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

PETITIONER:Communist Party of the United States
RESPONDENT:Subversive Activities Control Board
LOCATION:District Court of Massachusetts

DOCKET NO.: 12
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 367 US 1 (1961)
ARGUED: Oct 11, 1960 / Oct 12, 1960
DECIDED: Jun 05, 1961

Facts of the case

Question

  • Oral Argument – October 12, 1960
  • Oral Argument – October 11, 1960 (Part 2)
  • Audio Transcription for Oral Argument – October 12, 1960 in Communist Party of the United States v. Subversive Activities Control Board
    Audio Transcription for Oral Argument – October 11, 1960 (Part 2) in 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

    Earl Warren:

    Number 12, Communist Party of the United States, Petitioner, versus Subversive Activities Control Board.

    Mr. Abt, you may proceed.

    John J. Abt:

    Thank you, Your Honor.

    May it please the Court.

    This case presents for review a decision of the Court of Appeals for the District of Columbia Circuit affirming an order of the Subversive Activities Control Board that the petitioner register as a Communist-action organization under Section 7 of the Subversive Activities Control Act.

    The Act was passed over the presence veto in September 1950, shortly after the outbreak of war in Korea.

    The order of the Board was issued in April 1953 after a hearing on a petition by the Attorney General and was accompanied by a report in which the Board stated its findings as to the facts.

    On the first review, the Court of Appeals held the Act constitutional and affirmed the Board’s order.

    Judge Bazelon dissented holding the Act unconstitutional because it violates the privilege against self-incrimination.

    This Court refers to 1956 without reaching any of the other questions presented because of the denial below of the petitioners’ motion for leave to adduce evidence that three witnesses called by the Attorney General for perjury.

    Upon the remand of the case to the Board, the Attorney General did not contest the petitioners’ allegations of perjury.

    Accordingly, the Board expunged the testimony of these three witnesses.

    After further proceedings, the Board issued a modified report and a recommendation that its order be affirmed.

    On the second review in 1958, the Court of Appeals remanded the case to the Board because of the latter’s denial of petitioners’ motions for the production of statements to government agencies by to of the Attorney General’s witnesses.

    After further proceedings before the Board, the Board issued its modified report on second remand and again recommended affirmance of its registration order.

    The court below affirmed.

    Judge Bazelon again dissenting adhered to its original position on the constitutional question and further held that several procedural errors required another remand to the Board.

    The case presents to this Court questions of the highest public importance as to the constitutionality of the Subversive Activities Control Act and its construction and application.

    Additional questions relate to the sufficiency of the evidence and to what, in our review, were for major procedural errors by the Board of the court below.

    The first point that I shall argue is that the Act, on its face and as applied, violates the First Amendment.

    As I shall show under the guise of a registration statute, the Act represents an attempt without precedent in this country to enforce conformity by suppressing, advocacy, association and collective activity for wholly legitimate purposes.

    The Act provides for proceedings before the Board initiated on petitions of the Attorney General to determine whether accused groups are Communist-action, Communist-front or Communist-infiltrated organizations but to the Act, denominates collectively as Communist organizations.

    A Communist-action organization is defined in Section 3 (3) of the Act as an organization which, and I quote, “One is substantially directed, dominated or controlled by the foreign government or foreign organization controlling the world Communist movement,” referred to in Section 2 of this title and two, “Operates primarily to advance the objectives of such world Communist movement,” as referred to in Section 2 of this title.

    Section 2, which is, of course, item of Section 3 by virtue of the Section 3 definition, Section 2 finds that the world Communist movement referred to in the definition is directed and controlled by a foreign power, operates through the medium of a worldwide Communist organization composed of Communist-action organizations and has as its purpose the establishment of what the Act calls a Communist totalitarian dictatorship in all the countries throughout the world by means of espionage, sabotage, terrorism, treachery, deceit, infiltration to other groups and any other means deemed necessary.

    Communist-front and Communist-infiltrated organizations are defined in terms of their control by a Communist-action organization or its members and by their purpose of giving aid or support to a Communist-action organization.

    Communist-action and Communist-front organizations are required to register as such with the Attorney General when a registration order becomes final upon the exhaustion of judicial review.

    Communist-infiltrated organizations are not required to register that are denied the benefits of the National Labor Relations Act.

    The registration statement of a Communist-action organization must list the names of its officers and all of its members give a detailed financial accounting and list of printing, mimeographing and similar duplicating facilities.

    Registration statements are open for public inspection and are required to be kept current by annual reports.

    Members who are not listed in the registration statement of the organization are under a duty to register themselves after an administrative determination of their membership.

    John J. Abt:

    The failure of the officers to register the organization or the members to register themselves is punishable by five years imprisonment and a $10,000 fine cumulative for each day that the failure to register continues.

    In view of the findings of Section 2, a final registration order commence the organization to stigmatize itself and its members or the members to stigmatize themselves has participants in what amounts to a foreign controlled seditious conspiracy.

    A final registration order also automatically invokes a series of tripling sanctions against the organization and its members.

    All these sanctions, it’s important to point out, become operative whether or not the organization or its members register in compliance with the registration order.

    The sanctions are the following.

    First, the organization must label all publications which it distributes through the mails as those are a Communist organization.

    Its broadcasts and telecasts must be preceded by a similar identifying announcement.

    This requirement, in our view, was plainly acquire — requirement of self-defamation applies to all of the organizations, publications and broadcasts, no matter how legitimate their contempt maybe.

    Hugo L. Black:

    What section is that (Inaudible)?

    John J. Abt:

    Section 10, Your Honor.

    Second, it is unlawful for members of the organization to hold any non-elective federal office to hold employment of any kind in an enterprise which the Secretary of Defense has listed as a defense facility or to hold any office or employment in a labor union.

    These provisions may close a door to virtually all employment opportunities for members.

    Third, it is unlawful for members to apply for or use passports for any purpose including the most innocent.

    Fourth, it is unlawful for employees of the Government or of the defense facilities to contribute funds or services to the organization for any purpose whatsoever or even to subscribe to the publications of the organization.

    Fifth, naturalized citizens who join the organization within five years after naturalization are subject to loss of citizenship.

    Alien members are to be excluded or deported and may not be naturalized.

    Sixth and finally, the organization and its employees are excluded from a social security system.

    The sanctions of the Act, with reference to labeling, employment, passports and contributions to the organization are all enforceable by the onerous criminal penalties imposed by Section 15 of the Act.

    All of these sanctions on the members are imposed exclusively because of their membership without regard to their personal influence — innocence or lack of personal knowledge of any wrong doing whatsoever on the part of the organization.

    Potter Stewart:

    But we do have to have personal knowledge, don’t we, that the organization has been required to register and has been found to be the kind of an organization described in the earlier sections of the statute?

    John J. Abt:

    Not entirely, Your Honor.

    Mr. —

    Potter Stewart:

    (Voice Overlap) —

    John J. Abt:

    — Mr. Forer has been to argue that point.

    I’d like to refer the analysis (Inaudible).

    Potter Stewart:

    Right.

    At least, isn’t it true, that what you just said is subject to some qualifications?

    John J. Abt:

    Qualification of — in some aspects, they must have notice —

    Potter Stewart:

    And knowledge.

    John J. Abt:

    — of the — or not notice or knowledge —

    Potter Stewart:

    Yes.

    John J. Abt:

    — that an order has been issued for registration order but no personal knowledge that the organization has been engaged in wrongdoing.

    The sanctions imposed by the Act on front organizations and their members differ from notes that I have described with preference to Communist-action organizations only in a few ameliorating details.

    In the case of the petitioner, the member sanctions are not implying to persons who are its members by any conventional standards.

