American Committee for Protection of Foreign Born v. Subversive Activities Control Board – Oral Argument – December 08, 1964

Media for American Committee for Protection of Foreign Born v. Subversive Activities Control Board

Audio Transcription for Oral Argument – December 09, 1964 in American Committee for Protection of Foreign Born v. Subversive Activities Control Board

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Earl Warren:

Number 44, American Committee for Protection of Foreign Born, Petitioner, versus Subversive Activities Control Board.

Mr. Forer.

Joseph Forer:

Mr. Chief Justice, may it please the Court.

This case presents a review an order of the Subversive Activities Control Board directing the petitioner, the American Committee for Protection of Foreign Born to register as a Communist-front organization in accordance with the provisions of the Subversive Activities Control Act.

Such an order has very serious and drastic consequences to any organization to which it is addressed.

In the first place, the order represents and it is accompanied by a governmental — a governmental determination that the organization to which it is addressed is a subversive organization.

Secondly, the organization has to acquiesce in that brand of it by the government by registering itself with the Attorney General as a Communist-front organization.

In addition, it must file a registration statement in which it divulges to the eyes of the public and to the Attorney General with whom it has filed various details concerning its internal affairs including the names of all its dues paying members and all its contributors.

Byron R. White:

This is for a front organization?

Joseph Forer:

Yes.

Byron R. White:

I thought — I thought for action organization —

Joseph Forer:

No.

The Communist-action organizations have to list all their members and contributors.

Communist-front organizations don’t have to list all their members but they do have to list all the sources from which they receive their revenue.

And under the regulations of the Attorney General in fact they have a copy of the form right there.

They have to list the names and address of every person from whom they received a nickel.

And that is why I was careful to say not that they have to list all their members but that they have to list all their dues paying members.

They don’t have to list members that don’t pay their dues.

In addition to that, the Act imposes certain sanctions on the organization and on its members which become effective as soon as the registration order becomes effective.

The organization is required to label its publications, its radio broadcast and any television broadcast as being disseminated by a Communist organization.

The organization is denied any tax exemptions and contributions to it are not tax deductible.

Employees of the organization are not permitted to be on the social security roles and no government employee and no employee in a defense plan may make any contributions or perform any services for the organization.

Are the sanction equivalent for Communist-action organizations?

Joseph Forer:

There are a few minor differences.

And I’ll — and those are basic — those differences are basically with regard to the sanctions on the members rather than on the organization itself.

These that I have just mentioned, the sanctions on the organization are true of the Communist-action and Communist-front organization.

So far as the members are concerned, in both front and action organization, the members are denied employment with the Federal Government or with labor unions.

In an action organization, the members can even work in privately owned defense plans or defense facilities.

In the front organization, they make a nominal distinction in favor of the members of the front.

Theoretically, they are allowed to work for a defense facility but only if they volunteer to the management and disclose to the management that they are members of the subversive organization, then if the management is still willing to employ them why then they can have such employment.

Joseph Forer:

Members of the organization are not elligible to receive scholarships or tuition loans under a federal aid education programs.

Members of the organization if they are — who are aliens cannot be — cannot be naturalized, they are subject to deportation, and if they were recently naturalized within the preceding five years, they are liable to denaturalization.

Now, it’s perfectly obvious that the net effect of the brand, the registration, the laws of privacy, and these sanctions is to destroy any organization which like this organization depends on the goodwill of the public, to destroy the right of association in the organization.

It should destroy the ability of the organization to promote its cause and to attempt to enlist public support.

Now, why was this done to this organization, and that brings me to the definition of a Communist-front organization.

In order to get to that, let me first take up the definition of a Communist-action organization.

That definition in substance is an organization which is substantially controlled by the Soviet Union and which operates to advance the seditious objectives attributed to the World Communist Movement in Section 2 of the Act.

And the Communist-action organization meant to refer to the Communist Party and that no one’s amazement on April 20th, 1953 the Subversive Activities Control Board found that the Communist Party was the Communist-action organization.

Now, a Communist-front organization has somewhat the same relationship to a Communist-action organization.

In this sense, first of all, there are two components of what constitutes a Communist-front organization.

First, the organization has to be substantially controlled by the Communist-action organization, that is by the Communist Party.

I may say to begin with that this control isn’t the kind of enforcible control that you could put your hand on that a master has over a servant, that a parent corporation has over a subsidiary.

Control for the purposes of the Act as it was interpreted in the Communist Party case is a kind of psychological disposition to whereby the body that is controlled tends to agree or with the body which controls it because of the source from which the opinion comes rather than on the basis of it’s own independent judgment.

So the first component is — of a Communist-front organization is that is substantially controlled in this sense by the Communist Party.

And the second component, which is what I call in my brief the aid component has to do with what the organization does, and it must be and I quote now, “Primarily operated for the purpose of giving aid and support to the Communist Party or to a Communist-action organization.

Now, I would like to take up first the — what I consider to be the most important issue in this case and that is the Board’s construction of the aid component and my contention that first the Board must construe the aid component and secondly if it’sconstruction is right the Act is palpably unconstitutional.

So far as the control component is concerned and I’ll try to get to that if time permits, I have attempted in the briefs to examine the various elements on which the Board based its determination of control.

And in my opinion, we stablished that the Board used erroneous standards that it misconstrued the Act in numerous respects and made many evidentiary mistakes.

But let me first get to the aid component, in the basis on which the American Committee was held that they primarily operated for the purpose of giving aid and support to the Communist Party.

