COMMUNIST PARTY OF THE UNITED STATES v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 12
Supreme Court of the United States
Argued October 11-12, 1960.- Decided June 5, 1961.
367 U.S. 1
Solicitor General Rankin argued the cause for respondent. With him on the brief were Assistant Attorney General Yeagley, Bruce J. Terris, Kevin T. Maroney, George B. Searls, Lee B. Anderson and Frank R. Hunter, Jr.
Briefs of amici curiae, urging reversal, were filed by Nanette Dembitz for the American Civil Liberties Union; Thomas I. Emerson for the National Lawyers Guild; and Royal W. France for Rev. Edwin E. Aiken et al.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is a proceeding pursuant to
The Subversive Activities Control Act is Title I of the Internal Security Act of 1950, 64 Stat. 987,
“There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.”
The characteristics of a “totalitarian dictatorship,” as set forth in subsections (2) and (3) are the existence of a single, dictatorial political party substantially identified with the government of the country in which it exists, the suppression of all opposition to the party in power, the subordination of the rights of the individual to the state, and the denial of fundamental rights and liberties characteristic of a representative form of government. Subsection (4) finds that the direction and control of the “world Communist movement” is vested in and exercised by the Communist dictatorship of a foreign country; and subsection (5), that the Communist dictatorship of this foreign country, in furthering the purposes of the world Communist movement, establishes and utilizes in various countries action organizations which are not free and independent organizations, but are sections of a world-wide Communist organization and are controlled, directed, and subject to the discipline of the Communist dictatorship of the same foreign country. Subsection (6) sets forth that
“The Communist action organizations so established and utilized in various countries, acting under such control, direction, and discipline, endeavor to
carry out the objectives of the world Communist movement by bringing about the overthrow of existing governments by any available means, including force if necessary, and setting up Communist totalitarian dictatorships which will be subservient to the most powerful existing Communist totalitarian dictatorship. Although such organizations usually designate themselves as political parties, they are in fact constituent elements of the world-wide Communist movement and promote the objectives of such movement by conspiratorial and coercive tactics, instead of through the democratic processes of a free elective system or through the freedom-preserving means employed by a political party which operates as an agency by which people govern themselves.”
In subsection (7) it is found that the Communist organizations thus described are organized on a secret conspiratorial basis and operate to a substantial extent through “Communist-front” organizations, in most instances created or used so as to conceal their true character and purpose, with the result that the “fronts” are able to obtain support from persons who would not extend their support if they knew the nature of the organizations with which they dealt. Congress makes other findings: that the most powerful existing Communist dictatorship has caused the establishment in numerous foreign countries of Communist totalitarian dictatorships, and threatens to establish such dictatorships in still other countries (10); that Communist agents have devised ruthless espionage and sabotage tactics successfully carried out in evasion of existing law (11); that the Communist network in the United States is inspired and controlled in large part by foreign agents who are sent in under various guises (12); that international travel is prerequisite for the carrying on of activities in furtherance of the Communist movement‘s purposes (8); that Com-
“The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government, enact appropriate legislation recognizing the existence of such world-wide con-
spiracy and designed to prevent it from accomplishing its purpose in the United States.”
Pursuant to these findings,
“(a) any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) 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 (ii) operates primarily to advance the objectives of such world Communist movement as referred to in section 2 of this title; and
“(b) any section, branch, fraction, or cell of any organization defined in subparagraph (a) of this paragraph which has not complied with the registration requirements of this title.”
Registration must be made within thirty days after the enactment of the Act, or, in the case of an organization which becomes a Communist-action organization after enactment, within thirty days of the date upon which it becomes such an organization; in the case of an organization which is ordered to register by the Subversive Activities Control Board, registration must take place within thirty days of the date upon which the Board‘s order becomes final.
Section 7 (b) requires the registration of Communist-front organizations, defined as those substantially directed, dominated, or controlled by a Communist-action organization and primarily operated for the purpose of giving aid and support to a Communist-action organization, a Communist foreign government, or the world Communist movement.
The Attorney General is required by
Whenever the Attorney General has reason to believe that any organization which has not registered is an organization of a kind required to register, or that any individual who has not registered is required to register, he shall petition the Subversive Activities Control Board
The Board, whose organization and procedure are prescribed,
The party aggrieved by any such order of the Board may obtain review by filing in the Court of Appeals for the District of Columbia a petition praying that the order be set aside. The findings of the Board as to the facts, if supported by the preponderance of the evidence, shall
Section 13 (e) of the Act provides that
“In determining whether any organization is a ‘Communist-action organization‘, the Board shall take into consideration-
“(1) the extent to which its policies are formulated and carried out and its activities performed, pursuant to directives or to effectuate the policies of the foreign government or foreign organization in which is vested, or under the domination or control of which is exercised, the direction and control of the world Communist movement referred to in section 2 of this title; and
“(2) the extent to which its views and policies do not deviate from those of such foreign government or foreign organization; and
“(3) the extent to which it receives financial or other aid, directly or indirectly, from or at the direc-
tion of such foreign government or foreign organization; and “(4) the extent to which it sends members or representatives to any foreign country for instruction or training in the principles, policies, strategy, or tactics of such world Communist movement; and
“(5) the extent to which it reports to such foreign government or foreign organization or to its representatives; and
“(6) the extent to which its principal leaders or a substantial number of its members are subject to or recognize the disciplinary power of such foreign government or foreign organization or its representatives; and
“(7) the extent to which, for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives, (i) it fails to disclose, or resists efforts to obtain information as to, its membership (by keeping membership lists in code, by instructing members to refuse to acknowledge membership, or by any other method); (ii) its members refuse to acknowledge membership therein; (iii) it fails to disclose, or resists efforts to obtain information as to, records other than membership lists; (iv) its meetings are secret; and (v) it otherwise operates on a secret basis; and
“(8) the extent to which its principal leaders or a substantial number of its members consider the allegiance they owe to the United States as subordinate to their obligations to such foreign government or foreign organization.”
Similarly,
Section 4 (f) of the Subversive Activities Control Act of 1950 provides that neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of penal provisions of the Act or of any other criminal statute, and the fact of registration of any person as an officer or member of such an organization shall not be received in evidence against the person in any prosecution for violations of
“If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remaining provisions of this title, or the application of such provision to other persons or circumstances, shall not be affected thereby.”
I.
This litigation has a long history. On November 22, 1950, the Attorney General petitioned the Subversive Activities Control Board for an order to require that the Communist Party register as a Communist-action organization. The Party thereupon brought suit in the District Court for the District of Columbia, seeking to have the proceedings of the Board enjoined. A statutory three-judge court denied preliminary relief, Communist Party of the United States v. McGrath, 96 F. Supp. 47, but stayed answer and hearings before the Board pending appeal. After this Court denied a petition for extension of the stay, 340 U. S. 950, the Party abandoned the suit. Hearings began on April 23, 1951, and ended on July 1, 1952.5 Twenty-two witnesses for the Attorney General and three for the Party presented oral testimony; 507 exhibits, many of book length, were received; the stenographic record, exclusive of these exhibits, amounted to more than 14,000 pages. On April 20, 1953, the Board issued its 137-page report concluding that the Party was
On remand the Party filed several motions with the Board seeking to reopen the record for the introduction of additional evidence. These were denied. A motion in the Court of Appeals for leave to adduce additional evidence was similarly denied, except that the Board
On second remand, the documents specified by the orders of the Court of Appeals were made available to the Party. The hearing was reopened before a member of
II.
The Communist Party urges, at the outset, that procedural rulings by the Board and the Court of Appeals constitute prejudicial error requiring that this proceeding be remanded to the Board. Before reaching the statutory and constitutional issues which this case presents, we must consider these rulings.
A. The Board’s Refusal to Strike All Testimony of the Witness Budenz. At the original hearing before the Board, Budenz testified during almost two days on direct examination and five days on cross-examination. His
After an inspection of the F. B. I. recordings in camera by a member of the Board sitting as an examiner, excerpts relating to the Starobin letter and Childs-Weiner conversation were furnished to the Party. The Party sought to recall Budenz for further cross-examination in light of these statements. Upon receipt of a letter from Budenz’s personal physician stating that, because of a serious heart condition, it would imperil Budenz’s health to appear, the member-examiner caused an independent physical examination of the witness by a heart specialist. The specialist confirmed that cross-examination might seriously affect Budenz’s health or cause his death, and counsel for the Government and the Party agreed that the witness was unavailable for recall. The Party then moved that all of
The “Childs-Weiner conversation” concerns an interview in New York at which Budenz, Childs and Weiner discussed the financing of the Midwest Daily Record, a Party newspaper then edited by Budenz. At the hearing before the Board, Budenz testified that Childs had asked Weiner if money couldn’t be got from abroad, and that Weiner replied that normally it might, but that the channels of communication had been broken for the time being, that perhaps they might be re-established so that money could come. Budenz testified that although it was not definitely stated what Weiner meant by “abroad,” Budenz’s familiarity with the term as used by Party members led him to believe that it meant “from Moscow.” In the recordings produced by the Government made during a series of F. B. I. interviews in 1945, Budenz did not mention this incident, although he did advert to the financing problems of the Daily Record and to trips which he made to New York to seek funds for it. Asked whether he had seen any indication of funds coming from Russia, Budenz replied: “The only indication would be is that in addition to Krumbein as Treasurer, Weiner still maintains a certain general supervisory control over finances.” Budenz explained that Weiner was “trusted financially,” and again mentioned that Weiner’s being “a super financial person” was “indicative” of the source of money. He
“... Weiner immediately changed the subject matter, indicating that he did not want to discuss the question of transmission of Soviet funds in the presence of Budenz, even though Budenz was a trusted Communist. Budenz concluded from the remark that was made that funds were actually being sent to this country at that time by the Soviet Union for propaganda purposes.”
An F. B. I. document based on an interview with Budenz in 1947 describes the incident as follows:
“... Childs suggested that Weiner try to get some money from Moscow to finance the paper. Weiner stated that he had temporarily lost his contacts in Moscow, hence, he could not do anything.”
Finally, in a 1950 interview, as recorded in an office memorandum, Budenz related:
“... Childs asked that funds be advanced him by Weiner from the reserve fund [large sums of money held in bank accounts ‘in reserve for Moscow’ or earmarked for Communist organizations] and Weiner advised that he didn’t have any at that time as his communication system had temporarily broken down. Budenz took this to mean that Weiner’s source of supply was from foreign countries, particularly Russia.”
“Q. Do you think then that the instructions relative to this change of policy that Starobin and Fields must have received came from the Russian delegation? Oh, you said maybe Manuilsky, the Ukrainian delegate? A. Sure, sure, I mean—after all, they got the atmosphere there. In fact I mentioned Manuilsky very much, because definitely he is a figure in the CI.
“Q. He certainly is. A. He used to lay down the law like a general, you know, to his troops. . . .”
In 1946, Budenz reported to the F. B. I. that in a letter from the San Francisco Conference, Starobin advised that ” ‘the French comrades have the line and the support of the Soviet Union—and the French comrades blasted Stettinius and the United States Delegation, and therefore Starobin directed that the Party in this country should immediately blast Stettinius and the United States Delegation.’ Budenz stated that in this letter Starobin inferred [sic] that he and/or his associates at the Conference had conferred with Manuilsky regarding this question, and that the changed policy was predicated upon Manuilsky’s instructions as well as on advice received from French Communists at UNCIO.” Testifying in that same year before the House Committee on Un-American Activities, Budenz quoted the Starobin letter as relating that the French Comrades asserted there should be more of an attack upon Stettinius by the American Communists, and that this was likewise the opinion of Comrade Manuilsky.
In ruling on the Party’s motion to strike all of Budenz’s testimony because of his unavailability for cross-examina-
The considerations relevant to the Party’s contention that all of Budenz’s testimony must be expunged are, first, the extent to which his prior statements to the F. B. I., compared with his testimony in the present proceedings, discredit him as a witness and impugn his testimony in its entirety, and, second, the extent to which, on the whole record, it appears that the inability to cross-examine Budenz in light of those prior statements had prejudiced the Party. These are questions which can best be answered by those entrusted with ascertaining the fact; that
B. The Board’s Refusal to Order Production of the Gitlow Memoranda. In 1940 Gitlow, who had been during the years prior to 1929 a high official of the Communist Party, turned over to the F. B. I. a quantity of documents and papers pertaining to the Party. Shortly thereafter he dictated a series of memoranda explaining and interpreting them. At the original hearing in the present proceeding, Gitlow, testifying for the Attorney General, identified a number of these documents, which were then put in evidence, and described their contents and significance. The Party moved the Board for an order requiring that the
We may assume arguendo, without deciding the point, that the Board erred in refusing to order the Gitlow memoranda produced at the original hearing. But we do not reach the question of the applicability of the Consolidated Edison case to this situation. It is too late now for the Party to raise this error of the Board. That error could have been raised here five years ago. Had it been raised then, we could have ordered it cured at the time of the first remand to the Board. The demands not only of orderly procedure but of due procedure as the means of
C. Denial by the Court of Appeals of the Party’s Motions for Orders Requiring Production of All Statements by the Witness Budenz, and of All Statements by All Witnesses for the Attorney General. On February 14, 1958, after this case had been remanded to the Board for the second time, and more than five and a half years after the termination of the initial hearings, the Party moved the Court of Appeals, under
With reference to the Budenz records, the Party seeks to excuse its delay by pointing out that not until early in February 1958 did it discover that the F. B. I. had made mechanical transcriptions of interviews with this witness. The Party was misled, it argues, at the time of the original Board hearings, into believing that no prior statements by Budenz were in the possession of the Government. The short answer to this may be found in the transcript of Budenz’s replies to questions of counsel for the Party during his testimony on cross-examination.9
“Q: Did you give [the Starobin letter incident] to the FBI.
