COMMUNIST PARTY v. CONTROL BOARD
Legal provision: Smith, Subversive Activities Control, Communist Control, or other similar federal legislation except the Internal Security Act (qv.)
Argument of John J. Abt
Chief Justice Earl Warren: Number 12, Communist Party of the United States, Petitioner, versus Subversive Activities Control Board.
Mr. Abt, you may proceed.
Mr. John J. Abt: Thank you, Your Honor.
May it please the Court.
This case presents for review a decision of the Court of Appeals for the District of Columbia Circuit affirming an order of the Subversive Activities Control Board that the petitioner register as a Communist-action organization under Section 7 of the Subversive Activities Control Act.
The Act was passed over the presence veto in September 1950, shortly after the outbreak of war in Korea.
The order of the Board was issued in April 1953 after a hearing on a petition by the Attorney General and was accompanied by a report in which the Board stated its findings as to the facts.
On the first review, the Court of Appeals held the Act constitutional and affirmed the Board's order.
Judge Bazelon dissented holding the Act unconstitutional because it violates the privilege against self-incrimination.
This Court refers to 1956 without reaching any of the other questions presented because of the denial below of the petitioners' motion for leave to adduce evidence that three witnesses called by the Attorney General for perjury.
Upon the remand of the case to the Board, the Attorney General did not contest the petitioners' allegations of perjury.
Accordingly, the Board expunged the testimony of these three witnesses.
After further proceedings, the Board issued a modified report and a recommendation that its order be affirmed.
On the second review in 1958, the Court of Appeals remanded the case to the Board because of the latter's denial of petitioners' motions for the production of statements to government agencies by to of the Attorney General's witnesses.
After further proceedings before the Board, the Board issued its modified report on second remand and again recommended affirmance of its registration order.
The court below affirmed.
Judge Bazelon again dissenting adhered to its original position on the constitutional question and further held that several procedural errors required another remand to the Board.
The case presents to this Court questions of the highest public importance as to the constitutionality of the Subversive Activities Control Act and its construction and application.
Additional questions relate to the sufficiency of the evidence and to what, in our review, were for major procedural errors by the Board of the court below.
The first point that I shall argue is that the Act, on its face and as applied, violates the First Amendment.
As I shall show under the guise of a registration statute, the Act represents an attempt without precedent in this country to enforce conformity by suppressing, advocacy, association and collective activity for wholly legitimate purposes.
The Act provides for proceedings before the Board initiated on petitions of the Attorney General to determine whether accused groups are Communist-action, Communist-front or Communist-infiltrated organizations but to the Act, denominates collectively as Communist organizations.
A Communist-action organization is defined in Section 3 (3) of the Act as an organization which, and I quote, "One is substantially directed, dominated or controlled by the foreign government or foreign organization controlling the world Communist movement," referred to in Section 2 of this title and two, "Operates primarily to advance the objectives of such world Communist movement," as referred to in Section 2 of this title.
Section 2, which is, of course, item of Section 3 by virtue of the Section 3 definition, Section 2 finds that the world Communist movement referred to in the definition is directed and controlled by a foreign power, operates through the medium of a worldwide Communist organization composed of Communist-action organizations and has as its purpose the establishment of what the Act calls a Communist totalitarian dictatorship in all the countries throughout the world by means of espionage, sabotage, terrorism, treachery, deceit, infiltration to other groups and any other means deemed necessary.
Communist-front and Communist-infiltrated organizations are defined in terms of their control by a Communist-action organization or its members and by their purpose of giving aid or support to a Communist-action organization.
Communist-action and Communist-front organizations are required to register as such with the Attorney General when a registration order becomes final upon the exhaustion of judicial review.
Communist-infiltrated organizations are not required to register that are denied the benefits of the National Labor Relations Act.
The registration statement of a Communist-action organization must list the names of its officers and all of its members give a detailed financial accounting and list of printing, mimeographing and similar duplicating facilities.
Registration statements are open for public inspection and are required to be kept current by annual reports.
Members who are not listed in the registration statement of the organization are under a duty to register themselves after an administrative determination of their membership.
The failure of the officers to register the organization or the members to register themselves is punishable by five years imprisonment and a $10,000 fine cumulative for each day that the failure to register continues.
In view of the findings of Section 2, a final registration order commence the organization to stigmatize itself and its members or the members to stigmatize themselves has participants in what amounts to a foreign controlled seditious conspiracy.
A final registration order also automatically invokes a series of tripling sanctions against the organization and its members.
All these sanctions, it's important to point out, become operative whether or not the organization or its members register in compliance with the registration order.
The sanctions are the following.
First, the organization must label all publications which it distributes through the mails as those are a Communist organization.
Its broadcasts and telecasts must be preceded by a similar identifying announcement.
This requirement, in our view, was plainly acquire -- requirement of self-defamation applies to all of the organizations, publications and broadcasts, no matter how legitimate their contempt maybe.
Justice Hugo L. Black: What section is that (Inaudible)?
Mr. John J. Abt: Section 10, Your Honor.
