Communist Party of the United States v. Subversive Activities Control Board – Oral Argument – October 11, 1960 (Part 2)

Media for Communist Party of the United States v. Subversive Activities Control Board

Audio Transcription for Oral Argument – October 11, 1960 (Part 1) in Communist Party of the United States v. Subversive Activities Control Board
Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

— is that the member sanctions are invalid not because they apply whether or not the member has knowledge that the organization is of the character that the Subversive Control Board says that it is and even though the member disagrees with the Court’s estimate of its character.

But there is I think another due process restriction here other than that of this scientor as to the organization purposes and that restriction, I think was spelled out not in Warrington but in Adler against the Board of Education.

And the principle there is that a person cannot, because of membership in a bad organization, be excluded from privileges open to other people unless he personally has an opportunity to establish that despite his membership, he is a fit person to enjoy the privilege.

In other words, as I read Adler, it says that a presumption of unfitness to enjoy a privilege cannot be made conclusive because of organizational membership, the most it can be is a prima facie presumption which the member has to — have a chance to rebut.

The Act doesn’t give a member a chance to rebut at any such presumption.

He doesn’t get a hearing as to his personal fitness.

He doesn’t get a chance to show that even if he is a Communist, still that’s not a good reason in his case, to deprive him of his job in General Motors or some other defense facility or to deprive him of his union office or to bar him from traveling abroad.

He gets no chance to show that despite his membership in the Party, he has no individual propensity of the wrong-doing and that he is an innocent and trustworthy and loyal person and for those two reasons alone, I think that the member sanctions are invalid.

If he resigns, if he’s willing to give up his constitutional right to be a member of the Communist Party, then he gets out these sanctions.

Hugo L. Black:

That (Inaudible)

Joseph Forer:

Do you mean the basic question of does a person have a constitutional right to be —

Hugo L. Black:

(Inaudible) when he has constitutional rights.

There’s (Inaudible)

Joseph Forer:

I think a person does have a constitutional right to be member of the Communist Party and I think that that — that — that was –was assumed by the Court in the Douds case.

I want to skip over now to various other constitutional questions in order to come to a question of application and construction of the Act and that involves the meaning of the term, foreign control.

Now, under Section 3 (3) of the Act, a Communist-action organization is defined in terms of two characteristics, both of which have existed.

In the first of these characteristics is that the organization be substantially directed, dominated or controlled by the Soviet Union.

In Board’s convenience it is this component that we’re calling the foreign control component of the definition of a Communist-action organization and the meaning of this foreign control component comes up in at least two ways.

First, we say that the Board and the court below, applied an erroneous concept to foreign control and that on this ground alone, the Court’s order and the judgment below should be set aside.

And secondly, we say that under a correct definition of the foreign control component, it is clear that the evidence does not establish the existence of that component.

Now, the meaning that we would give and that we say the foreign control component should have requires a relationship in which the Soviet Union has and exercised some power to exact compliance with its demands from a domestic organization.

It’s not satisfied merely by some voluntary conformity by the domestic organization with the Soviet Union.

We say that in a controlled relationship for the purposes of the statute, there has to be some course of means, direct or indirect, whereby the superior, in this case, the Soviet Union, can compel compliance with its requirements or impose sanctions for noncompliance and if there is no means of coercion, there cannot be any control.

Charles E. Whittaker:

This legal control (Inaudible)

Joseph Forer:

Yes, but legal control involves some kind of coercive mechanism, but if — if there is no means by which one or the — the Soviet Union has any power to discipline or coerce the organization and a domestic organization nevertheless, imitates or follows or adheres to Soviet views or policies, that adherence is a product of voluntary conformity.

It’s not a product of control and this gets us back very much to the initial question that Justice Black has.

Because if all this — if all of that the foreign control of this statute requires, is not that the foreign government have any power to give any behest to the organization as Justice Black says, but merely that the domestic organization agrees and acquiesces in the views of the foreign power or even on its own, goes out and promotes those views, so that it is not anything like a genuine agent, then obviously a — any constitutional source drawn from power to control foreign relations doesn’t exist, it seems to me.

Now, this meaning of control that I am suggesting as some coercive mechanism —

(Inaudible)

Joseph Forer:

It follows I think from the dictionary definition.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

It follows from the case definitions in other fields of law.

It’s the only meaning which corresponds to the description in Section 2 of the Act of the relationship between the Soviet Union and Communist-action organizations in various countries and it is the only meaning which prevents the foreign control component from being a redundant here of the Section 3 (3) definition, because if all that the foreign control component means or — is a voluntary following of Soviet objective, then it is absolutely nothing to the second component of a Communist-action organization in Section 3 (3), which is that the organization advanced Soviet objective.

And finally, if the foreign control component is satisfied by nothing more than the organization’s voluntary conformity and it conforms to the Soviet ideas because it agrees with them, then it seems me, it magnifies the constitutional objections to the Act.

Now, the government seems to say that the definition I have suggested can’t be correct because there can’t be a relationship whereby a foreign group can coerce a domestic organization, but obviously this isn’t so and domestic groups can be and are controlled by foreigners or by foreign sources in a lot ways.

And for example, financial subsidization can be a lever of control because the giver can withhold or threaten to withhold funds or subsidies by noncompliance with attrition or you can have control through property ownership, through financial indebtedness or in the case of a corporation, through stock ownership.

You can have levers of control through a power to punish essential supplies because under the organization’s charter, the power to name some officers or directors is reserved to — to the controller or through an interlocking directorate and so on.

Now, I am perfectly sure for example that Standard Oil of New Jersey has and utilizes levers of control over various foreign enterprises even though it doesn’t actually own them.

Now, if we’re right as to the meaning of control, then it is clear that the Board and the court below applied a wrong construction of the statute and this misconstruction is in fact, expressly stated in the court’s second opinion.

But in addition to that, there is no evidence and there is no final by either of the Court or the Board that the Soviet Union or any Soviet organization has or utilizes any leavers whereby it may or does exercise any coercive authority over the petition.

And with regard to the subject of finances and I’ve mentioned finances as a potential lever, the Board itself expressly found and I quote and this is the court’s finding, “The record contains no evidence of substantial financial aid subsequent to 1940 and none after 1944.”

Now, in its second opinion, the court below appreciating and acknowledging the actions of evidence of any coercive means, held that the foreign control component does not require any coercive power and expressly said that the foreign control component is satisfied if an organization voluntarily follows Soviet direction.

Now, for reasons I have already covered, this is just wrong.

But even if this test is adopted, if it’s enough to have a voluntary following a Soviet direction, it still was not applied by the court and it still was not met by the evidence because if the test is a voluntary compliance with Soviet directions, then the record has to show that the petitioner receives Soviet directions with which it then comply even voluntarily.

But the fact is that there is no evidence and there is no finding by either the Board or the court below that at any time since at least 1940, 10 years before enactment of the Act, 1940 the date when petitioner disaffiliated from the Communist International, there is no evidence, there is no finding that since 1940, petitioner received any Soviet directive or anything that could be construed to be a Soviet directive for him to follow voluntarily or involuntarily and the government’s brief itself, acknowledge it and this is in its footnote on page 235, Footnote 84.

Petitioner, that’s us, correctly states, that the Board made no findings that petitioner has continued to receive directives from the Soviet Union after his disaffiliation from the Communist International and that this disaffiliation as I’ve said was in 1940.

Now, we now agree at pages 99 to 100, we list all the contacts after 1940 between petitioner and the Soviet Union or Soviet citizens which are mentioned in the Board’s modified report, every single one.

John M. Harlan II:

What page is that?

Joseph Forer:

Pages 99 and 100 of our brief and there are just five of them and this is what they are.

First, that in 1945, Elizabeth Gurley Flynn, one of petitioners’ leaders and officers, while on a visit to France, ran into some Russian women and she chatted with them about child care, postwar reconstruction and the rights of women.

Second, in 1949, the petitioner sends Stalin a telegram, congratulating him on his 70th birthday and saying that he was a great man and that the Communist Party of the Soviet Union had — had — and — and that the Soviet Union had great achievements.

That was his 70th birthday telegram.

Third, in December 1950, the Communist Party, the Soviet Union sent a telegram of greetings to petitioners’ National Convention in which they set up among other things that petitioner was a — was really standing up pretty good under all the unjust attacks from the Government.

Fourth, if petitioners’ publications sometimes reprint articles and Soviet publication and its members sometimes read a newspaper put up by the — now, debunked European Communist Information Bureau and five, the daily worker had a correspondent in Moscow.

Now these are all the contacts, if they’ve been be called contacts, since 1940, beginning 10 years before the — the enactment of the Act.

They show no Soviet directions to the petitioner.

They show no Soviet assistance to the petitioner.

They show no dealings between the petitioner and the Soviet Union other than two congratulatory telegrams, one, in one direction and one, in the other.

They show no supervision by the Soviet Union.

They show no reporting by petitioners to the Soviet Union.

They just have no relevance to show foreign control any more than if the Government introduced evidence as I suppose they might have been able to do that American Communist wants to see a performance to this (Inaudible) ballot.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

So it’s abundantly clear that neither the Board nor the court below applied a meaningful definition of foreign control and furthermore that even under the loose definition of the court below of a voluntary following of directions, foreign control wasn’t proved.

Now, this brings me to the next series of errors in the construction and application of the Act and that is the kind of evidence that the Board and the court below did rely on in finding that the petitioners are Communist-action organization and in finding the existence of foreign control.

This evidence is summarized in one paragraph in the last opinion in the court below and the paragraph is quoted on pages 12 and 13 of our brief.

And this paragraph and the Board’s report and the summary to the Board’s report that is very much a longer line from the paragraph, show that the determination of the petitioner is up — is under Soviet control, rests on three bases.

The first basis is that prior to 1940, petitioner was a member of the Communist International.

Now, during this period, the petitioner bound himself to comply with directions of the International, the organization with — which is its affiliate and the record contains rims and rims of evidence, put in at length by the Attorney General, concerning this pre-1940 period, in evidence that the petitioner received direction from the Communist International that it received financial assistance from the International, that it was supervised by and reported to the International.

Now, in 1940, the petitioner disaffiliated from the Communist International and thereafter, it had absolutely no contact with it of any kind. This disaffiliation was on a friendly basis.

Charles E. Whittaker:

(Inaudible)

Joseph Forer:

Oh yes, well, you — you can read this record from beginning to end and you will find no dealings, no pointing of dealings between petitioner and the Communist International after 1940.

And in 1943, the Communist International went out of existence, so there certainly couldn’t have been any dealings after 1943.