“A: I am satisfied I gave it to the FBI. I couldn’t say definitely, but the FBI question me about everything I write and say, and also about many other things. They question me, and I answer their questions.
“Q: Were your answers reduced in writing?
“A: As a matter of fact, I do know now, since you mention it, that I did give this to the FBI.
“Q: In writing?
“A: No, not in writing.
“Q: Was it taken down by a stenographer?
“A: No, not by a stenographer. They never do that, except in rare cases.
“Q: Was a report written up and then shown to you afterwards?
“A: No. That never happens.
“Q: So all you did was simply have an oral conversation about this incident?
“A: Yes, that is all.
“Q: Was it recorded?
“A: I judge so. It was taken down.
“Q: It was taken down?
“A: Yes. I mean, it wasn’t by a stenographer, but by an FBI agent.
“Q: It was taken down by an agent?
“A: Right.
“Q: Was it taken down in shorthand or longhand, or what?
“A: Longhand.
“Q: When?
“A: That I don’t know. The reason I recall it, counselor, if I may say so, is because in connection with my book, everything that was in my book was gone over by the FBI, either before or after its publication ....
“When I say ‘gone over,’ I mean the information was given to them.”
Although the Party might not have known of the disc recordings made of the Budenz interviews, it knew that notes or records had been taken of those interviews by the F. B. I. Indeed the Party sought production of such reports, insofar as they related to the Starobin letter and the Childs-Weiner conversation, by motions made to the Board at the time Budenz testified. Had similar motions been made with regard to other aspects of Budenz’s testimony, or with regard to other witnesses, and had the Board denied those motions, this issue could have been brought here on review five years ago.10 If production had
III.
We come to the Communist Party’s contentions that the Board and the Court of Appeals erred in their construction of the Act and in their application of it, on the facts of this record, to the Party. It is argued that both elements of the statutory definition of a Communist-action organization in § 3 (3) of the Act—what have come in the course of this litigation to be known as the “control” and “objectives” components—were misinterpreted below; that the Board misconceived the nature of each of the eight evidentiary considerations directed to its attention by § 13 (e) as pertinent to its determination whether an organization is or is not a Communist-action organization; that the Board misapplied the phrase “world Communist movement” in § 2; and that the Board erred in taking account, as relevant to that determination, of conduct of the Party prior to the date of the Act. The Court of Appeals is said to have erred in failing to remand to the
A. The “Control Component.” Under
We agree that substantial direction, domination, or control of one entity by another may exist without the latter’s having power, in the event of non-compliance, effectively to enforce obedience to its will. The issue which the Communist Party tenders as one of construction of statutory language is more sharply drawn in the abstract sphere of words than in the realm of fact. It is true that the Court of Appeals compendiously expressed
The statute, as amended, uses the same phrase three times. A Communist-action organization must be one substantially directed, dominated, or controlled by a foreign government or foreign organization of a designated kind. A Communist-front organization must be one substantially directed, dominated, or controlled by a Communist-action organization.
Nothing in the Committee Reports pertinent to the Internal Security Act of 1950, or in what was said by Congressmen in charge of its passage, affords a gloss on “substantially directed, dominated, or controlled,” as used in
“An organization shall be deemed ‘subject to foreign control’ if (1) it solicits or accepts financial contributions, loans, or support of any kind, directly
or indirectly, from, or is affiliated directly or indirectly with, a foreign government or a political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or political subdivision thereof, or a political party in a foreign country, or an international political organization, or (2) its policies, or any of them, are determined by or at the suggestion of, or in collaboration with, a foreign government or political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or a political subdivision thereof, or a political party in a foreign country, or an international political organization.”
The Committee Report on the House bill from which the Subversive Activities Control Act derived indicates that its enactment was occasioned, in part, by the inadequacy of existing legislation. Although the Voorhis Act had been directed “against both Nazis and Communists,” it had “proved largely ineffective against the latter, due in part to the skill and deceit which the Communists have used in concealing their foreign ties.” H. R. Rep. No. 2980, 81st Cong., 2d Sess. 2; see also H. R. Rep. No. 1844, 80th Cong., 2d Sess. 5. It is reasonable to infer that Congress intended the registration provisions of the 1950 Act to be applicable, at the very least, to organizations concerning which a showing of “control” was made which would have brought the organization under the registration provisions of the Voorhis Act. And the 1940 Act, by its explicit definitions, did not require what the Party signifies by “enforceable” control.
The subjection to foreign direction, domination, or control of which
While under
This must be read in the context of the facts of record in this proceeding. Since the determinative issue of the meaning of “substantially directed, dominated, or controlled,” and the constitutional questions which the construction of this statutory language raises, are to be determined essentially on the basis of the assignment of legal significance to the Board‘s findings of fact, those findings must be allowed to speak for themselves. They can neither be summarized nor fairly conveyed in bits and pieces. Their large scope and critical importance necessitates and justifies burdening this opinion with more extensive quotation than is customary in cases where summaries of the record may more meaningfully be made. The Board wrote:
“The present world Communist movement was first manifested organizationally by the formation in March of 1919 in Moscow, Russia, of the Third Communist International. As this event is recorded in the History of the Communist Party of the Soviet Union . . . , it was ‘on the initiative of the Bolsheviks, headed by Lenin,’ that the first Congress of Communist Parties was called in Moscow, the work of which ‘was guided by Lenin‘; and, ‘Thus was
founded an international revolutionary proletarian organization of a new type—the Communist International—the Marxist-Leninist International.’ “One year later, July 17-August 7, 1920, the Second Congress of the Communist International adopted and promulgated its Theses and Statutes, setting forth its aims and purposes as later herein detailed, and described itself as ‘a single universal Communist party, of which the parties operating in every country form individual sections.’ . . .
“A ‘Statute’ of the Comintern insured that it would serve the interests of Russia by providing:
“‘The Communist International fully and unreservedly upholds the gains of the great proletarian revolution in Russia, the first victorious socialist revolution in the world‘s history, and calls upon all workers to follow the same road. The Communist International makes it its duty to support with all the power at its disposal every Soviet Republic, wherever it may be formed.’ . . .
“The Communist International was in fact a world Communist Party, organized and controlled as to policies and activities by the Soviet Union, consisting of the various Communist Parties of the countries throughout the world, which constituted its sections. With headquarters in Moscow, it embodied an elaborate organizational structure, related to implementing the basic strategy and tactics of Marxism-Leninism. . . . There was no North American Bureau, but the Political Bureau of respondent acted in that capacity, supervising the Communists in Canada, Cuba, Mexico, and others down to the Panama Canal.
“The Soviet Union was the leader of the Communist International, exercising control over its policies
and activities. The Communist Party of the Soviet Union had five votes to one each for the other larger Parties in the Executive Committee of the Comintern (ECCI), which respondent in a 1934 resolution acknowledged to be ‘the general staff of the world revolutionary movement giving unity and leadership to the Communist Parties of the world.’ . . . The Government of the Soviet Union financed the Comintern. All of the heads of the Comintern who were identified in the record were leading members of the Communist Party of the Soviet Union. . . . “Respondent joined this international Communist organization shortly after it was constituted and admittedly until 1940 participated therein. . . . [R]espondent recognized that its membership therein subordinated any national interests . . . .
“Further, that complete and total allegiance and dedication was demanded in affiliation with the Comintern, and was acknowledged and in turn stressed by respondent, is also shown by its ‘Program‘:
“’ . . . The Communist International is an organization for waging class warfare for the liberation of the working class; there can be no reservations in endorsement and affiliation with it. Loyalty “with reservations” is treachery. Endorsement and defense of Soviets in Russia, with failure to advocate the Soviet form of proletarian dictatorship in the United States is hypocrisy.’ . . .
“Fundamental to the world Communist movement were the 21 ‘Conditions of Admission to the Communist International’ promulgated in its Theses and Statutes in 1920 . . . . Uncontradicted testimony
and documents establish that these ‘Conditions’ were endorsed and accepted by respondent and were binding upon it. “’ . . . Condition No. 12 required the party to be formed upon the basis of democratic centralism, stressing that only when possessed of an “iron discipline” . . . will it be able to fully and thoroughly carry out its duty as part of the world Communist movement. Condition No. 20, in order to aid control, required that two-thirds of all committee members and members of central institutions consist of comrades who have made open declarations as to their desire to join the Comintern. Condition No. 11 required an inspection of personnel and the removal of unreliable elements from parliamentary party fractions, and Condition No. 13 required a systematic check of personnel to remove petty bourgeois elements which may have infiltrated a party. Condition No. 16 made binding upon the party all resolutions of the Comintern, and Condition No. 21 made liable to exclusion from the party anyone who rejected the theses and conditions of the Third Communist International.
“As to specific policies and programs, Condition No. 15 required the maintenance of a program in accordance with the resolutions of the Comintern. . . .
“Another aspect of the ‘Conditions’ was to make the allegiance of a section party and its members to the Comintern, and hence to the Soviet Union, paramount to any other. For example, Condition No. 14 obligates every member party of the Comintern ‘to render every possible assistance to the Soviet Re-
publics in their struggle against all counter-revolutionary forces.’ . . . It directs the member parties to use legal and illegal means to obstruct military efforts against the Soviet Union. . . . “These 21 ‘Conditions’ were never changed by the Communist International and were enforced and implemented by respondent and used to educate its members. Considerable documentary material of record also established that respondent fully complied with and fulfilled the requirements of membership in the Communist International and faithfully followed and carried out its instructions and directives.
“The Communist International was formally dissolved as such in 1943, at which time the United States and the Soviet Union were military allies. One reason given for this formal dissolution by Stalin was that it would remove the foundation for ‘fascist’ charges that the Soviet Union was meddling in the internal affairs of other nations. . . .
“The world Communist movement, under the hegemony of the Soviet Union, continued, notwithstanding the ‘dissolution’ of its organizational form embodied in the Communist International. . . . [T]he world Communist movement, intact in the basic orientation, policies and programs discussed above, continued via the Cominform and by Communist Parties not formally affiliated with it, such as respondent.
“Respondent, although never formally a member of the Cominform, has . . . remained dedicated to
‘proletarian internationalism,’ Marxism-Leninism, and the policies and programs of the world Communist movement as continued by the Cominform. “We have previously set forth that respondent joined the Communist International shortly after it was constituted and admittedly participated therein until 1940. Respondent offered no substantial evidence concerning this period of its activities, contending that this period is irrelevant, primarily because of an announced disaffiliation from the Communist International in 1940. The circumstances of the disaffiliation . . . show that there was no fundamental or significant change in respondent‘s relationship to the world Communist movement. . . .
“The oral testimony and official documents of respondent and of the Comintern show that respondent was under the complete control and direction of the Comintern. Gitlow was a top official of respondent and in the late 1920‘s a member of the Executive Committee of the Communist International. He stated unequivocally that the Comintern controlled all major policies of respondent. Kornfeder, also a functionary of respondent and who attended the Sixth Congress of the Comintern held in Moscow, corroborated this stating that he knew of no instance during his experience, which lasted until 1934, when respondent deviated from Comintern instructions. Nowell, based on personal experience as a member of respondent and personal contact with the Comintern, as well as what he was instructed while attending the Lenin School in Moscow in 1932, stated that the decisions of the Comintern were binding on respondent. Honig testified to Comintern directives which were carried out by respondent. . . .
“Among the specific instances of record, much of which is uncontroverted documentary material, showing the control exercised over respondent by the Comintern were: a Comintern decision in 1924 which resulted in the amalgamation of various Communist factions in the United States into the single Communist Party; a decision by Joseph Stalin in 1929, adopted by the Comintern, which expelled certain top officials of respondent and designated other individuals as leaders of respondent; advance approval by the Comintern for the holding of Communist Party conventions in the United States; Comintern instructions in 1927 that respondent charge the United States and Great Britain with intervention in Chinese affairs and to attack Chiang Kai-Shek; Comintern decision directing respondent to work for the formation of a farmer-labor party in the United States and a subsequent change directing respondent to go into elections with the Communist Party ticket; and, advance approval by the Comintern of members of respondent who were sent to training schools in Moscow. . . . “Respondent makes much of the fact that it ‘disaffiliated’ from the Communist International in 1940. There was no dispute that respondent in 1940 announced its disaffiliation for the stated purpose of avoiding registration as a foreign agent under the Voorhis Act of October 17, 1940. An issue is the effect of the disaffiliation.
