The Communist Party of the United States of America v. United States

UNIT- COMMUNIST PARTY OF the America, Appellant, ED STATES America, UNITED STATES of Appellee.

Nos. 19881. Appeals

United States Court of

District of Columbia Circuit.

Argued May 1966.

Decided March Abt, City, York J. New

Mr. John Appeals of New of the Court bar Amendment, Fifth vice, by special of York, leave tions afforded pro hac Forer, applied if would Joseph here court, and that scheme Mr. whom with brief, particularly to the Washington, C., for run counter was on the D. compelled incrimi on Amendment’s ban appellant. nation, the convictions. reverse we Dept, Atty., of Maroney, T. Mr. Kevin Atty. J. Justice, Gen. Asst. with whom I Bress, Yeagley, G. Messrs. David Walter order The Board which Atty., Searls, George Atty., and B. U. S. charged failing obey with was before brief, Justice, Dept, on the were the United States Court in Com- Q. Nebeker, Asst. appellee. Mr. Frank munist v. Subversive Activities Lowther, Atty. Joseph Mr. A. U. S. 1357, Board, 1, Control 367 U.S. Atty. record time the at the Asst. U. S. Challenges (1961). L.Ed.2d appearances filed, also was entered validity made various were kinds its appellee. and, exception, explicitly re- with one Circuit Before Senior Prettyman, jected. exception was one founded Judge, Cir- and Danaher McGowan, self-incrim- the Fifth Amendment’s Judges. cuit prevailing majority ination clause. view that the Court were premature the claim to resolve Judge: McGOWAN, Circuit unconstitutional insofar the statute was appeals consolidated are These any requirement as it embraced judgments of conviction under two in governing Party’s members officers or returned, respectively, De dictments on registration require- comply with the 1, February 25, cember 1961 and 1965. disposition of ments on its behalf. charged voluntary appellant, as Each issue, said, could await this so it was failing sociation, with eleven counts of pro- when, ever, if “enforcement time register organiza aas Communist-action ceedings are insti- for failure to required by tion Ac the Subversive its tuted 1950, tivities Act of and one Control 109, at at officers.” Id. failing count of to file the statement (Emphasis supplied). Four accompa directed should staying of from this Court dissented ny registration. the act of 64 Stat. 987- varying hand, and, judicial 1005, (1964). Ap 50 U.S.C. 781-798 §§ expressed emphasis, doubts shades pellant was convicted all counts statutory invulnerability indictments,1 exception both with the Amendment attack. scheme to Fifth registration statement count of authority higher the state This was second indictment which Government appellant’s conviction came first when abandoned when forced trial court reversed that conviction corresponding We before us. elect and the between it (1) ground (Note 1, supra) count the first maxi indictment. The avail- $10,000 mum the self-incrimination of a fine in re Party, (2) that spect imposed. able to the officers Be each count was adequately as- in fact been had cause we have the results concluded serted, (3) statutory extent scheme for the control regulations, effected appellant, could, under the in re when viewed as a whole “agent” person,” convic- particular punishments, or “other lation to these least, upon proof must, hopelessly protec at rest at odds again, try appellant proceeding 1. The of two is ex existence indictments plained by indictment a second fact that an earlier con Government first, as the the same facts founded on the first was reversed viction seeking punishment court v. United point occurring U.S.App.D.C. tinuing 61, later F.2d violations denied, of time. cert. Before 12 L.Ed.2d availability person.2 son v. Activities Control of such a We Subversive Board, L. issues unstirred left constitutional stating expressly part, Ed.2d 165 In that case the Court for the most concerning opinion we “no the made short shrift of our emulation of ventured Party’s duty dealing to submit the self-incrim restraint U.S.App.D.C. demanded.” ination claim in the earlier Communist data case; and, awaiting a ten 831 F.2d at 815. without der of in criminal enforcement the issue part, num Since this action our proceedings, under the Fifth invalidated is, things happened. of ber of have One requiring, in Amendment a Board order course, has re-tried the Government registration by Party of default the appellant, and a second conviction is be by registration by Act, as commanded appeal. is that fore us on this Another persons Par found to members of the be Supreme addressed Court has ty. Although the self- Albertson exhibits aspects further of the Sub to certain in a somewhat differ incrimination issue Act.3 versive Activities Control posture in this ent from that involved significant adjudi most of these later appeal, of manner present purposes both the and the is Albert mode cations organizations quiring requires affirmatively Communist-front a Com- The Act register. register organization for Pro- American Committee munist-action such, Foreign SACB, registration accompany 380 tection of Born v. and to containing 503, 1148, registration L.Ed.2d 39 S.Ct. 14 U.S. 85 with a statement (1965); spelled Lin- Abraham Veterans of the out in the certain information SACB, 513, Brigade is, Attorney v. 380 85 how- coln U.S. General statute. The 1153, (1965). ever, prescribe given power 14 L.Ed.2d 46 S.Ct. Black, Douglas, regulation each case Justices in each the form to be used regulations con- the should, Harlan were of view first issued instance. remand, single prescribed stitutional issues without form under the Act long signed overdue. be faced and decided which was to an officer governing body States is also of interest to note United of the or- member of the ganization. 