Now, this disaffiliation wasn’t on any hostile basis, but that the petitioner publicly announced that it was disaffiliating from the Communist International and that it thought it was in outrage that they’ll have to do so, but — but it was disaffiliating from the Communist International in order to avoid registering under the newly enacted (Inaudible) Act, then they made a public statement to that effect.

But regardless of its motivation, the fact is that the petitioner did disaffiliate and that thereafter, had no contacts or dealings with the International and I’ve listed all the contacts since 1940 where I — I spoke them out with the Soviet Union and — and they amount to nothing and as I said, the International itself dissolved in 1943.

But the Board just raveled in this evidence of the pre-1940 period, evidence of a relationship which had terminated and the Board and the court placed an overwhelming reliance on this pre-1940 evidence.

The Act however defines a Communist-action organization in terms of the present and the issue therefore, was the current character of the petitioner and character behind the administrative proceedings or at least after the enactment of the Act.

And under the rule of this Court’s decision in the Cement Institute case, evidence of prior transactions and that is transactions prior to the critical period and in this case, since the petition — since the case was started so soon after the Act was enacted, we can talk in terms of pre-act transactions, evidence of pre-act transactions was relevant.

Only where you had a continuing situation, where the pre-act or prior transactions tended reasonably to show or illuminate the purpose or character of the current transactions, in this case the post-act transactions, but here there weren’t any current transactions that they illuminate.

And what the Board and the court did, was to treat as proof of a present relationship, a relationship and practices which had been discontinued 10 years before enactment of the Act and this a clear error.

In order for a relist at pages 106 and 100 — through 108, all of the post-act matters sighted by the Board’s report and since had 2 or 3 pages, I’m not going to read them but I just say that all you have to do is to examine them but see that none of these matters of any tendency to show the petitioner is controlled by the Soviet Union or operates to advance the objective prescribed in Section 2 of the act, in fact, they are certainly irrelevant.

Even the Government concedes in its brief and I quote now from pages 268 to 269 that, “The Government’s evidence as the petitioner’s post-1950 activities might perhaps not independently proved it to be a Communist-action organization.”

Now the Government goes to say that this evidence does show that petitioners’ character hasn’t substantially changed, since to the days of the Communist International.

Now of course that the post-act evidence is that well maybe it — it doesn’t show you’re under foreign control, but it shows you haven’t changed your (Inaudible).

Now of course, the question isn’t whether petitioners’ character changed or what petitioners’ character is.

The question is what is the relationship shown by the record between petitioner and Soviet Union?

And it is perfectly clear that there was a change in that relationship in 1940 as a result of an end to petitioner’s disaffiliation from the Communist International or by that disaffiliation petitioner removes itself from the only possible apparatus of control, petitioner removed itself from any further contacts, dealings or communication with the Soviet Union and after1940, petitioner no longer received any foreign directive or had any meaningful contact.

The — this brings me to the other two bases for the finding against petitioner.

The first one is discontinued relationship, discontinued 10 years ago.

The other two bases are those which lead the Government to say the petitioner hasn’t changed its character.

What is the second basis that is shown by the Court of — of the summary of the court below?

The second basis is that if the petitioner disaffiliated from the Communist International, it continued to be Communist, it continued to adhere to and it still adheres to the principles of Communism and not only the principles of Communism, but the principle of Communism as they appear in the theoretical writing of Marx, Engels, Lenin, Stalin and others and apparently, these writings had such as terrific versatility because they proved a case under the Smith Act.

They proved foreign control under the — under the McCarran Act and it is true that after 1940, the petitioner remained a Communist organization, it kept the name Communism and it adhered to the principles of Communism.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

And it is those writings of Marx, Engels, Lenin and Stalin that the Board is referring to when it says in its modified report and I quote, this is at page 2409 of the record, footnote 2, “The really vital part of the Attorney General’s case, is documentary evidence which to considerable extent, means relatively little to our illumination.”

So the first basis was the pre-1940 evidence, the second basis is that they plead in Communism and the third basis was the so-called non-deviation evidence that Mr. Abt referred to before lunch, and which is that petitioners consistently agreed with Soviet views, particularly in the field of foreign policy.

So as far as the period after 1940 is concerned, if we leave aside this irrelevant Communist International stuff, we’re left solely with ideological matters as a foundation for the Board’s order, namely and for the affirmance below, namely that petitioner subscribed to Communist principles or to Marxism and Leninism agrees with the Soviet Union, particularly in the field of foreign policy and thinks that the Soviet Union is the great power.

And that what this case is about, that’s the clear and present danger, that’s the foreign relation nexus that is supposed to justify outlawing the petitioner and making life in powerful for its members and for anybody that the Government say the members under Section 5.

And the court below recognized this fact in its last opinion, because it said in explanation of this conclusion and I quote and this is the quote, “this is right after its summary to the other, they conclude, “One who attaches himself by intellectual affiliation to a cause, assumes the name of the cause, puts on the (Inaudible) of the cause and adheres to the course of cause, is not mistreated if it be inferred prima facie, he is part of the cause.”

And that’s saying that the evidence justified the court in finding that the petitioner has an intellectual affiliation with the cause of Communism in that instant.

Now we don’t dispute that intellectual affiliation.

We don’t dispute that the petitioner has assumed the name of the cause of Communism that it adheres the Communism that it is a Communist organization from each point of view, but we do say that this intellectual affiliation of the Communism and that’s all there is.

It is not a basis under the terms of the Act of finding that petitioner is dominated and controlled by the Soviet Union.

And if it were, if the Act permitted a finding foreign control and the subsequent outlawry to be based on that kind of intellectual affiliation, we say it would be a gross violation of the First Amendment to outlaw the petitioners, subject its members to the sanctions that make them untouchables because of their intellectual affiliation to Communism or anything else.

I’ll now, pass over several other points in order to come to another point in the Court’s application of the Act.

And this is our point that the court below erred in refusing to remand the case, because of the Board’s erroneous reliance on a finding concerning secret practice.

And the situation here is that Section 13 here in the Act, sets up eight criteria which the Board is directed to apply in determining whether an accused organization meets the Section 3 (3) definition of the Communist-action organization.

The seventh of these criterions, Section 13 (e) (7), is the extent to which the accused organization engages in secret practices for the purpose of concealing foreign control or for the purpose of promoting the organization’s objective.

Engaging in secret practices for other purposes, doesn’t meet these criteria.

Now, in its original report, the Board found that petitioner engages in secret practices for both of the purposes stated in Section 13 (e) (7) and this was one of the findings on which it based its order.

One of the eight findings that made eight findings under — under Section 13 (e) all of them adverse the petitioner and then it issued its order and this was one of the findings.

Now, when this got to the Court of Appeals on its first review and its first opinion, the Court Appeals held that the purpose finding in the Board was not supported by the evidence and it said we strike the finding and the purposes.

We don’t think that the evidence disclosed as a clearly revealed purpose either way.

Now, the effect of this was to make the secret practices, purpose solicited from a legal point of view, but it made the secret practices standard of Section 13 (e) (7) inapplicable to the petitioner.

The court didn’t say we were right when we — we had introduced evidence as the purpose in the secret practices, was in order to protect the members of the Communist Party from unjust and unconstitutional persecution.

The court said, well, I will say, you’re right but the Board certainly didn’t do in this case.

So that meant that 13 (e) (7), one of the eight key findings of the Board was out.

But although the Court of Appeals thus reversed the Board on the one of its eight key findings, nevertheless, it affirmed the Board’s order.

William O. Douglas:

This is on the first review?

Joseph Forer:

This is on the first review and we immediately filed a petition for rehearing saying that, you can’t do that.

They denied the petition for rehearing without any observation.

And when we took the first affirmance, when we came here on our first petition for certiorari, one of the questions we raised was, wasn’t it wrong for the Court of Appeals to affirm rather than to remand?

As a matter of fact on the first review, they had not only stricken the finding on secret practices but they had also modified another one of the eight findings.

Well, this Court reversed the Court of Appeals on other grounds.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

As you know the case went back to the Board and you never got with its question about the effect the Board’s erroneous finding on secret practices.

But when the case went back and in the subsequent remand proceedings, the Board deleted from the record huge quantities of evidence, including much evidence which it had considered unfavorable to petitioner on the subject of secret practice.

No new evidence on the subject was added at all, so the record on secret practice was now better for us than it has before, because it has been the lead any of our evidence, if the lead allowed the Government (Inaudible).

Nevertheless, the Board retained in the modified report, one of the stricken purpose findings.

It yielded to the Court of Appeals to the extent of abandoning one of its original true purpose finding.

It now disclaimed making any finding that the secret practices were engaged in for the purpose of concealing foreign control, but contrary to the holding of the Court of Appeals, it repeated and restated its finding without even giving the Court of Appeals the deference of dimension, it repeated and reinstated its findings that petitioner engages in secret practices for the purpose of promoting its supposedly sinister objective.

So the result was that the criterion of Section 13 (e) (7) was again made applicable for the petitioners’ disadvantage and it was just as applicable whether they had one purpose or both purposes.

When the case went back to the Court of Appeals, we called this — the attention of the court and court said, the Board was wrong before and the Board is wrong again and the court repeated its holding that the Board’s finding was not supported by the evidence nevertheless, it again affirmed the Board’s order in (Inaudible)

Hugo L. Black:

On what ground?

Joseph Forer:

On the grounds that once a court, a reviewing court, has held invalid a key finding on which an administrative order is based in part, the reviewing court, in this case the Court of Appeals, is obliged to remand the case to the Board, to the administrative agency for administrative predetermination on the basis of correct findings and not the substitute self for the agency by saying, while even if the — the basis on which the agency acted was wrong, nevertheless, we think there is enough in the record.

Hugo L. Black:

But you say that, on the surface here it didn’t qualify, what —

Joseph Forer:

No, I said that.

Hugo L. Black:

I understood you to say —

Joseph Forer:

Oh, you mean on what ground the Court of Appeals turned us down?

Hugo L. Black:

Yes, on that.

Joseph Forer:

Oh, well, they turned us down and they said there’s no more need to remand it now than there was in the first place.

They said we didn’t remand it before, therefore there’s no need — need to remand it now.

They never told us why it didn’t they remand it before.

So they still gave no explanation, if I — I’m sorry, I misunderstood you before Mr. Justice Black, but they gave no reason.

They just said, we don’t see anymore — say we didn’t remand before, why should we remand now.

Hugo L. Black:

Did they hold it was not an indispensable finding?

Joseph Forer:

They didn’t say that.