“’ . . . The Browder report makes clear that the disaffiliation was but an expediency to avoid registration under the Voorhis Act and contains nothing which negatives an intent to continue as before the principle of “proletarian internationalism.” Various
passages of Browder‘s report indicate an intent to end only the “formal” and “organizational” connection with the Communist International but not to alter the preexisting fundamental relationship. Illustrative of this is that the report states the disaffiliation would not even be considered if it were thought that it would cause the Party to “waiver” or “vacillate” in carrying out “the internationalism founded by Marx and Engels, and brought to its great, historically decisive victories under the leadership of Lenin and Stalin,” and to which “the life of every Communist is unconditionally consecrated.“. . . Also, the Browder report, by characterizing the Voorhis Act as “an extreme example of the most vicious and oppressive Exceptional Laws” . . . indicates that the organizational disaffiliation was in accord with a Comintern “Condition” that “In every country where, in consequence of martial law or of other exceptional laws, the Communists are unable to carry on their work lawfully, a combination of lawful and unlawful work is absolutely necessary.” . . . “The 1929 reorganization followed a solution dictated by Stalin, which was adopted by the Comintern, and accepted by respondent. Lovestone, Gitlow, and others were deposed as leaders of respondent and the leadership placed in a group which included William Z. Foster, present national chairman. The reorganization of respondent was due to a factional dispute which was a reflection of a struggle in the Communist Party of the Soviet Union and in the Communist International between forces led by Stalin and those led by Bukharin. The Foster faction in respondent, representing a minority of only about 10 per cent, supported Stalin whereas the Lovestone-Gitlow faction, representing about 90 per cent, sided with
Bukharin. Notwithstanding this, respondent complied with the Stalin-dictated solution. The record contains no evidence of subsequent material organizational changes until May of 1944 when respondent‘s name was changed to the Communist Political Association then changed back in 1945 to the name Communist Party. The change to “CPA” was in the year following the dissolution of the Comintern and, like the announcements on that dissolution, the change was assertedly to promote a peaceful co-existence of the United States and the Soviet Union. While operating under the name “Communist Political Association,” there was a deemphasis on the more militant principles of Marxism-Leninism and the current publications of the Party put forward the so-called “Teheran line.” No evidence was presented by respondent to show a break with the basic principles of the international Communist movement. The leadership of respondent remained the same. “Relevant to the reconstitution of respondent under the name Communist Party, the record shows that in April of 1945 Jacques Duclos, a spokesman for the world Communist movement, issued a statement the substance and effect of which was that it was a mistake to dissolve the Communist Party of the United States. . . .
“After preparation throughout the Party, respondent was reconstituted as the Communist Party of the United States of America. Earl Browder, for departing from the orthodoxy of Marxism-Leninism, was branded a ‘revisionist’ and ‘deviationist’ and deposed as the leader. Foster took over as national chairman. Otherwise those who had been officials and leaders of the CPA and the Party before that, with a few minor exceptions, remained the officers and
leaders of the reconstituted Communist Party. Upon taking over as national chairman, Foster pointed out the necessity for reemphasizing the revolutionary line of Marxism-Leninism. In a report to the reconstitution convention, subsequently published in Political Affairs, Foster declared ‘Our Party has suddenly reverted to its basic Communist principles’ and ‘As never before, we must train our Party in the fundamentals of Marxism-Leninism.’ . . . “As previously found, Foster became a leading officer in respondent in 1929 as a result of a Soviet Union directive. He has been national chairman since the 1945 reconstitution. A prior letter of his to respondent‘s National Committee in which he opposed Browder‘s policies had been suppressed from respondent‘s membership but his position set forth in the letter was approved in the Duclos statement while Browder‘s policies were condemned. For a number of years prior to respondent‘s announced disaffiliation from the Communist International, Foster was an an [sic] official of the International. He has been to the Soviet Union on numerous occasions on Party business. . . .
“In addition to Foster, a number of respondent‘s other present leaders have been functionaries of respondent since the time of the Communist International, have been to the Soviet Union on Party business, and have been indoctrinated and trained in the Soviet Union on Communist strategy and policies. These leaders have taught in Party schools, written for the Party press, and spoken at Party meetings, on various phases of Marxism-Leninism, including the leading position of the Soviet Union,
proletarian internationalism, and the necessity of revolutionary overthrow of imperialist nations, particularly the United States. . . . “The continuance in office of Moscow-trained leaders of respondent who were functionaries during the period that respondent was an open member of the open, formal organization of the world Communist movement, and the absence of any substantial evidence showing a repudiation by respondent‘s leaders of the program and policy of the world Communist movement, as well as the fact that Marxism-Leninism continues to be basic to respondent, are all probative of the issues herein. . . .
“The reorganization of respondent‘s leadership pursuant to Stalin‘s solution for the 1929 factional dispute, . . . was supervised by a Soviet Union representative sent to the United States for that purpose. A number of individuals were identified as having in the past been in the United States as representatives from the Soviet Union to supervise the carrying out of various policies, programs, and activities by respondent. Respondent‘s acceptance of the authority of these foreign representatives was required by the rule of the Communist International that:
“‘The E. C. C. I. [executive committee] and its Presidium have the right to send their representatives to the various Sections of the Communist International. Such representatives receive their instructions from the E. C. C. I. or from its Presidium, and are responsible to them for their activities. Representatives of the E. C. C. I. have the right to participate in meetings of the central Party bodies as well
as of the local organizations of the Sections to which they are sent . . . . Representatives of the E. C. C. I. are especially obliged to supervise the carrying out of the decisions of the World Congresses and of the Executive Committee of the Communist International.’ . . . “Eisler is the only foreign representative shown by the record to have been in the United States subsequent to the announced dissolution of the Communist International. Respondent ceased open affiliation with the Comintern to avoid identification as a foreign representative in the United States and the Comintern as an open organization was dissolved in 1943 for Soviet tactical reasons. The absence of further showing as to foreign representatives does not itself, in the context of the record, indicate any change in respondent‘s nature or character.
“Respondent‘s policies, programs, and activities were originally formulated and carried out pursuant to directives of the foreign leadership of the world Communist movement. Such policies, programs, and activities of respondent have been consistently applied throughout respondent‘s existence in the United States without change or repudiation. Various tactical fluctuations in emphasis have followed those laid down by the world Communist movement. An examination of respondent‘s current activities shows respondent is still pursuing policies enunciated by the Soviet Union through the Communist International. . . .
” . . . Respondent‘s witnesses were unable to cite a single instance throughout its history where, in
taking a position on a question which found the views or policies of the Soviet Union and the United States Government in conflict, the CPUSA had agreed with the announced position of the United States; nor could they show a single instance when the CPUSA had disagreed with the Soviet Union on any policy question where both respondent and the Soviet Union have announced a position. “The testimony of Dr. Mosely and documents submitted through him embraced a tremendous area of international questions on which respondent and the Soviet Union have taken positions. . . . The uniformity is constant and on a wide variety of questions, and is corroborated by other evidence of record.
“It is a material consideration in viewing the spread of this evidence spanning thirty-odd years that respondent, for the first twenty such years in this area of activity, was required by the ‘Conditions’ for membership in the Communist International to conform to the ‘programme and decisions’ of the Comintern in its ‘propaganda and agitation’ . . . ; that during the years since 1943 respondent has without a single exception, as before, continued to adhere to the views and policies of the Soviet Union; and that its witnesses when asked to do so were unable to show conflict in any of these policies. This is strong evidence that the preexisting relationship between respondent and the Soviet Union continued as before, notwithstanding the formal dissolution of the Comintern by the Soviet Union.” (Original emphasis throughout.)
It is on the basis of these detailed findings that the Board and the court below predicated their conclusion that the Communist Party was substantially directed, dominated, or controlled by the Soviet Union. We cannot hold that they erred in the construction of the
B. The “Objectives Component.”
Within the framework of these definitions, the Court of Appeals held sufficient to demonstrate the Communist Party‘s objective to overthrow existing government the finding of the Board that the Party advocates the overthrow of the Government of the United States by force and violence if necessary. The Party argues that this finding is inadequate to satisfy the conception of overthrow embodied in
C. The Evidentiary Considerations of
As to three of these considerations upon which the Board placed substantial reliance in its determination that the Communist Party is controlled by the Soviet Union and operates primarily to advance the objectives of the world Communist movement—the extent to which its policies are formulated and carried out and its activities performed pursuant to directives or to effectuate policies of the Soviet Union (
As to three other considerations—the extent to which an organization receives financial or other aid from the foreign government or foreign organization controlling the world Communist movement (
By
The Party urges two contentions relating to this aspect of the case. The first is that the Mosely evidence has no tendency to prove non-deviation, within the meaning of
We do not agree that the Board was not entitled to consider and evaluate evidence of a consistent identity of policies of an organization and the Soviet Union until the Government had shown the temporal antecedence of the Soviet‘s position and negatived the possibility that independent reasoning processes brought about the identity. Here the Board found that the coincidence of policies extended over a vast area of subject matter, was
The Party also argues that it should have been permitted to demonstrate, by cross-examination of Dr. Mosely and by original evidence, that many other persons than the Soviet and the Party held views similar to those
We think that the Court of Appeals did not err in refusing to remand the case on that ground. Cf. Labor Board v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241. In the summaries of its modified reports, the Board did not rely on, or even refer to, the finding of secret practices. Thus this case is unlike Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, and Labor Board v. Virginia Electric & Power Co., 314 U. S. 469, in which proceedings were remanded to administrative agencies when this Court found unsupportable the grounds upon which the agencies had expressly rested the orders reviewed. Where a Court of Appeals strikes as not sustained by the evidence a subsidiary administrative finding upon which the agency itself does not purport to rely, it would be an unwarranted exercise of reviewing power to remand for further proceedings. Labor Board v. Reed & Prince Mfg. Co., 205 F. 2d 131 (C. A. 1st Cir.). Remand would be called for only if there were a solid reason to believe that without that subsidiary finding the agency would not have arrived at the conclusion at which it did arrive. Reading the modified reports of the Board in the present case—reports written after the Court of Appeals had once held the finding as to the purpose of the Party’s secret practices unsupported—this Court cannot conclude that the Court of Appeals was wrong in regarding the finding stricken as one to which the Board did not attach weight and which did not influence its determination.
Under the Act an organization may be found to be a Communist-action organization only if the relations specified in the “control” and “objectives” components of
But the attributes of the world Communist movement which are detailed in the legislative findings are not in the nature of a requisite category of characteristics comprising a definition of an entity whose existence vel non must be established, by proving those characteristics, in each administrative proceeding under the Act. Congress has itself found that that movement exists. The legislative description of its nature is not made a subject of litigation for the purpose of ascertaining the status of a particular organization under the Act. The Attorney General need not prove, in the case of each organization against whom a petition for a registration order is filed, that the international institutions to which the organization can be shown to be related fit the picture in every precise detail set forth in
The Party contends that the Board and the court below erred in relying on evidence of conduct in which it engaged prior to the enactment of the Act to support their conclusion that it is presently a Communist-action organization. This must be rejected. Where the current character of an organization and the nature of its connections with others is at issue, of course past conduct is pertinent. Institutions, like other organisms, are predominantly what their past has made them. History provides the illuminating context within which the implications of present conduct may be known.
Finally, the Party asks that we re-examine the evidence adduced before the Board and review the Board’s findings of fact. The Court of Appeals, made thoroughly familiar with this record by three such re-examinations, has held that the Board’s conclusions, as expressed in its Modified Report on Second Remand, are supported by a preponderance of the evidence. We see no reason why still another court should independently reappraise the record. We have declined to do this in the case of other agencies as to whom reviewing power on the facts has been vested in the Courts of Appeals, and we find no purpose to be served in departing now from this settled policy of appellate review. Labor Board v. Pittsburgh Steamship Co., 340 U. S. 498; Labor Board v. American National Ins. Co., 343 U. S. 395; Federal Trade Comm’n v. Standard Oil Co., 355 U. S. 396.
The Party’s constitutional attack on the Subversive Activities Control Act of 1950 assails virtually every provision of this extended and intricate regulatory statute. The registration requirement of
Many of these questions are prematurely raised in this litigation. Merely potential impairment of constitutional rights under a statute does not of itself create a justiciable controversy in which the nature and extent of those rights may be litigated. United Public Workers v. Mitchell, 330 U. S. 75; International Longshoremen’s Union v. Boyd, 347 U. S. 222. Even where some of the provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality. “Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.” Watson v. Buck, 313 U. S. 387, 402. No rule of practice
This proceeding was brought by the Attorney General under
A closely similar issue was presented to this Court in Electric Bond & Share Co. v. Securities & Exchange Comm’n, 303 U. S. 419. That was a statutory suit brought
The Commission sued for, and the District Court granted, an injunction restraining companies of the Electric Bond and Share system from operating in violation of
“. . . By the cross bill, defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become real. We are invited to enter into a speculative inquiry for the purpose of condemning statutory provisions the effect of which in concrete situations, not yet developed,
cannot now be definitely perceived. We must decline that invitation.” Id., at 443.