1707, Brown, 437, S.Ct. v. 85 After (1965), Court, reg- Supreme in 14 484 which L.Ed.2d decided attainder, down, provide bill struck as a of ulations were so as amended Labor-Management registration, separate Section 504 on the forms for 1959, Reporting hand, reg- accompanying Act of and Disclosure one and for the statement, which made it a crime for a member istration on the other. See (1966). to serve as an of- the Communist 28 C.F.R. 11.200-11.201 Un- §§ employee instructions, union —a of a labor ficer or der the amended neither disqualification which, required signed by officer, dissent pointed out, exactly “member, signed is almost the same could employee, attorney, agent, instead 5(a) (1) prescribed per- Section or other (E) filing Activities Control the Subversive son statement * * * 470, writing certify Act. 381 at S.Ct. 1707. U.S. 85 [who] shall recently The Government has told that he has been authorized Com- registra- address itself Court that it need not even munist to file the legality provision of the tion statement on its behalf.” Form IS- 51a, regulations supra. denies medicare statute whihc so-called issued under benefits to individuals who members Aptheker Secretary State, required organizations register 3. In v. 378 un- 500, 1659, 12 U.S. L.Ed.2d 992 Act. der the Subversive Activities Control Supreme Court, 14, provision was, on due on November This 1966, process grounds, Section invalidated unconstitutional a three- held Act, judge made it unlawful for Dis- District Court the Central (Reed Gardner, member quired a of Communist re- D. of California v. trict apply 87) C., F.Supp. ; for or use a and the Government passport. Mayer Rusk, appeal See also v. has decided not to in the face Russell, 11, U.S. 12 L.Ed.2d 1035 Elfbrandt v. U.S. 86 S. recently More the Court re- L.Ed.2d Cf. Ct. Board, Suggestion Mootness, Appellee’s manded to because of Weiss Gardner, judgment vacated, staleness of the ad- records made 1967). proceedings, (February 14, re- ministrative two orders might petitioners ad- the Court’s decisive intervention vindi- involve the suggest privilege in that case of a crucial element of a crime.” cate the mission grips (at opinion that it is in order for us to come to in that Earlier 198) it in Com- Court had identified the with the issue deferred mem- say, case, Act, bership es- munist clause Smith whether, 4(a) question because C. 2385 sential and Section § Party membership, impact Activities Control Act as “on- Subversive ly can, might weapon two federal criminal statutes” Amendment, exposing sistently be mention as with the prosecution. appellant. trained The Court coinci- dentally having characterized itself as Ill already membership, held short in Com- decision Court’s “mere association with the Communist enough Party presumably munist vitality retains Party presents prose- sufficient threat very suggest there to that support privilege.” cution to a claim of may Congress in do much indeed that Ibid. Albertson, Also in the Court con- regu- pursuit single purpose to of a the firmed the conclusion in reached us Party by device appellant’s the appeal late the Communist from its first convic- difficulty the of disclosure. The immunity provision tion that the contain- Congress purposes in 4(f) ed in Section of the Act falls short single Party in Communist have not been necessary of the dimensions blunt to the They rather, in ef- have, nature. Fifth Amendment claim. compel to both disclosure fect aspect An of Albertson not in least Party time, and, incrimi- same significance concurring opinion is the Congres- nation of its members. The Clark, Mr. Justice one of those voted applicable sional the Com- enactments to to defer Fifth in issue severally Party have, munist but simul- proceeding the review of 1961. He noted taneously, exposed in out- it substance to (at 85, 202) 86 S.Ct. at that the invalida obligation lawry as well as to an to dis- tion effected in Albertson had been close its affairs. records and We in “forecast Attorney 1948” in a letter him as ap- assume for the moment that either Judiciary General to the Senate proach was, is, constitutionally feasi- Committee, responding request to a for not, ble. We can because Department the views of the of Justice Amendment, safely in assume as much on one the bills which led to the pur- the case of the co-existence of both passage eventual of the Act. That letter poses. opinion voiced that “the measure Albertson, (382 the Court noted U. might (notwithstanding legis be held 199) atS. 86 S.Ct. at that the self-in finding present lative of clear and dan crimination claims made were there “not ger) deny speech, to freedom of essentially asserted in an non-criminal press, assembly, and of and even to com regulatory inquiry, area of pel self-incrimination. United States inquiry permeated an in Cf. an area (322 [, v. White statutes, response with criminal where 1542]).” questions of the form’s 88 L.Ed. in context Hearings organizations, on H.R. 5852 the Sen- dis- before Attorney Judiciary, ate from Committee tinct their members. 80th Cong., (1948). sig- must, therefore, 2d taken as ex- Sess. General 423-24 doubt, deriving pressing Attorney constitutional nificance of the refer- General’s privilege, the self-incrimination even ence to White lies in The bill this: addressed, associations alone are involved. which his comments were H. where White, R. a case which we was in the 80th His reference introduced Con- suggested hereinafter, gress in detail and known as the Mundt-Nixon bill. discuss might that a differentiation his awareness Unlike the later bills the Act as organizations finally required only perhaps emerged, between be made H.R. 5852 regis- Clark, require Attorney bill same as he then General jailing their was, in his fear tration Communists from alone was far being parody following approach “a for was a dual Communists was Cong.Rec. legislation.” might Party Communist which Truman, self-defeating. al- A which start President bill well be though message addressing like his veto out ed effort treat futility largely practical political parties terms dis other legislation measure, captured up the essence closure ended subjection objection singled "characterization of out his “requir- product dis final as tantamount the combined sanctions punishment. ing As with the sheriff.” closure and criminal thieves to Cong.Rec. shape duality began more to take clearly, voices Con more and more Quite apart impact from the other warning gress were ir raised provisions legislation upon of the 1950 being goals sought;. reconcilable were registration requirements, there was publicity the extent that problem Act, which had of the Smith Communist day become law in 1948. On the same para affairs for all to see upheld the Board’s Congressional objective, mount except every order as attack being jeopardized by parallel efforts self-incrimination, it also affirmed the put and its mem of a Par- conviction bers under restraints ty member under so-called member- debate, law.5 In floor Senator Hum ship clause of the Act. Scales v. Smith testimony phrey of referred to “the noted States, 203, 81 United 367 U.S. lawyers, Hughes, such as Evans Charles Davis, 1469, 6 L.Ed.2d With this 782 Jr., and John W. who have doubts decision, doubts about the constitu- constitutionality. They as to its believe tionality of inAct its fullest the Smith may that it be violation the Fifth many, reach—and had been there both provides Amendment, which that a man before and after its enactment—were set testify required shall not be rest, criminal the most ominous Cong.Rec. himself.” 