RESPONDENT: Subversive Activities Control Board
LOCATION: Point of picking up hitchhiker
DOCKET NO.: 65
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 380 US 513 (1965)
ARGUED: Dec 09, 1964
DECIDED: Apr 26, 1965
Facts of the case
Media for Veterans of Abraham Lincoln Brigade v. Subversive Activities Control Board
Audio Transcription for Oral Argument - December 09, 1964 in Veterans of Abraham Lincoln Brigade v. Subversive Activities Control Board
Number 65, Veterans of the Abraham Lincoln Brigade, Petitioner, versus Subversive Activities Control Board.
Leonard B. Boudin:
Mr. Chief Justice --
Leonard B. Boudin:
-- members of the Court.
This case too as Your Honor know -- as Your Honors know, is a proceeding to review a judgment of the Court of Appeals for District of Columbia by a two to one vote.
Judge Bazelon dissenting upholding an order of the Subversive Activities Control Board that the petitioner, the Veterans of the Abraham Lincoln Brigade registers as a Communist-front organization.
The petitioner consists of surviving members of the Abraham Lincoln Brigade, Americans who went to Spain in 1936 to fight on the Republican's side in the civil war.
And while the court below makes some reference to the fact that it thought from historical analysis that this was a war between Communism and Fascism, I don't think that view can fairly be attributed though the court intend to attribute it to the people who went, whether those who lived or those who didn't live.
And I think if history is to be the test of this case, we trust it is not because we don't believe that the Veterans of the Abraham Lincoln Brigade where the Spanish Civil War is on trial, but the post-1950 organization is on trial here, then I think we prefer to refer to the history which is set forth in the works of Harold Ickes, and Samuel Wells, and Jonathan Daniels and the others who evaluated the Spanish Civil War as a war of democracy against fascism.
Thus, I say, I haven't argue this although the Board and its report devotes most of its time to the Spanish Civil War and to its significance, and the Government also played great reliance about what happened in 1936, 1938 and most important to the Government, what happened in 1939 at the time of the Soviet-Nazi Pact when the petitioner was only in the process of formation and certainly many, many years before the statutory period is relevant here, 1950 to 1955 went into effect.
I may say that the court below is very critical of the Board and Your Honors will read with great interest the elaborate discussion by Judge Prettyman saying that we are not concerned about the past, we are concerned about the period 1950 to 1955.
And Your Honorable -- Honors will say that Judge Prettyman was also very critical of the Board because his view of the meaning of the control concept which I'll discuss in a moment was radically different from of the Board.
The fact that he came to a conclusion after much worrying about it, conclusion on the side of the Government does not diminish the fact that he disagreed radically with the Board's views.
Now, the issue in this case as we see it is whether or not bearing in mind the very strict preponderance of evidence rule laid down by this statute in contradistinction to this substantial evident rule and other administrative agency cases.
Bearing that rule in mind has the Government made out either he deny that, the control component or the aid or objective component as it is shown.
And in considering whether the Government has made out those two elements I will say elements of the crime, we must bear in mind that in the construction of the statute, the constitutional consideration, the impact upon the admittedly First Amendment rights of the petitioner and its members will have to be evaluated.
If you have an ambiguous statute in any respect, that are on the many of decisions of the Court, most familiar to me of course Kent against Dulles decision, then the Court will construe the statute in such away as to give a minimum power to the Government rather than a maximum one.
Now, I'd like to say I think our case is a very clear one on the facts because as Judge Prettyman said almost startling with his words is the fact that so little of the evidence relate to 1950 or a year thereafter.
And it is upon so little of the evidence that the Board's order was predicated and Judge Prettyman's opinion was written.
Now, what is the evidence would respect to control and how did the Board and the Court identified it, how do they come to the same conclusion.
The Court held in contradistinction to everything said by the Board that in order for the petitioner to be controlled within the meaning of the statute, it must not merely have members of the Communist Party in its leadership, fact which as I've indicated in a moment, not have members but have functionaries or representatives of the Communist Party.
This is I say was in clear contradistinction with the whole pattern of the Board's decision which makes no different distinctions between representatives, functionaries, or members.
So we have the basic principle laid down by the Court in elaborate language not in the passing sentence.
Then we have the agreement of the Board, the Court and the record, all three, that from 1950 on when Mr. Fishman, Moe Fishman became executive secretary of the organization, he was the dominant manager of the petitioning organization, and we have -- secondly, the fact that he was assisted, assisted by a man named Milton Wolff who had been connected with the organization as supervisory capacity earlier and Milton Wolff likewise according to the Court of Appeals, as to him, there was no evidence they hint there was no evidence, no direct evidence, I'll read the words in a few minutes as to his being a functionary or even member after 1950 of the Communist Party.
I may say that even as the membership, the only evidence in this elaborate record and I do think that the Court may want to look at the record because of the difference we have with Government, is that there is testimony by Mr. Boudin's, it might be familiar to this Court, that in 1940, Mr. Wollf made an admission to him that he Mr. Wolff was a member of the Communist Party and there was testimony in 1941 or its equivalent.
There is a testimony in 1941 by a Mr. Yuba with respect to an admission made by Mr. Fishman, 1940 and 1941, and we are today in 1964 to determine how an ct should apply to an organization based on evidence.
Who is Mr. Wolff?
Leonard B. Boudin:
Mr. Wolff was the second man in charge of the organization.
As a matter fact I was even wrong, at one testimony, he was a member.
There was a statement made that he made a report to a meeting of the Communist Party in 1940.