Not until eight years later were some of these other related, important questions, at last properly presented, decided.26
The decision in Electric Bond & Share controls the present case. This Act, like the one involved there, has a section directing that if any of its provisions, or any of its applications, is held invalid, the remaining provisions and other possible applications shall not be affected. The authoritative legislative history clearly demonstrates that a major purpose of the enactment was to regulate Communist-action organizations by means of the public disclosure effected by registration, apart from the other regulatory provisions of the Act.27 Such is, of course, the very purpose of the severability clause. This being so, our consideration of any other provisions than those of
These considerations are equally appropriate in the case of those sections of the Act which proscribe specified conduct by members of an organization concerning which a final registration order is in effect, or which impose obligations upon them, or which subject them to described
But the Party argues that the threat, however indefinite, of future application of these provisions to penalize individuals who are or become its members, affiliates or contributors, will effectively deter persons from associating with it or from aiding and supporting it. Thus, the provisions exercise a present effect upon the Party sufficiently prejudicial to justify its challenging them in this proceeding. In support of this contention, the Party cites cases in which we have held that litigants had “standing” to attack a statute or regulation which operated to coerce other persons to withdraw from profitable relations or associations with the litigants. See, e. g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123; Pierce v. Society of Sisters, 268 U. S. 510; Buchanan v. Warley, 245 U. S. 60; Truax v. Raich, 239 U. S. 33; cf. N. A. A. C. P. v. Alabama, 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516. But these cases purported only to discuss what issues a litigant might raise, not when he might raise them. That a proper party is before the court is no answer to the objection that he is there prematurely. In none of the cases cited was the constitutional issue decided on a record which showed only potential deterrence of association with the litigant on the part of an unnamed and uncounted number of per-
The present proceeding differs from all of these. The record here does not show that any present members, affiliates, or contributors of the Party have withdrawn because of the threatened consequences to them of its
V.
The constitutional contentions raised by the Party with respect to the registration requirement of § 7 are (A) that that requirement, in the context of the Act, in effect “outlaws” the Party and is in the nature of a bill of attainder; (B) that compelling organizations to register and to list their members on a showing merely that they are
A. “Outlawry” and Attainder. Our determination that in the present proceeding all questions are premature which regard only the constitutionality of the various particular consequences of a registration order to a registered organization and its members, does not foreclose the Party from arguing—and it does argue—that in light of the cumulative effect of those consequences the registration provisions of § 7 are not what they seem, but represent a legislative attempt, by devious means, to “outlaw” the Party. The registration requirement, the Party contends, was designed not with the purpose of having Communist-action organizations register, but with a purpose to make it impossible to register, because of the onerous consequences of registration, and thus to establish a pretext for criminal prosecution of the organization and its members. The Act is said to be aimed particularly at the Communist Party as an identifiable entity, intending to punish it, and in this aspect to constitute a bill of attainder prohibited by
It is true, as the Party asserts, that bills had been introduced in Congress that would have applied to the Communist Party by name,30 and it is no doubt also true that the form which the Subversive Activities Control Act finally took was dictated in part by constitutional scruples against outlawing of the Party by “legislative fiat.”31 It is probable, too, that the legislators who voted for the Act in its final form expected that the Communist Party, if it continued to engage in the activities which had been reported to Congress as characterizing its past conduct, would be required to register under § 7.32 From this the Party would have us conclude that the Act is only an instrument serving to abolish the Communist Party by indirection. But such an analysis ignores our duty of respect for the exercise of the legislative power of Congress, and, more specifically, ignores the crucial constitutional significance of what Congress did when it rejected
The Act is not a bill of attainder. It attaches not to specified organizations but to described activities in which an organization may or may not engage. The singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons. See Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. The Subversive Activities Control Act is not of that kind. It requires the registration only of organizations which, after the date of the Act, are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding
The fact that activity engaged in prior to the enactment of the legislation may be regarded administratively and judicially as relevant to a determination that an organization is presently foreign-controlled and presently works to advance the objectives of the world Communist movement, does not alter the operative structure of the Act. The incidents which it reaches are nonetheless present incidents. The past is pertinent only as probative of these. In this proceeding the Board has found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtue of the activities in which it now engages, comes within the terms of the Act. If the Party should at any time choose to abandon these activities, after it is once registered pursuant to § 7, the Act provides adequate means of relief. As often as once a year it may apply to the Attorney General for cancellation of registration, and, in the event of his refusal to remove it from the register and to relieve it from the duty of filing annual statements, it may petition the Board for a redetermination of its amenability to the registration requirements of the Act, pursuant to a hearing which, again, is subject to judicial review. §§ 13 (b), (i), (j), 14 (a). Far from attaching to the past and ineradicable actions of an organization, the application of the registration section is made to turn upon continuingly contemporaneous fact; its obligations arise only because, and endure only so long as, an organization presently conducts operations of a described character.
B. The Freedoms of Expression and Association Protected by the First Amendment. The Communist Party would have us hold that the
No doubt, a governmental regulation which requires registration as a condition upon the exercise of speech may in some circumstances affront the constitutional guarantee of free expression.34 Thomas v. Collins, 323 U. S. 516. In that case, the Court held that a State could not constitutionally punish for contempt a public speaker who had addressed a labor-organization meeting in violation of a restraining order prohibiting him from soliciting memberships in a labor union without having first registered as a paid labor organizer and secured an organizer‘s card. The decision was a narrow one, striking down the registration requirement only as applied to the particular circumstances of the case, id., at 541-542—that is, to an individual who, as the Court several times insisted, had come into the State “for one purpose and one only—to make the speech in question.” Id., at 533; see
Similarly, we agree that compulsory disclosure of the names of an organization‘s members may in certain instances infringe constitutionally protected rights of association. N. A. A. C. P. v. Alabama, 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516; Shelton v. Tucker, 364 U. S. 479. But to say this much is only to recognize
In the N. A. A. C. P. and Bates cases, this Court examined the circumstances under which disclosure was demanded, and concluded that “whatever interest the State may have in obtaining names of ordinary members has not been shown to be sufficient to overcome [the] . . . constitutional objections to the production order.” N. A. A. C. P. v. Alabama, 357 U. S., at 465. In the N. A. A. C. P. case, the Attorney General of Alabama had brought an equity suit to enjoin the Association from conducting further activities within, and to oust it from, the State on the grounds of its non-compliance with Alabama‘s foreign-corporation registration statute. The Attorney General sought, and the state court ordered, production of lists of the Association‘s rank-and-file members as pertinent to the issues whether the N. A. A. C. P. was conducting intrastate business in violation of the statute, and whether the extent of that business justified its permanent ouster from the State. Noting that the Association had admitted its presence and conduct of activities in Alabama during almost forty years and that it had offered to comply in all respects with the qualification statute, we said that “we are unable to perceive that the disclosure of the names of [N. A. A. C. P.‘s] . . . rank-and-file members has a substantial bearing” upon any issue presented to the Alabama courts. Id., at 464. Bates v. Little Rock, supra, involved the conviction of
Shelton v. Tucker, supra, did not involve legislation which, as a means of regulating an appropriately defined class of organizations whose activities menaced the public welfare, required those organizations to reveal their members. It involved an Arkansas statute which, conversely, as an incident of the State‘s attempt to control the activities of a class of individuals—the teachers in its public schools and publicly supported institutions of higher learning—required the individuals to disclose the asso-
The present case differs from Thomas v. Collins and from N. A. A. C. P., Bates, and Shelton in the magnitude of the public interests which the registration and disclosure provisions are designed to protect and in the pertinence which registration and disclosure bear to the protection of those interests. Congress itself has expressed in § 2 of the Act both what those interests are and what, in its view, threatens them. On the basis of its detailed investigations Congress has found that there exists a world Communist movement, foreign-controlled, whose purpose it is by whatever means necessary to establish Communist totalitarian dictatorship in the countries throughout the world, and which has already succeeded in supplanting governments in other countries. Congress has found that in furthering these purposes, the foreign government controlling the world Communist movement establishes in various countries action organizations which, dominated from abroad, endeavor to bring about the overthrow of existing governments, by force if need be, and to establish
It is not for the courts to re-examine the validity of these legislative findings and reject them. See Harisiades v. Shaughnessy, 342 U. S. 580, 590. They are the product of extensive investigation by Committees of Congress over more than a decade and a half.37 Cf. Nebbia v. New York, 291 U. S. 502, 516, 530. We certainly cannot dis-
Of course, congressional power in this sphere, as in all spheres, is limited by the
In a number of situations in which secrecy or the concealment of associations has been regarded as a threat to public safety and to the effective, free functioning of our national institutions Congress has met the threat by requiring registration or disclosure.39 The
“Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent.
“Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. . . .” Id., at 625.
The
Certainly, as the Burroughs and Harriss cases abundantly recognize, secrecy of associations and organizations, even among groups concerned exclusively with political processes, may under some circumstances constitute a danger which legislatures do not lack constitutional power to curb. In New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, this Court held that the Due Process Clause of the
Congress, when it enacted the
These considerations lead us to sustain the registration provisions of
It is argued that if Congress may constitutionally enact legislation requiring the Communist Party to register, to list its members, to file financial statements, and to identify its printing presses, Congress may impose similar requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology. Nothing which we decide here remotely carries such an implication. The
C. Self-Incrimination of the Party‘s Officers.
Section
Manifestly, insofar as this contention is directed against the provisions of
We find that the self-incrimination challenge to
The Party contends, however, that under the
In arguing that the issue is not now premature, the Party cites Boyd v. United States, 116 U. S. 616, for the proposition that, where a statute compelling the production of potentially incriminating information allows the exercise of the
D. Legislative Predetermination of Adjudicative Fact.
It is next asserted that the Act offends the Due Process Clause of the
“The Congress hereby finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Govern-
ment of the United States. . . . [T]he policies and programs of the Communist Party are secretly prescribed for it by the foreign leaders of the world Communist movement. . . . [I]ts role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States. . . .”
The Board could not, therefore, the Party argues, find that the Communist Party was not a Communist-action organization without contradicting Congress.
First: We have held, supra, that the congressional findings that there exists a world Communist movement, that it is directed by the Communist dictatorship of a foreign country, and that it has certain designated objectives, inter alia, the establishment of a Communist totalitarian dictatorship throughout the world through the medium of a world-wide Communist organization,
The decisions cited by the Party, Tot v. United States, 319 U. S. 463; McFarland v. American Sugar Ref. Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Western & Atlantic R. Co. v. Henderson, 279 U. S. 639; and see Bailey v. Alabama, 219 U. S. 219, have no application here. These cases involved statutes which, purporting to attach legal consequences to one set of facts, created a rebuttable presumption of the existence of that set of facts which arose upon proof of other facts having, this Court found, no rational relation to the facts upon which the statutory consequences turned. The
Second: We do not find that the congressional assertions in
The other constitutional questions raised by the Party have been carefully considered, but do not call for detailed discussion. And we must decline, of course, to enter into discussion of the wisdom of this legislation. The Constitution does not prohibit the requirement that the Communist Party register with the Attorney General as a Communist-action organization pursuant to
The judgment of the Court of Appeals is
Affirmed.
MR. CHIEF JUSTICE WARREN, dissenting.
When this case was here in 1956, the Court refused to pass upon the constitutional issues raised by the parties, and instead remanded to the Board because of the possibility that the record was tainted by perjured testimony. At that time the Court said: “This non-constitutional issue must be met at the outset, because the case must be decided on a non-constitutional issue, if the record calls
I.
One of the Government‘s leading witnesses at the initial hearing before the Board was Benjamin Gitlow. Prior to his expulsion from the Communist Party in 1929, Gitlow had been a high official in the Party. His testimony before the Board covered over 1,400 pages in the record, and the Board relied heavily upon his testimony in finding that the Communist International controlled petitioner, subsidized it, and supervised it through foreign representatives in this country. In addition, the Board relied upon Gitlow‘s testimony to corroborate the testimony of government witness Joseph Kornfeder, whose demeanor led the Board “to examine his testimony with . . . caution.” In 1940, Gitlow turned over to the FBI a large quantity of official documents relating to the Party and its past history. He also prepared and gave to the FBI memoranda which explained and interpreted the documents. During his direct examination at the original hearing before the Board, Gitlow identified many of the original documents and explained their contents and significance. On cross-examination, the petitioner, obviously hoping to impeach Gitlow‘s damaging testimony, moved for the production of the explanatory memoranda which Gitlow had prepared in 1940. The petitioner‘s motion was denied by the Board. Although
Today, the Court refuses to reach this important evidentiary question, and it does so by adopting an argument that was unanimously rejected by the Court of Appeals. 102 U. S. App. D. C., at 402-403, 254 F. 2d, at 321-322. The Court holds that petitioner may not now challenge the Board‘s refusal to order the production of the Gitlow memoranda because it failed to raise the question in its 1955 petition for certiorari. With due respect, I must dissent from this holding, which, to the extent that it transforms Rule 23, par. 1 (c) of our Rules of Procedure3 into an immutable rule of abandonment, is both unorthodox and unwise. The Court‘s position will not bear analysis.