14487 implications for the Communist Several other voiced Senators any way and all those associated in noting objections, Amendment the inter it. Such chance of constitutional sur- play require between the disclosure regu- approach vival as the disclosure ments, hand, on the one and the substan Party may lation have Communist prohibitions plus tive ready of the bill the al perhaps theretofore had foundered Act, on Smith the other. enacted the reef Scales. g., Cong., E. 2d S.Rep.No.2369, 81st Congress’s very success with its (1950) (Minority Views). Sess. 12-13 Par “registra direct assault Senator Lehman observed that medium of self-incrimination, ty sterner tion would constitute had ef law have could law, if not under the terms of this then undermining constitutional fect Act”; under the terms of Smith and to effect calculated availability istration statute and individuals identity propa- privilege. apparently But White did ganda lay individual Communists his doubts to rest. organizations. Within this just Attorney 5. The also been incor- General’s letter re- framework there have provi- regulatory porated intermingling, ferred noted this certain other problem. relating general was the source of his Fifth sions registra- doubts, : activities these terms subversive cannot, represents The bill from bill two distinct statu- tion sections of the tory separate, standpoint, pro- but be efforts'^1 —one directed to the judged hibition be as a whole. must subversive such, reg- activities and the other a Id. at 423. approach. voluntary interpose foundations of its disclosure ed association — long self-incrimination clause So as a shield endures, prosecution failing activi Fifth Amendment for to make ty may criminal, required actor be made the disclosures the Act? highly question pertinent it This cannot characterize and not easy think, however, it.6 such and to disclose If of resolution. We forego one, may upon premises would do it have to it rests formulated in by Congress vastly the other. choice circumstances different so, more effective re the means believes those involved here —so much in- deed, policies they mains with it. serve are mostly irrelevant issues which IV present must be faced context. questioned appel- corporations doctrine helped premises lant if these even and associations no have accepted as in Albert- true and the result largely been enunciated in where cases necessary consequence son embraced an individual was to be criminal priv- them. the self-incrimination ly punished refusing produce rec ilege personal in the sense of not be- belonging entity kept ing ords corporations available to and associa- tions, may appellant how self-describ- the course of its business.7 It was —a Although Lewis v. United Govern- and Information, Self-Incrimination ment’s Need L.Ed. 475 (1955), Kahriger, REVIEW States v. United 151-5S SUPBEME COUBT (Kurland ed.). L.Ed. constitutionality concerned the early Henkel, wagering required 7. An such case was Hale v. a federal tax which subject 43, 66-70, L.Ed. those to it to taxing despite illegality that cor where authorities held testify porate occupation officers must as to cor such an under the laws of corporate jurisdictions porate produce arose, activities and where the cases grand jury grounds support documents before a investi the in offered gating sustaining gambling Sherman Act violations where such tax in those immunity cases individuals are accorded from are not relevant here. The Court subsequent prosecution. only there found that antitrust was a 361, States, wagering Wilson v. United 221 U.S. condition to in the future and 538, require confessing 31 S.Ct. 55 L.Ed. 771 hence did not to require was extended to a cor criminal acts that doctrine theretofore been had corporate porate produce worthy committed. It officer to docu of note that in array amongst they might pleaded cases, an them ments even when he Costello personally. States, (2d him It has since v. United 352 incriminate F.2d 848 Cir. corpo 1965), granted 942, cert. become settled that officers of 383 U.S. 86 liability contempt 1195, escape rations cannot S.Ct. 16 L.Ed.2d 205 refusing produce corporate Supreme accepted for to books Court has for review question: papers they on a claim that contain “Do not the Federal and incriminating wagering g., tax information. E. Nilva v. statutes involved here vio- petitioner’s privilege States, 392, against 385, late the S.Ct. self- United 352 U.S. 77 guaranteed 431, (1957); Heike v. incrimination 1 L.Ed.2d 415 the Fifth 226, States, 131, court, Amendment? 33 S.Ct. Should not this es- United 227 U.S. pecially (1913); v. in view of its recent 450 Dreier United decision 57 L.Ed. 550, States, 394, L. Albertson v. Subversive 221 U.S. 31 S.Ct. 55 Activities Con- * * * extends, (1911). trol Ed. The rule Board overrule United 784 * * * Kahriger held, compelling former States v. and Lewis Court has to * * produce papers corporate alia, v. States *?” officers United Inter corpo passed States, to them when Marchetti v. that had United 385 U.S. 1000, 698, (No. v. was dissolved. Grant United 87 S.Ct. 17 L.Ed.2d 540 ration States, 38), States, 74, 190, L. S.Ct. Markis v. United 227 U.S. 57 387 U.S. 33 425, (1913); 1709, (No. Wheeler v. United 87 S.Ct. 18 L.Ed.2d 864 Ed. 423 43), (July 1966). 478, 158, 5, gen- States, summarized S.Ct. 226 U.S. 33 57 See erally Mansfield, (1913). Albertson Case: an officer L.Ed. 309 Nonetheless Privilege testimony Against give Between the oral refuse Conflict