Second, it is unlawful for members of the organization to hold any non-elective federal office to hold employment of any kind in an enterprise which the Secretary of Defense has listed as a defense facility or to hold any office or employment in a labor union.
These provisions may close a door to virtually all employment opportunities for members.
Third, it is unlawful for members to apply for or use passports for any purpose including the most innocent.
Fourth, it is unlawful for employees of the Government or of the defense facilities to contribute funds or services to the organization for any purpose whatsoever or even to subscribe to the publications of the organization.
Fifth, naturalized citizens who join the organization within five years after naturalization are subject to loss of citizenship.
Alien members are to be excluded or deported and may not be naturalized.
Sixth and finally, the organization and its employees are excluded from a social security system.
The sanctions of the Act, with reference to labeling, employment, passports and contributions to the organization are all enforceable by the onerous criminal penalties imposed by Section 15 of the Act.
All of these sanctions on the members are imposed exclusively because of their membership without regard to their personal influence -- innocence or lack of personal knowledge of any wrong doing whatsoever on the part of the organization.
Justice Potter Stewart: But we do have to have personal knowledge, don't we, that the organization has been required to register and has been found to be the kind of an organization described in the earlier sections of the statute?
Mr. John J. Abt: Not entirely, Your Honor.
Justice Potter Stewart: (Voice Overlap) --
Mr. John J. Abt: -- Mr. Forer has been to argue that point.
I'd like to refer the analysis (Inaudible).
Justice Potter Stewart: Right.
At least, isn't it true, that what you just said is subject to some qualifications?
Mr. John J. Abt: Qualification of -- in some aspects, they must have notice --
Justice Potter Stewart: And knowledge.
Mr. John J. Abt: -- of the -- or not notice or knowledge --
Justice Potter Stewart: Yes.
Mr. John J. Abt: -- that an order has been issued for registration order but no personal knowledge that the organization has been engaged in wrongdoing.
The sanctions imposed by the Act on front organizations and their members differ from notes that I have described with preference to Communist-action organizations only in a few ameliorating details.
In the case of the petitioner, the member sanctions are not implying to persons who are its members by any conventional standards.
They extend to a host of individuals who may be found to be members under Section 5 of the Communist Control Act, which establishes such vague and comprehensive standards for determining membership in the Communist Party and that we show in our brief and argue it here almost anyone can be found to be a member.
A final registration order against petitioner will have further consequences.
Any person who signs a registration statement or whose name is listed in it becomes a candidate for prosecution under the Smith Act and the extravagantly vague crime created by Section 4 (a) of this Act of conspiring, "To perform any act which would substantially contribute to the establishment of a totalitarian dictatorship under foreign control".
Furthermore, by branding the organization and its members as treasonable conspirators, registration order defames them, makes them social outcasts and threatens their ability to earn a livelihood.
Finally, the registration order will make it prohibitive for other groups and individuals to associate with the petitioner or its members or even to advocate legitimate social or economic use which they support.
Justice Hugo L. Black: What section are you referring (Inaudible) makes it illegal for someone to associate any members?
Mr. John J. Abt: I didn't say made it illegal, Your Honor, I said it made it dangerous for them to do so because by doing so, first of all, they may make themselves -- themselves members under the evidentiary indicia of Section 5 of the Communist Control Act.
And in addition, any group that engages in such association or advocate views similar to those advocated by the Communist-action organization, the petitioner risks condemnation under the Act as a front or infiltrated organization under the Act's standards for determining what front and the infiltrated organizations are.
The consequences of all these are at the registration order, quarantines the organization and -- and its members.
Registration order also effectively deters the whole people from even considering, later on espousing any views of the organization advocates.
In the light of all these consequences of a registration order, it is idle to pretend, as a Government does here, that the Act it is nothing but a simple disclosure statute.
No disclosure statute, a legitimate disclosure statute defames and imposes destructive penalties upon those who complied by making disclosure nor does it make registration an Act of self-exposure to criminal and civil liabilities created by the legislation itself.
The Act makes that we think it was obviously intended to make registration impossible for if the organization registers, it destroys itself and jeopardizes the livelihood and liberty of its members, contributors and those who do business with it by listing their names for public scrutiny as members, contributors or persons having business dealings with a foreign control seditious conspiracy.
For member registers, he destroys himself under the sanctions of the Act.
On the other hand, failure to register exposes the officers and members an astronomical cumulative penalty.
The order thus offers the organization or its members a Hobson's choice between suicide by registration and governmental execution for non-registration.
Accordingly, the Act does not contemplate really that the order -- a registration order will be complied with.
Consequence, the order will not and can't produce information because nobody can register under it and survive, but it results in its proscription.
Its true function is to outlaw the petitioner, lay a basis for the mass prosecution of its members and establish the foundation for proscribing other organizations as fronts or infiltrators.
By outlawing the petitioner, the Act does not merely deter but proscribes all advocacy by and association with it.