It is undoubtedly true that piecemeal appeals should be avoided and that claims not preserved throughout a litigation will not generally be entertained at some subsequent, and perhaps terminal, stage of the proceedings. However, this general rule is not an absolute dogma, and has on numerous occasions yielded to subordinating policy considerations. In fact, the United States Reports are replete with instances wherein the Court decided issues which were never even mentioned in the petition for certiorari. See, e. g., Boynton v. Virginia, 364 U. S. 454; Mackey v. Mendoza-Martinez, 362
Since the petitioner should not be deemed to have waived the Gitlow question if a resolution of that question will make it unnecessary for the Court to reach the constitutional issues presented by this case, the next question which must be considered is whether a determination of the Gitlow question, on the merits, would require a reversal of the judgment below. I think it would. As indicated, the Court of Appeals, relying on the Consolidated Edison case, based its decision on the ground that the petitioner waived its objection by not having made a timely motion for leave to adduce additional evidence pursuant to
The wisdom of the Court‘s holding in Consolidated Edison, insofar as the waiver question is concerned, is certainly subject to criticism. Not only did the decision permit a clearly arbitrary ruling of an examiner to stand uncorrected, but it also established a cumbersome procedure whereby resort to the Court of Appeals was required every time the Board excluded evidence which the offering party thought should have been admitted. It is not surprising, therefore, that the Courts of Appeals have consistently sought ways to avoid the impact of this Court‘s decision in Consolidated Edison. Thus, one Court of Appeals adopted the fiction of treating the petition for review as including, sub silentio, an application by the party for leave to adduce additional evidence. Mississippi Valley Structural Steel Co. v. Labor Board, 145 F. 2d 664, 667. On another occasion, the same court limited the Consolidated Edison holding “to evidence going to the merits of the charge and not to the question of the regularity or fairness of the hearing as conducted by the Board.” Cupples Company Manufacturers v. Labor Board, 103 F. 2d 953, 956. In fact, even the Court of Appeals whose judgment we are now reviewing applied the Consolidated
Since the Court of Appeals erred in resting its decision on Consolidated Edison, it next becomes necessary to consider the Government‘s contention that, even if the Board should have ordered the production of the memoranda, its failure to do so was merely harmless error. In my judgment, the error committed by the Board was anything but harmless. There can be little doubt that the Board should have ordered the production of the Gitlow memoranda. Jencks v. United States, 353 U. S. 657,
II.
Another of the Government‘s major witnesses at the hearing before the Board was Louis Budenz. As the Court‘s opinion indicates, Budenz’ testimony filled some 700 pages in the record and was used by the Board to support many of its findings, including the crucial finding that petitioner received financial aid from the Soviet Union after petitioner‘s disaffiliation from the Communist International. During his direct examination, Budenz made repeated references to the so-called Starobin letter and to the Childs-Weiner conversation. Budenz admitted that he had given reports to the FBI concerning these matters, but, on the Government‘s objection, the Board erroneously denied the petitioner‘s motion for the production of all such prior statements. After this Court remanded the case in 1956, the petitioner renewed its motion. On the Government‘s objection, the motion was again denied by the Board. The Court of Appeals affirmed the Board‘s action on the ground that the FBI seemingly did not have in its possession any statements made by Budenz concerning the Starobin and Weiner
This Court now affirms the lower court‘s holding, saying that great weight must be given to those whose primary responsibility it is to consider the credibility of witnesses. However, the problem is not as simple as the Court would have us believe. A distinction must be drawn between those situations in which the unavailability of a witness is due to the fault of neither party, and those situations in which the witness’ unavailability is directly attributable to the conduct of one of the parties. The rule to be applied in each of these cases has been succinctly stated by Professor Wigmore:
“Where the witness’ death or lasting illness would not have intervened to prevent cross-examination
but for the voluntary act of the witness himself or the party offering him—as, by a postponement or other interruption brought about immediately after the direct examination, it seems clear that the direct testimony must be struck out. Upon the same principle, the same result should follow where the illness is but temporary and the offering party might have recalled the witness for cross-examination before the end of the trial. “But, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss.” Wigmore, Evidence (3d ed.), § 1390.
Thus, as Professor Wigmore indicates, if neither the petitioner nor the respondent had been responsible for Budenz’ unavailability, then the Court would be correct in saying that the Board must be given wide latitude in deciding whether to strike Budenz’ testimony, and that the Board will be reversed only if it has abused its discretion. However, if Budenz’ unavailability was caused by the Government‘s conduct, then, as Professor Wigmore states, “it seems clear that the direct testimony must be struck out.”
The record of this case convincingly demonstrates that the Government was directly responsible for creating the situation in which the petitioner found itself in 1958, when it finally obtained Budenz’ prior statements but could make no use of them. Not only did the Govern-
Nor can the lower court‘s error be dismissed as harmless. Reference has already been made to the importance of Budenz’ testimony to the Government‘s case. Moreover, as the Court‘s opinion demonstrates, and as the Court of Appeals admitted, there were marked discrepancies between Budenz’ prior statements and his testimony before the Board. Had the petitioner been given Budenz’ prior statements, it might have pursued a course of cross-examination which would have thoroughly discredited Budenz and destroyed the Board‘s apparent faith in his reliability.9 However, the petitioner was never able to
III.
I think the Court of Appeals also erred in its interpretation and application of
The petitioner contends that, in the light of our decisions in Dennis v. United States, 341 U. S. 494; and Yates v. United States, 354 U. S. 298, the objectives component of
In my judgment, the petitioner‘s argument is eminently correct. In Yates v. United States, supra, the Court made it clear that a distinction had to be drawn “between advocacy of abstract doctrine and advocacy directed at promoting unlawful action.” Id., at 318. It then went on to hold that, while the latter type of advocacy could be prohibited consistently with the dictates of the First Amendment, an attempt to prohibit the former type of advocacy would raise grave constitutional problems. The Court therefore concluded that Congress, well aware of this distinction and of the constitutional problems involved, intended the Smith Act to apply only to advocacy which was aimed at inciting to action. See also Dennis v. United States, supra. There is no reason to assume that when Congress adopted the Subversive Activities Control Act it was any less aware of the constitutional pitfalls involved in attempting to proscribe advocacy as an abstract doctrine than it was when it passed the Smith Act, for, as the Court said in Yates, in construing a con-
The Court brushes aside the petitioner‘s argument by saying that, because this statute is “regulatory” and not “prohibitory,” the Yates and Dennis cases are inapplicable. However, it blinks reality to say that this statute is not prohibitory. There can be little doubt that the registration provisions of the statute and the harsh sanctions which are automatically imposed after an order to register has been issued make this Act as prohibitory as any criminal statute. Therefore, for the reasons which I have stated, I think the Board‘s order ought to be vacated and the case remanded so that the Board can
IV.
Finally, I think the Court of Appeals erred in sustaining an order of the Board which was based, in part, on a finding which the court admitted lacked evidentiary support.
The Court now adopts the lower court‘s reasoning, and holds that since the unsupported finding was merely “subsidiary,” it is not necessary to remand the case to ascertain whether the Board would reach the same ultimate conclusion in the absence of the unsupported finding. I submit that the Court‘s action does not square either with the facts, as they appear in the record, or with the prior decisions of this Court. It is unrealistic to characterize the Board‘s secrecy finding as insignificant and subsidiary. It directly relates to one of the eight enumerated criteria listed in
V.
In my view, the Court today strays from the well-trod path of our prior decisions by reaching out to decide constitutional issues prematurely. If the Court would remand on any one of the four errors which I have discussed, and I think each warrants a remand, the resolution of the difficult constitutional issues presented by this case would certainly be postponed, and perhaps
I think it is unwise for the Court to brush aside the non-constitutional errors disclosed by this record. However, since the Court insists upon doing so, I feel constrained
MR. JUSTICE BLACK, dissenting.
I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish. The first banning of an association because it advocates hated ideas—whether that association be called a political party or not—marks a fateful moment in the history of a free country. That moment seems to have arrived for this country.
The
The Court‘s opinion is devoted chiefly to the task of explaining why it will not decide any of the substantial issues raised by this attack upon the constitutionality of the Act as it is actually written and will actually operate and why it must decide the case just as though none of these other burdens existed and we were dealing with an Act that required nothing more than the registration of an organization. I cannot agree to decide the case on any such hypothetical basis. If registration were the only issue in the case, I would agree at once that Congress has power to require every “person” acting as an agent of a foreign principal to file registration statements comprehensively showing his agency activities as is required, for example, by the
“Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes
The Act before us now, however, unlike the
The difference between the Subversive Activities Control Act and the
This difference standing alone would be sufficient to establish the essential dissimilarity of the Subversive Activities Control Act from genuine registration statutes such as the Foreign Agents Registration Act. For the need of Government to provide means by which the people can obtain useful information—the basis of every genuine registration statute—can certainly be accomplished without resort to official legislative pronouncements as to the treasonable nature of those compelled to register. But this difference does not stand alone in the case of the Subversive Activities Control Act—indeed, there are so many other differences of so much greater magnitude that the recitals of the Act branding those who register under it pale almost into insignificance.
The plan of the Act is to make it impossible for an organization to continue to function once a registration order is issued against it. To this end, the Act first provides crushing penalties to insure complete compliance with the disclosure requirements of registration. Thus, if the Party or its members fail to register within the time required by the Act, or if they fail to make annual reports as required, or to keep records as required, each individual guilty of such failure can be punished
Having thus made it mandatory that Communist organizations and individual Communists make a full disclosure of their identities and activities, the Act then proceeds to heap burden after burden upon those so exposed. Certain tax deductions allowed to others are denied to a registered organization.15 Mail matter must be stamped before the organization sends it out to show that it was disseminated by a “Communist action” organization,16 with all the treasonable connotations given that term by the recitals of “fact” in the Act. Members of a registered organization cannot hold certain jobs with the Government, or any jobs with private businesses engaged in doing certain work for the Government.17 Members cannot use or attempt to use a passport and cannot even make application for a passport without being subject to a penalty of five years in the penitentiary.18 The Act thus makes it extremely difficult for a member of the Communist Party to live in this country and, at the same time, makes it a crime for him to try to get a passport to get out.
In addition to these burdens imposed directly by the Act itself, the registration requirement must also be considered in the context of the other laws now existing
In the context of this case, I can find no justification for the Court‘s refusal to pass upon the serious constitutional questions raised. The Court of Appeals met its responsibility by deciding the questions. The Government has not asked that the Court refrain from giving a full decision on these important matters. Assuming that the Act is wholly valid aside from registration and that Congress does have power to outlaw groups advocating dangerous ideas, it seems to me unfair to Congress for this Court to refuse to decide whether its Act can be fully enforced. And assuming that the Act is not wholly valid
This whole Act, with its pains and penalties, embarks this country, for the first time, on the dangerous adventure of outlawing groups that preach doctrines nearly all Americans detest. When the practice of outlawing parties and various public groups begins, no one can say where it will end. In most countries such a practice once begun ends with a one-party government. There is something of tragic irony in the fact that this Act, expressly designed to protect this Nation from becoming a “totalitarian dictatorship” with “a single political party,” has adopted to achieve its laudable purpose the policy of outlawing a party—a policy indispensable to totalitarian dictatorships. I think we should meet and decide this whole question now in the administration of a sound judicial policy that carries out our responsibilities both to Congress and to the American people.
I think also that this outlawry of the Communist Party and imprisonment of its members violate the First Amendment. The question under that Amendment is whether Congress has power to outlaw an association, group or party either on the ground that it advocates a policy of violent overthrow of the existing Government at some time in the distant future or on the ground that it is ideologically subservient to some foreign country. In my judgment, neither of these factors justifies an invasion of rights protected by the First Amendment. Talk about the desirability of revolution has a long and honorable history, not only in other parts of the world, but also in our own country. This kind of talk, like any other, can be used at the wrong time and for the wrong purpose. But, under our system of Government, the remedy for this danger must be the same remedy that is applied to the danger that comes from any other erroneous talk—education and contrary argument.26 If that remedy is not sufficient, the only meaning of free speech
This conclusion is not affected by the fact that those advocating a policy of revolution are in sympathy with a foreign government. If there is one thing certain about the First Amendment it is that this Amendment was designed to guarantee the freest interchange of ideas about all public matters and that, of course, means the interchange of all ideas, however such ideas may be viewed in other countries and whatever change in the existing structure of government it may be hoped that these ideas will bring about. Now, when this country is trying to spread the high ideals of democracy all over the world—ideals that are revolutionary in many countries—seems to be a particularly inappropriate time to stifle First Amendment freedoms in this country. The same arguments that are used to justify the outlawry of Communist ideas here could be used to justify an outlawry of the ideas of democracy in other countries.