    They extend to a host of individuals who may be found to be members under Section 5 of the Communist Control Act, which establishes such vague and comprehensive standards for determining membership in the Communist Party and that we show in our brief and argue it here almost anyone can be found to be a member.

    A final registration order against petitioner will have further consequences.

    Any person who signs a registration statement or whose name is listed in it becomes a candidate for prosecution under the Smith Act and the extravagantly vague crime created by Section 4 (a) of this Act of conspiring, “To perform any act which would substantially contribute to the establishment of a totalitarian dictatorship under foreign control”.

    Furthermore, by branding the organization and its members as treasonable conspirators, registration order defames them, makes them social outcasts and threatens their ability to earn a livelihood.

    Finally, the registration order will make it prohibitive for other groups and individuals to associate with the petitioner or its members or even to advocate legitimate social or economic use which they support.

    Hugo L. Black:

    What section are you referring (Inaudible) makes it illegal for someone to associate any members?

    John J. Abt:

    I didn’t say made it illegal, Your Honor, I said it made it dangerous for them to do so because by doing so, first of all, they may make themselves — themselves members under the evidentiary indicia of Section 5 of the Communist Control Act.

    And in addition, any group that engages in such association or advocate views similar to those advocated by the Communist-action organization, the petitioner risks condemnation under the Act as a front or infiltrated organization under the Act’s standards for determining what front and the infiltrated organizations are.

    The consequences of all these are at the registration order, quarantines the organization and — and its members.

    Registration order also effectively deters the whole people from even considering, later on espousing any views of the organization advocates.

    In the light of all these consequences of a registration order, it is idle to pretend, as a Government does here, that the Act it is nothing but a simple disclosure statute.

    No disclosure statute, a legitimate disclosure statute defames and imposes destructive penalties upon those who complied by making disclosure nor does it make registration an Act of self-exposure to criminal and civil liabilities created by the legislation itself.

    The Act makes that we think it was obviously intended to make registration impossible for if the organization registers, it destroys itself and jeopardizes the livelihood and liberty of its members, contributors and those who do business with it by listing their names for public scrutiny as members, contributors or persons having business dealings with a foreign control seditious conspiracy.

    For member registers, he destroys himself under the sanctions of the Act.

    On the other hand, failure to register exposes the officers and members an astronomical cumulative penalty.

    The order thus offers the organization or its members a Hobson’s choice between suicide by registration and governmental execution for non-registration.

    Accordingly, the Act does not contemplate really that the order — a registration order will be complied with.

    Consequence, the order will not and can’t produce information because nobody can register under it and survive, but it results in its proscription.

    Its true function is to outlaw the petitioner, lay a basis for the mass prosecution of its members and establish the foundation for proscribing other organizations as fronts or infiltrators.

    By outlawing the petitioner, the Act does not merely deter but proscribes all advocacy by and association with it.

    Congress thought to reconcile these consequences with the First Amendment by finding in Section 2 that the Act was necessary to guard against, “A clear and present danger to the security of the United States,” at Section 215.

    The Act cannot be justified on this ground.

    First place, it authorizes the entry of a registration order against an organization which has not been shown be endangering the national security in any way whatsoever.

    This appears in Section 3 of the Act, Section 3 (3) I should say, which defines a Communist-action organization in terms of two characteristics.

    First characteristic is that the organization is under Soviet control, substantially directed and dominated and controlled by the foreign government controlling the world Communist.

    But the existence of foreign control or control by the Soviet Union cannot of itself establish that the organization is a threat to the national security if in fact the only activities of the organization engages in are innocent, lawful and peaceable.

    John J. Abt:

    This would seem to be true under any conception of the meaning of the word “control” but certainly true under the conception adopted by the Board and the court below and urged by the Government in its brief here which, as Mr. Forer will show in his portion of the argument to satisfy by nothing more than voluntary ideological adherence to use in policies of the Soviet Union.

    Hugo L. Black:

    Your argument here seems to be that the Government is without constitutional power to proscribe any organization to be controlled by any foreign government for its purposes.

    John J. Abt:

    I haven’t come to the purposes of that, Your Honor.

    I think in one of the —

    Hugo L. Black:

    Well, your argument is —

    John J. Abt:

    I said —

    Hugo L. Black:

    (Voice Overlap) —

    John J. Abt:

    — a mere —

    Hugo L. Black:

    — without constitutional power to (Inaudible) the taxing of (Inaudible) in this country under the direction of a foreign country.

    John J. Abt:

    I said the mere fact that the organization is under the direction of a foreign country without respect to what the — what the domestic organization is doing in this country is not a sufficient constitutional basis to permit the proscription of that organization.

    And I now want to come to the second portion of the —

    Hugo L. Black:

    That’s based on the First Amendment?

    John J. Abt:

    Based on the First Amendment, yes, Your Honor.

    You can’t —

    Hugo L. Black:

    You’re saying the Court —

    John J. Abt:

    — we’re saying that you can’t —

    Hugo L. Black:

    — First Amendment authorizes people of this country to engage in — now in this propaganda, their own argument or whatever you call it and at the same time — and at the same time also permits people here from engaging the same kind of argument even though they’re — during (Inaudible) of foreign nation —

    John J. Abt:

    Absolutely, Your Honor.

    Hugo L. Black:

    That’s your (Voice Overlap) —

    John J. Abt:

    (Voice Overlap) —

    Hugo L. Black:

    — you have to stand on that argument.

    John J. Abt:

    We stand on that argument, yes, sir.

    We say that — we say that — as I’ve said, under any conception of the word “control” that is to say, if there were — even if (Inaudible) shown in this case or the Act were construed to require a showing that the Soviet Union have the power to enforce its orders or demands on the local organization.

    We say that that’s obviously true under the conception of control which the court below adopted the — and which the Board is urging here which dispenses with any element of power to enforce complaints with the foreign countries’ desires and rest it says of control exist merely where there’s a voluntary ideological conformity.

    I don’t want to get into that question because (Inaudible) in our argument further but I just note that in answer to your — Your Honor’s question.

    I now want to come to the second element of the Section 3 (3) definition, which requires proof that the organization operates and I quote, “Primarily to advance the objectives of such world Communist movement as referred to in Section 2.”

    Now, Section 2 contains lengthy findings about the evils of the world Communist movement but neither it nor any other provision of the Act defines the objectives of the movement.

    There’s no definition in the Act of the objectives of the —

    Potter Stewart:

    How about Section 2 (1)?

    John J. Abt:

    Well, I am coming to that, Your Honor, because I think that’s all there is.

    John J. Abt:

    What I say is that the objectives are left to be inferred from what you can read in to — in to or out of Section 2.

    Potter Stewart:

    Subsection 1?

    John J. Abt:

    Subsection 1, that’s — that’s correct, Your Honor.

    As — as we read the Act, and I take it as Your Honor would read it.

    The objectives of the world Communist movement, referred to in Section 3 (3), are synonymous with what Section 2 (1) calls the purposes of the movement.

    That is the establishment of a communist totalitarian dictatorship in the countries throughout the world.

    Now, if this is all of the objectives element of Section 3 (3) comprises that is, the objective of world Communist movements is to establish a communist totalitarian dictatorship in the countries throughout the world then an organization can be required to register as communist action organization and to suffer all of the sanctions and liabilities of the Act merely upon proof that is — that it is promoting the establishment of such a dictatorship in this country by visible, lawful and constitutional means.

    The Government’s brief, at least, when it discusses the application of Section 3 (3) seems to agree with us that the Act does not require proof that an accused organization practices or incites of violent or illegal means in promoting this ultimate objective (Inaudible) than it has.

