*1 ALBERTSON ACTIVITIES SUBVERSIVE et al. v. CONTROL BOARD. Argued No. 3. October 1965. Decided November *2 With petitioners. John J. Abt the cause for argued Forer. Joseph him on the briefs was Maroney argued T. for respondent. Kevin the cause Marshall, him on brief were Solicitor General With Lewin, Attorney Yeagley, General Nathan Assistant Lee B. George B. Searls and Anderson. by of amici curiae Osmond K.
Briefs were filed Fraenkel for American Civil Liberties Union, by Lawyers Ernest Goodman for the National Guild. opinion
MR. delivered of the Brennan Justice Court. Party of the States of America Communist
failed to with the Attorney General register the order of the Subversive Activities Board Control Party in United States v.
sustained of SACB, U. S. list Accordingly, Party I.1 no mem- (4) bers was filed as required by (d) § 7 of the Subver- sive Activities Control 993-994, Act 64 Stat. ed.).2 50 U. S. (d)(4) (1964 8(a) C. Sections (c) provide that, Act in that circumstance, each member of the must register file statement; thereof, (a) default 13§ authorizes the petition General the Board requiring order to register.3 member judgment 1 The Party conviction of the failure to Appeals was reversed the Court of for the District Columbia Circuit, and the case remanded for a new trial. Communist States, United States App. v. United 118 U. D. C. *3 F. 2d 807. 2 registration Under section accompanies this the statement which registration of organization required a Communist-action include "the name and last-known of each who address individual organization any a of period was member during time of preceding filing twelve full calendar months of such statement.” 3 8(a) (c), 995, (a) Sections and 64 Stat. 50 U. C. 787 S. §§ (c) (1964 ed.), provide: and “(a) Any any organi individual is or who becomes a member of concerning (1) zation which is in there effect a final order of the requiring organization register Board such (a) under section 786 organization, (2) of this title as a Communist-action more than thirty days elapsed have final, since has such order become and (3) registered such is not under section 786 of this organization, sixty days title as a Communist-action shall within final, thirty said days after order has become within after becom ing organization, register a of later, member such whichever is with Attorney organization. General of as member such
“(c) by made individual under subsection (a) (b) accompanied by of this shall section prepared statement to be and filed such manner form, and containing information, Attorney such regula General shall prescribe.” tions (a), (a) (1964 998, 64 ed.), provides:
Section 13 Stat. 50 U. C. 792§ Attorney General shall have “Whenever reason to believe registered that . . . individual who has not under section 787
73
Attorney
(a) against
General
invoked
13
petitioners,
Board,
evidentiary hearings,
after
determined
were
and ordered each
members
register pursuant
(a)
(c).
them to
§§ 8
Review
sought by petitioners
the orders was
the Court
Appeals
the District
of Columbia
under
Circuit
(a).4
Appeals
The Court of
affirmed the orders,
App.
granted
118 U. S.
D. C.
I. Petitioners address several constitutional challenges the validity of the orders, only but we consider the con- register this title inis fact section, under such he shall file upon with the Board and serve such . . . individual a petition requiring for an order such . . . individual pursuant section, may such subsection or as the case be. Each petition such oath, shall be verified under and shall contain a state- upon ment of the facts support which the General relies in prayer of his for the issuance of such order.” (a), Section 14 (a) (1964 64 Stat. ed.), U. S. C. §793 provides: party aggrieved by any
“The may order entered the Board . . . obtain by filing a review of such order in the United Court States Appeals Columbia, sixty days the District of within from the date of order, petition service it of praying such a written the order of Upon the Board be set filing aside. . . . of such *4 petition jurisdiction the court proceeding shall have of the and power shall have to affirm or set aside the order of the Board .... findings facts, supported the Board as to by pre- the if the ponderance evidence, shall be judg- conclusive. . . . The ment and decree of the final, except court shall be that the subject by same shall be Supreme to review upon the Court certiorari . .. .” 5 opposition petition The Government’s sug the for certiorari gested petitioner that the case is moot as to Albertson reason alleged expulsion of his Party. from Albertson, the however, chal lenges suggestion the of mootness. There is no occasion to decide question since, any event, the we must reach the merits the issues respect against petitioner an identical order issued Proctor.