963 records, grand jury, privilege a claim of thought hold that before intolerably with applied similarly privilege unavailing, would interfere government powers of the visitatorial essentially reasons. the same existing by public artificial entities over privilege absence of assertable sufferance; ef and it seems clear that unincorporated union, behalf of the regulation governmental was re fective association, was said conferring garded jeopardized dictated the need to assure secrecy upon cor cloak constitutional regulation scope “[t]he effective corporations porate proceedings. were in nature of economic activities of all, internal made then their organiza corporated unincorporated public amenable affairs should be White, tions”. States v. 322 U.S. United scrutiny.8 694, 1252, 700, 1248, 88 L.Ed. 64 S.Ct. contempt prosecution of a labor In a (1944) corpora- 1542 .9 As the case failing produce union union official He they person- finds most of these rationalizations corporate if matters would cogent: theory less Shapiro than ally vis. v. him. incriminate See corporate becoming a officer an individu- States, 1, 27, 335 U.S. 68 S.Ct. United against privilege 1375, (1948); al “waived” his self- Wilson v. 92 L.Ed. 1787 distinguishes inadequately States, 361, 385, incrimination 221 31 S.Ct. United U.S. corporate privilege 538, assertion of the record in the L.Ed. from privilege context occasions where that the The doctrine thought legitimate, protect corporations invocation is when available to testify orally. he is Pro- called has become almost that, although question faith, although fessor Meltzer notes also an article arguments early doctrinal based did not arise as or as often as did necessity corporate regulation concerning were to cor cases orders directed undoubtedly pediency” underlying See, porate g., the “considerations ex- officers. e. States United grant Optical Co., refusal to v. Bausch & Lomb 707, they privilege corporations, 805, 726-727, L.Ed. 1024 “begged question Essgee (1943); essential ex- v. Co. United —the power tent subject to which visitorial 67 L.Ed. provisions ICC, (1923); to the constitutional & RR. v. Baltimore Ohio 612, 622, Id. at self-incrimination.” 55 L.Ed. U.S. Perhaps question (1911); Lithographic central can be re- American Co. circumstances, Werckmeister, solved individual government when interests L.Ed. 873 A factor widespread acceptance in- disclosure dividual or balanced doc repre- denying interests trine is of cor associational course after worthy privilege. porate sented for reasons officers relating corporations, necessity regulating the ab- note case which corporate incongruous sence of the would seem charges. grant privilege corpora first noted arose out antitrust such a Henkel, supra tion itself. The Court’s recent decision Hale v. note 7. Cf. appear in scope would to extend in Albertson 9. The White to the Court’s reference in of an officers association necessity regulation of effective of the apparently corpo in differ no wise from incorporated “economic” activities capacity, and rate in terms of officers official organizations unincorporated not only is with- from which it can inferred that significance. out corporation who invests in a One the Court takes some account of dif joins or a union com- labor ferences in the natures artificial of the pursuit mits himself collective entities involved. ends, and is economic the unit itself Meltzer, Required mainly significant Records, The for the See a vehicle Privilege joint Act, accomplishment McCarran economic of these Against purposes. Perfectly and, Self-Incrimination, in itself lawful 18 U.Chi.L. indeed, permitted only Professor to exist 701-04 Rev. discerning law, corporation Meltzer has directed same favor of the may business eye operation fall he has the merits of the in afoul of a multitude turned regulatory privilege public purposes in Fifth Amendment criticism embodied laws If these of the various theories offered sanctions. support denying corporations. may be frustrated the self-incrimina- tions, public continuing so, privilege interest cannot be invoked access the information relevant on behalf of the its or regulation justified representatives restriction in their official ca- privilege. allowing pacity. test for or withdrawing privilege was formulat differentiating A standard be (322 ed Court these terms U. organizations tween terms their 1252); S. at 64 S.Ct. at “impersonal,” as distinct their any “personal,” admittedly This conclusion is not reached character is meaning comparison ap mechanical elusive in unions difficult of plication. corporations clear, however, entities It is or with other by any say prepared nor determination not technically may regarded signifi unions was without any any personalities organiza cance in all all or rather,