Now, the American Committee has been actively in business since 1933 and the first thing that we know is what it does not do that conceivably might constitute giving aid and support to a Communist-action organization.

There is no contention, no suggestion, no evidence and no finding that the American Committee engages or has ever engaged in violence or insurrection or has advocated violence or insurrection.

In fact, there is no contention that the American Committee has ever attempted to promote any kind of Marx’s ideology or any other doctrine seeking fundamental change in society, in our society as distinguished from reforms within the structure of our society.

Neither is there any suggestion that the American Committee has at anytime aided the Communist Party organizationally, there is no suggestion and no finding that the American Committee is going out and recruited members for the Communist Party or that it has raised money for the Communist Party.

This is what the organization does not do.

Now, what does it do or what has it done that was held to constitute aiding and supporting the Communist Party.

Both the Board and the Court found that the American Committee’s primary activity and in fact its only activity consisted of a best variety of activities designed to advanced the interest of the Foreign Born in this country.

There was educational works, service works such as helping people with their naturalization problems, legislative work and so forth.

But the thing that bulks the largest in this case is what is called the American Committee’s defense work, and this defense work consists of the defending aliens who are involved in deportation proceedings or naturalized citizens who are involved in the denaturalization proceedings.

In those cases, the American Committee sponsors the litigation if it is asked for a sponsored litigation at all levels and if it is a litigable case from the Immigration Service to and including this Court and there has been numerous cases sponsored by the American Committee in this Court.

It furnishes counsel if the alien doesn’t have its own counsel, it pays all expenses of the litigation.

Joseph Forer:

And also, it is customary that the American Committee not only defends the individual in the litigation itself but it puts on the public defense forum.

That has caused the attention of the public to a sad situation to the action generally considered arbitrary of the Immigration Service, Department of Justice, and so forth.

Potter Stewart:

And this involves a denaturalization cases as well as —

Joseph Forer:

Yes, relatively few of those.

For one thing, there are — there aren’t —

Potter Stewart:

Not so many of them.

Joseph Forer:

— very many of those.

Potter Stewart:

And the —

Joseph Forer:

The great — but mostly deportation cases but also some denaturalization case.

Potter Stewart:

All kinds of deportation cases?

Joseph Forer:

Yes, I’m coming to that.

The record is clear and it is undisputed that the American Committee defends every alien involved in a deportation case who seeks its help without any conditions, without asking any questions and regardless of the nature of the accusation and the same thing is true of a naturalized citizen faced with a denaturalization case.

And this stems from the general position of the American Committee that it is opposed to all deportations of resident aliens no matter for what reason and it’s opposed to all denaturalizations no matter for what reasons.

And that policy has been publicly proclaimed that was found by the Court, there’s no evidence to the contrary, mountains of evidence in its face.

Now, among the cases, which the American Committee has defended and is all-time — defended at in political cases.

As a matter of fact, the very first case that this record shows that the American Committee that we know about, this was a 1935, the American Committee was defending the case of a man by the name of Alfred Miller.

Alfred Miller was a Jewish refugee from Nazi, Germany and the Immigration and Naturalization Service was trying to deport him back to Nazi, Germany and sure death on an allegation that he has been a member of the Communist Party in Nazi, Germany.

That’s the first political case that we know of that the American Committee was defending.

But these cases were relatively few and far between among the cases defended by the American Committee until the Cold War started in 1946 when the Department of Justice started a full-scale deportation drive against the alleged members or past members of the Communist Party.

They brought these cases by the hundreds and thousands as the record abundantly shows.

This drive was not limited to security risks.

It was limited to people who are nominal members.

It included people who are nominal members, it included people who were long time passed members, who had been members of the Communist Party for only a short time, people who are long time residents, who’s families were disrupted, often involved a dubious evidence and it also involved some pretty harsh procedures including holding aliens without debts.

Now, many of the aliens that got involved in this onslaught were poor, it couldn’t afford a counsel, and this is all in the record, others could afford counsel, and they went to their regular lawyers in the 1940s and their lawyers refused to represent them because they were afraid.

And still others who got counsel and the counsel didn’t know anything about the deportation cases.

And it was natural for them and many of them did it, they go to the only place that was publicly commited to defending anybody involved in a deportation case and that had the ability and the resources and the knowhow of the defendant.

And the American Committee litigated as a test case not knowing at the time that this would then be considered evidence against it, the case of Peter Harisiades in which this Court upheld for the first time the constitutionality of the political grounds for deporting past membership in the Communist Party and the American Committee lost that.

It then managed somewhat later to recoup some of that ground by interpretation by winning the Rowoldt case in which the majority opinion was written by Mr. Justice Frankfurter, and more recently the Gastelum-Quinones case in which a majority opinion was written by Mr. Justice Goldberg.

The one witness in the position denote the number of cases, political cases, as compared to other cases handled by the American Committee was Abner Green, the Executive Secretary of the Committee, now dead.

And Mr. Green estimated that in a 20-year period, the American Committee has sponsored somewhere between three and 4000 cases of which 350 to 400 were political cases.

Joseph Forer:

The Board said — well, it didn’t think the proportion was particularly significant but it thought that the proportion was much larger and it estimated about 50%, it never said on where it based its estimate and there is nothing in the record on which it based its estimate.

But the fact is that both estimates were the cases in which the accusation was a Communist Party membership and frequently the accusation turned out to be wrong and in which the accusation was not only a present membership but also of past membership.

Now, when — when the American Committee got involved in this case to this extent and in view of the atmosphere, the time at that point, the American Committee stopped being a respectable organization as far as the Government was concerned.