Presumably that’s —

Hugo L. Black:

(Inaudible)

Joseph Forer:

Where is what they said, the second time, you mean?

Hugo L. Black:

Yes.

Joseph Forer:

That’s at page 126 of this volume of opinions, appendices to the petition where we have the — where we everything collected —

Hugo L. Black:

126?

Joseph Forer:

Page 126 and this is what they say.

In our original opinion on this matter, we struck as not supported by preponderance to the evidence, a finding respecting the purposes of the secret practices of the Party.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

The Board has let the finding remain and its modified report on second remand.

The Party says the court must therefore again remand to the Board, for the administrative redetermination in the light of the striking to this finding.

We do not see why we should so. We did not find it necessary to reverse the order of the Board or to remand when we first struck the finding.

No new evidence on the point has been added since then and so we adhere to our first conclusion, but the necessity for remand is now no greater than it was and we think the Board is entitled to adhere to its view on the point until our view of it has been tested in the Supreme Court.

Now, we think that what the Court of Appeals did, usurp the function of the Board and violated the principles stated by this Court in the Chenery case that the grounds, “the grounds upon which an administrative order must be judged are those upon which the record discloses that agency’s action was based, and that administrative order cannot be upheld unless the grounds upon which the agency acted or those upon which its action can be sustained.”

And the situation here is the same as in the Virginia Electric and Power case, where the Court remanded a Labor Board order for administrative redetermination because the Board’s ultimate conclusion rested in part on the finding which had insufficient evidentiary support and the Court did so even though it expressly recognized that the Labor Board might have reached, astoundedly had reached the same ultimate conclusion without the erroneous finding.

Now, the Government argues in brief that a remand is not required because it says the Board did not attach much importance to its secrecy finding and reaching its ultimate conclusion.

And the argument is wrong legally in the light of Chenery and Virginia Electric and Power, but it’s also a wrong action.

In the first place, the Board is a tribunal, never said that its finding on secret practices was not essential and never said that its finding on secret practice wasn’t important for the result.

That’s just what the Government is saying now belatedly as a litigant.

And it’s significant that the Board as a tribunal, refused to make that finding any — refused to make any such disclaimer even though it knew when it repeated it, the offending finding that it was contradicting the Court of Appeals and that we were going to make exactly the same argument that I am making at this moment.

They could’ve taken most of the curse of the matter off if they had just said, well, we still adhere to this view, we still make this finding, but it doesn’t make any difference anyhow.

They didn’t say that.

In the second place, this isn’t just an ordinary subsidiary finding.

This is a finding under one of eight statutory criteria established by section 13 (e), you — so if you disparage the finding, you disparage the statutory criteria.

In this situation, an advocation is — is worst than that, because of the eight findings under this criteria, the Government now defends the order on the bases of only 5 of the 8, one of which is the finding on secrecy and which the secrecy finding that makes the difference between a plurality of Section 13 (e) finding against the petitioner or in even division.

And finally, it’s just impossible for me to see why the Board devoted 19 closely printed pages in the modified report that the subject had secret practices, they considered the entire subject to the unimportant and unessential.

John M. Harlan II:

Could I ask you a question about your constitutional argument?

Do you draw any distinction as among the same (Inaudible) themselves as to their (Inaudible) authority or you think they’re all bad?

Joseph Forer:

Well, we think they’re all bad.

Now, it’s true that there is some question on the deportation statute because of what I considered the most important decision of this Court in Galvan against Press, but, we — we think they’re all bad.

There are some — the alien sanctions of course, run into the problem that aliens may not have quite as many rights as a citizen.

The last point I will argue and I hope I can finish it, is also a remand point.

And it is that the Board and the court below erred in reducing to strike all the testimony of the Attorney General’s witness Louis Budenz.

At the original Board hearing in 1952, Budenz testified among other things, the two supposed incidents which had come to be known in this litigation as the (Inaudible) in the Wiener conversation.

I — I will save time.

I’m not going into what the testimony was, but there were two important subjects.

On cross-examination Budenz said, he has reported these incidents to the FBI orally and didn’t know whether or to what extent the FBI had refused them their right.

So we move for the production of these statements or reports made by defense of the FBI about the historic letter in the Wiener conversation.

The Attorney General or his representatives objected to the motions and the Board denied that motion. When the case went back to the Board after the remand, we again moved for the production of Budenz’s reports to the FBI on the (Inaudible) matters and this time added the alternative that at least the Board inspect them in camera.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

Again the Attorney General objected, again the Board sustained the objection.

So we complained about these rulings to the Court of Appeals.

The Government in its brief from the Court of Appeals, defended the rulings on the grounds that there weren’t any written reports by Budenz on these two matters, but at most, only some summaries prepared by the FBI and not seen by the defense.

On the basis of this representation, the Court of Appeals said, we weren’t entitled to the statements.

We filed the petition for rehearing but this time for the first time it occurred to the Government that instead of making the representations that weren’t any reports, perhaps, Government counsel should check with the FBI first.

So, they checked with the FBI which probably informed them that the FBI had recorded verbatim days and days of interview with defense including a material which would be relevant for the subjects of Wiener and (Inaudible) matter, so then the Government counsel filed a memorandum which they informed the Court of Appeals that they had finally checked with the FBI, they had learned that the FBI had the verbatim recording and then told the court that — that they thought that — that under the Jencks rule, we were entitled to get those portions of the recording which related to the Wiener (Inaudible), so the court changed this ruling.

Potter Stewart:

Was the Jencks case have been decided?

Joseph Forer:

Already.

Potter Stewart:

Between the time that the Board has refused it?

Joseph Forer:

Yes — yes.

Potter Stewart:

And the — and the time of (Inaudible)

Joseph Forer:

Jencks’ case has been decided even the Jencks’ statute was enacted.

Now the court changed this ruling so as the — require the production of these statements.

The case was going back for other purposes anyway.

So when the case got back to the Board level we cut excerpts from Budenz’s talks with the FBI which are relevant to the (Inaudible) and Wiener testimony.

It became apparent to us. I think it becomes apparent to anybody that looks at them objectively, not only that they contradicted this testimony on this matter, but that they indicated a pattern typical of this witness that he had deliberately concocted testimony that fit the particular needs of the occasion.

So we said, call Budenz back, we call him because now, we wanted to be able to cross-examine him with the aid of the — these statements.

Then hearing the examiner, who is the member of the Board, ruled that we were entitled Budenz recalled for this purpose.

Then it turns out that Budenz had a lasting illness, he was too sick to be examined.

So we never did get the opportunity to cross-examine with the aid of the statements, despite the fact that by now it was freely and finally conceded that we had been entitled for that opportunity when we had first asked them that there has been error to deny the opportunity in the first place.

Charles E. Whittaker:

Have you previously cross-examined on all except (Inaudible)

Joseph Forer:

No, we had crossed examined them on those two matters, but we didn’t have these valuable materials that make them out of the (Inaudible).

We didn’t have it.

Charles E. Whittaker:

You think the cross-examine (Inaudible)

Joseph Forer:

Yes, so we moved that because we have been the — the pride of our right to cross-examination, we move that all of the Budenz’s testimony be stricken.

Our motion was denied by the Board but the Board did strike those parts of Budenz’s testimony which related to the (Inaudible) and Wiener matter.

It kept the rest of Budenz’s testimony in and it made findings based on it.

The Court of Appeals affirmed this ruling, Judge Bazalon dissented.

And the question is therefore, what are the consequences of a deprivation — of this deprivation of cross-examination caused by the witness’ death or lasting illness?

Such authority there, as there is on the subject, is summarized by weight more to this effect.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Joseph Forer:

First, if the witness or the party Wigmore has any sort of responsibility for the deprivation, then all of the witnesses’ direct testimony must be stricken.

The illustration given by Wigmore is a case, where a party obtained the postponement to direct examination and the witness died or became sick during the recess.

Second, even if the Party offering the witness has no responsibility for the deprivation, nevertheless, all of the witnesses’ testimony must be stricken if the deprived party suffers a material loss from the deprivation.

If this rule is applied we say, it is clear that all of Budenz’s testimony should have been stricken for each of the two reasons given by Wigmore.

To get to the second thing first, by being deprived the opportunity to cross-examine this witness with the aid of these two statements which showed contradictions and consistencies and perjury on these two vital matters, we were denied the opportunity to discredit him on other matters and to show that he belonged in the same category as the Government’s three other perjurers who appeared in this case Crouch, Johnson and Matusow, because we were deprived from that opportunity to discredit him generally and because the Board nevertheless, went ahead and made important findings based on his testimony, we suffered a material loss from being deprived of — of this opportunity.

Secondly and this is the first reason given by Wigmore, the responsibility for the deprivation does rest on the Attorney General and the Board.

It was the Attorney General who made ill founded objections to our production demands.

It was the Board which made erroneous ruling to sustaining these objections and that caused the deprivation.

Moreover, the Attorney General had an additional responsibility because he withheld the fact that the FBI had the yet — had the Budenz statements in its possession until it was too late to recall it then.

For this reasons, all of Budenz’s testimony should’ve been stricken.

I don’t know if we have any time left but we too, will reserve it.

Thank you.

Earl Warren:

Mr. Solicitor General.

J. Lee Rankin:

Mr. Chief Justice and may it please the Court.

During the recess, I asked for — that the registration that they performed to be secured, I have enough copies so we could tender the Court as evidence (Inaudible).

In regards to that additional matter, I could — I could try to clarify the problem. We do not cite in our brief, the portion of the —

Earl Warren:

Did you — did you give those to the first (Inaudible)

J. Lee Rankin:

The portion of the Code of Federal Regulations showing the regulation of attorney — Attorney General, promulgated under the statute but it is Title 28, Section 11 (1) and following.

I think the particular section that you’ll be interested in is Section 11.200, which says forms for registration of organizations, each Communist-action organization in each Communist front organization which had required to register with the Attorney General, shall accomplish said registration on a form hereby designated as form ISA-1.

This form is available at the Internal Security Division of the Department of Justice and so forth.

Now, that form is the one printed, mimeographed on white of the forms that the clerk has and it does provide explicitly for signature of the officers.

The only reference, —

Earl Warren:

(Inaudible)

J. Lee Rankin:

The form is ISA-1 is the white, the pink form is for members themselves, as I recall or it maybe for the front organization.

So, the only reference in the regulations is to the form by this description.

However, it does provide for the officers to sign it.

Now the Government does not argue in its brief that the Communist Party could satisfy the requirements of the statute by not having officers sign it, but I do think it’s a valid position and I’ll try to tell you why at this point.