purposes. test, any tions under wheth- and all circumstances.10 fairly say er one can under all trying, abstract, Short in the type particular circumstances to sort out for whom associations has im- a character so meaning has from those for personal scope of its member- not, whom it does it is useful to recall ship and activities it cannot be reality which underlies them all. embody represent pure- said to or Although the law has room for made ly private personal or interests of its concept entity which, of an artificial constituents, embody rather purposes least, for some has life group only. their common or interests protect testimony. clause, tinued to oral Mc then the answer States, Phaul corporate v. United be to abandon the or associa- concept exigency does L.Ed.2d tional which few —an regard not our In that public control decision here. now would in- contempt upheld case the Court con An terest. together association of those who come pro mutually viction anof officer who refused to congenial because of organization, religious political duce records of his principles argu- the Civil Rights Congress ably stripe. Com before the House of a different The First long thought mittee on Un-American Activities. Mc- Amendment has concerned with reasonable latitude to do been essentially Phaul in arose out of an Congressional investigation just this, formational right whereas the to form a pervasive regulatory corporation rather than a or labor union is nowhere guaranteed scheme of disclosure administered in terms the Constitu- area; Moreover, Executive branch a criminal tion. a man’s beliefs are cus- point, tomarily regarded closely the strongly went decision off on the akin to his dissent, “purely private personal interests,” contested government’s whether the failure to show and not even his association with a political party the existence of de the records church or a them converts ability produce property entity. fendant’s them before into the It is be- contempt appeared citation was entered vio cause the Communist presumption regard lated the his favor. of innocence in to offend in this more than Rogers entangled v. United other that it has become law, L.Ed. but this involvement is indicating cited in McPhaul as the occasion of our Fifth Amendment problem unavailability privilege, solution. point, dietum on that that case has, White, privilege 10. The Court since re- turned on waiver of the cir found privilege newed life for the as it cumstances where the al relates witness had ready membership to associational activities. In Curcio v. admitted her States, United 354 office in the U.S. the Communist to grand privilege jury 1 L.Ed.2d and had the the con- invoked tempt only “afterthought” citation of a union as an when she was official brought refused the See to tell the whereabouts of docu- before District Court. 370-372, 440; id. ments S.Ct. at which he said were not within ground (dissenting his control was reversed that, despite White, at opinion n. at 445 Black). privilege the of Mr. Justice in cases like separate artificial entities involved distinct from the individ- it, White. It been com- comprise fact Wilson and it remains the has uals who by Congress, pain entity on than manded can other no such act that punishment, to come Be- forward human instrumentalities. affairs, corporate and reveal its Court the asso- hind the veil criminality always facade, people said in the climate of ciational there legislation, persons —officers, stockholders, In other created members. accomplish corporations who could revelations those the case of business unions, Wilson and need not do so reason decisions like labor in- Amendment. White mean the constituent cannot, by claim dividuals reason of a only lay equipped observer To the acting privilege, to be excused from logic uncon- sense of with a sure provide information demanded. assertedly lore of the fused public This is because the interest privilege, this all personal nature of the entity’s particular King Act, suggest like might paramount; affairs is deemed impos- Canute, vainly commands and, since disclosure can be legislative sible; scheme and that individual, effected the act of some irrationality in a due has a flavor of may respond despite he be to process this condition But sense. not, the Fifth Amendment. he does encompass the crimi- to ineffectiveness entity, he both and the which necessa- appellant for some- punishment nal rily action, remains inert without his accomplish thing lacks the means to subjected can be to criminal sanctions. analysis in the derives last privilege Fifth Amendment’s But, appellant in the ease surely The result is self-incrimination. Act, we Subversive Activities Control terms it be stated the same pun have heretofore held that availability to imposed for failure ishment not be na- appellant distinctive of its because appellant’s re officers to make the ture, it is a it be said that or whether quired appellant’s disclosures on behalf. concededly violation United associated to the individuals available 61, 67, 807, 813, U.S.App.D.C. 331 F.2d appellant exercise to condition its denied, cert. First Amend- the sacrifice of their And now the L.Ed.2d 737 rights together aas ment to associate Albertson, has, de formulation, political party. In either appellant clared that the members pro- First Amendment which is the may not, a claim them the face of background against vides the distinctive privilege, criminally punished, Fifth must be which the reach of the failing contemplated Act, formulation, defined; and, in either supply principal infor item of record, Constitution, facts of statute, mation called for appellant the crimi- between stands say, membership list. The rea laid nal soning of Albertson it. appear