Government officials no longer came to speak on its affairs and it made the Attorney General’s list of subversive organizations in 1949.

Now, the Board’s theory is that in determining that the meaning of the aid components of what is giving aid and support to the Communist Party, they said it doesn’t matter what the organization actually does, it is what they called the motive — purpose by which they meant motive for what Board does.

And the Board found that the primary motive or primary purpose they call to the American Committee was to defend the members of theCommunist Party in deportation cases and it recognizes that they are always non-Communist cases, but it said that that wasn’t inconsistent with its primary motivation, its primary purpose.

And on that basis, it held that the American Committee satisfied the aid component of a Communist-front definition.

Now, I may say that the evidence on which they drew this inference of motive seems to me that the — well, it just outlandish and I have a whole section of the brief devoted to each bit of evidence from which they drew that inference but I can’t get into that now.

But that was the theory of the Board.

Now, the Court of Appeals had a somewhat different theory.

It didn’t talk about motive, it said, “Yes, the major emphasis of the Committee’s work was this defense activity” and it said “This — this defense of every alien that sought its help was a very laudable thing”.

As a matter of fact, many of the cases that the American Committee won, were won in that very court.

It said it was a very laudable thing but this laudable activity constituted aid and support to the Communist Party and therefore made the organization subversive in two ways.

First of all, it said some of the aliens whom it defended were accused of being Communist and some of them those who were so accused actually happened to be Communist, and in so far as the American Committee defended people who were members of the Communist Party.

They said, “Obviously, that benefited the Communist Party” and therefore in that respect the American Committee satisfied the aid component by aiding the Communist Party.

But it said there was a more subtle way in which the American Committee aided the Communist Party.

It says the American Committee goes around engaging in all these laudable activities having laudable objectives and doing good deeds and it gets a lot of public credit for it and it said that helps the Ameri — that helps the public image of the Communist Party.

And in that way, in this subtle way, the American Committee helps the Communist Party because the Communist Party gets credit for the good deeds of the American Committee.

This on the face of it seems to me to be preposterous.

In any event, the Government’s brief now repudiates that theory because it is manifestedly inconsistent with the Government’s contention that one of the things that distinguishes and makes it necessary to apply the Act to Communist-front organizations is that they hide their connections with the Communist Party.

Well, if they hide their connections with the Communist Party, it doesn’t make any sense to say that the Communist Party gets credit for their good deeds.

So that is repudiated by the Government and we come down to the proposition that the sin of the American Committee, the thing that makes the American Committee satisfy the aid component of the Act is that it depends among other aliens, persons who actually are members of the Communist Party.

Was there any evidence that the organization was doing things other than these activities that you’re referring to?

Joseph Forer:

No sir.

The — and that again is examined in detail in the brief, I may say incidentally, Mr. Justice Harlan, that the of course the aid component talked about its primary activity, so even if there were, it would still be a question of what its primary activities are.

But there is no eivdence that the American Committee did anything but seek to advance the interest of the Foreign Born according to its light.

Now, what the Board did and what the Government does in its brief, American Committee puts out a 47-page pamphlet written by Abner Green.

This pro style, the Board couldn’t stand and neither can the Government apparently.

And in this 47-page pamphlet, he theorizes about why do you have these kind of political deportation, it says it’s part of the whole atmosphere caused by persecuting Communists in the Smith Act prosecutions and so forth.

So out of the 47-page pamhplet dealing with deportation cases, the Board picks out one sentence in which he says look at the Smith Act and look at the Rosenberg cases, and say, “See the American Committee is the party from this purpose.”

Joseph Forer:

All those things are examined and in my opinion, that’s what I meant when I said the outlandish basis on which the Board infered its purpose and I’ll go into that in detail.

The point I am making now is that there is no question on this record and from the findings of the Board and from the findings of the Court of Appeals that the American Committee sin was that it defends Communist in depotation cases.

Now, I suppose that that sin is compounded because it had so often won some of those cases, of course, aided and defended in that respect by the federal courts, sometimes including this one.

Arthur J. Goldberg:

Not to the part of excluding the Government —

Joseph Forer:

What?

Arthur J. Goldberg:

— represented them in part and still the Government denies it, the other part (Voice Overlap) —

Joseph Forer:

The other part is —

Arthur J. Goldberg:

— is control.

Joseph Forer:

— control.

But you have to have both sins in order to meet the statutory definition.

Now, first I want to say that we think that that is a thoroughly unsound interpretation of the aid component.

And a correct interpretation of the aid component, in the first place, it wouldn’t depend on motivation, it would depend on what the organization did and it means that the organization has to be engaged in activities or primarily engaged in activities, which aid in some reasonably direct manner.

The supposed illicit objectives, which by definition characterized a Communist-action organization which it supposedly aiding, for example, that it advocates violence or Marx’s ideology or it aids the organization — organizationally by recruiting for it, raising money or something of that sort.

But it does not in our opinion and cannot constitutionally hold activities which are considered laudable and benign if they are done by anybody else on the grounds that somehow these activities might conceivably in some possible indirect way or might be motivated to benefit the Communist Party or to coincide with some clauses that Communist support along with non-Communist.

Under the construction of the Board and the Court, if you had a hospital which was run by a member of the Communist Party and that hospital took in as part of its services, persons who are members of the Communist Party as well as persons who were not members of the Communist Party that would be aid and support for the Communist Party and it would satisfy the means component.

And since you had a member of the Communist Party running it, it would — it would satisfy the control component and the hospital would have to register.