The parts of the statute are setout in the appendix to a petitioners’ brief and on page 148 of the petitioners’ appendix to his brief, not his brief but its appendix, he sets out Section 7 (c) which describes what is expected from a Communist-action organization and then in —

(Inaudible)

J. Lee Rankin:

The appendices, yes.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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(Inaudible)

J. Lee Rankin:

148.

That’s the statute.

J. Lee Rankin:

Yes, that’s the statute, that’s what I was trying to call attention to and in that statute, in Section 7 (c), subparagraph (c), you’ll note that it describes what is expected of the Communist-action organization as to registration.

In one, in the case of an organization which is a Communist-action organization or a Communist front organization on the date of the enactment of this title and within 30 days after such day, the — the registration required by Section (a) or (b) shall be made, taking sentence there or part of the sentence and starting with (c).

Then it goes on to (d), saying the registration made under subsection (a) or (b) shall be accompanied by a registration statement to be prepared in so forth.

So it’s clear that it’s contemplated by the Congress that two things will be involved, one of them is the registration of the organization itself.

Congress was interested in the identity and identification of the organization itself and then it goes on to provide in a separate portion for the registration statement which involves and contemplates substantially more, both from constitutional considerations and acts themselves then is involved in mere registration itself.

(Inaudible)

J. Lee Rankin:

I think, they can just say, we register, in so many words and comply with the statute.

We –

(Inaudible)

J. Lee Rankin:

They can be filed by mail or otherwise, a statement that the Communist Party, a Communist-action organization registers and I think they would satisfy the requirements of the first part.

They do not require the — or satisfy the requirements of the second.

And I think —

William O. Douglas:

Does the regulation ended up to a part of this law?

J. Lee Rankin:

Oh yes, I think they are contemplated under the — the registration statement which is different from registration of the party.

William O. Douglas:

But (d) is the statement for (Inaudible)

J. Lee Rankin:

That’s right.

William O. Douglas:

The registration statement that I all — I suppose I have to look at this to find out what that involved.

J. Lee Rankin:

Yes, Mr. Justice.

John M. Harlan II:

Quite effected any, do you think on the ultra vires, bot the ultra vires, the administrative regulations, do you think Section 1 (b) which says, “Nothing in this Act shall be construed or authorized or require or establish military and civilian censorship or anyway limit or brings upon in a depressed or a state of guarantee with the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.”

J. Lee Rankin:

Well, I think that you have to take that into account in construing the act and the acts of the Attorney General under the Act and I think you could determine that the Attorney General had no power to require officers to sign to register — to sign any registration statement if it involves a constitutional problem that might otherwise invalidate the act because it shows the intention of the Congress that that shall not be done.

Now, I think that there are other —

John M. Harlan II:

Well, all became so far as the First Amendment constitutional plans is concerned and not with respect to (Inaudible)

J. Lee Rankin:

Well, but I think also that it is bearing in the interpretation of the regulations made by the Attorney General, if they could be — a portion of them separate it under separability that certainly you could say, “Well, the registered is sure of signing the names of the officers if that’s properly and physically possible.

Now —

Charles E. Whittaker:

I understand you involve section 7 (a), (c), (c) and (d), your suggestion through document is contemplated by statute or required by in here.

I wonder what one may call registration from (Inaudible) and to our statement setting forth, I think they are numerated one, two, three and seven, but the registration that is required of section 7 (a) is a registration with the Attorney General on a form described by law.

What I’m asking you is and look at it, is a form of registration, what is the form of registration that is required by the regulations disregarding for the moment according to one kind, the validity of the reservation.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Charles E. Whittaker:

What kind of (Inaudible) —

J. Lee Rankin:

Oh, yes.

Charles E. Whittaker:

Would — would satisfy the (Inaudible) of what you say, registration as such.

J. Lee Rankin:

Well it performs —

Charles E. Whittaker:

(Inaudible) Communist Party of America?

I just want to know, is this transformed in the document?

J. Lee Rankin:

It — Mr. Justice, it is set forth what is expected of the registration.

(Inaudible)

J. Lee Rankin:

Yes, that’s true.

(Inaudible)

J. Lee Rankin:

That’s correct, Mr. Justice.

I’m saying that I think that you could construe the Act to not reach the constitutional question or to decide that the regulation was beyond the Attorney General’s power in applying the Act insofar as he required the officers because the — act does not anyplace, say that this has to be done by officers.

(Inaudible)

J. Lee Rankin:

That would require you only to readout the question of whether or not the regulation is beyond the Attorney General’s power.

If the only way that the — the fling could be accomplished, was in violation of the Constitution and his regulation required that, then I think that the interpreting of the Act, you would stop surely.

(Inaudible)

J. Lee Rankin:

Yes, when he — certainly couldn’t require just anything as far as the form is concerned.

That’s my point.

Charles E. Whittaker:

So I misunderstand ISA-1 that that’s one that controls is that right, that’s the form, ISA-1?

J. Lee Rankin:

Yes, Mr. Justice.

Charles E. Whittaker:

Now, that doesn’t say, (a) (Inaudible) read (b) furnish the following information that any individual (Inaudible)

J. Lee Rankin:

Mr. Justice, I think they’re just — a footnote at the bottom here that describes how it’s to be signed.

(Inaudible)

J. Lee Rankin:

That’s Number 6, paragraph 6 on the front page.

Hugo L. Black:

Oh, (Inaudible).

We don’t have to sign this one.

There’s no statutory requirement if they sign anything (Inaudible)

J. Lee Rankin:

Well, it goes on to the question —

Hugo L. Black:

We’re talking about the statute that says that we (Inaudible) prescribed by the Attorney General, is this the only form you have?

Is there any other form?

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

Yes this — no, this is the only form.

Hugo L. Black:

Then there’s no way they — would violate the statute because they didn’t — they didn’t sign it, didn’t sign it?

J. Lee Rankin:

I think they would have to file something, Mr. Justice Black.

Hugo L. Black:

Well, if they have to file something acroding to (Inaudible) described by the Attorney General.

J. Lee Rankin:

Well, they would have to go as far —

Hugo L. Black:

That’s what you said.

J. Lee Rankin:

I think they could say — they have to invoke their privilege and they could say, “If we reveal our officers, it would incriminate the officers and therefore we will go as far as we can.”

I think, that’s what the holding of this Court show and invoke it as to the part that they couldn’t do.

Now, they could say we are Communist organization, we have certain things that we can reveal and without affecting any problem of incrimination and then say we can’t fill out this or that because it would —

Hugo L. Black:

The (Inaudible) could be throughout without furnishing proof, they might convict him of being a communist (Inaudible)

J. Lee Rankin:

Well, it seems to me —

Hugo L. Black:

Which part?

J. Lee Rankin:

— that on the construction of the White case of this — of this Court — the decision on that case, that this Court made it very plain, that the officer as such, did not have the privilege that if he said, I am an officer of so and so labor organization and therefore, I don’t want to bring the books and records into court that there was no privilege for him as an officer.

He had a privilege only as an individual and that is of great importance to law enforcement in this country.

Hugo L. Black:

Can this be signed in at the record by an individual?

Can it be supplied by — it can’t be supplied by this Court and in (Inaudible)

J. Lee Rankin:

Oh no, but — let us look at that with the White case.

There were papers and records of a labor organization and you couldn’t possibly get him — get them into court without having the identity of the officer revealed as a part of that transaction and he complained about it.

He says — he said they — that may incriminate him.

Hugo L. Black:

He said the people — you’d say was held by him as an officer of the corporation.

It would incriminate him and the Court held as I understand it (Inaudible) that he’s reporting on for the corporation, his records cannot be required.

Where he can find the registration (Inaudible)?

The registration accepted to go that he was guilty of crime or might be found guilty or might be (Inaudible)

J. Lee Rankin:

Well, he claims that it might tend to incriminate him or direct to produce the records.

Hugo L. Black:

Produce the records –

Charles E. Whittaker:

Suppose he had (Inaudible)

J. Lee Rankin:

That’s right and the Court said that the fact that he is an officer, as an official, he has no privilege whatsoever.

Now, as an individual, he did.

Hugo L. Black:

Now, you want to extend the White case to raise and make a man testify the claim rather than use in record?

J. Lee Rankin:

Oh, no.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Hugo L. Black:

Though he’s an officer.

J. Lee Rankin:

I want to deal with that separately Mr. Justice Black.

I think that’s a different problem but I — I do want to insist that the — what the White case held was not as counsel presented it and it’s most important to law enforcement in this country because it doesn’t only mean in this case, but it means wherever you have anyone who’s asked to produce the — the books and records of a corporation or any association in this country who says, why, if you find out I’m an officer, it will lead to a — a chain that will convict me of a crime and I won’t produce it and that would close up vast areas of proof that this Court has permitted and approved ever since the White case.

Felix Frankfurter:

Well, the White case wasn’t anything new.

That was held way back in (Inaudible) more than one way.

J. Lee Rankin:

That’s right Mr. Justice, but I think —

Earl Warren:

You automatically — General is here automatically the man becomes subject to prosecution to find.

The mere fact that he had — the he admits that he — he has in his (Inaudible), he — he then subjects himself as a according to theory he’s had been hearing here a lot there so, he becomes an active member of the party and he can be prosecuted for it.

J. Lee Rankin:

Well, I could —

Earl Warren:

Isn’t that something that’s in the reports might — might lead to — to his incrimination but the very fact that his admission in filing the claim makes him subject to these sanctions and to prosecution for as you say, under the Smith Act, for being a member.

J. Lee Rankin:

Well Mr. Justice, I think it’s the — that’s merely per se.

I don’t think it reaches beyond that at that point.

Earl Warren:

Well, Mr. — Mr. Davis told us the man even paid dues.

He was more than a per se member that he was then a member who came within the purview of the — of the statute.

Now, here’s a man who — who has knowledge and — and has documents and he — he registers for the Party and wouldn’t that be more substantial than the just paying dues?

J. Lee Rankin:

Well, I — I think it would be more substantial as far as activity is concerned, but as I heard Mr. Davis and (Inaudible), maybe I misinterpret him, his words to the Court, it seemed to me, he was distinguishing between the intent and the membership and the activity when you said that he thought paying dues would be activity and he was trying to answer the question whether that was activity as a part of membership and he didn’t think and told you that that was not enough, merely, activity and membership was not enough.

In fact, I think to Mr. Justice Brennan’s question, he indicated that that would in some cases, be it merely, per se.