members of the would application have clear to officers who important It recall no are, anything, dangerously if even more including political especially party, most exposed This, self-incrimination. automatically Communist, guar say least, posi in a leaves regulation means of anteed sharply contrasting legislative with that of the disclosure.11 is when years passage 1954,. four after statute —-the Control Act of concerned, 775-777, of the Act with which we are 68 Stat. 841- §§ U.S.C. Congress purported (1964) purported deny appel- to find and declare — appellant political party rights, privileges, that is not a im- lant all at all and This “should outlawed.” munities enti- available other organiza- judgment not is disclosure is tó be a “Communist-action that goes which, statutory definition, enough by on to fashion tion” is efficacy organization “substantially directed, prohibitions as well that dominated, imperilled by foreign the Fifth is controlled disclosure foreign say government im- Amendment. What we here controlling poses no the exertion Communist move- limitations world * * * sweep. title,” approach in fullest ment referred to in of either its “operates primarily speak only and which We to the self-incrimination to ad- problem objectives presented vance the simultaneous such world Com- * * employment By munist *.” of both. movement virtue declaration, appellant required of this gen- important to turn from It register itself as a “Communist- posi- eralities to an examination of the organization” supply, action and to appel- tion in which this record shows address, addition to its name and placed. At a time lant have been names and addresses of its officers when, Supreme as the has now Court (including those who have said, appellant in “an area found during preceding been such permeated statutes,” with, months); where mere association much even statement the functions in, membership appellant presented former; aliases, less and duties of the any, prosecution,” ap- individuals; a serious “threat if of such all mon- pellant eys expended, including declared the Board first received and ties, trolled, directed, subject included a statement to the dis nothing cipline dictatorship effect in it be con- of the should amending Security- foreign country.” Although strued as the Internal such these today may ring Act of of which latter statute the words have an ironic foreign power ques Subversive Activities Control Act is a the ears of the tion, part. prudential proviso appeared This and in reflected event have not apprehensions Congress assumption upon of those in to constitute the sole thought regulation-by-dis- foreign policy which our con been approach they closure of the last-mentioned ceived and executed since were gravely jeopardized, placed books, statute was in its on the statute we applicability appellant, by that, Supreme the 1954 assume as did the Court Party, Party, they law. In Communist sev- in Communist decided were true years later, Supreme Court, Compare en as of al- time. v. Block though relying heavily legislative Hirsh, 41 S.Ct. findings upholding Corp. of the 1950 statute in L.Ed. 865 with Chastleton Sinclair, order First attack, Amendment L.Ed. referred which latter case findings saying in a context of Justice Holmes observed nothing Congressional there was to indicate that extent a declaration of fact prejudicially future, Board had been influenced looks to the “it can be no more reaching ap- prophecy them in its than decision that and is liable to be con pellant Id. should as a Communist-ac- trolled events.” organization. efficacy legislative at 406. The majority findings very in Communist did in this instance has been appellant po- indeed, they appear not intimate that considerable in that general pur- litical given great weight by association within the to have been held, view upholding registra First Amendment. Court rather, currently one, erring that it was a tion order as challenge, thereby First Amendment grace by which mending possible could making restore itself ways; regulate appellant the First protect technique. Amendment did not They the disclosure do not because, ap- party, possible as a conclude the issue of the pellant impediment could be found the evidence to the utilization coincidentally have come under approach the dominance of a of that with that foreign country thereby otherwise, have be- of the criminal law. itWere sections, come but one of the in the Con- there would have been no reason for the gressional language, “of a world-wide to have reserved the Fifth Amend * * * ment issue. appel- objects; available to them list of all were made and a sources and owned, say, lant, officer some presses which is printing or machines by any appellant. controlled, of possessed of them. or member report registered, annual of an Once so any sugges- of record is devoid The required. There all such information any availability officer of tion of the requirement each such is a further (not paid appellant in- or member of keep registered ac- shall per- any formant), third or indeed of expendi- receipts of and curate records necessary son, infor- with access to the tures, of names and addresses and mation, requisite author- who has the persons all of its members and of who ity capacity supply the informa- and actively participate in its affairs. for, prepared to who is tion called Albertson teaches such do so. requirements, ap- Faced with these cannot, consistently person pellant Department wrote a letter Amendment, do so. Fifth made to showing of Justice on a letterhead cannot, appellant nature Since Party’s name, address, telephone things, except act such signed ap- number. The letter was legislative person, premised scheme pellant’s “by name its of- authorized compre- upon such action in essence Department ficers.” It advised the punishment per- hends the collective declined, by its officers reason constitutionally protected for their sons privilege, supply, Fifth Amendment right refrain individuals supplying of, to authorize that action. additional information called registration requirements. The letter appellant For mem to file a list of its appellant, also advised that on behalf exposes every person bers on that list members, asserted the to a serious and “threat substantial of each of them self-incrimina- prosecution.” only people listing of his name or the authority capacity compile furnishing the other information such to authorize its authentic list and called for. registration would, purposes use for very act, subject rejected to a claim themselves Government person like No has demon privilege, threat. such was indicted. willingness strated a act. To dif us conviction was reversed first Its ferentiate circumstances under these At the sec- hereinabove described. trial, between ond the Government association, hand, proof and the supply the one alluded the deficiencies opinion individuals who make of a collective us in our reversal. personality, other, us proof seems to new the second elements incompatible purposes trial consisted of two witnesses who underlying values Amend joined appellant had in 1953 ment. is to paid make the mere fact informers had served subjecting Investigation association vehicle Federal Bureau collectively individuals, throughout periods as well their of mem- entire personally, prosecution, willingness bership. Each to a testified protection sign shorn of the self-incrimination forms and to privil supply requisite ege.12 if it information each individu- conditioned Albertson now assures to abstention from associa- persuasion. al member his Fifth tion with others of like Aptheker by reg- right supra, to incriminate himself Note 3 the Govern- argued istering reg- ment under the Act. that a member of a membership istering privilege, recapture could denied by abandoning his freedom to of the individual must be disclosed travel his Party’s registration. membership. Un- But course circumstances, by saying turned this contention aside der against such effectively “Since freedom self-incrimination is of association is statutory two, presented scheme before of the to us on this accordingly yield urgency record, valid, us must is I reach the same result continuing recognition vitality my brethren, of the slightly do but a protections. of the Fifth Amendment reasoning. different course of Liability appellant of the com Party The Communist is an unin- mand of the statute can not be vicari corporated association, and, being an in- ously imposed because the failure of corporeal entity, perform physi- it can requirements members meet the acts, signing filing, only cal such as and registration where, as the instrumentality of human clear, they Court has made as individ Therefore, individuals. when the stat- protected. uals are so requires Party sign file, ute and reality the areas it requiring First Amendment con- is in some individual cern, politics religion sign such as seeks, and where and file. The Government together people association of is of Party, threat of the meaningful the essence compel sign observance an individual to file expression, inescapable Party we see no a list of the members. necessity to limit the reach of the Fifth Membership association or technical theories of ar- Party involves such a the Communist legal personality. tificial give prosecution as to rise threat principles to find chooses some rights Fifth Amendment practices politics religion or so ab- Supreme Court so associates. horrent liability, as to warrant Albertson,1 in that case the said in may conceivably proper do so in a Party Court held that members placed beyond case. But pale sign compelled to and file on cannot be of the First Amendment is not to be behalf themselves statement deprived rather, is, of the Fifth. they are It seems members. clear very being; reason for its and that me that in of that decision view reason invalidates the criminal convic- sign compelled to members cannot be tions of under circum- any anybody file on behalf stances this case. thing they, the else a statement judgments appealed signing individuals, conviction are members from are Party.2 protection is The constitutional compulsory incrimination Reversed. oneself. The means or method of Judge PRETTYMAN, Senior Circuit compulsion long immaterial so (concurring). compulsion. there is Therefore compelled agree provisions members to incrim