    But efforts to bring about a change in our form of government without incitement of violence or crime can never endanger the national security no matter how obnoxious the change may be thought to be.

    Accordingly, the First Amendment, we think, bars Congress from curtailing the advocacy or association of those who promote such change by peaceful (Inaudible) peace.

    The Act, therefore, as we interpret the objectives component of Section 3 (3) violates the structure.

    On the other hand, if our interpretation is wrong and if this Court should hold that the Act does require proof that an accused organization uses or incites a violent or other illegal means in promoting its objectives in the order of the Board would have to be set aside because the Board made no finding and there was no evidence that this requirement was met, that is to say that the Communist Party, the petitioner in this case, that uses or incites through violence or illegal means for the achievement of — of its objective.

    Hugo L. Black:

    Does the Government agree with you on that?

    John J. Abt:

    Government doesn’t — the Government doesn’t reach the question, Your Honor.

    Because the Government says we read — read their brief when they come to discuss the application of the Act.

    Government has says that all of Section 3 (3) requires it to show that the accused organization has the objective of establishing a communist totalitarian dictatorship and that the means that it advocates or employs to achieve that objective are — are not material.

    Hugo L. Black:

    You mean that the Government have read their brief but do you mean that they argued (Inaudible) change the form of Government, they shouldn’t be — the Government does not (Inaudible)

    John J. Abt:

    It doesn’t say that in words, Your Honor, you will have to — you will have to ask the — the Government what they mean but they do say in page 261 of their brief that the objective referred to and their objectives referred to in Section 3 (3) is the objective of establishing a communist totalitarian dictatorship in this country and it don’t make any difference what the means proposed or the means employed for that purpose are in terms of satisfying the definition.

    Felix Frankfurter:

    But the statute itself allows changes by a constitutional amendment.

    John J. Abt:

    Statute —

    Felix Frankfurter:

    Statute says (Voice Overlap) —

    John J. Abt:

    — statute has a reference to changes like constitutional amendments, that’s correct, Your Honor.

    Felix Frankfurter:

    Well (Inaudible) the Government read that would acknowledge the statue.

    John J. Abt:

    I’m sorry, Your Honor.

    You’ll have to ask the Government.

    Felix Frankfurter:

    Well, I just wonder —

    John J. Abt:

    I can’t speak for them.

    Felix Frankfurter:

    — whether that — why they had mean.

    John J. Abt:

    They make no reference to it.

    I think that that’s what — all I can say is that that seems to me that’s what they must mean when they say that the means don’t matter because in my judgment, it’s a means that — that — are the only thing that matters and not — not the ultimate objective.

    John J. Abt:

    The most that the Board found in this case was that the petitioner and I quote from the Board’s report, “Advocates the overthrow of the Government of the United States by force and violence if necessary”.

    This finding on its face isn’t a finding of incitement for violence but of the advocacy of abstract documents.

    Hugo L. Black:

    Where is that finding?

    John J. Abt:

    That finding, Your Honor, is record 2633.

    Moreover, the finding was based on substantially the same evidence which was before the Court in the Yates case in which this Court held could not support the finding of incitement.

    Accordingly, on it’s face and as applied, the Act outlaws petitioner without proof of any acts or advocacy which endangered the national security.

    This conclusion is further fortified by Section 13 (e) of the Act.

    Section 13 (e) enumerates eight criteria for the Board to consider in determining whether an accused organization is or is not a Communist-action organization.

    Most of these criteria focus on views, policies and their expression.

    None of them has anything to do with the use or advocacy of violent or unlawful means.

    Thus, Section 13 (e) (2) requires the Board to consider the extent to which the views and policies of an accused organization do not deviate from those of the Soviet Union.

    The views and policies need not be seditious, dangerous or even false.

    Indeed, they may be in the best interest of the American people.

    Yet, they provide one of the basis for imposing the destructive liabilities and penalties of the Act simply because they are similar to views expressed by spokesmen for the Soviet Union in applying this criteria which the Board — which the court below characterized “as furnishing one of the chief items of evidence in the case”.

    The Board rested its finding adverse to the petitioner primarily on the fact that it and the Soviet Union advocated such legitimate and widely held views as of the Chiang Kai-shek Regime was reactionary and corrupt, that the People’s Republic of China should be seated at the United Nations.

    That Syngman Rhee was a corrupt dictator and that prohibition of atomic weapons as advocated in the Stockholm Pledge was in the interest of world peace.

    But the heresy of non-deviation from views like these can be penalized, then governmental control of political expression and association is indeed unlimited.

    In fact, the ex-provisions concerning front and infiltrated the organizations as well as Section 5 of the Communist Control Act, already penalized offense of non-deviation from the views of petitioner.

    This, I think, is a technique of mercantilism which the nation rejected.

    Affirmance of the Act and the Board’s order would resurrect and make it our national policy by freezing it into the law and arming it with intolerable sanctions.

    The fact is that the Act would violate the First Amendment even if proof were required that an — an accused organization was engaged in conduct endangering the national security.

    For the Act’s restrains sound expression and association are far broader than necessary to meet any possible danger from such conduct.

    As President Truman stated in his veto message, the Act attempts, and I quote, “To proscribe for groups such as the Communists certain activities which are perfectly proper for everybody else”.

    For example, whatever else may be charged against the Communist Party, it concededly employs association in the advocacy, collective activity for legitimate political, social and economic objectives which many Americans share.

    Yet, by outlawing petitioner here, the Act suppresses this legitimate political activity.

    It does so not as unnecessary incident for the control of dangerous conduct, on the contrary, it is legitimate advocacy and legitimate association for a collective activity that the Act was designed to reach because there are already plenty of criminal statutes which punish espionage, sabotage and seditious conspiracy, seditious advocacy and provide for the registration of foreign agents and the Congress has overlooked any conduct injurious to the national security, it could easily make it punishable by legislation narrowly drawn for that purpose.

    Respondent argues that the Act is valid because of strikes at a grave evil — evil.

    The inference is that once Congress finds that an organization, like petitioner is dangerous, all of its advocacy and selective activity may be suppressed including that which is lawful and innocent.

    This is a theory of congressional power which says that Congress may toss an atom bomb, an H-bomb in the general direction of any evil that it finds.

    But due process prohibits Congress from what the military call over killing at least on constitutional rights for the victims.

    John J. Abt:

    And the prohibition is even more stringent for the killing occurs within the area where the First Amendment grants asylum.

    Accordingly, use of the legislative H-bomb embodied in this Act cannot be validated without writing off the First Amendment and indeed, due process along with it as a security risk.

    I turn now to the question of the privilege against self-incrimination.

    The registration order requires petitioners’ officers to perform an act, the signing and filing of petitioners’ registration statement which constitutes an admission of their membership and officership in the Communist Party.

    This Court has held —

    Potter Stewart:

    Does it require the officers to do that?

    John J. Abt:

    It does, Your Honor, in several ways.

    First, it requires the organization to file —

    Potter Stewart:

    It requires the organization to register.

    John J. Abt:

    To register.

    Potter Stewart:

    Now, it — couldn’t be done by some other agent, by lawyer?

    John J. Abt:

    Not — not under the regulations of the — issued by the Attorney General (Inaudible)

    Potter Stewart:

    How about statute?

    John J. Abt:

    And of statute conceivably violate — conceivably, I don’t know, by what — but — but we are — have to the Attorney General regulations which were issued under the authority of the Act, specific authority of the Act which require the registration statement to be signed by all of the officers and members of the governing board of the organization.

    John M. Harlan II:

    Do you have a copy of the registration statement (Inaudible)?

    John J. Abt:

    Pardon?

    John M. Harlan II:

    Do you have a copy of the registration form?

