a representative of the American Civil Liberties Union, had the presumption to enter an unprecedented order permanently enjoining the Public Printer and the Superintendent of Documents from printing and distributing a House report. The report in question was a report of the Committee on Internal Security, titled "Limited Survey of Honoraria Given Guest Speakers for Engagements at Colleges and Universities," which I filed with the House on October 14, 1970.

Following the filing of this report, the House adjourned on that day and recessed until November 16, 1970. An appeal was taken on October 30, 1970, to the U.S. court of appeals and motions were filed for summary reversal of the district court's order or, in the alternative, for the expedited processing of the appeal. We asked the court of appeals to consider and decide the base before Congress returned from recess on November 16, 1970. In doing so, we had hoped to avoid the head-on confrontation between the judiciary and the legislative authority which was inherent in the district court's assumption of power in excess of that which it possesses. Article 1, section 6 of the U.S. Constitution clearly denies jurisdiction to the courts to question the speech or debate of Members in the House. We had every reason to believe that the court of appeals would summarily reverse the action of the district court without delay or equivocation.

Contrary to our expectation, the Court of Appeals, in disregard of the urgencies of the situation and of the rights and privileges of the House, on November 5, 1970, entered a per curiam order denying our motion for a summary reversal or, in the alternative, for an expedited processing of the appeal. On the return of the House from recess, these facts were brought to its attention. See CONGRESSIONAL RECORD, House; October 14, 1970, at E0336 and H10124; November 17, 1970, at E9638; December 2, 1970, at pages H11060H11070; and December 14, 1970, at pages H11606-H11625.

In the enactment of House Resolution 1306 on December 14, 1970, the House acted decisively to vindicate its constitutional authority. So that the business of the House should not be obstructed on the report while the matter was on appeal, a second report on the same subject matter was filed with the House. The printing and public distribution of the second report was ordered by the resolution which further restrained any and all persons, whether or not acting under color of office, from interfering with its printing and dissemination. The enactment of this resolution, a landmark occurrence in the history of the relationship between the judicial and legislative branches, thus squarely placed the issue of confrontation as a choice to be made by the court. I am pleased to report to the House that although the second report has been printed and published as ordered, we have not to date experienced any further interference on the subject by either the district court or the court of appeals. Should any such action be attempted, we are confident that the House will know what to do and will not lack the will to do it.

In my opinion, no useful purpose can be served by continuing the appeal at this stage and at this time. The printing of the first report would now amount only to a duplication of that which has been printed and published. Under the circumstances, I do not think it desirable that we should, by continuing the appeal, appear to give credence to the thought that we in any way acknowledge or submit to any assumption of jurisdiction by the courts in defiance of the constitutional bar of article I, section 6. While the withdrawal of the appeal would, in a sense, permit the decision of Judge Gesell to stand, his action should have no precedential value whatsoever in light of

the resolution enacted by the House on December 14 restraining its enforcement.

I have discussed the question of withdrawal of the appeal with the present and former Members of the House who are appellants with me, as well as the Public Printer, and the Superintendent of Documents. We are all in agreement in taking this course, and we have accordingly instructed the Department of Justice to file a withdrawal of the appeal in the U.S. court of appeals. -Cong. Rec. 2809-2810 (April 6, 1971)

Exhibit 13

(Correspondence Regarding Withdrawal of Appeal, Including Motion to WITHDRAW APPEAL IN HENTOFF V. ICHORD

CONGRESS OF THE UNITED STATES,

HOUSE OF REPRESENTATIVES, COMMITTEE ON INTERNAL SECURITY, July 13, 1971.

Re: Hentoff, et al. v. Ichord, et al. No. 24, 761 U.S. Court of Appeals for the District of Columbia Circuit.

Hon. ROBERT C. MARDIAN,

Assistant Attorney General,
Department of Justice,

Internal Security Division,

Washington, D.C.

DEAR MR. MARDIAN: I thank you for your letter of July 7 enclosing copy of proposed draft of motion to dismiss the above appeal, in response to my letter of June 22.