I cannot that the disclosure protect in order to inate themselves of this selves, in and of them- statute are valid Party against agree punishment. pro- and I further visions for criminal are valid sanctions Furthermore, since the is an themselves, Upon separately. in and of individuals, unincorporated group of problem the combination reality upon fine guaranteed in the First Amend- importance of free and unfettered choice omitted], ment [citations im- restrictions privilege. to assert the self-incrimination 511, posed right to travel cannot be 636, L.Ed.2d U.S. by asserting right dismissed (Nos. 13, 62). fully travel could be exercised if 1. Albertson v. Subversive Activities Con yield up individual would first mem- his Board, 70, 194, trol bership given in a association.” 378 U.S. 15 L.Ed.2d 165 84 S.Ct. at 12 L.Ed.2d 992. very decisions, Garrity In two recent v. the United Cf. Jersey Spevack Klein,

New U.S.App. States v. United 493, 511, 616, 625, D.C. denied, 331 F.2d 807 cert. January L.Ed.2d 574 both decided 16, 1967, the Court has stressed the 12 L.Ed.2d 737 person. the first comprising which to incriminate fine the individuals incrimination, two-step Party. of an I think no member This person incrimi- group compelled unincorporated to me can seems effectively nating just as if himself one incriminate himself Gov- pun- the list handed he himself order to another criminal avoid ernment; cannot be and he him as ishment threatened group. it. to do member reasoning outlined that The same dif no In this consideration makes applies to paragraph preceding group such is