The freedom to advocate ideas about public matters through associations of the nature of political parties and societies was contemplated and protected by the First Amendment. The existence of such groups is now, and for centuries has been, a necessary part of any effective promulgation of beliefs about governmental policies. And the destruction of such groups is now and always has been one of the first steps totalitarian governments take. Within recent months we have learned of such practices in other countries. Only a few weeks ago an executive edict outlawing all parties, groups and associations all the way down through Rotary Clubs was issued in a country where
A typical example of the type of legislation under which this sort of persecution was carried on is provided by a statute enacted in 1593 to destroy dissenting religious sects and force all the people of England to become regular attendants at the established church.28 The basic premise upon which its commands rested was not at all unlike that upon which the Act here proceeds:
“For the better discovering and avoiding of such traiterous and most dangerous Conspiracies and Attempts, as are daily devised and practised against our most gracious Sovereign Lady the Queen‘s Majesty and the happy Estate of this common Weal, by sundry wicked and seditious Persons, who terming themselves Catholicks, and being indeed Spies and Intelligencers, not only for her Majesty‘s foreign Enemies, but also for rebellious and traiterous Subjects born within her Highness Realms and Dominions, and hiding their most detestable and devilish Purposes under a false Pretext of Religion and Conscience, do secretly wander and shift from Place to Place within this Realm, to corrupt and seduce her Majesty‘s Subjects, and to stir them to Sedition and Rebellion. . . .”
These attainted Catholics were not permitted to go “above five Miles” from their homes. For violation of this command they could be sentenced to prison and have
That statute also has peculiar relevance to the consideration of the Subversive Activities Control Act because it too used disclosure as a lever to secure effective enforcement of its provisions. Thus, one section of the statute provided:
“And be it further enacted and ordained by the Authority aforesaid, That if any Person which shall be suspected to be a Jesuit, Seminary or Massing Priest, being examined by any Person having lawful Authority in that Behalf to examine such Person which shall be so suspected, shall refuse to answer directly and truly whether he be a Jesuit, or a Seminary or Massing Priest, as is aforesaid, every such Person so refusing to answer shall, for his Disobedience and Contempt in that Behalf, be committed to Prison by such as shall examine him as is aforesaid, and thereupon shall remain and continue in Prison without Bail or Mainprise, until he shall make direct and true Answer to the said Questions whereupon he shall be so examined.” (Emphasis supplied.)
One cannot help but wonder whether this Court, were it called upon to consider the constitutionality of a provision of that kind in this country, would pass it off as involving nothing more than potential impairments of religious freedoms and a right to travel which the attainted persons might never want to exercise.
There were many other statutes of this kind passed in England before our Revolutionary War.29 By no means
Even after the American Revolution, England continued to pass statutes outlawing groups and punishing their members. One that is of particular interest here because of the many similarities between it and the Act involved in this case was passed in 1799 under the title “An Act for the more effectual Suppression of Societies established for Seditious and Treasonable Purposes; and for better preventing Treasonable and Seditious Practices.”32 The promise upon which this Act was passed
The parliamentary debates underlying the enactment of this 1799 English statute indicate plainly the close parallel between it and the Act here under consideration. The chief fear of the English rulers that brought on the 1799 Act was that the people of England would be seduced away from their loyalty to their government if societies were left free to discuss public matters and if the common people were left free to read and hear arguments. William Pitt, the Younger, in offering the bill which provided the basis for the Act, expressed his fear that debating societies and other such manifestations of liberty of press and speech might call “the attention of the lower orders of the people to objects of discussion of the most mischievous tendency, objects which are not calculated for their understandings, and which are of all others the most liable to be attended with dreadful effects.”34 He thought these “dreadful effects” could be averted, in large part, by making individual authors sign everything they wrote. But he then went on to urge that “in order to make the measure effectual, and prevent the press from becoming an engine of corruption and innovation in the hands of factions who are ready to circulate cheap publications, adapted to inflame and pervert the public mind, it will be necessary to keep a general register, not only of the presses used by printers, but of those in the possession of private persons.”35 All of this, Mr. Pitt explained, was necessary in order to render “more effectual” an Act passed at the previous session of Parliament entitled “An Act to empower his majesty to secure and detain such persons as his majesty shall suspect are conspiring against his person and government.”36
At the very time England was going through its era of terror about the “Jacobins,” a heated political struggle involving many of the same issues was going on in this country between the two chief political parties. One of those parties, the Federalists, wanted to outlaw the party of Jefferson on the ground that they too were “Jacobins” and therefore a threat to our security. The Jeffersonians quite naturally opposed such outlawry and in fact opposed any measure which would restrict the freedoms of speech, press, petition and assembly. The difference between the two parties was expressed by Jefferson in this way: “Both of our political parties, at least the honest part of them, agree conscientiously in the same object, the public good . . . One fears most the
The enforcement of these statutes, particularly the Sedition Act, constitutes one of the greatest blots on our country‘s record of freedom.40 Publishers were sent to jail for writing their own views and for publishing the views of others. The slightest criticism of Government or policies of government officials was enough to cause biased federal prosecutors to put the machinery of Government to work to crush and imprison the critic. Rumors which filled the air pointed the finger of suspicion at good men and bad men alike, sometimes causing the social ostracism of people who loved their free country with a deathless devotion.41 Members of the
Lyon was but one of many who had to go to jail, be fined, or otherwise be made to suffer for the expression of his public views. Carpenters, preachers, lawyers, and many others furnished grist for the prosecutor‘s biased political activities in the “administration of justice.” Unfortunately, our federal courts did not emerge from this fever of hysteria with the kind of reputations that shed lustre on the business of judging. Although the Founders had provided for federal judges to be appointed for life, thus intending to give them the independence necessary for the higher responsibility they had, some federal judges, even including members of the highest courts, presided
All the governmental activities set out above designed to suppress the freedom of American citizens to think their own views and speak their own thoughts and read their own selections, and even more, occurred under the 1798 Sedition Act. And all these things happened despite the fact that the promoters of that legislation were unable to make it as strong as their philosophical and political brethren in England had made their Act for the complete suppression of all kinds of societies. But even this comparatively less repressive law and its enforcement were too much of an infringement upon personal liberty to stand the test of public opinion among the plain, sturdy pioneers of America. In the very next election following its enactment, Jefferson was elected President on a platform which contained, as its principal plank, a promise to abandon the Sedition Act and the policy of repression behind it.44 Members of Congress and the Senate were elected to help him carry out his pledge. The pledge was carried out, and in order to try to make amends to those who had suffered under this obnoxious
I regret, exceedingly regret, that I feel impelled to recount this history of the Federalist Sedition Act because, in all truth, it must be pointed out that this law—which has since been almost universally condemned as unconstitutional46—did not go as far in suppressing
These charges echoed fears that were expressed time and time again during the congressional debate on the Alien and Sedition Acts. The very same fears are again being voiced today as a justification for curtailing the liberties of the people of America. Thus,
against the Government. . . . I say, sir, this paper [the Aurora, a paper which supported the Jeffersonian party] must necessarily, in the nature of things, be supported by a powerful party; I do not say of whom that party is composed. The anonymous pieces and paragraphs it contains, evince the talents and industry employed to give it currency; and it is perfectly well understood, by all parties and persons, to contain the opinions of certain great men, and certain gentlemen in this House. This inflammatory address to the Irishmen, is, therefore, understood by them to come clothed with high authority. This is the work of a party; this paper is devoted to party; it is assiduously disseminated through the country by a party; to that party is all the credit due; to that party it owes its existence; if they loved the peace of our Zion, if they sought the repose of our country, it would cease to emit its filth; it has flourished by their smiles; it would perish at their frowns.” 8 Annals of Cong. 2093-2100. It is, of course, true that some Congressmen who favored the Sedition Act did so on broader grounds. “Harrison Gray Otis would have employed the Sedition Act against all associations, including the Masons: “The spirit of association,” he warned, “is a dangerous thing in a free government, and ought carefully to be watched.“” Miller, Crisis in Freedom, 187.
This excuse for repression is, of course, not a distinctively American creation. It is the same excuse that was used for the 1799 English Act described above. Thus, Charles Abbot, a member of Parliament, urged as one of the justifications for outlawing the societies named in that Act: “The malignancy of their character is distinguishable by the restless spirit which it infuses into the lowest orders of the people, encouraging them to take up arms, and teaching them that they have great and powerful partisans and leaders who are secretly prepared to seize the favorable moment for showing themselves openly at their head, when they can hope to do so with impunity.”49
The truth is that this statutory outlawry of the Communist Party is not at all novel when considered in the perspective of history. Quite the contrary, it represents nothing more than the adoption by this country, in part at least, of one of the two conflicting views that have emerged from a long-standing and widespread dispute among political philosophers as to what kind of Government will best serve the welfare of the people. That view is that Governments should have almost unlimited powers. The other view is that governmental power should be very strictly limited. Both the
It is my belief that our Constitution with its Bill of Rights was expressly intended to make our Government one of strictly limited powers. The Founders were intimately familiar with the restrictions upon liberty which inevitably flow from a Government of unlimited powers. By and large, they had found this experience a painful one. Many of them were descended from families that had left England and had come to this country in order to escape laws that could send them to jail or penalize them in various ways for criticizing laws and policies which they thought bore too heavily and unfairly upon them. Others had personally felt the brunt of such repressive measures. Only after they won the Revolutionary War did these people have an opportunity to set up a Government to their liking. To that end they finally settled upon the Constitution, which very clearly adopted the policy of limiting the powers of the Federal Government. Even then the people of this country were not completely satisfied. They demanded more precise and unequivocal limitations upon the powers of Government and obtained the Bill of Rights, the central provisions of which were the First Amendment guarantees of complete religious and political freedom.50
“We cannot too highly prize that sacred liberty [of the press] when we consider that it has been instrumental in bringing our constitution to that envied perfection which it possesses. Yet it must also be admitted that when abused, the most fatal consequences have ever resulted from it. It has been the great principle of the constitution that the liberty of the press should flourish, but it is also clear from the nature of the principle itself, and for the security of the press, that the author or publisher of every work should be amenable to the laws of his country.”51
The “balancing test” of First Amendment freedoms is said to justify laws aimed at the advocacy of overthrow of the Government “as speedily as circumstances would permit.”53 Thus, the “test” being used here is identical to the arguments used to justify the Alien and Sedition Acts of 1798 in this country and the 1799 Sedition Act in England. The unprecedented incorporation into our constitutional law of this time-worn justification for tyranny has been used to break down even the minimal protections54 of
I realize that these laws are aimed only at the Communist Party. No one need console himself, however, that the policy of using governmental force to crush dissident groups upon which they are based can or will be stopped at that point. The weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears. Only eleven years ago, this Court upheld a governmental penalty directed at Communists on the ground that “only a relative handful” would be affected by the penalty involved in that case.56 Today, it upholds statutes which I think totally outlaw that Party, claiming nonetheless that “[n]othing which we decide here remotely carries . . . [the] implication . . . [that] Congress may impose similar requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology.” I am very much afraid that we will see the day when the very implication which the Court now denies is found.
press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.”
I believe with the Framers of the First Amendment that the internal security of a nation like ours does not and cannot be made to depend upon the use of force by Government to make all the beliefs and opinions of the people fit into a common mold on any single subject. Such enforced conformity of thought would tend only to deprive our people of the bold spirit of adventure and progress which has brought this Nation to its present greatness. The creation of public opinion by groups, organizations, societies, clubs, and parties has been and is a necessary part of our democratic society. Such groups, like the Sons of Liberty and the American Corresponding Societies, played a large part in creating sentiment in this country that led the people of the Colonies to want a nation of
In my judgment, this country‘s internal security can better be served by depending upon the affection of the people than by attempting to instill them with fear and dread of the power of Government. The Communist Party has never been more than a small group in this country. And its numbers had been dwindling even before the Government began its campaign to destroy the Party by force of law. This was because a vast majority of the American people were against the Party‘s policies and overwhelmingly rejected its candidates year after year. That is the true American way of securing this Nation against dangerous ideas. Of course that is not the way to protect the Nation against actions of violence and treason. The Founders drew a distinction in our Constitution which we would be wise to follow. They gave the Government the fullest power to prosecute overt actions in violation of valid laws but withheld any power to punish people for nothing more than advocacy of their views.
I am compelled to say in closing that I fear that all the arguments and urgings the Communists and their sympathizers can use in trying to convert Americans to an ideology wholly foreign to our habits and our instincts are far less dangerous to the security of this Nation than laws which embark us upon a policy of repression by the outlawry of minority parties because they advocate radical changes in the structure of Government. This widespread program for punishing ideas on the ground that
I would reverse this case and leave the Communists free to advocate their beliefs in proletarian dictatorship publicly and openly among the people of this country with full confidence that the people will remain loyal to any democratic Government truly dedicated to freedom and justice—the kind of Government which some of us still think of as being “the last best hope of earth.”
MR. JUSTICE DOUGLAS, dissenting.
I.
The Subversive Activities Control Board found, and the Court of Appeals sustained the finding, that petitioner, the Communist Party of the United States, is “a disciplined organization” operating in this Nation “under Soviet Union control” to install “a Soviet style dictatorship in the United States.” Those findings are based, I think, on facts; and I would not disturb them.