    John J. Abt:

    I’m sorry I don’t the form with me, Your Honor.

    Perhaps we can get it from the (Inaudible) Solicitor General —

    John M. Harlan II:

    Solicitor General (Inaudible).

    Felix Frankfurter:

    What — what inadequacy would you find that the statute would there be a registration specifically to sign Communist Party of — in the United States?

    John J. Abt:

    Under the statute as written.

    Felix Frankfurter:

    I’m talking about the statute.

    John J. Abt:

    There would be no —

    Felix Frankfurter:

    There would be no.

    John J. Abt:

    None, no.

    Under the regulations of the Attorney General, the government for (Voice Overlap) —

    Felix Frankfurter:

    (Inaudible) about the statute?

    John J. Abt:

    Yes, sir.

    Felix Frankfurter:

    It doesn’t follow that because the statute is valid, the regulation is was invalid.

    John J. Abt:

    Correct.

    The — the — I may say also that the — the Act requires that the — in the event that the organization does not register, the officers have an individual duty to register the organization.

    And then, of course, if the officers don’t perform that duty and list all the members, the members are (Inaudible)

    The Court has held that an admission of membership or officership in the Communist Party may not be compelled.

    Accordingly, at least under the Attorney General’s regulations, the registration order could rose invasion of the privilege against self-incrimination.

    The — in recognition of this fact, the Congress wrote Section 4 (f) in to the Act.

    Felix Frankfurter:

    Is the — I suppose the Board, if that’s what you call, made an order, specific order, is the order in the record?

    John J. Abt:

    The order is in the record, yes, Your Honor.

    Hugo L. Black:

    You have it here?

    Felix Frankfurter:

    Is that at the tip of your —

    John J. Abt:

    I don’t have it at the tip of my tongue, Your Honor, but Mr. Forer will find it.

    It was — it was in recognition of the self-incrimination —

    William J. Brennan, Jr.:

    Do you recall, Mr. Abt, of the order described the manner of registration?

    John J. Abt:

    No, it does not, Your Honor.

    It simply requires the organization to register and then the form of the registration is controlled by the regulations of the attorney.

    Felix Frankfurter:

    And it’s based (Inaudible) Communist Party to satisfy the order?

    John J. Abt:

    I have to look at the order, Your Honor —

    Felix Frankfurter:

    Well, that’s what I —

    John J. Abt:

    — from —

    Felix Frankfurter:

    — that’s what I’m saying.

    John J. Abt:

    The or — the order does not specify who would — who has to sign the registration.

    Felix Frankfurter:

    I repeat my question.

    John J. Abt:

    Yes, Your Honor.

    Felix Frankfurter:

    If the piece of paper was sent in to aid in whatever registration involved, it was signed Communist Party of America, does that satisfy the order of the Board?

    John J. Abt:

    I think it would not satisfy the order of the Board.

    Felix Frankfurter:

    Let’s have the order.

    John J. Abt:

    Pardon?

    Felix Frankfurter:

    Let’s have the order and find out.

    John J. Abt:

    (Inaudible) I don’t think it would satisfy the order in the light of the regulation which the Attorney General —

    Felix Frankfurter:

    But let’s have the order.

    John J. Abt:

    I’m sorry, Your Honor, I don’t have —

    Felix Frankfurter:

    Here we are, is — the question before this Court is whether this order turns by the Court of Appeals of the District to be obeyed or not, is it not the question before this Court?

    John J. Abt:

    That’s one of the questions before this Court.

    Felix Frankfurter:

    But it’s not the question because that’s the only direction that has been made against the Communist Party.

    That’s the only judicial judgment that is before, isn’t it, for review here?

    John J. Abt:

    Right.

    The original order — the original order appears at page 130 — 138 of the record.

    Felix Frankfurter:

    Thank you very much.

    John J. Abt:

    Or 1 — it’s either 137 or 138, I can’t help (Inaudible) my answer.

    And it says, “It is ordered that the said respondent, the Communist Party of United — of the United States of America shall register as a Communist-action organization under and pursuant to Section 7 of the Subversive Activities Control Act of 1950.”

    Felix Frankfurter:

    Now, the whole litigation (Inaudible) to Communist Party of United States of America and the Subversive Activities Control —

    John J. Abt:

    No, and the Attorney General, Your Honor.

    Felix Frankfurter:

    What?

    John J. Abt:

    The Attorney General was the petitioner before the Board.

    Felix Frankfurter:

    (Voice Overlap) —

    John J. Abt:

    The litigation — the court litigation —

    Felix Frankfurter:

    I’m talking about what confronts this Court.

    John J. Abt:

    Yes, Your Honor.

    Felix Frankfurter:

    Our problem is whether the judgment below would be affirmed or reversed or sent back.

    So therefore, I’m dealing with the judgment.

    Now, this is a judgment in a litigation between the Communist Party of the United States and it subversive activities, was that right?

    John J. Abt:

    Right.

    Felix Frankfurter:

    And the judgment of the court was entered against the Communist Party of the United States of America.

    John J. Abt:

    Correct.

    Felix Frankfurter:

    Is that right.

    John J. Abt:

    Correct.

    Felix Frankfurter:

    Well, that’s what before the Court.

    John J. Abt:

    Now, under that judgment, if the Court please, if this Court were to affirm that judgment and thereby affirm the order of the Board to register, under Section 7 of the Act and under the regulations of the Attorney General, unless the Communist Party within 30 days filed a registration statement signed by all of its officers and the members of its governing board, it would incur the sanctions and penalties of the Act —

    Felix Frankfurter:

    Well, you’re —

    John J. Abt:

    — for none registration.

    Felix Frankfurter:

    — you’re assuming that the order of the court, the judgment will not be available.

    My question at the moment is whether the order was in — before to find to obey the judgment.

    And I’m not now confronted.

    I do not — now, I have to decide whether in case you disobeyed the order of the Court, what then would happen, suppose some other situations arise, other parties are involved, other orders will be issued, other demands are made by the statute.

    That’s not, at the moment, so far as the judgment under the jury is concerned, before this Court.

    John J. Abt:

    I submit Your Honor that the judgment which is before the Court requires Communist Party of the United States to register and under the regulations of the Attorney General to have that registration statement signed by the members of its governing board.

    My argument at the moment is that —

    Felix Frankfurter:

    Is that true if you obeyed the judgment of the Court?

    John J. Abt:

    Yes, Your Honor, because the judgment of the Court is to register pursuant to Section 7 of the Subversive Activities Control Act.

    Section 7 of the Subversive Activities Control Act states that the persons who shall sign the registration statement are those who are specified in a — an order or regulation of the Attorney General and the regulations of the Attorney General say that the registration statement must be signed by all the members of the governing board of the organization.

    Felix Frankfurter:

    I thought you said that it’s — thought it would be alright to obey this judgement put in — put in a piece of paper signed by the litigant in this case, the Communist Party of the United States America.

    John J. Abt:

    Your Honor asked me whether if that would be alright on the face of the statute.

    And this face — statute on its face does not specify who shall sign the registration —

    Felix Frankfurter:

    Very well.

    John J. Abt:

    — order, leave it to the —

    Potter Stewart:

    Well, does —

    John J. Abt:

    — Attorney General.

    Potter Stewart:

    — does it not specify, however, that it has to be — registration has to be on a form prescribed by the Attorney General by regulation?

    John J. Abt:

    Yes, Your Honor.

    Potter Stewart:

    That’s on top of page A15 —

    John J. Abt:

    That’s right.

    Potter Stewart:

    — of your brief.

    John J. Abt:

    And the Attorney — form prescribed by the Attorney General by regulation requires the members to a governing board to sign it.