Congress thought to reconcile these consequences with the First Amendment by finding in Section 2 that the Act was necessary to guard against, "A clear and present danger to the security of the United States," at Section 215.
The Act cannot be justified on this ground.
First place, it authorizes the entry of a registration order against an organization which has not been shown be endangering the national security in any way whatsoever.
This appears in Section 3 of the Act, Section 3 (3) I should say, which defines a Communist-action organization in terms of two characteristics.
First characteristic is that the organization is under Soviet control, substantially directed and dominated and controlled by the foreign government controlling the world Communist.
But the existence of foreign control or control by the Soviet Union cannot of itself establish that the organization is a threat to the national security if in fact the only activities of the organization engages in are innocent, lawful and peaceable.
This would seem to be true under any conception of the meaning of the word "control" but certainly true under the conception adopted by the Board and the court below and urged by the Government in its brief here which, as Mr. Forer will show in his portion of the argument to satisfy by nothing more than voluntary ideological adherence to use in policies of the Soviet Union.
Justice Hugo L. Black: Your argument here seems to be that the Government is without constitutional power to proscribe any organization to be controlled by any foreign government for its purposes.
Mr. John J. Abt: I haven't come to the purposes of that, Your Honor.
I think in one of the --
Justice Hugo L. Black: Well, your argument is --
Mr. John J. Abt: I said --
Justice Hugo L. Black: (Voice Overlap) --
Mr. John J. Abt: -- a mere --
Justice Hugo L. Black: -- without constitutional power to (Inaudible) the taxing of (Inaudible) in this country under the direction of a foreign country.
Mr. John J. Abt: I said the mere fact that the organization is under the direction of a foreign country without respect to what the -- what the domestic organization is doing in this country is not a sufficient constitutional basis to permit the proscription of that organization.
And I now want to come to the second portion of the --
Justice Hugo L. Black: That's based on the First Amendment?
Mr. John J. Abt: Based on the First Amendment, yes, Your Honor.
You can't --
Justice Hugo L. Black: You're saying the Court --
Mr. John J. Abt: -- we're saying that you can't --
Justice Hugo L. Black: -- First Amendment authorizes people of this country to engage in -- now in this propaganda, their own argument or whatever you call it and at the same time -- and at the same time also permits people here from engaging the same kind of argument even though they're -- during (Inaudible) of foreign nation --
Mr. John J. Abt: Absolutely, Your Honor.
Justice Hugo L. Black: That's your (Voice Overlap) --
Mr. John J. Abt: (Voice Overlap) --
Justice Hugo L. Black: -- you have to stand on that argument.
Mr. John J. Abt: We stand on that argument, yes, sir.
We say that -- we say that -- as I've said, under any conception of the word "control" that is to say, if there were -- even if (Inaudible) shown in this case or the Act were construed to require a showing that the Soviet Union have the power to enforce its orders or demands on the local organization.
We say that that's obviously true under the conception of control which the court below adopted the -- and which the Board is urging here which dispenses with any element of power to enforce complaints with the foreign countries' desires and rest it says of control exist merely where there's a voluntary ideological conformity.
I don't want to get into that question because (Inaudible) in our argument further but I just note that in answer to your -- Your Honor's question.
I now want to come to the second element of the Section 3 (3) definition, which requires proof that the organization operates and I quote, "Primarily to advance the objectives of such world Communist movement as referred to in Section 2."
Now, Section 2 contains lengthy findings about the evils of the world Communist movement but neither it nor any other provision of the Act defines the objectives of the movement.
There's no definition in the Act of the objectives of the --
Justice Potter Stewart: How about Section 2 (1)?
Mr. John J. Abt: Well, I am coming to that, Your Honor, because I think that's all there is.
What I say is that the objectives are left to be inferred from what you can read in to -- in to or out of Section 2.
Justice Potter Stewart: Subsection 1?
Mr. John J. Abt: Subsection 1, that's -- that's correct, Your Honor.
As -- as we read the Act, and I take it as Your Honor would read it.
The objectives of the world Communist movement, referred to in Section 3 (3), are synonymous with what Section 2 (1) calls the purposes of the movement.
That is the establishment of a communist totalitarian dictatorship in the countries throughout the world.
Now, if this is all of the objectives element of Section 3 (3) comprises that is, the objective of world Communist movements is to establish a communist totalitarian dictatorship in the countries throughout the world then an organization can be required to register as communist action organization and to suffer all of the sanctions and liabilities of the Act merely upon proof that is -- that it is promoting the establishment of such a dictatorship in this country by visible, lawful and constitutional means.
The Government's brief, at least, when it discusses the application of Section 3 (3) seems to agree with us that the Act does not require proof that an accused organization practices or incites of violent or illegal means in promoting this ultimate objective (Inaudible) than it has.
But efforts to bring about a change in our form of government without incitement of violence or crime can never endanger the national security no matter how obnoxious the change may be thought to be.
Accordingly, the First Amendment, we think, bars Congress from curtailing the advocacy or association of those who promote such change by peaceful (Inaudible) peace.