Arthur J. Goldberg:

Let me have a very good example.

Suppose the Communist Party who engaged and wanted insurrection against the government, to be in the hospital and take anybody in.

Joseph Forer:

I think it —

Arthur J. Goldberg:

Does that exempt the hospital?

Joseph Forer:

I think if these were a field hospital on the battlefield, that would be different.

But we don’t have a battlefield here.

And anyway, this is not a hospital in a battlefield in this case that had been in this Court.

Arthur J. Goldberg:

I’m using an example here.

Joseph Forer:

I was using an example, I’m glad you pointed out it’s not a very good one.

I’ll withdraw it.

This interpretation in which organizations are condemned by this registration centers because of activities, which are conceededly laudable, is simply in confict with the Act’s purpose, in the Act’s term.

The justification of the Act is set forth in Section 2 of the Act, is that the Act is necessary to avert a clear and present danger to American institution.

The title of the Act is that it’s — to control subversive activities.

And the Board is a Subversive Activities Control Board.

Joseph Forer:

In the Communist Party case, the majority opinion, the Court recognize that there was a restraint on the First Amendment interest of Communist by the registration order involved there but it held that these interests were outbalanced by the fact that the Communist Party supposedly engaged in actually dangerous activities.

And it said that the interest of the Communist Party and its members were outbalanced by “The exigency — the exigencies of sole preservation and the values of liberty” which were menaced by the supposed foreign control criminal conspiracy.

Now, we don’t have any — anything like that here or claim here.

It is impossible to see how the exigencies of self-preservation and the values of liberty would be served by depriving aliens of counsel and upheld in cases in which they are proceeded against by the Department of Justice.

Under the holding of the Communist Party case, the Communist Party itself would be required to register even if it was held to satisfy the controlled component, on the grounds that — if the only activity it participated in was concededly non-dangerous and non-subversive.

For example, if the Communist Party indirectly aided the Soviet Union by furnishing legal aid, the Russian citizens are promoting the Russian ballet in this country, they could not satisfy the requirements that the — this Court found necessary as applied to Communist-action organization.

And yet here, an organization is required to regisrer without any showing of dangerous activity.

In the Cramp case, this Court invalidated the Florida oath which made government employees disclaim aid and support to the Communist Party.

And the Court said, “Well, aid and support of the Communist Party has all kinds of possible absurd — ” it has absurd possibility, that because of this absurd possibility, the oath is no good, well, it’s too vague and well invalidated.

And among the absurd possibilities that the Court referred to in Cramp and which later on Mr. Justice White referred to in the Baggett case, a similar oath, was a lawyer who represented the Communist Party or its members or a journalist who defends the constitutional rights of the Communist Party or its members, or anybody who supports any clause which is likewise supported by Communist or the Communist Party.

And the Court just recoiled from the fact that this should be considered aid and support to the Communist Party but said that because such outrageous things could be considered aid and support to the Communist Party, they would invalidate the oath.

Now, in Baggett against Bullitt, Mr. Justice Clark felt that the interpretation was so extravagant that nobody in their right mind could possibly so apply the oath.

And he said to anybody who interpreted the oath that way would be like Gulliver’s mad scientist.

Now, in this case the — we don’t have a note but we have an Act which can be interpreted and administered by the Board and there’s no reason for them to interpret the oath the way Gulliver’s mad scientist might have interpreted and I think the legislative history supports the interpretation I proposed.

At page 45 of my brief, I quote from the house report on the bill and the Committee there said that it found it necessary at the outset to distinguish those features the Communist activity against which legislation cannot and should not be directed from those in the case of which legislative restraints are clearly practicable and necessary.

So the Committee forwarded, it should and that it had to distinguish between benign activities and subversive activities, Communist activities and this — most such distinction is made by the construction of the government.

Section 2 (7) of the Act refers to Communist-front organizations as being organizations which are operated — which Communist-action organization is operated in carrying on the activities refered to in paragraph 2 (6) of the Act.

That is Communist-front organizations are used by action organizations to carry on the activities in 2 (6).

If you look at 2 (6) these are all conspiratorial, wicked, danger-causing activities.

They have nothing to do with representing aliens in deportation cases.

Now, the Government’s theory as far as I can make it out is that you can stop Communists from engaging in protected activities which everybody else could engage in if it would in anyway benefit the Communist Party and since you can’t stop the Communist from doing it, therefore you can stop an organization which is controlled by Communist, but it’s the same thing.

It seems to me that both parts of it syllogism are wrong.

According to them, it’s alright for Wendell Willkie to represent Mr. Schneiderman in a denaturalization case in this Court because he’s not controlled by Communists but it would be improper for Mr. Schneiderman to defend themselves because he himself was a Communist.

Now, since the Dijon case has been established that — that Communists cannot be restrained from engaging in the First Ammendment activities, peaceful First Amendment activities, just because they are Communists, the point was again made in the Scales case which Mr. Justice Harlan wrote the majority opinion.

And in the Aptheker case, the past — recent passport case, this Court again held that Communists can’t be restrained from engaging in peaceful activities open everybody else just because they are Communists.

Insofar as this Court has upheld legislation address against Communists, like the Section 9 (h) Taft-Hartley anti-Communist affidavit, it is done so on the theory that the activity that was restrained had a direct connection with danger-causing activity.

So even Communists can’t be engaged from an — can’t be restrained from engaging in such protected activity.

And the situation becomes worst when you extend this doctrine that Communists have no constitutional rights the Government is obliged to respect for organizations which are supposed to be controlled by the Communist Party.