    Potter Stewart:

    So your answer to the questions of Mr. Justice Frankfurter and me are not really accurate.

    This — it couldn’t be compliant to this order as by signing it merely Communist Party of United States so long that there are outstanding to present regulations of the Attorney General —

    John J. Abt:

    That’s what I’ve been trying to say.

    Potter Stewart:

    — even on the statute.

    John J. Abt:

    That’s what — that’s what I’ve been trying to say.

    Potter Stewart:

    Well, that’s (Voice Overlap) —

    John J. Abt:

    Let me ask you what — what the base of the statute, I — I thought you wanted me to eliminate any reference to the regulations (Voice Overlap) —

    Potter Stewart:

    The statute does refer to the regulation.

    John J. Abt:

    Pardon?

    Potter Stewart:

    The statute does incorporate (Voice Overlap) —

    John J. Abt:

    Oh, yes, of course, it does.

    (Inaudible)

    John J. Abt:

    Of course it does.

    John M. Harlan II:

    That doesn’t wholly (Inaudible) the Fifth Amendment’s point, doesn’t it, that the validity to it because the separability clause of the statute, I take it, would also reach to the regulation and if we concluded that there was merit to your registration point that’s — to your Fifth Amendment point and struck the requirement of the Attorney General which would leave a registration form, a compliance with the statute unsigned by any individual and your Fifth Amendment point would have evaporate, doesn’t it?

    John J. Abt:

    Evaporate so far as the officers.

    John M. Harlan II:

    As far — as far as the officers —

    John J. Abt:

    Right.

    John M. Harlan II:

    — are concerned, yes.

    John J. Abt:

    Right.

    John M. Harlan II:

    That — now, the other question that you were arguing, as I take it, is that Fifth Amendment reside, you cannot judge this statute unless we view the sanctions in relation to the requirement for registration —

    John J. Abt:

    Yes, sir.

    John M. Harlan II:

    — which is the way the Court of Appeals treated the statute.

    John J. Abt:

    Right.

    I’d like to continue if I may with —

    Hugo L. Black:

    Do you think that the statute to be decisive in any way by somebody unknown (Inaudible) the paper, signed Communist Party of the United States or whatever it is, would that be a faith (Inaudible) to the field statute of Congress?

    John J. Abt:

    It wouldn’t — it wouldn’t make any sense to me, Your Honor.

    But I —

    Hugo L. Black:

    Oh, what — what safety would be?

    Would the Government be satisfied with that?

    Is there any possibility that it could or should be satisfied with that?

    John J. Abt:

    I — I shouldn’t think so unless the Government just wants to get off the hook of the — the self-incrimination problem and to make conscience —

    Hugo L. Black:

    It had to be signed —

    John J. Abt:

    — out of the statute Your Honor.

    Hugo L. Black:

    — somebody would have to sign it, I guess, to decide rather or something else.

    Felix Frankfurter:

    Suppose no regulations had been issued by the Attorney General.

    John J. Abt:

    You might —

    Felix Frankfurter:

    Lots of statutes authorize officials to issue regulations and if they don’t issue them, the statute doesn’t fall.

    John J. Abt:

    Well, certainly it wouldn’t be arguing the question the way I am Your Honor if — if the Attorney General hadn’t issued regulation to the Court.

    Felix Frankfurter:

    But we are confronted with the problem of deciding whether statute is constitutional.

    John J. Abt:

    Yes, Your Honor.

    Felix Frankfurter:

    We don’t have to take everything that’s either is in — is in the statute or in regulations or in (Inaudible) by speculating in order to invalidate a statute, we asked just the opposite.

    John J. Abt:

    Well, there’s no speculation involved here, Your Honor.

    Speculation —

    Felix Frankfurter:

    I know but we have before us the statute and we have before us the regulations.

    John J. Abt:

    That’s right.

    Felix Frankfurter:

    And there’s no command that we should also validate the regulations because they validate the statute as the man of the officer.

    Hugo L. Black:

    We do have to decide unless (Inaudible) your proposition on the Fifth Amendment and who could do that except somebody who knows something about it under the rules that are vested with reference to self-incrimination, I think we said.

    But there would be no danger of self-intimidation by having somebody who must have been write their name or somebody connected with the organization —

    Felix Frankfurter:

    Certainly —

    Hugo L. Black:

    — as to (Inaudible)

    John J. Abt:

    — certainly —

    Hugo L. Black:

    I don’t would mean by that if your contingent is good.

    John J. Abt:

    Certainly, Congress could not have had in mind that a lawyer or some anonymous individual or someone who didn’t know about the organization signed the registration statement because Section 15 of the Act imposes a serial — severe penalty for every misstatement contained in the registration statement for the omission of the name of any member of the organization from the registration statement and for whole series of other things which obviously would make no sense in terms of a — of a — an anonymous legislation statement signed by nobody and certainly no human being who wasn’t thoroughly familiar with the organization would undertake to make himself liable to this fantastic criminal penalties for stating things about which he didn’t and couldn’t know anything.

    Hugo L. Black:

    It would be —

    Felix Frankfurter:

    That maybe a very good reason for an individual not bringing himself into that danger though.

    That’s not a very good reason for not construing a statute, so as to permit its validity if it can be made valid.

    Hugo L. Black:

    Who could be possibly (Inaudible) unless the Government attempted to find out who would have done it?

    Somebody has to do it who knows something about it.

    John J. Abt:

    The other — the other thing, it seems to me clear, is that Congress itself recognize it that there was a real problem of self-incrimination here because it’s in — and it was in recognition of that fact that it wrote Section 4 (f) into the Act for —

    Felix Frankfurter:

    But your problem arises constantly in the case of corporations who are summoned to produce books or papers that arises with reference to labor unions as we now know everything (Inaudible)

    That problem constantly arises.

    That doesn’t immunize the legal personality from obeying, if obedience can lead that.

    John J. Abt:

    This Court certainly is going to have to pass on the question as to the validity of the Attorney General’s regulation since they’re now in effect part of the statute having been issued pursuant to the specific authority of the statute.

    Hugo L. Black:

    Well, what’s —

    Felix Frankfurter:

    Because they get a part from the statute, there’s an authorization of the statute to issue them whether they are valid is another question.

    William J. Brennan, Jr.:

    Mr. Abt, what significance can you give to 7 (h)?

    John J. Abt:

    7 (h).

    John J. Abt:

    I’m afraid I —

    William J. Brennan, Jr.:

    (Voice Overlap) —

    John J. Abt:

    (Voice Overlap) not looking at it.

    Hugo L. Black:

    Do you have it published?

    John J. Abt:

    I have it now Your Honor.

    William J. Brennan, Jr.:

    In the case of a failure on the part of many organizations to rise.

    John J. Abt:

    Yes, yes, yes.

    William J. Brennan, Jr.:

    Then it becomes the duty of the officer.

    John J. Abt:

    That’s correct.

    William J. Brennan, Jr.:

    Does — does that import with compliance not withstanding 7 (h) would be have if merely — in the name of the organization?

    John J. Abt:

    I don’t think so, Your Honor.

    I think that was just —

    William J. Brennan, Jr.:

    What does it mean then, what 7 (h) mean?

    John J. Abt:

    I think 7 (h) was designed to — to put the bite, if I can put it that way on — on every — on every officer, member of the governing board etcetera of the organization to be sure that they sign that registration statement.

    William J. Brennan, Jr.:

    That’s not what it says it’s — this — that bites on only in the case of failure on the part of any organization to register the file.

    John J. Abt:

    That’s right.

    But the Attorney General has already put — by — by regulation that has made them all to sign the original legislation system.