Hugo L. Black:

In your argument, (Inaudible) under this distinction that it would not seem to incriminate the nature of Congress, he only can incriminate the nature of Congress and had to be joined (Inaudible) had an intent and so forth.

J. Lee Rankin:

Well, that’s the position of the Government in the membership cases.

Hugo L. Black:

What kind of (Inaudible) allowed.

(Inaudible) was held that a person cannot be asked if they were (Inaudible) paying the privilege against him.

The cause of the (Inaudible) any different, what do you want to rule Blau?

J. Lee Rankin:

Well, I think Blau was going into the question of what the records contained.

Hugo L. Black:

Blau was going to get that (Inaudible).

It was held that could be done, if you tend to incriminate under the opinion of Chief Justice Marshall (Inaudible)

J. Lee Rankin:

Well I think that —

Hugo L. Black:

That — that was enough.

How can — how can you make the argument you are making without asking us to overrule Blau.

J. Lee Rankin:

This problem here with the act as an officer as distinguished from his —

Hugo L. Black:

His act getting to the point where the officers not merely (Inaudible).

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Hugo L. Black:

You say that doesn’t tend to incriminate him because being a Communist is not enough.

You must show that he has the intent to overthrow the Government.

But — but in the Blau case it was held under the said Act, (Inaudible) mere estate has to (Inaudible) authorized the witness to claim the privilege against self-incrimination.

J. Lee Rankin:

Well, I’d — I’d — Mr. Justice, I don’t think the Blau case held that that was enough for the membership clause, but I do — do think it held that it would — might furnish evidence that would be in the chain —

Hugo L. Black:

That’s right.

J. Lee Rankin:

And that –

Hugo L. Black:

That — that’s enough, isn’t it to claim the privilege to self-incrimination?

J. Lee Rankin:

Yes, but he’s not acting.

In this capacity, he signs as an officer, as an individual —

Hugo L. Black:

But he’s asked to.

J. Lee Rankin:

And he can —

Hugo L. Black:

Somebody has to show that — that he produces it unless you get somebody who knows nothing about it (Inaudible) activity associated with the Communist Party.

J. Lee Rankin:

But he can withdraw from being an officer and not have any responsibility just like the man in the White case.

Hugo L. Black:

I suppose Mrs. Blau could’ve withdrawn from the Communist Party and then maybe that’s what (Inaudible)

J. Lee Rankin:

Well I think that’s a separate problem, but I — I’m trying to say and I think this Court has held very clearly, a number of cases including the last time that I recall White as an officer, has no privilege in regard to the books and regards of the association or corporation when he’s asked to produce it.

Now this goes, this case has not applied.

Hugo L. Black:

(Voice Overlap) is that what this is asking?

J. Lee Rankin:

No, I think this case goes beyond that and I don’t think —

Hugo L. Black:

It goes to asking a question or somebody can deal — will be associated with the Communist Party wouldn’t it?

J. Lee Rankin:

Well, I think this has asked him to not just bring the records, books and records in, but to bring forth a statement that he incorporates things that are on those books and records.

So it goes beyond the White case in that regard.

Now, I don’t — I think this case is premature in regard to that problem, because he — you don’t have a case where he has the problem of registering and he says, I can’t do it because it will incriminate me.

You don’t have that before you and he just says, I can set answer to this and this, which is exactly what the books and records show, but we don’t have a detailed membership for this and so I’d have to make that up and I don’t have to furnish that so I include the Fifth Amendment on that and you could take any number of things that some of them you might say, there is a real detriment that’s involved and some you might say, are not.

And then he would have to answer some and he wouldn’t have to answer some, but he can under the Board case, he can — on the Sullivan case, he can take the form and answer what he can.

Hugo L. Black:

You believe anybody can answer this for the Communist Party where that shows that this maybe alright.

Well, that shows if he’s actively associated with them, can he comply with the requirements of this Act?

If he wanted to comply, not merely by the order (Inaudible) can he comply without believing the fact, he’s actively associated with the Communist Party?

J. Lee Rankin:

Well, he certainly reveals that he is an officer of the Party.

He signs as an officer.

Hugo L. Black:

Suppose he’s not assigned as an officer, yet signed it, gives all the information —

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

Well that doesn’t necessarily show he has any connection that could incriminate.

If I could assign it, well, Mr. Abt could sign it as a lawyer and lawyers do many things as agents.

And it wouldn’t prove that —

Hugo L. Black:

Under one of the — under one of these provisions, it looks like getting anybody to close the case, never had anything to do with it or write anything about it.

J. Lee Rankin:

Well, that’s to —

Hugo L. Black:

Or follows any advice where then it could get an objective or what he’s going to do.

J. Lee Rankin:

Now that — that’s an argument Mr. Justice Black that is not justified in this Courtroom.

The reason is this —

Hugo L. Black:

But one of — one of had — had followed.

J. Lee Rankin:

They — they made that argument and I want to tell you what’s wrong.

That Section of the statute in Section 5 of the 1954 Act, deals with the problem of a prosecution, a criminal prosecution against an individual for membership from the Party and then it proceeds to say, these different elements shall be considered as to whether he is a member in accordance with instructions to the jury in a jury trial.

Now that’s entirely different from the problem in this case.

It doesn’t in anyway, say that in this statute or in that one as it amends this, that that shall be used in regard to who are members of the Communist Party.

They are to file and say who their members are and then if anyone is prosecuted under the (Inaudible) those are considerations.

It doesn’t say that anybody who happens to be affiliated is a member.

There aren’t any such words in the statute, but it says if he’s paid money, if he’s affiliated, if he’s attended meetings, those are things that should be considered and Congress was reasonable in taking those various things as considerations for the jury to examine and the jury was — and jurors say and if the court didn’t sort the case by directing verdict that many of those things that the evidence was not substantial and showing the real connection, were not enough to have any jury convict a man of membership.

So that it isn’t kind — that is no definition either by contemplation or anyway in your — can construe this statute of what membership is in this context.

They ought to try to determine what the membership is and presumably, Congress thought they ought to know if they are people in leadership of this part and then it gets to the question of the individual and he if the Party doesn’t register him, he is to come forth, but there all kinds of protections for the individual, too.

He has an opportunity at anytime to withdraw and the list isn’t made public, for a considerable period of time.

And it doesn’t say whether he was a member for 12 months as counsel remarked here, prior to the time of filing.

The statute says, if he was a member at the time of the filing and what he wants to get off the list, Congress provided that he can come forward and he can tell the Attorney General, I’m not a member of the Communist Party and therefore, I ask my name be removed and there can’t be any publication of his name until a later date after all that question was settled and a provision for an appeal to the Board and he doesn’t have to say, I was not a — a member at the time that they were ordered to file or at the time they order became final.

All he has to say, he has a period of 30 days in which to do anything like that.

After notice, is I deny that I am a member of the Communist Party.

That’s all he has to do and come forth and make presentation to Attorney General throughout that period, his name is not to be published in anyway and no lists has been published that included his name until after that whole question is tried out and this criteria are not the — the test at all for whether he’s — he’s a member of the Communist Party at that time.

So the Congress did try to protect the person who wanted to get out and who was mistakenly put in or listed and all of those things that might catch someone who in, did not intend to be connected with Communist-action or Communist Party.

Now there is this element enough that has been discussed to here, about whether or not, he gets any independent trial.

It’s a position with the Government that this is a — an administrative proceeding in which the due process is provided for by the Congress for this Board.

There is complete judicial review for the action of the Board and the standard is higher than this Court has approved for administrative proceedings many times in that it require a clear preponderance of the evidence.

And the Court of Appeals in examining the matter, said that, that was a much more stringent test and I’m sure that Your Honors will recognize this it’s much more a strength of test and it conscientiously tried to apply that test to the record in this case and to such an extent that it took some 76 pages of an opinion to examine all of this evidence and not only say that their findings were justified by the evidence, but going step-by-step to every finding, as been claimed here that some of these findings under 13 (e), some eight of them, they were not complete.

That is there were some that they did not find and therefore, since they didn’t find any under those three or four sections of or paragraphs of 13 (e) that they were not justified in finding this a Communist-action organization under the 3 (e) (3), but the statute is not developed or built in and properly construed that way.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

The test of whether it’s a Communist-action organization is clearly set forth in Section 3 — 3 in parenthesis, and which is defined what a Communist-action organization is.

And then that Congress set up in 13 (e), eight different items of evidence to consider and it said, you shall determine in arriving at whether or not a — an organization satisfies the requirements of Section 3 (3).

The words were, the extent of and we all know in trial of cases, in juries in courts, before juries and otherwise, in courts that that means take into account the extent whether a little bit, none at all or a great (Inaudible) of each of these items.

And then determine from that, whether or not, you satisfy the standards of Section 3 (3).

Now they’re construing and I think, entirely and properly and the Court of Appeals agreed with the Government that it should be construed that those were items to consider the extent of it and if you found that they didn’t have any and under anyone of them, it didn’t mean that you couldn’t find that it satisfied the requirements of Section 3 (3), but you were to — the Board was to consider each of them and then determine the extent of and so under that kind of — which we think is the proper construction and the Court of Appeals, adopted and followed that very meticulously.

It was a question of whether or not, they — there were some evidence or none evidence — no evidence that the Board couldn’t say, well will just disregard that and not even consider it. That’s the way we read Section 13 (e) and the Court of Appeals examined it very carefully and did likewise.

Hugo L. Black:

The court of number thought they would file that (Inaudible)?

What effect does that have on the number if his name was — were on them, what effect does that have on that obtain things that they could have obtained but to the fact that their names’ on the list?

J. Lee Rankin:

Well it has some serious sanctions Mr. Justice Black, in that effect.

Now, they do have a period of 30 days to —

Hugo L. Black:

Safe after they separate — after they (Inaudible)

J. Lee Rankin:

You may say, well I don’t have to separate so you have to get to that question, then we say there are certain sanctions that the Act provides and they’re each separable, so it’s the question under that — terms of the Act it’s a question of whether you would sustain anyone of the sanctions against the individuals or all of them or none of them.

We still say it’s a disclosure statute.

Hugo L. Black:

What do you mean by sanction?

J. Lee Rankin:

Well, these are the provisions of what would happen to the individual that you’re just asking about.

Hugo L. Black:

What are those things?

J. Lee Rankin:

One of them is that, he can’t obtain or apply for a passport.

Another one is the effect on an alien deportation that has been described here.

Another one is the effect on his ability to either obtain a job in federal employment or apply for one.

Hugo L. Black:

Apply for one?

J. Lee Rankin:

Yes, And —

Hugo L. Black:

You mean he couldn’t apply?