In the first place, this control is a metaphysical concept under the Act.

It’s an opinion.

Joseph Forer:

It’s not a fact.

The second place has been cited by adminstrative board not by a judicial body, not by a jury which relies and the Government says it is entitled to rely on hearsay, opinion evidence, remote evidence, speculative inferences and then after all that it’s decision is entitled a great weight.

The upshot of it is that under the Board’s theory, the Act imposes, gives the federal government an unprecedented and virial in power to supervise close organizations.

No matter how laudable and benign their activities, the Government is now supposed to spy on the organization to determine if they have hidden motivations.

Or if some of their officers are, or once were, or is said to be affiliated with the Communist Party, and then if it concludes that they are aware to hold them to account before the Subversive Activities Control Board.

I would like to reserve the rest of my time for rebuttal.

Earl Warren:

You may.

Mr. Terris.

Bruce J. Terris:

Mr. Chief Justice, may it please the Court.

This case involves the constitutionality of a federal statute.

I want to emphasize that it is limited to the registration provisions with — it is only the registration provisions which are before the Court and not any of the disabilities either as they apply to the organization or to the members.

These provisions do not prohibit petitioner from doing anything, they do require the Board to make a finding as to the character of the organization and if it finds the organization to be a Communist-front as defined in the Act to require it to disclose its officers and to make a financial accounting.

In considering the issues in this case, the Government believes that it is crucial to understand the nature of Communist-fronts and their relationship to the World Communist Movement.

William O. Douglas:

You’re not suggesting that they — they have to wait until one of the statutes were defined, to bring the case here, are you?

Bruce J. Terris:

I am Your Honor.

William O. Douglas:

Oh, you —

Bruce J. Terris:

That was the hold — that was the holding of this Court in the Communist Party case, that provisions here are almost identical.

They certainly are analogous and the relationship between the disabilities or sanctions and the registration provisions is identical.

In our brief, in the appendices, we described in considerable length, the nature of Communist-fronts.

I will not go into it in great detail but I think it is important to summarize the nature of these fronts here.

After the Soviet Revolution according to Communist theory, it was expected that there would be armed revolutions in all capitalist countries.

But this expectation turned out to be incorrect because the workers turned out not to be so eager to overthrow their governments.

Therefore, the Communist leaders in the Soviet Union and their theoreticians decided to attempt to win the allegiances to the workers, as well as of other groups more gradually than advocating and solely advocating armed revolution.

They did this not so much by changing the views of the Communist Parties which continued to support armed revolution.

But rather by infiltrating, and if possible, controlling formally non-Communist organizations in all kinds of different fields, workers, farmers, veterans, ethnic groups, and the like, and if they were unsuccessful in doing this to set up new organizations to perform these tasks.

Were the Communists before the Court?

Bruce J. Terris:

No, Your Honor, its not.

This is the kind of evidence that was before the Congress in enacting the statute.

Now, the Congress found what a Communist-front was and therefore the evidence that was before the Board was just evidence which went to the character of the American Committee itself.

In other words, the Board of course has no power to go beneath it and determine anew whether the Communist-fronts are in fact dangerous.

Potter Stewart:

Summarizing the general characters and legislative history —

Bruce J. Terris:

That’s right.

Potter Stewart:

— in this area.

Bruce J. Terris:

There was a tendency, it seems to me in listening to petitioner’s counsel here and in its brief to consider Communist-fronts as a completely benign organizations he repeatedly said.

It is an organization that does no more than defend people, which of course is perfectly, as he insists, a laudable objective.

What we are trying to do, what I’, trying to do now is to put these provisions in the context of the Communist Movement, which is what Congress was dealing with in the Internal Security Act.

One scholar has pointed out that with the aid of — with 100 Communist members, it is possible to control an organization of a 150,000 people.

That Communist control of these organizations was not revealed because if the Communist control was revealed non-Communist would be scared away.

And these organizations utilized popular causes, good causes, higher wages, better working conditions are positioned to fascism and the like.

But these causes were not the ultimate objective of the Communist Party members who control the organizations.

Their ultimate objective, which they did not directly advocate within these organizations, was forcible overthrow of the government of a particular country in which they were operating.

Now, I would like to turn —

Potter Stewart:

I don’t quite see if — if they didn’t advocate these things within these organizations.

In other words, that they put different hats on and these —

Bruce J. Terris:

That’s right.

Potter Stewart:

— organizations were — are there only for a lot of — laudable purposes, why — what (Voice Overlap) —

Bruce J. Terris:

Well, that’s exactly what I was going to point —

Potter Stewart:

Alright.

Bruce J. Terris:

— to you, Your Honor, what Communist purpose was served by having these organizations at all.

Why have separate organizations from the Communist Party.

Well, there’s several reasons.

First of all, they want to propagandize far marginal numbers of people than they could through the Communist Party.

Potter Stewart:

Propaganda is enticing people for better health and higher wages and so on, why is it —

Bruce J. Terris:

Well, Your Honor there are great many issues that aren’t quite so —

Potter Stewart:

Alright —

Bruce J. Terris:

— in two different pockets there.

You can propagandize people towards economic measures, to move closer and closer to Communist dogma.

When they get close enough then the person they hope will say, well, really this — I’ve been in favor of Communist dogma all along.

The whole piece in the long run, the people will either become Communist Party members in this method and this of course does happen or at least that they will consider Communism not a serious menace.

Now, the second reason is that they hoped to get people non-Communists to support positions even though they are not Communist Party members that are taken by the Soviet Union or by the Communist Parties.