The Act, therefore, as we interpret the objectives component of Section 3 (3) violates the structure.
On the other hand, if our interpretation is wrong and if this Court should hold that the Act does require proof that an accused organization uses or incites a violent or other illegal means in promoting its objectives in the order of the Board would have to be set aside because the Board made no finding and there was no evidence that this requirement was met, that is to say that the Communist Party, the petitioner in this case, that uses or incites through violence or illegal means for the achievement of -- of its objective.
Justice Hugo L. Black: Does the Government agree with you on that?
Mr. John J. Abt: Government doesn't -- the Government doesn't reach the question, Your Honor.
Because the Government says we read -- read their brief when they come to discuss the application of the Act.
Government has says that all of Section 3 (3) requires it to show that the accused organization has the objective of establishing a communist totalitarian dictatorship and that the means that it advocates or employs to achieve that objective are -- are not material.
Justice Hugo L. Black: You mean that the Government have read their brief but do you mean that they argued (Inaudible) change the form of Government, they shouldn't be -- the Government does not (Inaudible)
Mr. John J. Abt: It doesn't say that in words, Your Honor, you will have to -- you will have to ask the -- the Government what they mean but they do say in page 261 of their brief that the objective referred to and their objectives referred to in Section 3 (3) is the objective of establishing a communist totalitarian dictatorship in this country and it don't make any difference what the means proposed or the means employed for that purpose are in terms of satisfying the definition.
Justice Felix Frankfurter: But the statute itself allows changes by a constitutional amendment.
Mr. John J. Abt: Statute --
Justice Felix Frankfurter: Statute says (Voice Overlap) --
Mr. John J. Abt: -- statute has a reference to changes like constitutional amendments, that's correct, Your Honor.
Justice Felix Frankfurter: Well (Inaudible) the Government read that would acknowledge the statue.
Mr. John J. Abt: I'm sorry, Your Honor.
You'll have to ask the Government.
Justice Felix Frankfurter: Well, I just wonder --
Mr. John J. Abt: I can't speak for them.
Justice Felix Frankfurter: -- whether that -- why they had mean.
Mr. John J. Abt: They make no reference to it.
I think that that's what -- all I can say is that that seems to me that's what they must mean when they say that the means don't matter because in my judgment, it's a means that -- that -- are the only thing that matters and not -- not the ultimate objective.
The most that the Board found in this case was that the petitioner and I quote from the Board's report, "Advocates the overthrow of the Government of the United States by force and violence if necessary".
This finding on its face isn't a finding of incitement for violence but of the advocacy of abstract documents.
Justice Hugo L. Black: Where is that finding?
Mr. John J. Abt: That finding, Your Honor, is record 2633.
Moreover, the finding was based on substantially the same evidence which was before the Court in the Yates case in which this Court held could not support the finding of incitement.
Accordingly, on it's face and as applied, the Act outlaws petitioner without proof of any acts or advocacy which endangered the national security.
This conclusion is further fortified by Section 13 (e) of the Act.
Section 13 (e) enumerates eight criteria for the Board to consider in determining whether an accused organization is or is not a Communist-action organization.
Most of these criteria focus on views, policies and their expression.
None of them has anything to do with the use or advocacy of violent or unlawful means.
Thus, Section 13 (e) (2) requires the Board to consider the extent to which the views and policies of an accused organization do not deviate from those of the Soviet Union.
The views and policies need not be seditious, dangerous or even false.
Indeed, they may be in the best interest of the American people.
Yet, they provide one of the basis for imposing the destructive liabilities and penalties of the Act simply because they are similar to views expressed by spokesmen for the Soviet Union in applying this criteria which the Board -- which the court below characterized "as furnishing one of the chief items of evidence in the case".
The Board rested its finding adverse to the petitioner primarily on the fact that it and the Soviet Union advocated such legitimate and widely held views as of the Chiang Kai-shek Regime was reactionary and corrupt, that the People's Republic of China should be seated at the United Nations.
That Syngman Rhee was a corrupt dictator and that prohibition of atomic weapons as advocated in the Stockholm Pledge was in the interest of world peace.
But the heresy of non-deviation from views like these can be penalized, then governmental control of political expression and association is indeed unlimited.
In fact, the ex-provisions concerning front and infiltrated the organizations as well as Section 5 of the Communist Control Act, already penalized offense of non-deviation from the views of petitioner.
This, I think, is a technique of mercantilism which the nation rejected.
Affirmance of the Act and the Board's order would resurrect and make it our national policy by freezing it into the law and arming it with intolerable sanctions.
The fact is that the Act would violate the First Amendment even if proof were required that an -- an accused organization was engaged in conduct endangering the national security.
For the Act's restrains sound expression and association are far broader than necessary to meet any possible danger from such conduct.
As President Truman stated in his veto message, the Act attempts, and I quote, "To proscribe for groups such as the Communists certain activities which are perfectly proper for everybody else".
For example, whatever else may be charged against the Communist Party, it concededly employs association in the advocacy, collective activity for legitimate political, social and economic objectives which many Americans share.