The other objections made are not of the character of those which led us to reverse and remand for additional hearings five years ago. There we had a record tainted by perjury. Communist Party v. Control Board, 351 U. S. 115, 124-125 (1956). No one—no matter how venal—could suffer penalties under our regime of law where perjury tainted the record. The present errors that are urged are not of that character.
Had they appeared in a normal administrative hearing and been timely claimed, they might give us pause. If we had before us the question whether a particular organization was, to use the statutory words, a “Communist-front organization” (
May then the Communist Party, under control of a foreign power, be required to register?
The vices of registration may be not unlike those of licensing. Despite Times Film Corp. v. Chicago, 365 U. S. 43 (1961), I think licensing is an impermissible form of regulation when it vests discretion in the authorities to grant or withhold the exercise of First Amendment rights or to permit them to be exercised only on condition. Lovell v. Griffin, 303 U. S. 444, 451-452 (1938). Licensing, like a tax payable on the exercise of a First Amendment right (Murdock v. Pennsylvania, 319 U. S. 105 (1943)), is therefore
“If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.”
Freedom of association is included in the bundle of First Amendment rights. N. A. A. C. P. v. Alabama, 357 U. S. 449, 460 (1958). So if we had only the question whether those who band together to espouse a political, educational, literary, civic, or ideological cause could be made to register, I would protest. The late Zechariah Chafee spoke of the danger in limiting our freedoms under political pressures. “Universities,” he wrote, “should not be transformed, as in Nazi Germany, into loud-speakers for the men who wield political power.” The Blessings of Liberty (1956) 241. There have been attempts here to interfere by law in a myriad of ways with the shaping of
We have, however, as I have said, findings that the Communist Party of the United States is “a disciplined organization” operating in this Nation “under Soviet Union control” with the aim of installing “a Soviet style dictatorship” here. These findings establish that more than debate, discourse, argumentation, propaganda, and other aspects of free speech and association are involved. An additional element enters, viz., espionage, business activities, or the formation of cells for subversion,
Picketing is free speech plus (Bakery Drivers Local v. Wohl, 315 U. S. 769, 776-777 (1942) (concurring opinion); Giboney v. Empire Storage Co., 336 U. S. 490, 497-503 (1949)) and hence can be restricted in all instances and banned in some. Registration of those who disseminate propaganda of foreign origin (see Viereck v. United States, 318 U. S. 236, 251 (1943) (dissenting opinion)) has been thought to fall in the same category as barring speech in places that will create traffic conditions (Schneider v. State, 308 U. S. 147, 160 (1939); Cox v. New Hampshire, 312 U. S. 569 (1941)) or provoke breaches of the peace. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). Though the activities themselves are under the First Amendment, the manner of their exercise or their collateral aspects fall without it.
Like reasons underlie our decisions which sustain laws that require various groups to register before engaging in specified activities. Thus lobbyists who receive fees for attempting to influence the passage or defeat of legislation in Congress may be required to register. United
If lobbyists can be required to register, if political parties can be required to make disclosure of the sources of their funds, if the owners of newspapers and periodicals must disclose their affiliates, so may a group operating under the control of a foreign power.
The Bill of Rights was designed to give fullest play to the exchange and dissemination of ideas that touch the politics, culture, and other aspects of our life. When an organization is used by a foreign power to make advances here, questions of security are raised beyond the ken of disputation and debate between the people resident here. Espionage, business activities, formation of cells for subversion, as well as the exercise of First Amendment rights, are then used to pry open our society
These are the reasons why, in my view, the bare requirement that the Communist Party register and disclose the names of its officers and directors is in line with the most exacting adjudications touching First Amendment activities.
II.
While the Act is pregnant with constitutional questions, I deal now with only one, viz., whether
The registration statement prepared by the Attorney General pursuant to
Those provisions are not conditional. The Government with all the authority it possesses has ordered the Party to register.
The duty to disclose the names of the officers, directors, and members is explicit. The duty is to make the dis-
If the requirement of Form ISA-1 that the statement be signed “by the partners, officers, and directors” were deleted and the statement was allowed to be filed by “any agent,” the act of signing that implicates the partner, officer, or director would be eliminated. If the Court, sensitive to the high role performed by the Fifth Amendment, also deleted the compulsory disclosure of the others whose association with the Party is required to be disclosed without immunity, the problems presented by those disclosures would disappear. But the Court does none of these things. It requires officers and directors to sign; it requires that the names of officers, directors, and members within the 12-month period be disclosed. Thus the question of self-incrimination of each of those individuals is squarely presented.
III.
First as to the officers, directors, and others who must sign the registration statement. These individuals, who could be prosecuted as “active” Communist agents under Yates v. United States, 354 U. S. 298, and Scales v. United States, post, p. 203, cannot, in my view, be compelled to sign a registration statement. A compulsory admission of that ingredient of a crime would plainly violate the Fifth Amendment.
If a person who was on the witness stand in a courtroom or appearing before a Congressional Committee were asked whether he was an officer or director of the Communist Party, our decisions in Blau v. United States, 340 U. S. 159, 161 (1950), and Quinn v. United States, 349 U. S. 155 (1955),
The clause of the Fifth Amendment with which we are here concerned provides that “No person . . . shall be compelled in any criminal case to be a witness against himself.” The clause has been hospitably construed. The Court said in Counselman v. Hitchcock, 142 U. S. 547, 562 (1892):
“It is impossible that the meaning of the constitutional provision can only be, that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.”
As recently stated by Judge Samuel H. Hofstadter:
“The privilege is applicable to civil cases, grand jury proceedings, legislative inquiries, and virtually every other form of official proceeding. It applies whether the witness is a party to the civil or criminal case or merely a witness. And it applies whether the testimony is directly in issue or is collateral. The witness himself is the judge in each case; he may not be compelled to give testimony which he himself in good faith believes might, in any manner whatever, pave the way to possible prosecution. To claim the privilege requires no special combination of words; the clause is liberally construed to protect the right it was intended to secure.” The Fifth Amendment and the Immunity Act of 1954 (Fund for the Republic, 1955), p. 10.
United States v. White, 322 U. S. 694 (1944), held that the privilege does not excuse an officer of an organization from producing its records on the grounds that the contents of the records will or may incriminate him. As to the officer or director, it is plain that he incriminates himself not merely by producing records but by signing and filing the registration statement. The preparation of the registration statement and its execution are in the same category as the giving of testimony in the Blau and Quinn cases, if the Fifth Amendment is to have continuing vitality. Part of what is today required is the furnishing of statements and admissions from the pens of men and women whose very signature may start them on the way to prison. We made clear in Curcio v. United States, 354 U. S. 118 (1957), that the ruling in the White case was restricted to the production of books and records. We there upheld the custodian‘s privilege against testifying as to the “whereabouts of books and records” where that testimony might incriminate him. We said “. . . he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.” Id., 124.
It would seem to follow a fortiori that a custodian who need not testify concerning the whereabouts of records, if that testimony would tend to incriminate him, need not put into writing the admission that he is an officer or
Electric Bond & Share Co. v. Securities & Exchange Comm‘n, supra, is irrelevant to our present problem under the Fifth Amendment. No claim was made in that case that the preparation and filing of a registration statement might implicate an officer or director and that the Fifth Amendment therefore protected him against signing unless immunity was granted. The problem in the present case is quite different. It raises the following kind of question: Can Congress, which has made embezzlement of national bank funds a criminal offense, require embezzlers to register without granting them the full immunity (cf. Ullmann v. United States, 350 U. S. 422 (1956)) to which they are entitled? That is the closest analogy to the present case.
The compiling, the signing, and the filing of the registration statement required of officers, directors, and others by the registration form is a form of elicited testimony, not the surrender of pre-existing records. Where, as here, such disclosure will reveal knowledge of and relations with the Communist Party, I do not see how it can be demanded, unless immunity is granted.
The Bill of Rights does not go so far as to forbid all interrogation under threat of punishment. It does not prevent the breaking of myriad bonds of secrecy at the command of the Government. It protects only the individual who has himself become the object of the Government‘s punitive powers. From him it removes the humiliating presence of the questioner. The power of the Government is limited, so that it cannot punish either the silence or the passive hostility of one who claims the
The privilege is often criticized as a shield for wrongdoing. But not every hostile silence which greets official interrogation has its beginning in wrongdoing. In a Nation such as ours the Government must often meet with hostility; we are not constrained to admire its activities; we are free to detest them. That freedom could not long remain if the Government were free to require us to recount all our doings. The Government may still threaten silence with prison, but its power to do so stops short when information sought is incriminating. Even so ardent an advocate of the totalitarian state as Thomas Hobbes respected this core of privacy:
“A covenant not to defend myself from force, by force, is always void. For (as I have shown before) no man can transfer or lay down his right to save himself from death, wounds, and imprisonment, the avoiding whereof is the only end of laying down any right . . . . A covenant to accuse oneself, without assurance of pardon, is likewise invalid. For in the condition of nature, where every man is judge, there is no place for accusation: and in the civil state the accusation is followed with punishment, which, being force, a man is not obliged not to resist.” Leviathan, 23 Great Books 90.
The cases dealing with the duty to keep records3 (see Shapiro v. United States, supra) can be put to one side. Under the
Signing as an officer or director of the Communist Party—an ingredient of an offense that results in punishment—must be done under the mandate of law. That is compulsory incrimination of those individuals and, in my view, a plain violation of the
IV.
The compulsory disclosure of those who have been officers, directors, or members of the Party during the last 12 months is equally objectionable under the
If Congress can through use of the registration device compel disclosure of people‘s activities that violate federal laws, the
As I have said, each person required to be listed in the registration statement, were he to be brought before his interrogators, could not be compelled to admit what the statute here requires petitioner to set forth at length. The only difference that exists between compelling each member and officer and between compelling petitioner is the thin “veil” of petitioner‘s fictitious juridical personality.
Hale v. Henkel, 201 U. S. 43, held that a corporation could not claim a privilege against self-incrimination. That case and others—such as Wilson v. United States,
The present requirement for the disclosure of membership lists is not a regulatory provision, but a device for trapping those who are involved in an activity which, under federal statutes, is interwoven with criminality. The primary effect of the required registration is not disclosure to the public but criminal prosecution. I do not see how the Government that has branded an organization as criminal through its judiciary,6 its legislature,7 and its executive,8 can demand that it submit the names of all its members—unless it grants immunity for the disclosure.
Prior to today,9 the nearest the Court ever came to allowing the registration device to be used as a mecha-
V.
It is said that the Party has no standing to assert the rights of its officers, directors or members.
The privilege against self-incrimination is a personal one. It must be claimed; it may be waived. In ordinary circumstances, there is no
“Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs.”
“If petitioner‘s rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertable by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because it and its members are in every practical sense identical.” Id., 459.
We dealt there with a Negro group asserting the
Nor did I think we restricted the assertion by a group of the rights of its members to those asserting
“Designation works an immediate substantial harm to the reputations of petitioners. The threat which it carries for those members who are, or propose to become, federal employees makes it not a finicky or tenuous claim to object to the interference with their opportunities to retain or secure such employees as members.” Id., 159.
That was my own view then, id., 174-175, and now.
This analysis has support in a long line of cases where the Court has allowed A to assert B‘s constitutional right in seeking redress or prevention of harm to himself. The root of this doctrine is found in equity. In Truax v. Raich, 239 U. S. 33, an injunction had been sought by an employee who was an alien, seeking to restrain enforcement of an Arizona statute. The right invoked was the employee‘s own right under the
Bryant v. Zimmerman, 278 U. S. 63, which sustained a state law requiring the Ku Klux Klan to file its
Petitioner, the Communist Party, seeks in this case to assert that the statute under which it is ordered to register is unconstitutional, because it will have the necessary effect of depriving members of their privilege against being compelled to reveal their connection with the Party. This is not a case, as the majority opinion admits, like United States v. Sullivan, 274 U. S. 259, where a taxpayer, because he claimed the privilege against self-incrimination with respect to the source of some of his income, argued that he was wholly excused from filing a tax return. Nor is this a case where “one who is required to assert the privilege against self-incrimination may thereby arouse the suspicions of prosecuting authorities.” For here, if an individual were to attempt to claim the privilege against filing for the Party, he would admit an ingredient of a crime, namely, his connection with the Party.
Clearly, this is a situation in which only the Party can effectively assert the privilege of its officers, directors, and members. This is the teaching of N. A. A. C. P. v. Alabama, supra, and of the opinions of Mr. Justice Jackson, MR. JUSTICE FRANKFURTER and myself in Anti-Fascist Refugee Committee v. McGrath, supra, and of the
The Party is the proper party to raise the objection, because no one else can raise it effectively. The community of interest between the Party and its members is indeed closely analogous to the community of interest between a corporation and its stockholders. See Stevens, Corporations (1949), pp. 788-789. Since the command to register cannot be separated from the means of registration, an attack is properly made on the incriminating features of the statute by petitioner who is commanded to register. See The Employers’ Liability Cases, 207 U. S. 463, 500-502; United States v. Reese, 92 U. S. 214, 221. Cf. Electric Bond & Share Co. v. Securities & Exchange Comm‘n, supra.