ference might Party suggestion that constitutionally protected or not. The agent pay to ex- him a fee hire an individual, protected an individual might, registration. It ecute capacity. no If the matter what course, problem our is whether through compulsion is visited him compelled to It seems to do so. be can conduit, intermediary group a suggest a that to close frivolous me compulsion cases, forbidden. protected Amend- person White,3 like which hold an officer agent, compelled to an can be hire ment compelled of an association can be instigate him furnish with means by revealing group incriminate himself (the prosecution him a criminal records, rest thesis (the giver), him authorize and then public power interest in the visitorial agent) do so. over nullifies the individ associations compel cannot I protec ual think Government officers’ Fifth Amendment themselves, either people incriminate apply tion. But thesis does not by supplying by testifying docu- here, or because Albertson held that evidence, mentary them- either rights Fifth Amendment mem incriminatory supplying yield docu- public selves bers do not interest by giving or a it to volunteer ment or the disclosure of the member agent give ship. a hired Government. short, person I cannot think a suggestion is made that a volun- himself, compelled either to incriminate might register teer come forward and directly by a or own action his agents F.B.I. that the two second-, action fourth-hand or third- (undercover members) are such volun- intermediary complicated some two, willing though teers. But they those process. be, do not have wherewithal my emphasize part no I Party; they have do not thought upon Fifth Amendment rests membership. the list of the So rights I am itself. question is whether the officers or some the Fifth Amendment cerned compelled supply can be member ' rights individual willing copies volunteers agents. purpose list. The for which the volun- it, requires teers want the list is to file thus I think mem- statute bringing upon agents unincorporated the listed members a of an bers or prosecution. threat of criminal to incriminate themselves person seems clear to protect cannot their me in order to supply person another in a criminal action fine (volunteer not) applied. means invalid as thus White, 3. United States v. L.Ed. 1542

Case Details

Case Name: The Communist Party of the United States of America v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 3, 1967

Citation: 384 F.2d 957

Docket Number: 19880, 19881

Court Abbreviation: D.C. Cir.