J. Lee Rankin:

The Act prohibits his application for it if he continues to be a member after the decision, the final decision on review, that this is a Communist-action organization.

Hugo L. Black:

(Inaudible) him that, he could either try in anyway of that on his own or would that any?

J. Lee Rankin:

He could get a trial on his own of the question of whether he’d violated the law and there was criminal liability, yes.

Hugo L. Black:

On — on what?

What would — what is to be left to decide?

J. Lee Rankin:

Well I think, under the decisions of this Court, in administrative tribunal where the judicial review, called judicial review —

Hugo L. Black:

I talking about a trial —

J. Lee Rankin:

Then —

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Hugo L. Black:

Does he have a trial in court for a judge and jury?

J. Lee Rankin:

Yes, I — I think it would be open to him whether he violated the order of the administrative tribunal that had become final.

Hugo L. Black:

What would be the cases left open then (Inaudible)?

J. Lee Rankin:

Merely, if whether he had violated the order.

Hugo L. Black:

What would that be?

Violated by what?

J. Lee Rankin:

By a member, by applying.

Hugo L. Black:

By applying.

J. Lee Rankin:

As a member.

Hugo L. Black:

It had tried out one issue before the jury and that was that he has applied for a job or applied for a passport.

J. Lee Rankin:

Well, if there was an order of the National Labor Relations Board that there was unfair labor practice and it became final and a man violated the order, this Court wouldn’t allow him to have a reexamination of whether or not, the order was valid.

Hugo L. Black:

It doesn’t matter?

He kept a —

J. Lee Rankin:

As a contempt proceeding and I think that —

Potter Stewart:

Mr. Solicitor General, isn’t your position that the congressional position that the so-called individual sanctions are not now before the court and that it has been Mr. Justice Black’s question as to what he did try out, couldn’t he under that theory, try out the constitutionality of each one of these sanctions to think it were (Inaudible)

J. Lee Rankin:

Well, the Government argues that that is a not open to him in our brief but we say that the matters now not before the Court, but it’s premium to it and that the Court could at that time, determine the extent of — of what he could do in trying out the issues at that time.

William J. Brennan, Jr.:

This means you disagree with the Court of Appeals to start the (Inaudible)

J. Lee Rankin:

Yes, Mr. Justice.

We think that the statute is fundamentally a disclosure statute.

William J. Brennan, Jr.:

And I could (Inaudible) and I’m so confused about self-incrimination.

Let’s assume the secretary of American Communist with this petition, in fact signed an ISA-1, with more or less, they’re all answering the questions or not, just signed it as secretary of the Communist Party of the United States, as I understanding you to say, getting back in the state of this argument and their secretary, the activity factor of a (Inaudible) members of provision to the Smith Act, would be satisfied merely from the fact that he was secretary of the Party.

And may he be prosecuted under the membership clause if the Government, with other evidence satisfied the other elements as I understood Mr. Davis, elements of knowledge and intent satisfying the activity factor merely by showing that the he had signed ISA-1 as the secretary?

J. Lee Rankin:

Well I don’t think it is proven in that ways because that Act expressly provides that you can’t, so that we have to prove independently.

I don’t — that adds nothing unless you could, by that discover that he was the secretary when he didn’t know it otherwise.

William J. Brennan, Jr.:

Now — now, he’s admitted it and he can’t use the fact that he signed it, but may he use it as a lead to discover other evidence — other signatures for example, on other documents that who signed the (Inaudible)?

J. Lee Rankin:

Well, I don’t think the immunity clause go with as far as (Inaudible).

I don’t think this is sufficient to include of privilege and so it might give you a lead except you would have the further problem but he doesn’t —

William J. Brennan, Jr.:

Well, that was great, it — it might give you a lead.

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

If it does give you a lead, could you use what you got even if it was a lead and as far as (Inaudible)

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

The statute doesn’t say —

William J. Brennan, Jr.:

What do you think constitutionally?

J. Lee Rankin:

Well, here is a — that’s the easiest case on the Constitution because the secretary did sign the agreement (Inaudible) for the party.

William J. Brennan, Jr.:

Let’s take this chance if you don’t mind.

J. Lee Rankin:

If you take a more difficult case, if we don’t know whether —

(Inaudible)

J. Lee Rankin:

And — alright, take that case (Voice Overlap) that’s a more difficult case for me.

I think that you couldn’t use the material as a lead without infringing upon Constitution.

William J. Brennan, Jr.:

Alright, that’s your position (Inaudible) on perjury, but when you subpoena (Inaudible) someone or requiring someone to sign this registration form, your identity as an officer of the Communist Party (Inaudible) it is all your doing to require and to produce perfect books and records, then even as to the nexus aspect, (Inaudible) furnishing the lead you say that under White, you still can force him to produce the corporate records, even though the (Inaudible) of it is that he personally identified himself as a member of the organization is that – is that (Inaudible)

J. Lee Rankin:

That — that is my position.

William J. Brennan, Jr.:

Before my question —

J. Lee Rankin:

You say it is not?

William J. Brennan, Jr.:

The question — my question is assume he filled out ISA-1 and signed himself as secretary of the Communist Party, but I don’t see that question leads to Mr. Justice Harlan’s question.

J. Lee Rankin:

I’m confused.

I — I feel, in order to try to make myself clear about White.

I understood the Court to say in White that the fact that a person is an officer and by coming forth as an officer in presenting books and records, he might incriminate himself, revealing it as an officer or what was in the books or records, either one, there is no privilege for him as an officer.

Hugo L. Black:

Those books and papers, they have no privilege (Inaudible)?

J. Lee Rankin:

Although, when the Court went on to say that, there’s no privilege for him as the official.

Hugo L. Black:

Right because the books dictate to that.

J. Lee Rankin:

Well, but it reveals that he is the man that’s got them.

Felix Frankfurter:

He has to go on the witness stand and produce those books.

J. Lee Rankin:

That’s right and if he — and it’s inherent and as the Court said there —

Hugo L. Black:

Why does he have to go on the witness stand?

Felix Frankfurter:

Because his feelings are (Inaudible)

Hugo L. Black:

You think he has to go in the witness stand when he is ordered to produce books and papers and testify?

J. Lee Rankin:

Oh, Mr. Justice —

Hugo L. Black:

Something that would incriminate him, I am talking about members of the Court, I am talking about that you?

J. Lee Rankin:

I think that — I think he would have to produce them in the court room and make it clear that he was associating himself as an official with those books and records.

William J. Brennan, Jr.:

But Mr. Solicitor I’m sorry we can’t get the witness on this way, but what I’m trying to get at is this.

As I understood Mr. Davis’ argument, the fact that he was secretary would satisfy that element of the Smith Act offense, which involves under the Government’s theory, the necessity of the two active members, is that right?

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

Yes, Mr. Justice.

William J. Brennan, Jr.:

Now, the mere fact that he signed this paper, as I understand it, has nothing to do with the contents of the records, he can answer all of the questions, but the mere fact he signs as secretary, supplies then doesn’t it, if it’s usable, an ingredient in the Smith Act.

J. Lee Rankin:

Well, it seems to me the statute is clear that it’s not intended to be used that way.

William J. Brennan, Jr.:

Alright, now I want — now, I want to go beyond that to the question I asked you —

J. Lee Rankin:

The immunity —

William J. Brennan, Jr.:

As a lead.

J. Lee Rankin:

I think the immunity would cover the lead as well —

William J. Brennan, Jr.:

Where?

J. Lee Rankin:

Because it’s intended by this immunity to make it clear that you cannot use this registration as any evidence and I don’t think you could use it as a lead without getting into this proposition.

William J. Brennan, Jr.:

Alright, unless that’s so to the extent that 7 (a) compelled signature of an officer unless what you now conceded as true, 7 (a) would be unconstitutional, wouldn’t it?

J. Lee Rankin:

Oh, I think it is a serous problem.

John M. Harlan II:

(Inaudible) ask you this question.

Now suppose the Court in the White case, every time, no matter what the statute, a person comes into the Court and says I raise my Fifth Amendment privilege.

In a sense he is giving the Government the lead because even though the Fifth Amendment privilege doesn’t prove anything in the way of guilt, it might suggest to a practical prosecutor that is they smell out and look hard enough they would be able to connect him up with something.

J. Lee Rankin:

Well, I think that’s inherent, in all inherent, in all such – invoking of the Fifth Amendment, but I don’t think that has anything that the courts recognize can be protected against —

John M. Harlan II:

Therefore, you don’t have to stand just on the White case, if that’s a sound proposition, do you?

J. Lee Rankin:

I don’t understand what you mean Justice Harlan.

John M. Harlan II:

Well, when you (Inaudible) your position entirely here, it seems to me, on the White case, this fellow being (Inaudible) —

J. Lee Rankin:

As an officer.

John M. Harlan II:

As an officer.

J. Lee Rankin:

Yes.

Now, I was not treating with the problem as he invokes his — the Fifth Amendment, which I — I don’t regard as a problem in this situation at all.

I think the Court has said that invoking the Fifth Amendment is not any indication of guilt, whatsoever and has to be treated that way.

John M. Harlan II:

This does (Inaudible) your some possible connections as far as the lead is concerned for the Government.

J. Lee Rankin:

That’s — that’s always possible.

John M. Harlan II:

Always, always have been.

J. Lee Rankin:

Yes.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Oh, yes.

Charles E. Whittaker:

That is just (Inaudible)

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

That’s what I was trying to say and I think that he is clearly identified as being official that has the possession of the books and records.

Charles E. Whittaker:

Is that the incrimination?

J. Lee Rankin:

Well, of course as I say, as said in White and is not, that he has no privilege as an officer and that it’s his duty to bring the books and records in and it’s most important to law enforcement that he will be continued in the force and effect.

John M. Harlan II:

Your certification (Inaudible) a little further than that.

You ask us to certify (Inaudible) on page 5, how do you think that — that certification (Inaudible) case?

J. Lee Rankin:

I think the certification may go farther than the White case and I have tried to indicate to the Court that I think when the case comes up, the representative of the Party might say, we’ll answer so much, we’ll plead the Fifth Amendment as to something.

We’ll fill out part of the registration statement or we won’t do any of those things.

We’ll bring the books and records in here, lay them down on the Attorney General’s desk and we’ve satisfied the statute and that’s all we’ll do.

John M. Harlan II:

That assumes your — your regulation (Inaudible)

J. Lee Rankin:

Yes.

John M. Harlan II:

Of course, if that’s permissible and leads the registration statement as a valid registration statement under the Act, all that’s talked about in the Fifth Amendment (Inaudible) goes out the window.