Bruce J. Terris:

Now, they did this in their — in the Soviet Peace Crusade after World War II, they set up various peace organizations throughout the world in order to get as many people to support Soviet views then hopefully the democratic governments would reflect the positions of these people.

The number of people in the Communist Party might be very, very much less.

The third reason is that these Communist-led organizations often provide support to the Communist Party.

Now, this may be financial, they may take you in a great deal of additional money more than they spent or they may provide services, that’s exactly what we allege.

But the Government alleges and what the Government believes that is proved, the American Committee did it.

It was the way of the Communist Party defending its members through funds contributed by non-Communist and the non-Communist did not know that the organization they were contributing to was in fact controlled by the Communist Party.

And fourth, these Communist-led organizations play an important role when and if the time ever comes for armed revolution before — immediately before revolution, they may join in United Fronts, this was done in the 30’s throughout most of Europe and in those United Fronts they try to cause chaos and turmoil and both in the society and in the government.

When the revolution actually cursed, they may attempt to make the organization actually back the revolution or else be neutral to it.

Now, what I’d been talking about sounds extremely theoretical and unreal.

The appendices to our brief indicate that for some 40 years this is exactly what the Communist Party has been doing this country — in this country and throughout the world.

I think it’s fair to say at least they didn’t think it was unreal but I think it’s fair to say that they thought they were accomplishing something by it.

And how much they’ve accomplished?

I suppose they haven’t accomplished enough in all the democratic governments that haven’t been overthrown.

But the fact is that there are two examples of where this method was extremely important to Communist overthrow of the government and that were within the two coup d’etats in Czechoslovakia and in Hungary.

Unfortunately the Government’s brief does not describe the use of the fronts in these two very specific instances in detail.

But they are described in several books and articles which are cited by Mr. Justice Jackson in his concurring opinion in the Dennis case.

And these books and articles by scholars indicate just how Communist-fronts form an extremely vital role in the actual revolution when and if that time ever comes.

Now I’d like to turn more specifically to this statute and how it fits into the pattern of the Communist theory and practice which I’ve just described.

Section 2 (7) — Section 2 of that Act describes the World Communist Movement in considerable detail.

Subsection 7 describes Communist-fronts as being created and maintained.

In order to obtain financial and other support from people who would not normally give their support to the Communist activities, and Congress found that these fronts conceal their true character and their purposes.

Now, the Act then defines in Section 3 (4) what a Communist-front is.

And essentially, insofar as it’s relevant here, it says that a Communist-front is first controlled by a Communist-action organization, here at the Communist Party and second that it has the purpose of carrying — of giving aid and support, the primary purpose of giving aid and support to the Communist-action organization, here at the Communist Party.

Now, Communist-action organizations in turn are the —

William J. Brennan, Jr.:

How do use the word aid?

How do you use the word aid?

Supposed we had a organization like this that all that it did was to — I think Mr. Fortas has brought over the Russian ballet or —

Bruce J. Terris:

That would not —

William J. Brennan, Jr.:

— in order to exchange its students, that would —

Bruce J. Terris:

That wouldn’t even come close to being under the actuary.

Bruce J. Terris:

There are two reasons why, its purpose has to be not ballet.

Its purpose has to be that it is trying to further there is the Communist Party or the Soviet Union or the World Communist Movement.

That has to be its purpose, not ballet.

But even if passing that, it has to be an organization which is controlled by the Communist Party.

William J. Brennan, Jr.:

Supposed that they met — there were Communist who are members of this.

Bruce J. Terris:

That wouldn’t be (Voice Overlap) controlling Your Honor, that would not be controlled.

William J. Brennan, Jr.:

Even though it helped to increase the prestige or —

Bruce J. Terris:

That would not be a Communist-front, that’s right Your Honor.

Control has — has to be and is shown by all the cases that have been decided and more specifically by this case.

It has to be that the people that run the organization are active party members.

William J. Brennan, Jr.:

Well, suppose that would be true, they would be bringing over — promoting international exchange of students and promoting ballet.

Bruce J. Terris:

They’re acting under instructions of the Communist Party.

William J. Brennan, Jr.:

Well that’s — were they here, I’m not —

Bruce J. Terris:

Here we have testimony that the petitioner’s offices were killing out the policies of the Communist Party.

William J. Brennan, Jr.:

I supposed one of those policies might be to think that these people think well in Russia.

Bruce J. Terris:

And the purpose of this organization was to bolster the prestige of the Soviet Union.

William J. Brennan, Jr.:

Yes.

Bruce J. Terris:

If I can —

William J. Brennan, Jr.:

Yes.

Bruce J. Terris:

If I can rephrase your —

William J. Brennan, Jr.:

Yes, yes.

Bruce J. Terris:

— your hypothetical.

William J. Brennan, Jr.:

That would —

Bruce J. Terris:

That would be a Communist-front.

William J. Brennan, Jr.:

Yes.

Bruce J. Terris:

If you have a purpose of bolstering the Soviet Union and it would at the same time be controlled by the Communist Party, that’s right.

Those are two are the two things.

Now, you have to be controlled by a Communist-action organization, it operates primarily for the purpose of giving aid and support to the Communist-action organization that were — the foreign government controlling the Communist — a Communist-foreign government or the Communist (Voice Overlap) —

William J. Brennan, Jr.:

Well, the way not to be a Communist-front would be then to actively engage and destroy the — any good image of Russia.

Bruce J. Terris:

We are — and one of the things is that —

William J. Brennan, Jr.:

Because, do you —

Bruce J. Terris:

That somehow, that we’ve — there’s — we should make a game out of being — whether there should be a Communist-front.

