Marshall Krause on Winning Fixa v. Heilberg (1965) at the US Supreme Court


well it was it’s very important to me
because it’s the first case I argued before the US Supreme Court and I was
kind of a young attorney at the time and I wasn’t quite sure how I would come out
but eventually to make a long story short I won the case but it was about
Congress passing a law saying that if you and the United States person wanted
to get mail from behind the Iron Curtain which was not first-class mail
first-class mail was not affected by this law but if you wanted to get second
or third class mail which is periodicals mainly you had to go to the post office
and tell them that you desired to have that mail delivered or else they
wouldn’t deliver it and they would destroy it and so my client Leif Heil
Berg came to me and said he didn’t want to go to the post office and put his
name on some list but he wanted the mail and we felt that was reasonable because
this was at the still the height of the McCarthyite period and if you had
your name on a list of sympathizers people who thought were sympathizers
with the Russian and Soviet Union you would be in trouble so we sympathized
with him and we said we thought this law was unconstitutional we had a trial
before a three-judge District Court which is the procedure at that time for challen- challenging the constitutionality of a law and we won
the trial so the government had to appeal and they were given the right to
directly appeal to the US Supreme Court and they did and the Supreme Court
accepted the case and so I had to argue it and it was really interesting I don’t
know whether I told you last time about the good luck I had in finding a
passage in a book okay well I’ll tell you then I was
preparing very hard for this case I had read all the transcripts and the legal
arguments and the precedent cases and I thought I was really up on it and I just
got to the point where I couldn’t do anything more and yet I felt I had to
continue working on it because it was so important and so I was in the law
library I couldn’t look at my stuff anymore so I just started to wander
around and I picked off a book randomly from the shelves of the law library and
it opened up to a page that had something pertinent to our case it seems
and this book said that in the period prior to the Civil War
the southern states and the southern senators were very concerned about
abolitionist literature coming into the south so they wanted to pass a law that
if someone didn’t want abolitionist literature they could just put their
name on a list and it wouldn’t be delivered to them and when this bill was debated
in the Senate it was defeated on the basis that it would be a violation of
the First Amendment so that was very interesting to me and I kind of just
noted it in my head I think I made a note in my legal pad about it when the
case came up for argument one of the first questions given to the Solicitor
General my opponent Archibald Cox was Mr. General Cox hasn’t this occurred
once before in the United States history and he looked around at all of his
assistants and they all shook their heads and he said no Justice Black this
has never occurred before in American history so that gave me my entree when I
got up to speak because I was able to say I’m not going
to speak about anything that I have prepared here I’m just going to answer
the questions that the other attorneys were not able to answer and I started
off with that first one telling the justices about that Civil War precedent
that the Senate rejected because it violated the First Amendment and I could
see that they were all writing down this it was very important to them and
justice black was very happy to hear that he was right that it had happened
before in American history and it ended up that we won the case I
think by a 6 to 3 vote and it was the first time that an act of Congress had
been declared unconstitutional because it violated the First Amendment so that
was a real landmark

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