74 Fifth Amendment violate their orders that the
tention against self-incrimination.6 privilege without affirmed the orders Appeals The Court that issue, expressing view deciding privilege the the Party, in Communist S., at 367 U. decision under our and ripe adjudication not for 105-110, the issue was reg- ripe prosecution in a failure only would be App. register. not 118 U. if the did ister 2d, disagree. 321-323. We 332 F. at C., 121-123, D. on Party the Party the In Communist asserted register obliged officers—those of unnamed behalf it Party for” if obliged register “to those Party and asserted claim self-incrimination to do so.7 The failed premature because held of the latter on behalf officers duty and register thus Party might choose contrast, Here, might arise. officers never those register duty members’ which the contingencies upon register Party did not matured; already have arises final register became after the order to days 30 within final have days since the order became requisite 60 and the Party, obliged register As to officers elapsed. claim Party the self-incrimination Communist held adjudication be- ripe was not on their behalf asserted challenges the Act and assailed other Petitioners’ (because they allegedly process denying due substantive orders as abridging First Amendment purpose), as governmental no serve constituting process bills violating procedural due freedoms, as (because they 1953 determination made the Board’s of attainder Party awas Communist-action the Communist denying finally, petitioners the petitioners), conclusive by jury. indictment, judicial grand jury trial trial safeguards of (d), Party pursuant, governing regulations § 11.201,and forms (d), 11.200and 28 CFR are 50 U. S. C. §§ obliged regulation governing officers and IS—51. The are IS-51a. it (h) register for” the if “to (h), 50 S. C. U. §786 §7 Party, 367 11.205. See CFR is 28 failed to S., at 105-110. U.
75 it they cause was not known whether would ever claim asserted, or the if claim, the whether would privilege Attorney respect General. But with honored the in case, the orders addressed named individuals, this contingencies both these are Petitioners foreclosed. in privilege Attorney their answers to the asserted petitions; they testify General’s did not at the Board in hearings; they again privilege asserted the the review proceedings Appeals. In each instance Court "Attorney rejected General their claims. Thus, -in considerations which led the Court on to hold that the claims behalf of unnamed officers premature present were are not this case. holding petitioners’
There are other for reasons that ripe self-incrimination claims are Specific decision. requiring petitioners register orders have been issued. promulgated regulations has General re- quiring shall be on accomplished Form and that accompanying IS-52a registration state- a completed IS-52,8 ment shall be Form 28 CFR 11.206, 11.207, very risk heavy pen- §§ if they register by fail to completing filing alties (a)(2) forms. 15 Act, § these Under 64 Stat. §794(a)(2), example, day 50 U. S. C. each register separate punish- of failure a offense constitutes aby up $10,000 fine of or imprisonment up able five or years, both.9 either Petitioners must a decision on without merits of their claims, 8 Copies reproduced of Form Form IS-52a and IS-52 are Appendix opinion. to this 9 argued orally by premise case both sides on the penalty complete for failure to arid file IS-52 Form constituted separate punishable by up $10,000 imprison offense fine of up both, day years, ment to five but that each of failure to separate form file the did not constitute offense. We have no occasion, however, question, to decide the no intimate view (b), (b). it. C. See U. S. *6 mounting rapidly and risk onerous register and fail pleasure the Government’s awaiting while
penalties ask, To them. against prosecution initiate a whether such await circumstances, that in these their self-incrimination adjudication for an prosecution denied they be that should effect, contend in is, claims intended privilege Amendment of the Fifth protection the making a choice necessity of the claimants to relieve risking serious themselves incriminating between refusing to do so. for punishments this in its brief concedes the Government Indeed holding prematurity Appeals’ the Court Court that claims of petitioners’ insofar was erroneous regis- compel the act power the Board’s relate to accompanying registra- of an the submission tration and that, acknowledges candidly brief tion statement. a Board judicial review of (b) provides since 14§ like regard, in that register, claims petitioners’ order to may be invalid, order is other contention that reviewing the court —thus dis- heard and determined see tinguishing similarly reviewable, orders that are not States, 117; Alexander v. United Cobbledick v. U. States, S. 323. U. the Gov- Nevertheless, argues claims petitioners’ premature ernment that are they to “any particular insofar as relate on inquiry” contingencies IS-52. Two hy- Forms IS-52a and are pothesized support of this contention: that the (1) might present General alter the forms (2) might he accept fully completed that less than forms.