If you’re a Communist-front you’ve got to do something.

Congress thinks that that makes you a danger, if you are not a danger, presumably it won’t be a Communist-front.

I mean —

William J. Brennan, Jr.:

But the way you have — you have defined it, it’s much a pretty broader ambit, I would think of.

Bruce J. Terris:

Well, Your Honor it doesn’t seem to be that broader ambit.

There had been 14 organizations that have been found by the Board to be Communist-fronts.

I think 50, one of the members found by the Court of Appeals to not be a Communist-front.

So there’d been 14 organizations in which the findings, I believe had been upheld.

Tom C. Clark:

Mr. Terris, if you read what — you really read out the way it reads, doesn’t it mean anything that is controlled by the Communist Party by itself be an in any way —

Bruce J. Terris:

Well —

Tom C. Clark:

— with any organizations?

Bruce J. Terris:

Your Honor, I don’t think there be many organizations controlled by the Communist Party that aren’t doing something in order to help the Communist Party, that’s the reason they’ve got controlled.

Now a writ —

Tom C. Clark:

Suppose what has been — been in the federal grounds —

Bruce J. Terris:

Well, Your Honor there was a time let me say there — there was an order between the two.

Arthur J. Goldberg:

Why is that?

Bruce J. Terris:

Now —

Arthur J. Goldberg:

How did they put the end?

Bruce J. Terris:

I think Your Honor because they didn’t want an organization, there might be a few examples on which it wouldn’t be doing anything.

Primarily, a member can’t be just — can’t be an incidental thing.

There were — in which you would not be primarily helping the Communist Party.

There might — it might be — in other words if it’s – if it just control that turns out to really be benign in the — in the — in Congress’ sense, in not giving any aid, there’s no reason to make it register.

Arthur J. Goldberg:

But as I heard you and I thought you were arguing pretty effectively in saying that no matter how benign it is, if is controlled —

Bruce J. Terris:

No.

The Congress (Voice Overlap) didn’t find it benign to be — to be helping the Communist Party in any way.

When I say benign, it’s saying that it really wasn’t interested in ballet.

There were no people in the Communist Party that liked ballet, that they just thought they were — they wanted to have some of the great ballet companies to come to the United States and the Soviet was obviously one of them, then it would not have to register.

Arthur J. Goldberg:

That would not have to register even though there’s no control?

Bruce J. Terris:

That’s right, no control.

It has to have the purpose of helping a Communist-foreign government, the Soviet Union.

Arthur J. Goldberg:

Wouldn’t the Government argue that all the things that you are arguing would apply in that given situation?

Bruce J. Terris:

Well, Your Honor I — I can’t say what it would argue but, definitively —

Arthur J. Goldberg:

It helps the image of the Communist Party is —

Bruce J. Terris:

No, it’s not good enough that it does in fact aid.

It is not — and that would — and I may say that that is why the Cramp case is not at all in point.

It isn’t enough that you — Wendell Willkie does not have — would not have to register, the fact that somebody does aid the Communist Party does not require it to —

Tom C. Clark:

Well, it’s controlled.

I thought —

Bruce J. Terris:

Even if controlled, even if controlled, it has to have a purpose of aid and it’s not enough to happen to give aid.

In other words, what — what I’m really trying to say here is that Congress said about Communist-fronts, these are part of the Communist Party.

They’ve been split-off in order to attract non-Communists.

But they’re not really split-off.

They’re subsidiaries of the Communist Party.

Arthur J. Goldberg:

I understand that, but now when you go on — and I understand that, in other words, there’s a finding that the Communist-front organization and if it’s controlled and it’s a Communist activity, part of their activity.

Bruce J. Terris:

Yes.

Arthur J. Goldberg:

But then Congress wrote something else and it said —

Bruce J. Terris:

Sure.

Arthur J. Goldberg:

— you’re not encompassing all of the controlled activities.

Bruce J. Terris:

That’s right, Your Honor.

Arthur J. Goldberg:

And really here, the question is or in this particular activity, is the type that’s controlled.

That that’s — it’s included encompassing the statute.

Bruce J. Terris:

Well, Your Honor, I was going to come to that specific intention a little later but since I think it’s the only serious non-constitutional argument which is before the Court, the others in our view are really quibbles about minor bits of evidence and normally nobody would even argue here.

Arthur J. Goldberg:

Well, the controlled point wasn’t argued very much and —

Bruce J. Terris:

Well, it is in the brief but even — and I’m talking about the sufficiency of the evidence too under the aid component as opposed the statutory construction.

Most of these points would not even normally find their way to this Court.

(Inaudible) without the aid component as applied.

Bruce J. Terris:

No, I think that’s what the Court of Appeals did.

It applied the —

(Voice Overlap) in the Court of Appeals in a number of ways, isn’t it?

Bruce J. Terris:

Well — well, Your Honor, I know the petitioner makes much of the fact that —

Well, anyway, is that what you’re — is that what you’re arguing?

Bruce J. Terris:

I’m arguing —

That you look not at the character of that provision but you look at the purpose of which the activities are undertaken, is that it?

Bruce J. Terris:

I’m arguing, Your Honor that you have to have the purpose of aiding the Communist Party.

Now, there is a dispute what you actually have to aid in addition.

Petitioner says that you should read the statute as requiring not just purpose but actual aid.

The Government’s reply to that is that seems inconsistent with the statute but it’s not important to this case because both the Board and the Court of Appeals found both purpose and actual aid.