J. Lee Rankin:

Well, I don’t think that — it’s properly in.

First —

William J. Brennan, Jr.:

I didn’t understand you to take that (Inaudible)

John M. Harlan II:

I don’t think Mr. Abt did that.

J. Lee Rankin:

I don’t understand it.

John M. Harlan II:

If this registration statement can be furnished without anybody signing it at all, at all, no name on it, no individual name on it, then there is no Fifth Amendment problem as far as an officer is concerned, does he — is there a — nobody signed it.

J. Lee Rankin:

Well I think that’s right Mr. Justice Harlan, on the other hand, there was some inquiry from the Court, here as to whether or not, you — the Government will accept an irresponsible statement and I don’t (Voice Overlap) I don’t want to imply that.

Felix Frankfurter:

There was a difference between an irresponsible statement and the statement in an appropriate name.

It always burden (Inaudible) has an — has a corporate entity, has a legal personality.

Everything can consist of the individual and suppose — I suppose thousands and thousands of documents are signed everyday just by a corporate name without more, isn’t that true?

J. Lee Rankin:

I’m sure it is Mr. Justice.

And I —

Felix Frankfurter:

That is nothing in, that isn’t anonymous as just having (Inaudible) everyday maybe, the corporate entity, now there’s a personality.

William O. Douglas:

But your form has precluded as signing of the Court to rule without more.

J. Lee Rankin:

Yes, the form would, the form requires (Inaudible)

Earl Warren:

Was it leaving your form out, do you think General that that — that that would sufficient under the statute?

J. Lee Rankin:

Well I think that — I do think that the statute properly construes, involves several things. One of them, important to register, just plain, come in and register and I think that would satisfy that, now I don’t think it satisfies the part about a registration statement giving detail of their officers, members and their finances.

I think there are two parts to it and Congress wanted them to come forth and register in any form and then it also wanted this detailed information for good reason.

They wanted to know who the officers were and who the members were and what kind of financing this type of organization has.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

But I think that’s clear that there are two parts and I don’t think the forms contemplate that.

I think the forms make it clear that the regulation of the Attorney General was to provide for this one form, ISA-1 (Inaudible) called and the form said in so many words that the officers have signed it, but I don’t think the statute contemplated that is the only way to do it.

I think statute contemplated registration and the registration statement and it says so and so many words.

And the Court can satisfy itself as whether or not, it does, well that is a proper interpretation of the statute.

But that’s the way I think it’s clear from the language of it and I think with the Congress (Inaudible).

First, they were in (Inaudible) this Act in several claims, they wanted to be — they considered the question of trying to outlaw the Party.

And they passed on to the question of disclosure. They decided they preferred the idea of trying to get out in the open, who was at the back of the Party and all the information they could.

The vice that Congress saw in this thing was not what counsel have been talking about here, as to whether or not they could add or talk about Marxism and Leninism as such, as an ideology.

That wasn’t what Congress is trying to reach at all.

It was trying to reach a foreign control by the Soviet Union Party that was operating in the United States to try to carryout the objectives of that foreign or that world Communist movement and it wanted to get that kind of a Party.

And if this particular Party, the petitioner here was not that kind of a Party, there wouldn’t be any problem.

It wasn’t interesting, but if it was that kind with that kind of foreign domination control and trying to further the objectives of that kind of world Communist movement within the United States, it want to reach it.

And it want to reach it first, to get it out in the open, so everybody knew what it was, who its officers were, who its members were and what its finances were.

That’s the first part and it was also interested in having the people of this country, have the adjudication and they weren’t interested in adjudication just by some Board or administrative agency, they provided for an appeal with the preponderance of — of the evidence to be the determination — determining factor and appeal to the Court of Appeals to review that evidence and then for a right to come to this Court on certiorari.

So they wanted to be sure that there was a clear opportunity for a judicial process in addition to the administrative process to make this determination.

Once that had happened, upon the fair hearing, this Court was to determine finally whether there was a barrier, they wanted the people of the United States to know just exactly what kind of an organization this was, not because anybody would claim it before this Court or in some other court or claim it in the press or as individuals, but because they’d had a hearing and it was adjudicated and they placed great importance on it.

Then they wanted to get the information before the public and this Court in regard to that, has recognized in quite a number of statutes that there doesn’t have to be any clear and present danger for disclosure statutes and has recognized the power of Congress to provide for disclosure, for there’s a proper reason.

Hugo L. Black:

How can you limit this (Inaudible)

J. Lee Rankin:

Because, I think —

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

Mr. Justice Black, the Government’s position and I think it’s valid, is that it is disclosure plus but it’s separable and if you think any part — part of the rest is not constitutional, where it goes too far for the power of Congress, then you slice that part off so that now, I think that properly to consider the statute, you have to take the disclosure part as the fair bones first and then take the various sanctions that go with it and say, “Well, you can’t do that or you can do it.

You can’t do this or you can do it.”

And then when you get down to the members individually, you can do these things or you can’t do it, but since it is separable, it’s a question of whether disclosure alone, Congress was very careful about making assessment in — in the language that you — that you have to examine it section by section it seems to me to see what Congress was doing and if it had constitutional policy to make disclosure as a requirement, then it can do that much.

And if you say, well when they say that you can’t get a passport and you can’t travel without a passport —

Hugo L. Black:

That’s what (Inaudible) where is the value of the (Inaudible)

J. Lee Rankin:

It seemed to me you have to take it piece by piece in that manner to examine the constitutional problem and then you —

Hugo L. Black:

Made – is that a reason why made as a rule which is in NAACP versus Alabama with reference to organization’s right to claim the privileges of the members, so there’s a sufficient nexus to allow the organization here wrapped up as it is and all of the consequences (Inaudible) so that whether or not, publication of (Inaudible) was subject to (Inaudible).

J. Lee Rankin:

Mr. Justice —

Hugo L. Black:

So that they can raise the questions on it?

J. Lee Rankin:

Mr. Justice Black, I think some of these things, the organization is defending a case and is binding its members by its defense and I think it has a right to raise some of the questions in regard to that, here in the constitutional problems because it is representing those members.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Hugo L. Black:

If it — if it’s binding on them as you are here, so that it cannot be adjudicated again, (Inaudible) why isn’t this (Inaudible) to let the question be raised (Inaudible) by the —

J. Lee Rankin:

Well — organization (Inaudible)

Hugo L. Black:

Prepare to be (Inaudible)

J. Lee Rankin:

I think, Mr. Justice Black that some of the questions can be, but you run into the problem —

Hugo L. Black:

(Inaudible) which is at least in the minds of some people as part of the Constitution and (Inaudible) with reference to self-incrimination.

J. Lee Rankin:

Self-incrimination?

Hugo L. Black:

Yes.

J. Lee Rankin:

Well, I think that the problem that you have there is whether or not that facts are before are before you so that according to the rules that you have laid down over the years, you will consider that question with such limited or sketchy facts.

We have to imagine the various things that might be done.

For instance, it was claimed when they tried to get an injunction against this proceeding in the lower courts and they abandoned that case, that nobody would come forth and testify because of fear of self-incrimination in this case, but several of the leaders of the Party did come forward.

They also signed the pleadings in this case.

The secretary signed the pleadings on behalf of the Party and identified himself.

Now, it was claimed that those things wouldn’t or couldn’t be done and so, you have the problem of whether or not they’re going to claim the Fifth Amendment and you generally deal with it only when it’s invoked.

You have the problem of whether or not there is a waiver, but the all the information is so public and regardless of a particular individual that there is no —

Hugo L. Black:

Evidence are not very (Inaudible) weren’t have to be opposed.

J. Lee Rankin:

Well, it maybe public as to some, it maybe not public as to who takes their place their tomorrow or changes or things of that kind. And that’s the only reason why I think your — the rules will always adhere — are proper if you examine that case when it’s presented with all the facts.

John M. Harlan II:

I’m bothered by that for this reason that if we accept your argument I would suppose if we just have to dismiss this case as improvidently granted and then let it come up, I don’t know how in the context is the Fifth Amendment claim, I — we reach anything if we don’t reach the Fifth Amendment.

J. Lee Rankin:

You’ve certainly reached the question of whether they should register.

Felix Frankfurter:

You’re not getting that anybody who personally claims under the Fifth Amendment on your argument and that’s getting that plain personal claim, it all claimed under the Fifth Amendment (Inaudible).

You’re not suggesting that anybody’s personal claims under the Fifth Amendment is foreclosed by any (Inaudible) be happy to make that claim?

J. Lee Rankin:

No, I do not.

John M. Harlan II:

Well I have a question to you, that supposing this Act is construed as it’s been argued here, it should be construed, as requiring the force of the Attorney General’s regulation make signature on the registration, aren’t we now and immediately faced (Inaudible) the act is unconstitutional because it forces self-incrimination.

And if we’re not faced with that now, what is — how can we adjudicate the registration in the abstract so to speak (Inaudible)

J. Lee Rankin:

Well, I think that the registration can be done without —

John M. Harlan II:

That’s a different question and I have said and suggested that if view is accepted that you are now espousing that you can excise the requirement of individual signatures, the Fifth Amendment claim as distinguished from the First Amendment claim disappears from this law suit, but that’s a different question.

I’m not taking the Act on the premise that has been argued here by your opponents that you can’t excise that requirement with the Act as to rewriting of the Act and whatnot and that therefore, we have to judge the Fifth Amendment claim on the premise that the registration thing has to be signed by somebody and my question here, if that’s true, then if we don’t reach the Fifth Amendment question now, what is there left for us to do except to dismiss the writ as improvidently granted?

J. Lee Rankin:

Well, it seems to me you have other questions that in regard to the registration that the First Amendment question and the other questions and — and the question is that —

John M. Harlan II:

Yes then we’d still be left with — if we decided all those, one way the — supposing we decided all those in the Government’s favor, we’d still have a Fifth Amendment attack on the statute which on your view, we couldn’t reach it now.

When will we ever reach it?

J. Lee Rankin:

You might not reach it at all, what if they all came forward and cite all the officers, would you say that you had to decide —

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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John M. Harlan II:

Well then, I’m saying that the — what I’m suggesting is that this case unreleased on the Fifth Amendment claim, would have to go back and the officers either come in and say, “We refuse to sign or as more likely, they’ll do nothing and when — when is this question ever going to (Inaudible)

J. Lee Rankin:

Well, if they take the form and say whatever they can about their membership, whatever they can about their officers, whatever they can about their funds or they do nothing, then the procedure can be brought against them for not registering in accordance with the final Board.