Yet, by outlawing petitioner here, the Act suppresses this legitimate political activity.
It does so not as unnecessary incident for the control of dangerous conduct, on the contrary, it is legitimate advocacy and legitimate association for a collective activity that the Act was designed to reach because there are already plenty of criminal statutes which punish espionage, sabotage and seditious conspiracy, seditious advocacy and provide for the registration of foreign agents and the Congress has overlooked any conduct injurious to the national security, it could easily make it punishable by legislation narrowly drawn for that purpose.
Respondent argues that the Act is valid because of strikes at a grave evil -- evil.
The inference is that once Congress finds that an organization, like petitioner is dangerous, all of its advocacy and selective activity may be suppressed including that which is lawful and innocent.
This is a theory of congressional power which says that Congress may toss an atom bomb, an H-bomb in the general direction of any evil that it finds.
But due process prohibits Congress from what the military call over killing at least on constitutional rights for the victims.
And the prohibition is even more stringent for the killing occurs within the area where the First Amendment grants asylum.
Accordingly, use of the legislative H-bomb embodied in this Act cannot be validated without writing off the First Amendment and indeed, due process along with it as a security risk.
I turn now to the question of the privilege against self-incrimination.
The registration order requires petitioners' officers to perform an act, the signing and filing of petitioners' registration statement which constitutes an admission of their membership and officership in the Communist Party.
This Court has held --
Justice Potter Stewart: Does it require the officers to do that?
Mr. John J. Abt: It does, Your Honor, in several ways.
First, it requires the organization to file --
Justice Potter Stewart: It requires the organization to register.
Mr. John J. Abt: To register.
Justice Potter Stewart: Now, it -- couldn't be done by some other agent, by lawyer?
Mr. John J. Abt: Not -- not under the regulations of the -- issued by the Attorney General (Inaudible)
Justice Potter Stewart: How about statute?
Mr. John J. Abt: And of statute conceivably violate -- conceivably, I don't know, by what -- but -- but we are -- have to the Attorney General regulations which were issued under the authority of the Act, specific authority of the Act which require the registration statement to be signed by all of the officers and members of the governing board of the organization.
Justice John M. Harlan: Do you have a copy of the registration statement (Inaudible)?
Mr. John J. Abt: Pardon?
Justice John M. Harlan: Do you have a copy of the registration form?
Mr. John J. Abt: I'm sorry I don't the form with me, Your Honor.
Perhaps we can get it from the (Inaudible) Solicitor General --
Justice John M. Harlan: Solicitor General (Inaudible).
Justice Felix Frankfurter: What -- what inadequacy would you find that the statute would there be a registration specifically to sign Communist Party of -- in the United States?
Mr. John J. Abt: Under the statute as written.
Justice Felix Frankfurter: I'm talking about the statute.
Mr. John J. Abt: There would be no --
Justice Felix Frankfurter: There would be no.
Mr. John J. Abt: None, no.
Under the regulations of the Attorney General, the government for (Voice Overlap) --
Justice Felix Frankfurter: (Inaudible) about the statute?
Mr. John J. Abt: Yes, sir.
Justice Felix Frankfurter: It doesn't follow that because the statute is valid, the regulation is was invalid.
Mr. John J. Abt: Correct.
The -- the -- I may say also that the -- the Act requires that the -- in the event that the organization does not register, the officers have an individual duty to register the organization.
And then, of course, if the officers don't perform that duty and list all the members, the members are (Inaudible)
The Court has held that an admission of membership or officership in the Communist Party may not be compelled.
Accordingly, at least under the Attorney General's regulations, the registration order could rose invasion of the privilege against self-incrimination.
The -- in recognition of this fact, the Congress wrote Section 4 (f) in to the Act.
Justice Felix Frankfurter: Is the -- I suppose the Board, if that's what you call, made an order, specific order, is the order in the record?
Mr. John J. Abt: The order is in the record, yes, Your Honor.
Justice Hugo L. Black: You have it here?
Justice Felix Frankfurter: Is that at the tip of your --
Mr. John J. Abt: I don't have it at the tip of my tongue, Your Honor, but Mr. Forer will find it.
It was -- it was in recognition of the self-incrimination --
Justice William J. Brennan: Do you recall, Mr. Abt, of the order described the manner of registration?
Mr. John J. Abt: No, it does not, Your Honor.
It simply requires the organization to register and then the form of the registration is controlled by the regulations of the attorney.
Justice Felix Frankfurter: And it's based (Inaudible) Communist Party to satisfy the order?
Mr. John J. Abt: I have to look at the order, Your Honor --
Justice Felix Frankfurter: Well, that's what I --
Mr. John J. Abt: -- from --
Justice Felix Frankfurter: -- that's what I'm saying.
Mr. John J. Abt: The or -- the order does not specify who would -- who has to sign the registration.
Justice Felix Frankfurter: I repeat my question.
Mr. John J. Abt: Yes, Your Honor.