So for purposes — on the purposes of this case, we would assume there has to be both a purpose of aiding the Communist Party as such not to just do what an Act which turns out to be aid and actual aid to the Communist Party.

And we think the evidence supports both.

Are the aid itself may be partly — involved perfectly laudable.

Bruce J. Terris:

That’s right Your Honor.

And constant — and activities which are protected which would come within the ambit of the First Amendment.

I may say this is nothing very strange that the Foreign Agents Registration Act normally applies to activities which are within the ambit of the — of the First Amendment.

So does the — our Federal Regulation of Lobbying Act.

And other statutes which require a disclosure so that we don’t — we don’t think this is anything very noble that we’re saying, and after all what we’re talking about here — and we’re not talking about the disabilities, we’re talking about disclosing.

First of all the Board finding the character of an organization telling the people that — of the country that this is — is this kind of organization so that they are not deceived.

And second of all requiring disclosure, the kind of disclosure that was — that existed in the Federal Regulation of Lobbying Act and in several other federal statutes.

Hugo L. Black:

What does — what does the Act provides they should move people who register and lobby it?

Bruce J. Terris:

Your Honor, if there — Your Honor’s question suggest and it is of course quite true that if we are to consider here all the disabilities, this statute with the disabilities is quite different than Federal Regulation of Lobbying Act, there’s no doubt about that, I wouldn’t — I wouldn’t suggest that contrary for a moment.

Hugo L. Black:

What can be done for them for lobbying?

Bruce J. Terris:

Nothing Your Honor.

What I — that would —

Hugo L. Black:

Isn’t that a pretty bad analogy you used in this case?

Bruce J. Terris:

No, Your Honor.

Because it seems to us that the Communist Party case establishes that we are not to look to the disabilities now.

That those would be litigated individually.

I may say the Aptheker case as an example of litigation of them and maybe that there will be other provisions that will not be constitutional but each one of those will have to be examined on its own merits.

That is, in our view, was the teaching of the Communist Party case and it’s perfectly clear.

Hugo L. Black:

I thought that it reached that little fine pinpoint in the brief.

It didn’t even get to the possibility that they might even end up with.

Bruce J. Terris:

Well, Your Honor it didn’t reached that, but of course, it recognize that it could happen.

Hugo L. Black:

But it didn’t get to the prob — possibility that they would register it, did it?

Bruce J. Terris:

Well, it — Your Honor it did not consider the Fifth Amendment questions on whether they —

Hugo L. Black:

They said — said they might not register.

Bruce J. Terris:

That’s right.

Hugo L. Black:

Therefore, you don’t have to reach any of these other things.

But how do you decided for us now to say we shouldn’t consider them now.T

hey’ve got to register now, isn’t it?

Bruce J. Terris:

Oh no, they — they’re in the same position as the Communist Party was when it came to this — when it came to this Court in the Communist Party case.

They’re in exactly the same position.

There’s an outstanding order that they register, that was exactly the position of the Communist Party when it came to this Court.

There’s no difference at all in the posture of the two cases.

Hugo L. Black:

How many are included in this order?

Just one?

Bruce J. Terris:

How many organizations?

Hugo L. Black:

Yes.

Bruce J. Terris:

Yes Your Honor.

There are — then of course, the next case involves an additional —

Hugo L. Black:

This particular order just one?

Bruce J. Terris:

Pardon me?

Yes, it’s — there’s just one included in this.

Mr. Justice Goldberg.

I’d like to return — return to — return to your question about what the aid component of the Act really means.

Now, first of all, looking just at the aid component itself, all it says is that the Government must show that organization has the purpose of giving aid.

It does not say that there has to be any particular kind of aid.

On its face, it would seem to include any kind of aid which would in — and certainly nobody could deny, I would think, that defending party members aids the Communist Party.

Then in addition, Section 2 (7) describes what Communist-fronts are like.

And this finding —

Hugo L. Black:

I don’t quite understand that, you said, nobody can deny what?

Bruce J. Terris:

The defending — defending a Communist Party member aids the Communist Party.

It may do many other things, Your Honor.

It may do many other things that are very laudable but it does do that one thing.

I’m not suggesting it’s a bad thing to do —

Hugo L. Black:

(Inaudible)

Bruce J. Terris:

Pardon me?

Hugo L. Black:

Defend them where?

Bruce J. Terris:

Defend them in the courts or before the Immigration and Naturalization Service.

I — I’m not suggesting that this is a bad thing for a person to do.

What I’m saying is that it does amokong other things aid the Communist Party.

Every additional Communist Party member who stays in the Unites States presumably helps the Communist Party.

At least, I think it’s fair to say this record shows that the Communist Party thinks so.

Potter Stewart:

It’s been argued that the other way and then one of the — one of the big selling points of the Communist Party is that we have a terrible system of justice here and it’s a tribalistic nation and maybe if they get the very just result in their lawsuit they will be disenchanted with Communism.

Bruce J. Terris:

That’s right.

Potter Stewart:

And Communists.

Bruce J. Terris:

I don’t think Your Honor that this Court should really make the decision —

Potter Stewart:

No.

Bruce J. Terris:

— between — which is the ultimate thing that aids democracy —

Potter Stewart:

Right.

Bruce J. Terris:

— more or the Communist Party more.

I understand that there’s a — that one could argue very persuasively that providing a good defense through those administrative and judicial review that this really helps democracy.

But the point, the point that I’m making is that I don’t think — I think for the purpose of the statute that this was aiding the Communist Party, more members they hope will be in this country.