John M. Harlan II:

Will it be done, who they are?

J. Lee Rankin:

If you can’t secure the necessary procedures or you can’t —

John M. Harlan II:

Well, the only thing that’s left is floating around in the air some place.

J. Lee Rankin:

That’s right.

That’s the problem in any case though, Mr. Justice, if you can’t (Voice Overlap) if you can’t find out who were the people in charge of a — a corporation’s assets or anything, you have to secure that information in someway or you have to do it on information and belief and try to prove it the best you can.

You always have that problem.

What I’m saying is that in this particular case, you don’t have to reach this Fifth Amendment problem in regard to this registration, because it isn’t here.

They could come in not inconceivable at all hence and signing this very blank, fill out whatever information they’re willing to fill out and sign it as officers.

John M. Harlan II:

What should we do then if that view is accepted with this case?

J. Lee Rankin:

Well, I think — I still think you have the problems of the question of the — the merger in the First Amendment and all of the questions of whether the judicial review is adequate in your judgment and you still have the problem —

John M. Harlan II:

I thought you said those questions weren’t here too and that you were just to take simply the registration itself minus all the sanctions and minus the Fifth Amendment claim.

J. Lee Rankin:

Oh, no —

John M. Harlan II:

But I thought that should be there.

J. Lee Rankin:

I don’t want to be misunderstood on that.

There is clearly here, the question of whether or not, the — the Congress had the power to provide for this determination that this Communist-action organization and require this disclosure under the First Amendment.

They urge that and it’s here, then there’s also the question of whether or not, the judicial review by the Court of Appeals was added.

There’s also the evidentiary question, separate and apart from the Fifth Amendment question and the sanctions.

William J. Brennan, Jr.:

Now, what about the (Inaudible)

J. Lee Rankin:

Well, I don’t think the sanctions are here.

William J. Brennan, Jr.:

I just want to be clear.

As I understand you there is the First Amendment problem here in any event, this is along the NAACP v. Alabama (Inaudible) and then there’s the judicial review, the issue that matter whether —

J. Lee Rankin:

What it was adequate.

William J. Brennan, Jr.:

They properly found that the established case beyond —

J. Lee Rankin:

Preponderance of the evidence.

William J. Brennan, Jr.:

Preponderance of the evidence but that’s definitely sufficient to the evidence.

No one else (Inaudible)

J. Lee Rankin:

They — they raised the question of Budenz’s testimony.

William J. Brennan, Jr.:

Yes.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

And the Gitlow testimony, under the Jencks’ (Inaudible)

William J. Brennan, Jr.:

(Inaudible) adjudicate all those questions now (Inaudible) I can’t understand why they aren’t purely advisory opinions, if ultimately, this case comes back as you’re having gone through further procedures and somebody refused to sign the registration statement and then we knock out the statute, knock out the registration and this registration clause, everything else falls because the Fifth Amendment claim is here and it can’t be to the (Inaudible) why you’re not asking us to judge on that premise an academic case.

J. Lee Rankin:

Though, I’m hoping you weren’t going to do that.

That’s the final point.

William J. Brennan, Jr.:

It wasn’t that something — it was that something like that (Inaudible) in the Court of Appeals and the Court of Appeals said, we got to take to take this as a package dispose of all these things, was it?

And once they didn’t make a lot of sense in perjury matters.

J. Lee Rankin:

Well, we didn’t so because —

William J. Brennan, Jr.:

I know you don’t think so, you —

J. Lee Rankin:

Because —

William J. Brennan, Jr.:

It’s there —

J. Lee Rankin:

Well, Mr. Justice, you have the problem.

What kind of facts you’re going to deal with there?

And it’s very real, in the Court of Appeals’ opinion that they were trying to explore various, various, hypothetical possible facts instead of having concrete trust.

William J. Brennan, Jr.:

Maybe that’s the nature of these (Inaudible)

J. Lee Rankin:

Well, I don’t believe so because certainly if they — if they’re required to register, then it seems to me you have a valid action that requires them to take some action and it can be done without incriminating them in any way or they can come forth and say, we don’t invoke the privilege and it’s said time after time, but the privilege has to be invoked in all of these cases and you don’t examine that question.

Now, I do think that there are some sanctions in regard to the argumentation itself that you want to examine (Inaudible)

William J. Brennan, Jr.:

Now, —

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

That this — what are they?

J. Lee Rankin:

That’s the question of the contributions that can — that cannot be made by employees of the Government and the fact they aren’t any exemptions, under the income tax laws for them after the adjudication.

(Inaudible)

Potter Stewart:

These sanctions — these —

Hugo L. Black:

(Inaudible)

Potter Stewart:

These organizational sanctions —

J. Lee Rankin:

These organizations —

Potter Stewart:

Pose upon the organization as such —

J. Lee Rankin:

Yes.

Potter Stewart:

Follow from a —

J. Lee Rankin:

Adjudication.

Potter Stewart:

From an adjudication to — to register rather than as well as (Inaudible) and whether or not, there is ever any registration.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

And this includes the mail, so I suppose the labeling.

J. Lee Rankin:

And the label.

Potter Stewart:

Labeling and the tax exemption (Inaudible)

William J. Brennan, Jr.:

Well in this contend, on — on your approach, the Fifth Amendment claim can’t be asserted by the organization, either for officers or members of this kind.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Is there anything else?

Or — nor any — any of the individual sanctions applicable either as officers or as members.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Is that it?

J. Lee Rankin:

That’s the position —

William J. Brennan, Jr.:

Due Process argument (Inaudible)

Earl Warren:

Nor can it be raised of any other time, unless they refuse to file the claims, they remember is (Inaudible)

J. Lee Rankin:

Yes.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

Well, you — you do have a problem of — of these other sanctions that Mr. Justice Brennan, just described.

Hugo L. Black:

Oh but the — but the —

J. Lee Rankin:

They would affect the organization as soon as they are ordered to register.

Hugo L. Black:

Yes —

J. Lee Rankin:

But you —

Hugo L. Black:

— they — they — that we register.

You say it, as I understand it, really that’s all that’s here.

It’s all we need this time.

We don’t have (Inaudible) have anybody sign, don’t have anybody’s name will just to say Communist Party, we register.

You don’t think that’s enough to decide, do you?

J. Lee Rankin:

Well, I think that’s here but I — I don’t want to be misunderstood about its regulation.

I think that you have to consider the fact —

Hugo L. Black:

Should it be considered, shouldn’t it?

J. Lee Rankin:

Well —

Hugo L. Black:

This is a — this is a large and important Act then we’re (Inaudible) we don’t want this thing (Inaudible) having to decide it on the basis to avoid conflict.

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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Hugo L. Black:

We shouldn’t consider that they had the time just as you asked, if they confide with the law.

J. Lee Rankin:

Well, I want to make a claim if the law provides that they shall act in accordance with the Attorney General’s regulations and the Attorney General has made those regulations so that I think you have to consider those regulations and whether or not, the extent of the effect that they have, in addition —

Hugo L. Black:

Might effect the question of self-incrimination are they not?

J. Lee Rankin:

Well you might —

Hugo L. Black:

At least under the argument.

J. Lee Rankin:

You might consider whether or not, taking that Act would involve that problem.

I don’t think you have to reach the question of whether any of the officers would be incriminated.

John M. Harlan II:

It had put (Inaudible) supposing we took your view and we adjudicated everyone, all deficiencies (Inaudible) except the Fifth Amendment finding, we say that (Inaudible) did you — did you consider that in those circumstances, any of these sanctions came into effect?

J. Lee Rankin:

Yes, because I think the statute provides that they have to the effect when they’re ordered and there’s a final adjudication.

John M. Harlan II:

Yes, but there would have been a final adjudication as the Fifth Amendment claim is still outstanding?

J. Lee Rankin:

Oh, I don’t understand your statement and because I had summed that you would say, in your whole and that the Act itself that in the orders valid by the Board and (Inaudible) as proved by the Court of Appeals and therefore, all of the operating conditions of the Act come into play which means that they have to register.

John M. Harlan II:

How could you say that, (Inaudible) adjudicated Fifth Amendment claim.

J. Lee Rankin:

Well, because —

Potter Stewart:

The judgment would be affirmed under my hypothesis (Inaudible)

J. Lee Rankin:

Well, I think so because what I’m try — trying to say is that then, the question would be up to them like it is in cases — case of adjudication before to either file or not file.

If they file, we don’t have any problems about the Fifth Amendment because they haven’t raised that.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

That’s what I’m trying to say, I’m very inept at it apparently, that’s what the seems —

William O. Douglas:

We have more, under your argument — your position on just the political disclosure because there certain possibility that would pass to the register, if you didn’t pass it from those wouldn’t it?

J. Lee Rankin:

At this time, —

William O. Douglas:

Yes.

J. Lee Rankin:

I — I think that you would want to examine the questions about the sanctions that affect the organization as distinguished from the individuals at this time, in addition to the, whether or not, there’s been judicial review and whether or not, there’s a First Amendment problem and then, say that they have to register if you think that — that the statute, is within the power to Congress and otherwise the Constitution is valid.

And then, if they come forward and say, they’ve been filed and signed the papers, then they don’t raise the Fifth Amendment problems at all and you don’t have to worry about it.

If they do, raise them, then that case is ripe.

They may say, we raised the Fifth Amendment about part of it.

We don’t raise the others, they may take to bring their books in and lay them in the Attorney General’s Office (Inaudible) and there, I don’t think there’s — I think the — the Attorney General is satisfied with that and requires nothing more.

Then there’s no problem that you ever had to adjudicate.

Hugo L. Black:

(Inaudible) declined to pass on Government — Government determination there and they register and there is registration with the (Inaudible)

J. Lee Rankin:

Well, I think —

Hugo L. Black:

(Inaudible) did they only get the question of self-incrimination accepted by defending themselves against the charge of a crime?

Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board

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J. Lee Rankin:

I don’t know whether it could be brought up by a territory judgment proceeding or not, but I know that it could be brought up in the prosecution and there, you would have to determine whether or not, they had commit the crime or whether they complied with all that the law required and I’d think, it would be ripe for it.

Hugo L. Black:

(Inaudible) good position administration in connection with (Inaudible) if they judge people not merely with the (Inaudible) weight under the (Inaudible) they maybe convicted of crime, in order to see whether or not, that claim of self-incrimination would be good.

J. Lee Rankin:

Well, the Court has many times (Inaudible) that’s what required, they wouldn’t examine questions that was right.

Earl Warren:

We’ll recess now.