    Tom C. Clark:

    (Inaudible)

    John J. Abt:

    Well, it doesn’t —

    Tom C. Clark:

    (Inaudible)

    John J. Abt:

    — doesn’t put —

    Tom C. Clark:

    (Inaudible)

    John J. Abt:

    I don’t think it puts it that way, Mr. Justice Clark.

    It doesn’t say that they shall be responsible.

    It says they —

    Tom C. Clark:

    (Voice Overlap) —

    John J. Abt:

    — shall be responsible if the organization doesn’t register.

    Tom C. Clark:

    (Inaudible)

    John J. Abt:

    Yes, Your Honor.

    But — but that still doesn’t settle the question as to (Inaudible) it has to sign the original registration statement.

    Tom C. Clark:

    (Inaudible)

    John J. Abt:

    No, Your Honor, because —

    Tom C. Clark:

    (Inaudible)

    John J. Abt:

    Surplusage — it depends on — I suppose it depends on — on the regulations of the Attorney General.

    Suppose the Attorney General issued a regulation merely saying that the president and secretary of the organization have to sign them, then 7 (h) would — would be of significance.

    Tom C. Clark:

    Suppose the regulation was (Inaudible)

    John J. Abt:

    And — and I assume that this Court will strike down the regulation.

    But I think in — in considering whether the regulation is contrary with the statute whether the regulation is valid, the Court will have to consider the problem with self-incrimination in this case.

    Felix Frankfurter:

    That maybe a very good reason for throwing out the regulation.

    John J. Abt:

    Your Honors, I — I can only propose Your Honors’ dispose and in many ways, obviously, which you can dispose of any case.

    Felix Frankfurter:

    But — but you suggested that that would confront the Court with —

    John J. Abt:

    The Court is confronted.

    Felix Frankfurter:

    — self-incrimination privilege.

    And I say, I’m confronting it, you might have to invalidate the regulation and so what?

    John J. Abt:

    That’s — that’s possible but — and then — then you — then you encounter some of the difficulties that Mr. Justice Black agrees.

    Felix Frankfurter:

    But the difficulties are answered by age to which Justice Clark has just called you or Justice Brennan has called your attention.

    John J. Abt:

    I don’t think it is, Your Honor, because —

    Felix Frankfurter:

    (Inaudible)

    John J. Abt:

    What — what — you were saying is that a registration statement should be filed anonymously.

    Felix Frankfurter:

    I don’t mean a corporation or legal personality (Inaudible) anonymity.

    It’s an abstraction maybe but not an anonymity.

    John J. Abt:

    But — but Congress — this Congress is legislating to get a registration statement signed or not signed rather, an unsigned registration statement so that nobody could be charged with responsibility for misstatements of fact, omissions of fact, perjury and what not.

    Felix Frankfurter:

    Do you think the preoccupation of Congress is to get equal for perjury?

    John J. Abt:

    Well, in this statute, certainly it was, Your Honor.

    If you read — if you read the penalty of that statute —

    Felix Frankfurter:

    Is that — is that legislation in this Court (Voice Overlap) —

    John J. Abt:

    They — they were — they were —

    Felix Frankfurter:

    — or to assume that people are going to commit perjury.

    That’s a good postulate for which we will begin to read, is it?

    Hugo L. Black:

    Do you think there’s any possibility that this Court would ever hold that under this Act (Inaudible) without power to describe that somebody before this organization knows something about it’s just a sign so that they will have something behind you.

    Hugo L. Black:

    Can you imagine that a regulation of that would —

    John J. Abt:

    I — I won’t speculate —

    Hugo L. Black:

    (Inaudible) is without power to enact or promulgate such regulation as that?

    John J. Abt:

    I won’t speculate about the tort, Your Honor, but I can’t ream that Congress had any such thing defined, Congress must have supposed that some human being having knowledge of the fact was — was then assigned not to —

    Felix Frankfurter:

    Have you also urged rightly that Congress’ concern to protect the privilege against self-incrimination?

    So they wanted to do two things.

    They wanted to get information and they did not want to make any (Inaudible) on the Fifth Amendment.

    And therefore, you have to reconcile the two.

    John J. Abt:

    No, but they — they —

    Felix Frankfurter:

    It’s not beyond the witted man to reconcile the suit.

    John J. Abt:

    Congress — Congress thought it had the wit to reconcile the two, Your Honor, and a part of it reconciled the two in Section 4 (f), not — not your way by having an anonymous statement signed but by putting into the statute but if thought was a grant of immunity that would —

    Felix Frankfurter:

    I —

    John J. Abt:

    — do the trick.

    Felix Frankfurter:

    — I didn’t (Inaudible) what you’ve said about Congress.

    I’m entitled to use my own way to do the — this legislation, am I not?

    John J. Abt:

    Surely, Your Honor, that — that’s what — what any — any court does when they construe the statute.

    Tom C. Clark:

    (Inaudible) it does here (Inaudible) construe the statute (Inaudible)

    John J. Abt:

    That’s correct, Your Honor.

    Tom C. Clark:

    Well (Inaudible)

    John J. Abt:

    Well, I heard what Mr. Taylor said and I’m not sure that I noticed you but I am sure of one thing and I am not nearly familiar with this case as I am, Your Honor.

    Felix Frankfurter:

    (Inaudible) doesn’t bind you?

    John J. Abt:

    And I don’t know if I take your time.

    Felix Frankfurter:

    You must (Inaudible)

    John J. Abt:

    Section 4 (f), the immunity statute, as I indicated yesterday, it doesn’t save the registration provisions from attack on Fifth Amendment grounds because of the immunity it grants is not coextensive with the privilege.

    This is so because Section 4 (f) does not bar prosecution of an accused for a crime which might never have been discovered except for the lead provided by its registration nor does it prevent the prosecution from proving the party membership of an accused by evidence to which his registration statement applied the lead.

    And therefore, it’s not immunity.

    It’s not coextensive of the privilege within the meaning of (Inaudible)

    Potter Stewart:

    The Government signs an agreement though.

    John J. Abt:

    Government concedes that, yes.

    The majority of the court below held and the Government argues here that adjudication of the privilege is premature in this proceeding.

    John J. Abt:

    The argument is that the privilege must be claimed to be enjoyed, a petitioners’ officers may never claim it and that those who so desire will have an opportunity to do so on a registration form to be supplied by the Attorney General.

    The Government never suggests, I may say that registration maybe accomplished without having somebody who knows the fact signs (Inaudible).

    The Government’s argument, I had to say its argument that privilege can be claimed on the registration form to be supplied by the Attorney General.

    That argument overlooks the crucial fact which makes the situation of the officers in this case unique.

    The fact is that a claim of the privilege to the Attorney General is itself in an incriminating admission that the claimant is an officer of the petitioner.

    The procedure which the Government suggests gives the officers an illusory choice to clean making the incriminating admission by signing and filing a registration statement and making the same admission by asserting our privilege not to file the statement.

    Since in the circumstances of this case to assert the privilege is to surrender it, its assertion cannot be made a condition to adjudication that the privilege protects the officer.

    Defendant also contends that the self-incrimination issue was premature because a claim of privilege, if and when asserted, might be found to have been waived by some of the officers.

    Now, showing in our brief that none of the factors which the Government suggests might supply a waiver even if they were applicable to the persons, who were the petitioners’ officers at the time of registration is required, would in fact waive the privilege.

    But — but apart from that and — and more important than that, the question of waiver by a particular individual can arise only at the time when he asserts the privilege.

    The Act, however, deprives the petitioners’ officers of any opportunity for its assertion.

    Hence, the issue of waiver can never arise.

    The Government also argues that if the claim of privilege is made by an officer in honor or by all the officers, the only result would be to make the registration order unenforceable and not void.