Justice Felix Frankfurter: If the piece of paper was sent in to aid in whatever registration involved, it was signed Communist Party of America, does that satisfy the order of the Board?
Mr. John J. Abt: I think it would not satisfy the order of the Board.
Justice Felix Frankfurter: Let's have the order.
Mr. John J. Abt: Pardon?
Justice Felix Frankfurter: Let's have the order and find out.
Mr. John J. Abt: (Inaudible) I don't think it would satisfy the order in the light of the regulation which the Attorney General --
Justice Felix Frankfurter: But let's have the order.
Mr. John J. Abt: I'm sorry, Your Honor, I don't have --
Justice Felix Frankfurter: Here we are, is -- the question before this Court is whether this order turns by the Court of Appeals of the District to be obeyed or not, is it not the question before this Court?
Mr. John J. Abt: That's one of the questions before this Court.
Justice Felix Frankfurter: But it's not the question because that's the only direction that has been made against the Communist Party.
That's the only judicial judgment that is before, isn't it, for review here?
Mr. John J. Abt: Right.
The original order -- the original order appears at page 130 -- 138 of the record.
Justice Felix Frankfurter: Thank you very much.
Mr. John J. Abt: Or 1 -- it's either 137 or 138, I can't help (Inaudible) my answer.
And it says, "It is ordered that the said respondent, the Communist Party of United -- of the United States of America shall register as a Communist-action organization under and pursuant to Section 7 of the Subversive Activities Control Act of 1950."
Justice Felix Frankfurter: Now, the whole litigation (Inaudible) to Communist Party of United States of America and the Subversive Activities Control --
Mr. John J. Abt: No, and the Attorney General, Your Honor.
Justice Felix Frankfurter: What?
Mr. John J. Abt: The Attorney General was the petitioner before the Board.
Justice Felix Frankfurter: (Voice Overlap) --
Mr. John J. Abt: The litigation -- the court litigation --
Justice Felix Frankfurter: I'm talking about what confronts this Court.
Mr. John J. Abt: Yes, Your Honor.
Justice Felix Frankfurter: Our problem is whether the judgment below would be affirmed or reversed or sent back.
So therefore, I'm dealing with the judgment.
Now, this is a judgment in a litigation between the Communist Party of the United States and it subversive activities, was that right?
Mr. John J. Abt: Right.
Justice Felix Frankfurter: And the judgment of the court was entered against the Communist Party of the United States of America.
Mr. John J. Abt: Correct.
Justice Felix Frankfurter: Is that right.
Mr. John J. Abt: Correct.
Justice Felix Frankfurter: Well, that's what before the Court.
Mr. John J. Abt: Now, under that judgment, if the Court please, if this Court were to affirm that judgment and thereby affirm the order of the Board to register, under Section 7 of the Act and under the regulations of the Attorney General, unless the Communist Party within 30 days filed a registration statement signed by all of its officers and the members of its governing board, it would incur the sanctions and penalties of the Act --
Justice Felix Frankfurter: Well, you're --
Mr. John J. Abt: -- for none registration.
Justice Felix Frankfurter: -- you're assuming that the order of the court, the judgment will not be available.
My question at the moment is whether the order was in -- before to find to obey the judgment.
And I'm not now confronted.
I do not -- now, I have to decide whether in case you disobeyed the order of the Court, what then would happen, suppose some other situations arise, other parties are involved, other orders will be issued, other demands are made by the statute.
That's not, at the moment, so far as the judgment under the jury is concerned, before this Court.
Mr. John J. Abt: I submit Your Honor that the judgment which is before the Court requires Communist Party of the United States to register and under the regulations of the Attorney General to have that registration statement signed by the members of its governing board.
My argument at the moment is that --
Justice Felix Frankfurter: Is that true if you obeyed the judgment of the Court?
Mr. John J. Abt: Yes, Your Honor, because the judgment of the Court is to register pursuant to Section 7 of the Subversive Activities Control Act.
Section 7 of the Subversive Activities Control Act states that the persons who shall sign the registration statement are those who are specified in a -- an order or regulation of the Attorney General and the regulations of the Attorney General say that the registration statement must be signed by all the members of the governing board of the organization.
Justice Felix Frankfurter: I thought you said that it's -- thought it would be alright to obey this judgement put in -- put in a piece of paper signed by the litigant in this case, the Communist Party of the United States America.
Mr. John J. Abt: Your Honor asked me whether if that would be alright on the face of the statute.
And this face -- statute on its face does not specify who shall sign the registration --
Justice Felix Frankfurter: Very well.
Mr. John J. Abt: -- order, leave it to the --
Justice Potter Stewart: Well, does --
Mr. John J. Abt: -- Attorney General.
Justice Potter Stewart: -- does it not specify, however, that it has to be -- registration has to be on a form prescribed by the Attorney General by regulation?
Mr. John J. Abt: Yes, Your Honor.
Justice Potter Stewart: That's on top of page A15 --
Mr. John J. Abt: That's right.
Justice Potter Stewart: -- of your brief.