The distinction which argument this predicated is is illusory. the regulations Neither statute nor the draw distinction between act of registering and the submission of a on statement, hand, the one and, hand, on the other the answering of inquiries forms; demanded regulations the statute and con- template questions rather that asked on the forms fully completely answered. Morever, are contingencies hypothesized are irrelevant. Petitioners obliged are submit forms existing mere presently regulations; accordance with contingency might Attorney General revise pre- at some future time render regulations does not challenge to existing requirements. mature their Nor requirements requiring peti- can these be viewed as tioners the risk of criminal prosecution answer —at only will peti- those items which not incriminate error — tioners; compliance required. Finally, full the Gov- *7 argument congres- ernment’s would do violence to the penalties only sional are upon scheme. incurred failure to and, final orders § 14 (b), under orders final of completion become judicial providing, Congress In so plainly review. mani- fested an intention to alleged prior afford to members, criminal prosecution to an register, adjudica- failure all, tion of just not of some, the claims to the addressed validity of registration the Board’s orders. We therefore proceed to a determination of the of petitioners’ merits self-incrimination claims.
II.
The risks of incrimination which
take in
registering are obvious. Form IS-52a requires an admis-
sion of
in
membership
Party.
Communist
Such
admission of membership may be
prosecute
used to
registrant under the membership
clause
the Smith
Act, 18 U. S. C. 2385 (1964
4
ed.),
under
(a)
the Subversive Activities Control Act, 64 Stat.
991,
U. S. C.
(a) (1964
§ 783
ed.),
only
to mention
two federal
criminal statutes. Scales v.
States,
United
“shall be IS-52, to file Form duty there is implies that clearly is an enforceable statement, only if there registration by completing obligation accomplish regu- if Yet, even the statute and filing Form IS-52a. file complete Form required petitioners lations validity reg- regard order IS-52 without requirement complete IS-52a, on Form ister privilege. Like file would also invade the Form IS-52 Party membership Form the admission demanded for by the information called Form IS-52— IS-52a, *8 of which is a his organization registrant member, the the date aliases, place birth, and list of offices held might and duties be used thereof — supply investigatory evidence in or at least leads prosecution. a criminal The Government, relying on Sullivan, v. 259, argues States 274 U. S. that might petitioners questions some appropri- and answer ately privilege claim the on form as to others, but fail cannot to submit a altogether. statement Apart from our nothing conclusion that in the Act or regulations permits less than literal and full compliance with the requirements form, the reliance on Sulli- upheld Sullivan a conviction misplaced. van theory on the that file an income tax return failure to called for answers that provided the form of return “[i]f making from could privileged the defendant was he have not on return, but could that objection raised the at all.” at S., account refuse to make return 274 U. view, first, declaration was based on the That against every question a self-incrimination claim on the tax or based on the mere return, return, submission of the second, virtually would frivolous, and to honor the claim of not asserted at the time the return taxpayer due would make the rather than a tribunal the final arbiter of the merits the claim. But neither applies reason here. A tribunal, Board, had an opportunity pass petitioners’ self-incrimina- since, claims; tion unlike a tax return, pervasive effect of the information called for Form IS-52 is in- criminatory, their claims are substantial far from In questions frivolous. Sullivan the in the income tax return were neutral on their face and directed public at but large, they here are a highly directed at group selective inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially non- criminal regulatory area of inquiry, against but inquiry in an permeated area with criminal statutes, response where any of questions the form’s in con- text might involve the in the admission of a crucial element of a crime.