I cannot approve the motion in the form in which it is prepared. The appellants do not rest their motion for withdrawal on any claim of "mootness." This is not a typical mootness case. We stand on the position asserted in my remarks of April 6, 1971, which are self-explanatory and will be made a part of the motion. We are, moreover, simply asserting a right of withdrawal which requires no explanation as to motive or purpose. You will therefore delete paragraphs numbered 2 and 5 of the motion and renumber the remaining paragraphs accordingly. I would also suggest that you delete the period at the end of paragraph 1 and add the following: "and published." With these changes, you are authorized and directed to file the motion to dismiss on our behalf.

Kindly advise me when the revised motion has been filed with the Court, and let me have a copy of same. I will also appreciate your advice on receipt of any response made by the appellees.

With personal regards and many thanks for your attention to this matter, I am

Sincerely yours,

RICHARD H. ICHORD,

Chairman.

INTERNAL SECURITY DIVISION,

July 30, 1971.

Re: Hentoff, et al. v. Ichord, et al. No. 24,761 U.S. Court of Appeals for the District of Columbia Circuit.

Hon. RICHARD H. ICHORD,

Chairman, Committee on Internal Security,

House of Representatives,

Washington, D.C.

DEAR CHAIRMAN: This is in reply to your letter of July 13, 1971. Attached hereto is a copy of a Motion to Dismiss filed in the above captioned case today. Sincerely,

ROBERT C. MARDIAN, Assistant Attorney General.

By: ROBERT L. KEUCH, Chief, Appellate and Civil Litigation Section.
Enclosure.

In the United States Court of Appeals for the District of Columbia Circuit

(No. 24,761)

NAT HENTOFF, ET AL., APPELLEES

บ.

RICHARD H. ICHORD, et al., [ADOLPHUS N. SPENCE AND ROWLAND E. DARLING],

APPELLANTS

MOTION TO DISMISS APPEAL

Now come appellants, pursuant to the provisions of Rule 42(b) of the Federal Rules of Appellate Procedure, and move this Court to dismiss the appeal taken by appellants from the judgment entered on October 28, 1970, by notice of appeal filed October 30, 1970, said appeal having been docketed with the office of the Clerk of the Court of Appeals for the District of Columbia Circuit. In support of this motion, appellants state:

1. That, as set forth in Exhibit A attached hereto (Congressional RecordExtensions of Remarks for April 6, 1971, page E 2809f), a second House Report on the same subject matter as the Report involved herein was, subsequent to the district court's order below enjoining publication, filed with the House of Representatives. Pursuant to House Resolution 1306 which was passed on December 14, 1970, the second Report was ordered to be, and was, printed and published.

2. That Rule 42(b) permits either party to move to dismiss an appeal, Blount v. State Bank and Trust, 425 F. 2d 266 (4th Cir. 1970), and where no further relief is sought by appellees and they will not be prejudiced by the dismissal, appellants have a right to dismiss their suit at any stage of the proceedings prior to final judgment. See, e.g., Greenville Banking & Trust Co. v. Selcow, 25 F. 2d 78 (3rd Cir. 1928) and cases cited therein.

3. That where the requirements of Rule 42 are met, dismissal is proper. Rivera v. Ciccone, 311 F. Supp. 373 (W.D. Mo. 1969).

Respectfully submitted,

ROBERT L. KEUCH,

Attorney, U.S. Department of Justice.

Exhibit 14

(Oregon v. Mitchell, excerpts from transcript of oral argument before Supreme Court, pages 24-28)

ORAL ARGUMENT BY HONORABLE ERWIN N. GRISWOLD, SOLICITOR GENERAL OF THE UNITED STATES, ON BEHALF OF JOHN N. MITCHELL, ATTORNEY GENERAL

Mr. GRISWOLD. Mr. Chief Justice, and may it please the Court: the cases now being argued, number 43 and 44 original, Oregon and Texas against John N. Mitchell, Attorney General, are being argued first, I suppose, because they have the lower docket numbers.

They involve only the question of age under the 18-year-old vote provision in the Voting Rights Amendment Act of 1970. And I am representing the respondent in those cases.

The two following cases are: The United States against Arizona and the United States against Idaho, numbers 46 and 47 original. They also involve the age provision but in addition to other provisions; one relating to literacy tests and the other relating to residency requirements. In those cases I am representing the Plaintiffs.

Since we were appearing for the plaintiffs today our briefs had to be filed before our brief in this case was due and the consequence is that our principal brief has been filed in the Arizona and Idaho cases, numbers 46 and 47 original.

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