Mr. John J. Abt: And the Attorney -- form prescribed by the Attorney General by regulation requires the members to a governing board to sign it.
Justice Potter Stewart: So your answer to the questions of Mr. Justice Frankfurter and me are not really accurate.
This -- it couldn't be compliant to this order as by signing it merely Communist Party of United States so long that there are outstanding to present regulations of the Attorney General --
Mr. John J. Abt: That's what I've been trying to say.
Justice Potter Stewart: -- even on the statute.
Mr. John J. Abt: That's what -- that's what I've been trying to say.
Justice Potter Stewart: Well, that's (Voice Overlap) --
Mr. John J. Abt: Let me ask you what -- what the base of the statute, I -- I thought you wanted me to eliminate any reference to the regulations (Voice Overlap) --
Justice Potter Stewart: The statute does refer to the regulation.
Mr. John J. Abt: Pardon?
Justice Potter Stewart: The statute does incorporate (Voice Overlap) --
Mr. John J. Abt: Oh, yes, of course, it does.
Unknown Speaker: (Inaudible)
Mr. John J. Abt: Of course it does.
Justice John M. Harlan: That doesn't wholly (Inaudible) the Fifth Amendment's point, doesn't it, that the validity to it because the separability clause of the statute, I take it, would also reach to the regulation and if we concluded that there was merit to your registration point that's -- to your Fifth Amendment point and struck the requirement of the Attorney General which would leave a registration form, a compliance with the statute unsigned by any individual and your Fifth Amendment point would have evaporate, doesn't it?
Mr. John J. Abt: Evaporate so far as the officers.
Justice John M. Harlan: As far -- as far as the officers --
Mr. John J. Abt: Right.
Justice John M. Harlan: -- are concerned, yes.
Mr. John J. Abt: Right.
Justice John M. Harlan: That -- now, the other question that you were arguing, as I take it, is that Fifth Amendment reside, you cannot judge this statute unless we view the sanctions in relation to the requirement for registration --
Mr. John J. Abt: Yes, sir.
Justice John M. Harlan: -- which is the way the Court of Appeals treated the statute.
Mr. John J. Abt: Right.
I'd like to continue if I may with --
Justice Hugo L. Black: Do you think that the statute to be decisive in any way by somebody unknown (Inaudible) the paper, signed Communist Party of the United States or whatever it is, would that be a faith (Inaudible) to the field statute of Congress?
Mr. John J. Abt: It wouldn't -- it wouldn't make any sense to me, Your Honor.
But I --
Justice Hugo L. Black: Oh, what -- what safety would be?
Would the Government be satisfied with that?
Is there any possibility that it could or should be satisfied with that?
Mr. John J. Abt: I -- I shouldn't think so unless the Government just wants to get off the hook of the -- the self-incrimination problem and to make conscience --
Justice Hugo L. Black: It had to be signed --
Mr. John J. Abt: -- out of the statute Your Honor.
Justice Hugo L. Black: -- somebody would have to sign it, I guess, to decide rather or something else.
Justice Felix Frankfurter: Suppose no regulations had been issued by the Attorney General.
Mr. John J. Abt: You might --
Justice Felix Frankfurter: Lots of statutes authorize officials to issue regulations and if they don't issue them, the statute doesn't fall.
Mr. John J. Abt: Well, certainly it wouldn't be arguing the question the way I am Your Honor if -- if the Attorney General hadn't issued regulation to the Court.
Justice Felix Frankfurter: But we are confronted with the problem of deciding whether statute is constitutional.
Mr. John J. Abt: Yes, Your Honor.
Justice Felix Frankfurter: We don't have to take everything that's either is in -- is in the statute or in regulations or in (Inaudible) by speculating in order to invalidate a statute, we asked just the opposite.
Mr. John J. Abt: Well, there's no speculation involved here, Your Honor.
Justice Felix Frankfurter: I know but we have before us the statute and we have before us the regulations.
Mr. John J. Abt: That's right.
Justice Felix Frankfurter: And there's no command that we should also validate the regulations because they validate the statute as the man of the officer.
Justice Hugo L. Black: We do have to decide unless (Inaudible) your proposition on the Fifth Amendment and who could do that except somebody who knows something about it under the rules that are vested with reference to self-incrimination, I think we said.
But there would be no danger of self-intimidation by having somebody who must have been write their name or somebody connected with the organization --
Justice Felix Frankfurter: Certainly --
Justice Hugo L. Black: -- as to (Inaudible)
Mr. John J. Abt: -- certainly --
Justice Hugo L. Black: I don't would mean by that if your contingent is good.
Mr. John J. Abt: Certainly, Congress could not have had in mind that a lawyer or some anonymous individual or someone who didn't know about the organization signed the registration statement because Section 15 of the Act imposes a serial -- severe penalty for every misstatement contained in the registration statement for the omission of the name of any member of the organization from the registration statement and for whole series of other things which obviously would make no sense in terms of a -- of a -- an anonymous legislation statement signed by nobody and certainly no human being who wasn't thoroughly familiar with the organization would undertake to make himself liable to this fantastic criminal penalties for stating things about which he didn't and couldn't know anything.