III. (f) Section 4 of the Act,10 purported immunity pro- vision, does not save the peti- orders from (f), Section 4 (f) Stat. provides: U. S. C. §783 holding “Neither the membership of office nor organization by any person per shall constitute se a violation of *9 80 v. In Counselman challenge. Amendment Fifth
tioners’ 1892, in the Court Hitchcock, 142 decided U. leaves which [immunity] statute no “that held after he answers prosecution subject witness party or effect can have'the him, criminating put question that such a stat ,” . . . supplanting complete protection “a supplies if only it ute is valid pro against which the constitutional perils from all the affording “abso designed guard by . . .” hibition for against prosecution future the offence immunity lute Id., Meas relates.” at 585-586. question to which the granted by (f)4 standards, immunity by ured these States, S., 367 complete. is not See Scales v. U. any at It of the informa preclude 206-219. does use not tion as or as an IS-52, called Form either evidence investigatory regard registering to the lead. With act IS-52a, (f) provides only on Form 4 that the admission membership per thus shall not se consti (a) (c) any a violation of 4 or other criminal §§ tute in statute, against registrant or “be received evidence” any prosecution; criminal it not preclude does the use investigatory as an lead, of the admission usé which is Hitchcock, privilege. barred Counselman v. S., 564-565, 585.11 U. (a) (c) any
subsection or subsection of this section or of other any person criminal statute. The fact of the under section 787 or section 788 of this title officer member of any shall not be received evidence against person any prosecution any alleged such violation of (a) (c) subsection alleged subsection of this section or for violation of other criminal statute.” legislative history expressions includes several of doubt that immunity granted privilege. was coextensive with the See S. Rep. Cong., Sess., 2, pp. (Sen. No. Kilgore) 81st 2d Pt. 12-13 (Minority Report); Cong. (Sen. Humphrey); Rec. 14479 Cong. (Sen. Kefauver); Cong. Rec. 15199 and 15554 see also 96 Rec. (Rep. Celler), dealing immunity 13739-13740 with a more modified *10 The Government does not contend that the short- coming (f) 4 §of is remedied regard in to information called for on the statement, Form IS-52. respect With to Form IS-52a, however, argument is that, made since order to preceded by is finding Party membership, Board the admission of membership required on that form would be of no investi- gatory value and thus is within “incriminatory” not meaning of the Fifth Amendment privilege. this On view incompleteness (f) of the 4 grant immunity would be rendered immaterial and the Party admission of mem- bership compelled could be without violating the priv- ilege. disagree. We judgment as to whether a “incriminatory” disclosure would be has never been made on an dependent possessed assessment information by the at Government the time of interrogation; pro- tection of would seriously impaired if the right to invoke it dependent was on such an assessment, with all its uncertainties. The threat to the privilege present no less where it is proposed that this assess- in ment be made order remedy a shortcoming in a statutory grant of immunity. representation the information demanded is of no utility is belied by the fact that the failure to make the disclosure is so severely sanctioned; and permitting the incompleteness 4 (f) to be cured a representation such would illusory render requirement Counselman a stat- ute, supplant order to the privilege, provide must “complete protection from all the perils against which the constitutional prohibition designed guard.”
The judgment of of Appeals Court is reversed and the Board’s orders are set aside.
It is so ordered. grant in H. generally R. 9400. See Scales States, v. United S., (Court U. opinion), 212-219 282-287 (dissenting opinion). for all the concurs in the reversal
Mr. Black Justice opinion as well those set in the Court’s set out reasons in out his dissent SACB, States v. U. S. consideration part no White took
Mr. Justice case. of this decision THE OF COURT. APPENDIX TO OPINION *11 follows: is as Form IS-52a No. IS-52a Form
(Ed. 9-6-61)
Budget Bureau No. 43-R414 July 31, 1966 expires Approval DEPARTMENT OF JUSTICE STATES UNITED Washington, D. C. FOR INDIVIDUALS FORM
REGISTRATION 8(a) (b) or Pursuant to Section Security Act of 1950 Internal aby accompanied This form should be (Note: IS-52) Form Statement, Registration .hereby type) or
(Name of individual —Print ., a member of registers as organization. a Communist-action . /s/ (Date)
(Signature) name) (Date) (Typed printed (Address type print) — Form IS-52 is follows:
Budget Bureau No. 43-R301.2 Approval July expires UNITED STATES DEPARTMENT OF JUSTICE D. C.