In Boyd v. United States, 116 U. S. 616, 638, a court order to produce an invoice, claimed to be privileged under the
The fact that there may be other times when the issue may be raised—as for example if a registration statement is not filed and officers or members are prosecuted for that default under
VII.
My conclusion is that while the Communist Party can be compelled to register, no one acting for it can be compelled to sign a statement that he is an officer or director nor to disclose the names of its officers, directors, or members—unless the required immunity is granted. Why then, one may ask, do we have a registration law? Congress (past or present) is attempting to have its cake and eat it too. In my view Congress can require full disclosure of all the paraphernalia through which a foreign dominated and controlled organization spreads propaganda, engages in agitation, or promotes politics in this country. But the
There is a giving of evidence by the filing of a registration. Its filing is the equivalent of officials testifying in investigations conducted by the Executive or Legislative Branch. It is compulsory disclosure of evidence which links officers, directors, and members of the group with a crime. Force and compulsion are outlawed techniques for federal law enforcement. Coerced confessions are taboo because of the long bitter experience of minorities in trying to maintain their freedom under hostile regimes. Our Constitution protects all minorities, no matter how despised they are.
Accordingly, I dissent.
I agree with the Court and with MR. JUSTICE DOUGLAS that the order requiring that the Party register and disclose its officers and members is not constitutionally invalid as an invasion of the rights of freedom of advocacy and association guaranteed by the
I also share the Court‘s view that we are not called upon in this case to decide the constitutionality of the various duties and sanctions attaching to the Party, and to individual members, once orders to register become final. We are required by this case to decide only the validity of the order requiring the petitioner to register in accordance with
The questions in addition to those under the
I do not believe that all of the self-incrimination questions raised by the registration provisions are properly adjudicable now. Some may be better left for subsequent adjudication as the necessity arises. For example, we need not decide now, I think, the constitutionality of the provision of
But I do think we must reach one issue of self-incrimination, namely, whether the requirements of
I believe that the constitutional validity of the inquiry that I find implicit in these requirements is ripe for adjudication now. I read the Court‘s opinion as saying that there is no fatal bar to adjudicability of the question merely in the fact that the organization, and not an individual official of the organization, is asserting the privilege in this proceeding. The requirement of “standing“—that a litigant must show that he himself is affected by the operation of the action he challenges as it affects another—is involved here. But as the cases cited by my Brother DOUGLAS show, and the Court seems to concede, a party has been allowed to assert the constitutional rights of another person not before the Court as a named party in a variety of situations where the effect of the challenged state action on himself is derivative from the impact on the other person. Of course, this Court has indicated on a number of occasions that the privilege is a personal right which must normally be claimed by the individual seeking
The issue of justiciability which confronts us is therefore not whether the petitioner may raise the
I think the reasons advanced by the Court in support of the contrary conclusion are overborne by the considerations I have suggested. The Court says that the officials
A claim of privilege on the registration form which names the official would be self-defeating. For if the admission of officership in the Communist Party is incriminating, then a claim of privilege by name would amount to the very same admission—the claimant would be asserting that he could not complete, sign or file the form because the admission of his officership would incriminate him. The Court suggests that a claim of the priv-
There remains consideration of the possibility that an anonymous claim of the privilege may be made and honored by the Attorney General. The organization might simply file a statement in which it asserted the privilege on behalf of its officials, listing their titles but not their names. However, on the Court‘s own reasoning the right to have a claim of privilege honored may depend on a variety of circumstances, including such factors as already existing public knowledge of the information which the claimant seeks to conceal, and it is difficult to see how following this course would advance the attempt of the claimant to have his privilege honored. In a subsequent enforcement proceeding against the organization for failure to register in accordance with the regulations, or against officials for failing to register the organization, the defense of privilege could be met with the same objection that the Court raises here—that the privilege claim could not be evaluated unless the identity of the claimant were known. The possibility that the Attorney General might honor even an anonymous claim of the privilege would simply mean abandonment of one of the requirements in the Form. But I do not see how we can view this case as if that requirement did not exist, since the order under review is to register in accordance with the Attorney General‘s requirements as they now are. Certainly an official might be sufficiently dubious as to the efficacy of an anonymous claim of the privilege by the organization on his behalf that he would choose one of the alternatives of complying, claiming the privilege by name, or not making any claim, all dangerous courses for him. Therefore, I cannot believe that the Court‘s suggestion that a claim may be made in a form in which it could be honored presents an official of petitioner with a suffi-
I do not read United States v. Sullivan, 274 U. S. 259, and other cases which the Court cites, e. g., In re Groban, 99 Ohio App. 512, 135 N. E. 2d 477, aff‘d, 164 Ohio St. 26, 128 N. E. 2d 106, aff‘d, 352 U. S. 330, O‘Connell v. United States, 40 F. 2d 201, as indicating a different result here. Those cases seem to me to hold that an individual cannot thwart a legitimate inquiry by refusing to answer any questions at all on the ground that some incriminating questions might be asked; they require that he must at least respond to the inquiry and make his claims of privilege as the incriminating questions are asked. In Sullivan the questions were neutral on their face and were asked pursuant to an inquiry in furtherance of the collection of the revenue; a claim of self-incrimination as to all such questions was meaningless in terms of the traditional requirement that the tribunal before which the claim is made have the opportunity to decide whether the claim shall be allowed. See United States v. Burr, 25 Fed. Cas. 38; United States ex rel. Vajtauer v. Commissioner, supra, at p. 113.
Moreover, in Sullivan a claim of privilege as to individual questions might have aroused suspicions but would not have pinpointed the taxpayer‘s criminal activities. No such wholesale immunity for the petitioner‘s officials would be involved in a conclusion that their claim of privilege should be adjudicated without a requirement that they first make it on the registration form specifically, with the attendant risks I have previously considered. The inquiry implicit in the requirements of completing, signing and filing here is precise; it demands disclosure on matters of officership in, and knowledge of, the Communist Party. The incriminating nature of that inquiry
Nor am I persuaded that this
I do not regard this position on adjudicability as calling for the impermissible decision of a hypothetical case. Nor does it open the way to the invalidation of the requirements on their face despite valid applications simply because they might be invalidly applied in other circumstances. See United States v. Raines, 362 U. S. 17. If the requirements violate the
As to the merits of the
Notes
“This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case that a witness, by disclosing a single
fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description.“What testimony may be possessed, or is attainable, against any individual the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws.” 25 Fed. Cas., at 40.
Q. “Prior to your appearance before the Un-American Activities Committee, did you tell the FBI about the Starobin letter?
“A. That, I wouldn‘t recall.
“Q. You don‘t recall that. You spent 100 hours with the FBI, or more, you said, before you went there?
“A. Yes, but the FBI asked me a very great number of questions, and I answered their questions.
“Q. But the Manuilsky business and the Starobin letter—
“A. I may have told them, counselor. I say I do not recall. The thing is that—
“Q. May I complete my question, please?
“A. Yes.
“Q. The Starobin letter and the Manuilsky incident were supposed to be quite important in this setup that you got up against the Communist Party, was it not? You now say you don‘t recall whether you gave it to the FBI?
“A. I don‘t recall the time. The FBI asked me a great number of questions. Undoubtedly if it were in my book, I must have given it to the FBI. The point of the matter is that the FBI particularly at that period, and as a matter of fact this has been the general practice, asked me questions. I do not rush out and volunteer a lot of information, as a rule.
“Q. But didn‘t you regard it as an important incident?
“A. Oh, sure it was important.
“Q. As a matter of fact, you described it in your book, ‘This is My Story,’ as—and I quote your language—‘the most sensational byproduct of the San Francisco conference.’ Did you not so describe it?
“A. That, I think, was correct.” (Emphasis added.)
“A: I am satisfied I gave it to the FBI. I couldn’t say definitely, but the FBI question me about everything I write and say, and also about many other things. They question me, and I answer their questions.
“Q: Were your answers reduced in writing?
“A: As a matter of fact, I do know now, since you mention it, that I did give this to the FBI.
“Q: In writing?
“A: No, not in writing.
“Q: Was it taken down by a stenographer?
“A: No, not by a stenographer. They never do that, except in rare cases.
“Q: Was a report written up and then shown to you afterwards?
“A: No. That never happens.
“Q: So all you did was simply have an oral conversation about this incident?
“A: Yes, that is all.
“Q: Was it recorded?
“A: I judge so. It was taken down.
“Q: It was taken down?” In this connection, it should be noted that in three additional places in its Report the Board found it necessary to explain seeming inconsistencies in Budenz’ testimony. If the petitioner could have discredited Budenz’ testimony on the basis of his prior statements, it is possible that the Board would have resolved these other discrepancies against Budenz and the Government.
Nor can we agree that the Party was excused from the necessity of making appropriate motions before the Board respecting documents which it wanted produced, because similar motions with respect to other documents had previously been denied. Especially in administrative proceedings of this length and complexity, it is important that a party bring his particular requests explicitly to the attention of the agency and the reviewing courts. The expansive lengths to which the Court has on occasion gone in construing a statute in a manner designed to avoid constitutional challenges is demonstrated by the decision in Scales v. United States, decided this day, post, p. 203. Certainly, the interpretation of this Act suggested by the petitioner would require far less legislative redrafting than the Court undertook to accomplish in Scales.
“Q: Petitioner’s Exhibit 284 is an article . . . entitled, ‘Wall Street’s War Against the Korean People,’ is that not correct?
“A: Yes, it is the subtitle of an editorial article.
“Q: Now, I call your attention to page 11. Does not the author there say that broad democratic reforms were introduced in North Korea including universal sufferage [sic], the secret ballot, and equal status for women, and that the land was distributed to the peasants and that industry was nationalized and that the 8 hour day and social insurance were introduced, and child labor abolished and a system of public education introduced? . . . Are these not correct statements of fact?”
“In your opinion, could an informed American observer basing his views on what is the best interest of the American people reasonably and sincerely conclude, one, that Mr. Malik’s proposal was a great service to the cause of peace and in the best interests of the American people as well as all of the people of the world; two, that the representatives of the American government attempted to frustrate Mr. Malik’s proposal but were forced into truce negotiations by the overwhelming desire of the people; and three, that American representatives by provocative conduct and various pretexts attempted to cause the breakdown of armistice negotiations in Korea?”
“The committee believes that there are several compelling arguments against the outlawing approach. There are grave constitutional questions involved in attempting to interfere with the rights of the States to declare what parties and individuals may qualify for appearance on the ballot. To make membership in a specifically designated existing organization illegal per se would run the risk of being held unconstitutional on the grounds that such an action was legislative fiat.
“Among other policy considerations which militate against this type of approach are the following:
“(1) Illegalization of the party might drive the Communist movement further underground, whereas exposure of its activities is the primary need.
“(2) Illegalization has not proved effective in Canada and other countries which have tried it.
“(3) If the present Communist Party severs the puppet strings by which it is manipulated from abroad, if it gives up its undercover methods, there is no reason for denying it the privilege of openly advocating its beliefs in the way in which true political parties advocate theirs. In politics as well as sports, there are certain rules of the game which must be obeyed. Daggers are out of order on the
Section 7 (d) (6) of the Act,Reference is also made to cases in which this Court has exercised its power to control the course of litigation immediately before it—a power which finds an appropriate exercise in the avoidance of premature constitutional adjudication. But the rule which petitioner urges, which would permit saving for a possible later stage in the proceedings errors available but not raised in this Court on review of administrative action, far from enhancing the Court’s ability to give effect to the policy of deferring unnecessary constitutional decision, would impede that policy. For it would allow the agencies and lower courts, after our remand, to consider potentially dispositive contentions which, had they been brought to our attention, might have derailed issues on which decision turned.
The reason for demanding that all available issues be raised in the orderly course of administrative review proceedings is made particularly evident by the circumstances of this case. This was a litigation already five years old when it first came here. Unusually extensive hearings and argument had been had before the Board and exhaustive briefing and argument before the Court of Appeals. The petition for certiorari, a document of ninety-three pages plus appendices, presented ten major questions and innumerable subsidiary points. Yet the matter of the Gitlow memoranda, which it is now argued looms so large in the context of this extraordinarily lengthy and complex proceeding, was not raised, and not raised by highly experienced lawyers who vigorously contended every step of the litigation. We remanded on other grounds and now—after five-more years have passed, after the Board and the Court of Appeals have each twice more reconsidered this steadily growing record—we are asked to reverse on a ground which the Party had every opportunity to bring here but which it abandoned. To ignore the abandonment would be a most artificial, decision-shrinking abuse of the wise rule of putting off decisions of constitutional scope. Avoidance of such decisions, however compelling a policy within the limitations of ordered judicial regularity, ought not to be countenanced by grafting an ad hoc exception onto a generally applicable rule of appellate procedure and permitting particular litigants to avail themselves of otherwise uncognizable points. No decision of this Court can be found which in similar circumstances authorizes disregard of all that has transpired over ten years of litigation so as to allow petitioner to make waste the half of it by resuscitating a long-stale claim.