    This argument rests on the same clause premise as all the others.

    Since the Act in the registration order necessarily conflict with the privilege by making the assertion of the privilege itself incriminating, the Act and the order are not only unenforceable on a particular case but avoid on their face.

    On our brief we show that all of the contentions of the Government, which I’ve just enumerated here, are squarely refuted by the decision of this Court in Boyd versus United States.

    I can’t take the time of my argument for the Court to go into that case if I refer the Court to our brief on it.

    Finally, the Government contends on the authority of United States versus White, that the privilege does not protect the petitioners’ officers against signing and filing the registration statement.

    The White case is inapplicable.

    It held that an officer of an organization is not privileged to withhold records of the organization on the claim that the contents of the record might incriminate them.

    Here, it isn’t the contents of the records but the admission of officership in the Communist Party which is incriminating and it is that admission that can’t be compelled.

    Moreover, the decision in White was carefully limited to the production of the records themselves.

    This also appears from the Court’s more recent decision in (Inaudible) versus United States.

    The registration order, however, does not call for the production of organization records but for the preparation and filing for original statements.

    It follows, therefore, that the privileges available to the officers and that –that its assertion in this proceeding is not premature.

    Since registration, as I’ve shown, would very materially and — and substantially injure the petitioner and has standing to challenge thus, the constitutionality of the requirement of the officers incriminate themselves by filing a registration statement.

    Accordingly, as Judge Bazelon held, the statute could be held invalid as conflicting with the privilege against self-incrimination.

    John M. Harlan II:

    The privilege that you’re talking about here is the privilege of the officer.

    John J. Abt:

    Yes, sir.

    John M. Harlan II:

    Assuming that the officer required to sign the registration statement.

    John J. Abt:

    Correct.

    John M. Harlan II:

    It’s not the privilege in the members tell that your claim — that you claim would be asserted as such at this stage at least by the officer.

    John J. Abt:

    We argue that — we argue the members’ privilege in our brief, Your Honor.

    I hadn’t found it to argue orally.

    We say that just as Your Honor held in N.A.A.C.P. versus Alabama, the members and the organizations are in effect identical

    John M. Harlan II:

    Oh, but that involves the First Amendment not (Inaudible)

    John J. Abt:

    I — I understand, Your Honor.

    John M. Harlan II:

    They just —

    John J. Abt:

    Well, I — we think that the same principle is applicable.

    We argue that in our brief.

    Mr. Forer will continue.

    Earl Warren:

    Mr. Forer.

    Joseph Forer:

    Mr. Chief Justice, may it please the Court.

    I should like first to take up our point that the Act is unconstitutional because it deprives the petitioners’ members of liberty and property without due process of law.

    Now, Mr. Abt pointed out once the registration order becomes final, it outlaws the petitioner as an organization.

    And it’s also clear, however, that the order will have catastrophic effects on the members of the petitioner.

    First of all, their names and addresses have to be listed on a public register with the Attorney General as members of this organization that’s been condemning as a foreign control seditious conspiracy and this register is open to public inspection.

    This is the same as making them wear an armband or making them wear a scarlet letter insofar as subjecting them to social ostracism, social appropriate and social reprisal.

    Secondly, the Act subjects the members by its terms in special sanctions enforceable by criminal penalties.

    This — this also been listed by Mr. Abt.

    They include barring the member from an extensive range of private employment barring him from any labor union office or employment, barring him from government — governmental employment, preventing him from receiving or applying for a passport, denaturalizing him under certain conditions, reporting him, at least, an alien.

    John M. Harlan II:

    Could I ask you a question?

    Joseph Forer:

    Yes, Your Honor.

    John M. Harlan II:

    Those sanctions all come into play either by the registration or when made the final order?

    Joseph Forer:

    As soon as the order becomes final, the sanctions become affected —

    John M. Harlan II:

    And the —

    Joseph Forer:

    — whether or not they are registered.

    John M. Harlan II:

    — and the Attorney General has to send out notice of the order made.

    He has to send out notice saying that the organization is required to register to the members.

    Joseph Forer:

    Yes, but actually, these member sanctions come into play even before he sends the notice.

    John M. Harlan II:

    But what I’m — my question is, can a member relieve himself of all of these sanctions by resigning to New York position once these — once the order to — to register becomes final?

    Joseph Forer:

    Yes, with one exception.

    John M. Harlan II:

    What is the exception?

    Joseph Forer:

    His name — his — the — the listing, so far as listing on the register, the listing has included everybody with a member for the last 12 years —

    John M. Harlan II:

    So —

    Joseph Forer:

    — last 12 months, I beg your pardon.

    John M. Harlan II:

    — so that it — to be — to take a specific illustration of the fellow ones who member of a registered organization wants to join the governmental service and he bona fide him, makes a bona fide resignation —

    Joseph Forer:

    Then he’s eligible.

    John M. Harlan II:

    He’s eligible.

    Joseph Forer:

    Yes.

    John M. Harlan II:

    Then after he gets out of his governmental service, if he wants to rejoin the Party, is there any reason why he shouldn’t?

    Joseph Forer:

    He just take an awful chance.

    No — no reason —

    John M. Harlan II:

    But I mean there’s no reason why he can’t rejoin.

    Joseph Forer:

    No, except for the other sanctions.

    John M. Harlan II:

    Where is this — well, the — the sanction and — maybe there’s some difference —

    Joseph Forer:

    He can get rid of the sanctions by putting the organization.

    Felix Frankfurter:

    Let me ask you this —

    Joseph Forer:

    But —

    Felix Frankfurter:

    — Mr. Forer.

    Joseph Forer:

    Yes.

    Felix Frankfurter:

    Assume now, assume that I’m assuming, assume that there’s constitutional power by Congress to compel registration as foreign government controls enterprise congregated together or collected together in the from of a party.

    Assume there is constitutional, I’m not talking about this statute, I’m not saying what I think of this statute or anything like that, but assume that, for purposes of my question, if there is constitutional power to compel such disclosure as such a foreign government controlled organization, what is the difficulty — what is the limitation upon constitutional power to exercise that power although the consequences are that individuals who belongs to it with full knowledge of what it is, full knowledge of its purposes and they’re on adherence with purposes, suffering needs social consequences.

    Joseph Forer:

    Well, your question assumes some of the things that I’m going to come to because that includes as —

    Felix Frankfurter:

    Well, you take your own time.

    Joseph Forer:

    Yes, well for I get in — just let me answer your question.

    Assuming, for example, a member with full knowledge of the purposes of the organization, and that’s one of the first things I’m going to come to with something.

    I think I will answer your question in the course of my argument.

    But if the member remains a member and doesn’t resign, he becomes, for all practical purposes, a member of a special class of inferior people.

    He — he becomes — the — all the members become what you might call a class of untouchables.

    Felix Frankfurter:

    Well, once — once there is a public declaration by the Attorney General announcing the state —

    Joseph Forer:

    He can —

    Felix Frankfurter:

    — he can —

    Joseph Forer:

    — quit.

    Felix Frankfurter:

    — he cannot not know.

    Joseph Forer:

    Well, I — I’m coming to what he has to know in a minute, Mr. Justice Frankfurter.

    Hugo L. Black:

    I hope you can answer the question on the basis that Justice Frankfurter’s assumption.

    Joseph Forer:

    What?

    Hugo L. Black:

    I hope you will answer the question on the basis of the assumption.

    I think his question is very personal.

    Joseph Forer:

    If his question is —

    Hugo L. Black:

    On his assumption.

    Joseph Forer:

    — can — or his assumption, yes.

    I intend to answer that.