Washington, Form IS-52
O U REGISTRATIONSTATEMENTSOP INDIVIDUALS
Pursuant to section of8 the Internal
Security Act of Carefully Instruction Sheet — Read 1. All individuals under section 8 of the Internal Security Act of 1950 form shall use this *12 for their statements.
2. copies Two An statement are to be filed. additional copy of the prepared statement should be Registrant retained for future references.
3. The statement filed be with the Internal Se- curity Department Division, of D. C. Justice, Washington,
4. All items the form are to be answered. Where the answer to an item is “None” “inapplicable,” or it should be so stated.
5. copies Both signed. the statement are making any false willful statement the omission of punishable material fact is under Code, 18 U. S. 1001. provided
6. If the space on the form for the answer any given is insufficient, item reference shall be made which pages on page to a full insert space in such answer restated and shall be and item item number given. Individual
For an organ- a member of Communist-action a. isWho file a statement has failed to ization which Security Act of 7(a) of the Internal by Section 1950.
OR which has any organization is a member b. Who Sec- organization under registered as Communist-action but which Security Act of the Internal 7(a) tion name the list the individual’s include has failed to with the General. of members filed organization of Communist-action Name of the 1. preceding a member within the Registrant was which twelve months. Registrant.
(a)2. Name of during Registrant used All other names (b) when used. years dates past ten (c) of birth. Date
(d) Place of birth. address. business 3.(a) Present address. residence (b) Present past or has within is now Registrant If the the Communist-actión an officer of months been twelve 1: question number response listed when held. and the all so held date (a) List offices per- functions of the duties or description (b) Give of office. during tenure formed infor read the certifies that he has undersigned *13 familiar with statement, that he is this set forth in mation are in their such contents thereof, and that the contents knowledge entirety true accurate to the best of his undersigned represents and belief. The further that he familiar with provisions 18, of Section Title (printed form).* U. S. Code the bottom this .
/s/
(Signature) (Date) . /t/ (date)
(Name) (Print type) or C., 1001, provides: any Whoever, *18 U. Section matter jurisdiction department agency within the or of the United knowingly willfully falsifies, up by any States conceals or covers trick, scheme, fact, any false, or a device material or makes fictitious representations, or fraudulent or statements or makes or uses writing knowing any false, or false document the same to contain entry, fictitious or fraudulent statement shall be fined not more $10,000 imprisoned years, than not more than five or both.
Mr. Justice Clark, concurring.
I join opinion in the of the conclusion it Court. The today response reaches was forecast in In request Judiciary Chairman of the Senate Com expression mittee for an Department the views H. precursor of Justice on R. Act here attack, pointed under it was then out “measure might compel be held . . . even self-incrimination.” † expressed
This in a my signature view letter over General which proposed leg- noted that require every islation “would political or- ganization every Communist-front register .... In addition to information which would organizations be of both common, Commu- political organization obliged nist would to disclose Hearings on H. R. 5852 before the † Senate Committee on the (1948). Judiciary, Cong., Sess., 80th 2d *14 registra- in its members of its the names addresses any organ- In case of the failure of tion statement. ... it measure, accordance with the register in ization to the secre- executive officer and duty of the would be the of the register to behalf organization tary of such . register subjects A . . ... failure organization. penal- to severe agents and certain of its organization bill provisions of other After consideration ties.” Department of Justice had advised that the letter (notwith- might measure be held that “the concluded present finding of clear standing legislative and of speech, press, of the danger) deny freedom compel self-incrimination.” It and even to assembly, Department “there expressed the belief also the meas- any voluntary registrations under not be would fail organization register, ure. Should Communist shift Gen- proceed the burden to would required to prove ... eral register.” finally imposed duty register passed,
As Act members after the refusal of the Com- upon individual membership. and disclose its munist Department not in H. R. about which Though expressed doubts, per- of Justice constitutional this more directly registration requirement abridges the vasive I against of members self-incrimination. there- join fore this reversal.