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 Hawaii 3 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.

*192 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. Cab-reros 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.

The text of the complaint was as follows:

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:

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 be *197 come 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:

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 oversimplify 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:

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

*199 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.

Seriatim we note respondent’s points:

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.

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.

*200 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:

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

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 Steinman 12 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 *201 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 carrot 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:

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 tern 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,

It is true that Lawyer Howell had entered a non wit 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. Judgment affirmed. 17

Appendix A

Report of Legal Ethics Committee 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 Charges:

The two charges made in this complaint have to do with (1) the alleged improper conduct of Mrs. Harriet Bous-log 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 Facts:

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 Fuji-moto, et als., Defendants,” being Criminal 10495 in that Court; that on De *204 cember 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.

Conclusions and Recommendations:

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.

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.

*205 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, 1965.

/s/ R. G. Dodge.

[Endorsed]: Filed July 1, 1955.

Appendix B

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. *206 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 duffie 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 b^g 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 *207 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.

Appendix C

The Sawyer Explanation to District Judge Wiig

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

Afternoon Session — December 16, 1952

(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 Hon- or. 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 ex *208 cerpts 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 Ho-nokaa 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 *209 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 ease 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 Pala-kiko 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 di *210 reeted 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. lex-plained 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 Ho-nokaa 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 *211 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.

. The convictions were reversed by this court on January 16, 1958, upon the authority of Yates v. United States, 354 U.S. 298 , 77 S.Ct. 1064 , 1 L.Ed.2d 1356 . See Fujimoto v. United States, 251 F.2d 342 .

. Honolulu is located on the Island of Oahu. The Island of Hawaii is popularly known throughout the Territory of Hawaii as the “Big Island.”

. A. William Barlow was the United States Attorney for the District of Hawaii during the Smith Act trial at Honolulu and an active participant in the trials. He left the office on September 2, 1954. He appears to have boon active in the preparation of the case. He presented it to the legal ethics committee at its hearings which began November 24, 1954. Then, on July 8, 1955, he and the attorney general were appointed to present the case to the court. Barlow’s representation in behalf of the complaint, and now the judgment, has continued on appeal.

. Mrs. Fuller refused to sign an affidavit prepared for her by Mrs. Sawyer.

. Prior to April 21, 1954, under its Rule 19, charges against an attorney were authorized to be filed by the attorney general of Hawaii or “any person aggrieved.” By an amendment made on April 21, 1954, charges were authorized to be filed by the attorney general, the Bar Association of Hawaii, or any person aggrieved.

. A division of this Court, Circuit Judge Lemmon dissenting, on May 23, 1956, granted a stay pending the outcome of the appeal herein.

. That court’s opinion, which is supported by the record, shows that at every step of the proceedings Mrs. Sawyer was accorded procedural due process. To inquire into procedural duo process may well be the limit of the scope of any review that this court of appeals is entitled to make on this type of an appeal. Indeed, one finds in appellant’s specifications of error a canting of them in the language of procedural due process, as if counsel were well aware of this possibility.

. Counsel for respondent in their reply-brief insist they don’t dispute that Mrs. Sawyer spoke at Honokaa concerning the Honolulu trial. But- a fair charae-terization of tbe opening brief is that it says, “Mrs Sawyer didn’t really say much about the Honolulu trial, and that was of no consequence.”

. Bridges v. State of California, 314 U.S. 252 , 62 S.Ct. 190 , 86 L.Ed. 192 .

. “Sec. 9701. Qualifications. The Supreme Court shall have the power to examine, admit and reinstate as practitioners in the courts of record such persons of good moral character who are citizens of the United States of America, * * * and [who] have taken the prescribed oath of office, as it may find qualified for that purpose; [but no person shall be examined, admitted or reinstated unless he is qualified under the Hawaiian Organic Act to vote in the Territory of Hawaii and shall have actually registered as such voter;] and the supreme court shall have the sole power to revoke or suspend the license of any such practitioners or to dismiss or suspend them from the roll of practitioners for malpractice, fraud, deceit or other gross misconduct.”

. Cf. In re Breen, 30 Nev. 164 , 93 P. 997 , 17 L.R.A.,N.S., 572.

. See 28 U.S.C.A. § 1293 .

. Cf. Bell v. Hood, 327 U.S. 678 , 66 S.Ct. 773 , 90 L.Ed. 939 .

. Cf. Theard v. United States, 354 U.S. 278, 281 , 77 S.Ct. 1274 , 1 L.Ed.2d 1342 .

. Mr. Justice Cardozo when on the New York Court of Appeals said, “Membership in the bar is a privilege burdened with conditions. Matter of Rouss, supra 221 N.Y. [81], at page 84, 116 N.E. 782 . The appellant was received into the ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.” People ex rel. Karlin v. Culkin, 248 N.Y. 465 , 162 N.E. 487, 489 , 60 A.L.R. 851 .

. Circuit Judge Denman, then Chief Judge, presided at the oral arguments of the foregoing ease heard en banc. Between the date of hearing and the date of decision he retired. He now deems it inappropriate that he participate in the en banc decision. Circuit Judge Lemmon heard the oral arguments, but his death occurred on April 26, 1958.