    But the point I am making, and I think this is — distinguishes the Act from what Justice Frankfurter assumed, that under the Act, the member gets this untouchable status because of one thing only and that is the bare fact that he is a member of an organization ordered the register.

    Now, the order against the organization, and I’ll elaborate that in a moment, the order against the organization is based on findings that the organization is under Soviet control that the organization is advancing the objectives of the world communist movement but nobody ever finds that the members under foreign control, nobody ever finds that the member is advancing any sinister objectives.

    Furthermore, the sanctions of the Act are applicable whether or not the member has any intent, they are applicable to the member whether or not he — he has this activity factor and they are applicable to the member whether or not he has any knowledge that the — the purposes of the organization are bad.

    They are even applicable if he has no knowledge that a registration order was issued and detained point.

    Felix Frankfurter:

    Doesn’t it — I —

    Joseph Forer:

    This answers —

    Felix Frankfurter:

    (Voice Overlap) — I thought the Attorney General has to make a pronouncement.

    I thought the — the atmosphere of United States is, as it was saturated in the notice of this one.

    Why do make the contrary assumption?

    Joseph Forer:

    No.

    Your Honor, the Act says, and I have to go by what the Act says, that these sanctions are enforceable against a member through with knowledge or notice and Section 13 (a) of the Act says that a member gets notice when the registration order is published in the federal register.

    Now, I am perfectly willing to concede that anybody who is a member of the Communist Party will undoubtedly get notice and will undoubtedly know that this order of the Board was affirmed.

    So it is true that a member of the Communist Party will know what any member of the Communist Party in his right mind must already know and that is that the Government condemns the Communist Party.

    But he doesn’t have to know, he doesn’t have to know that the Communist Party is a bad organization.

    He doesn’t have to know.

    He doesn’t — that the Communist Party is controlled by the Soviet Union.

    Joseph Forer:

    He doesn’t have to know that the Communist Party has bad objectives.

    John M. Harlan II:

    In other words, what —

    Joseph Forer:

    He —

    John M. Harlan II:

    — you’re saying —

    Joseph Forer:

    — all knows is that the Government says that.

    He knew that already.

    John M. Harlan II:

    What you’re arguing, I take it, is that he shouldn’t be stocked, the individual member should not be stocked by the Board determination without an opportunity to say that the Board is wrong or he didn’t know the illegal argument or the purposes of the Party.

    Joseph Forer:

    Well, I don’t —

    Felix Frankfurter:

    Is that what you’re saying?

    Joseph Forer:

    Not quite.

    That — that —

    John M. Harlan II:

    Well —

    Joseph Forer:

    — should in a somewhat different part.

    What I am saying is —

    John M. Harlan II:

    Where am I wrong about what your —

    Joseph Forer:

    Well —

    John M. Harlan II:

    — if I misunderstand your argument (Inaudible).

    Joseph Forer:

    I’m — well, you — you’re saying he shouldn’t be stock without getting an opportunity.

    John M. Harlan II:

    Well, you mean — you said he gets a notice.

    How do you know this is the Board determination?

    Joseph Forer:

    I’m saying that you’re talking in terms of what should be.

    I prefer to talk in terms of what the Act is.

    That’s the only difference between them.

    Now, maybe it’s just phraseology but that just happens in the way I think.

    But under the Act, the fact is that he gets stock if he knows or has notice and I don’t care, I’m assuming — assume that he knows.

    If he knows that the Subversive Activities Control Board thinks that the Communist Party is just terrible organization and that the Supreme Court of the United States apparently bought so too at least to the extent of affirming the order of the Board.

    Felix Frankfurter:

    It wouldn’t have to think so at all in order to observe.

    Joseph Forer:

    It would have to think that there was a basis for the Board’s order.

    Felix Frankfurter:

    We have to think that Congress had the constitutional power to bring about that result.

    That’s all it could have, isn’t it?

    Joseph Forer:

    Well, I — I think that one of the issues is whether the — the Court’s order is supported by the evidence.

    John M. Harlan II:

    Where you leave me hanging is — well, I know that because your argument finished.

    Joseph Forer:

    My argument is this.

    In Wieman against Updegraff, this Court condemned the indiscriminate classification of innocent with knowing activity and specifically held that you can’t bar an individual from a privilege, in that case, government employment, because of membership in a bad organization unless in a minimum, the individual knew that the organization was bad.

    John M. Harlan II:

    My hypothesis is he knows that because the Board is asked for a hearing —

    Joseph Forer:

    No.

    John M. Harlan II:

    — and made that determination.

    Joseph Forer:

    Your hypothesis is wrong.

    He doesn’t know that.

    All he knows is that the — is that the — the Ford County.

    Now, in Wieman against Updegraff, he knew, Mr. Wieman knew, I guess with Mr. Wieman not Mr. Updegraff.

    Mr. Wieman knew that the organizations have been found bad by a government agency because these were organizations on the Attorney General’s list.

    In Adler against the Board of Education, Mr. Adler knew that the organization had been found bad.

    John M. Harlan II:

    No, but the Attorney General’s list adversary hearing would find a judicial review by the Court with a wholly different proposition.

    Joseph Forer:

    Well, that’s — but in Adler against Board of Education, that’s exactly what they had.

    They had an adversary — administrative adversary proceeding with judicial review by the Court.Let me put it this way.

    If you put the sanctions on the member because he is stubborn enough to believe that the Subversive Activities Control Board is wrong and because he is stubborn enough to disagree within the decision of this Court, I think you’re violating due process or the Act is violating due process because you are punishing them not for being bad or for knowing anything bad, you’re punishing them for being stubborn.

    And I think people are entitled to be stubborn even to the point when they think that — that decisions of this Board are wrong.

    John M. Harlan II:

    Well, it seems to me —

    Joseph Forer:

    Maybe they’ll agree with the dissenting opinion.

    John M. Harlan II:

    — what you’re saying now shows that I did understand your argument.

    Joseph Forer:

    What?

    John M. Harlan II:

    It seems to me what you’re saying now shows that I did understand your argument.

    Joseph Forer:

    I think you did.

    I would — and what I was challenging was your hypothesis.

    Felix Frankfurter:

    Well, do you think this is Wieman against Updegraff?

    Joseph Forer:

    I do because I think that this Act applies regardless of any intent and regardless of any knowledge on the part of the member.

    And I’ll go further, Mr. Justice Harlan.

    If this hypothetical member should happen to read this long modified report of the Board and then should happen to read the last decision of the Court of Appeals, I think it might well confirm it in the belief that there was no case against the — the petitioner.

    And you could disagree with this Court — with this Court affirmatively.

    Joseph Forer:

    Now, the first due process restriction —

    Felix Frankfurter:

    I wonder why we have in Court the — the supposedly the ultimate “determina” whether there is already enough evidence.

    Joseph Forer:

    Yes.

    Felix Frankfurter:

    That doesn’t mean you can’t go out with — you can’t —

    Joseph Forer:

    That’s my —

    Felix Frankfurter:

    — can’t go to the — a saloon and — and tell the appropriate thing that a servant should do but the motion — was anybody concede an extra judgment as the report has adjudicated that there are facts and then say, “Well, I know better,” but —

    Joseph Forer:

    And you shouldn’t make him lose his job to say and I know better.

    Felix Frankfurter:

    But you don’t make him lose his job, you make him lose his job in such as a social consequence because Congress has exercise the constitutional power, that’s my assumption, of outlawing an organization has given notice and it said, “Anybody who belong to this organization and thereby ask to add strength must take a social consequence.”

    Joseph Forer:

    No, this isn’t just a social consequence.

    This is a legal consequence —

    Felix Frankfurter:

    And all the other consequences.

    Joseph Forer:

    Alright.

    Earl Warren:

    You may answer that —