Justice Hugo L. Black: It would be --
Justice Felix Frankfurter: That maybe a very good reason for an individual not bringing himself into that danger though.
That's not a very good reason for not construing a statute, so as to permit its validity if it can be made valid.
Justice Hugo L. Black: Who could be possibly (Inaudible) unless the Government attempted to find out who would have done it?
Somebody has to do it who knows something about it.
Mr. John J. Abt: The other -- the other thing, it seems to me clear, is that Congress itself recognize it that there was a real problem of self-incrimination here because it's in -- and it was in recognition of that fact that it wrote Section 4 (f) into the Act for --
Justice Felix Frankfurter: But your problem arises constantly in the case of corporations who are summoned to produce books or papers that arises with reference to labor unions as we now know everything (Inaudible)
That problem constantly arises.
That doesn't immunize the legal personality from obeying, if obedience can lead that.
Mr. John J. Abt: This Court certainly is going to have to pass on the question as to the validity of the Attorney General's regulation since they're now in effect part of the statute having been issued pursuant to the specific authority of the statute.
Justice Hugo L. Black: Well, what's --
Justice Felix Frankfurter: Because they get a part from the statute, there's an authorization of the statute to issue them whether they are valid is another question.
Justice William J. Brennan: Mr. Abt, what significance can you give to 7 (h)?
Mr. John J. Abt: 7 (h).
I'm afraid I --
Justice William J. Brennan: (Voice Overlap) --
Mr. John J. Abt: (Voice Overlap) not looking at it.
Justice Hugo L. Black: Do you have it published?
Mr. John J. Abt: I have it now Your Honor.
Justice William J. Brennan: In the case of a failure on the part of many organizations to rise.
Mr. John J. Abt: Yes, yes, yes.
Justice William J. Brennan: Then it becomes the duty of the officer.
Mr. John J. Abt: That's correct.
Justice William J. Brennan: Does -- does that import with compliance not withstanding 7 (h) would be have if merely -- in the name of the organization?
Mr. John J. Abt: I don't think so, Your Honor.
I think that was just --
Justice William J. Brennan: What does it mean then, what 7 (h) mean?
Mr. John J. Abt: I think 7 (h) was designed to -- to put the bite, if I can put it that way on -- on every -- on every officer, member of the governing board etcetera of the organization to be sure that they sign that registration statement.
Justice William J. Brennan: That's not what it says it's -- this -- that bites on only in the case of failure on the part of any organization to register the file.
Mr. John J. Abt: That's right.
But the Attorney General has already put -- by -- by regulation that has made them all to sign the original legislation system.
Justice Tom C. Clark: (Inaudible)
Mr. John J. Abt: Well, it doesn't --
Justice Tom C. Clark: (Inaudible)
Mr. John J. Abt: -- doesn't put --
Justice Tom C. Clark: (Inaudible)
Mr. John J. Abt: I don't think it puts it that way, Mr. Justice Clark.
It doesn't say that they shall be responsible.
It says they --
Justice Tom C. Clark: (Voice Overlap) --
Mr. John J. Abt: -- shall be responsible if the organization doesn't register.
Justice Tom C. Clark: (Inaudible)
Mr. John J. Abt: Yes, Your Honor.
But -- but that still doesn't settle the question as to (Inaudible) it has to sign the original registration statement.
Justice Tom C. Clark: (Inaudible)
Mr. John J. Abt: No, Your Honor, because --
Justice Tom C. Clark: (Inaudible)
Mr. John J. Abt: Surplusage -- it depends on -- I suppose it depends on -- on the regulations of the Attorney General.
Suppose the Attorney General issued a regulation merely saying that the president and secretary of the organization have to sign them, then 7 (h) would -- would be of significance.
Justice Tom C. Clark: Suppose the regulation was (Inaudible)
Mr. John J. Abt: And -- and I assume that this Court will strike down the regulation.
But I think in -- in considering whether the regulation is contrary with the statute whether the regulation is valid, the Court will have to consider the problem with self-incrimination in this case.
Justice Felix Frankfurter: That maybe a very good reason for throwing out the regulation.
Mr. John J. Abt: Your Honors, I -- I can only propose Your Honors' dispose and in many ways, obviously, which you can dispose of any case.
Justice Felix Frankfurter: But -- but you suggested that that would confront the Court with --
Mr. John J. Abt: The Court is confronted.
Justice Felix Frankfurter: -- self-incrimination privilege.
And I say, I'm confronting it, you might have to invalidate the regulation and so what?
Mr. John J. Abt: That's -- that's possible but -- and then -- then you -- then you encounter some of the difficulties that Mr. Justice Black agrees.
Justice Felix Frankfurter: But the difficulties are answered by age to which Justice Clark has just called you or Justice Brennan has called your attention.
Mr. John J. Abt: I don't think it is, Your Honor, because --
Justice Felix Frankfurter: (Inaudible)
Mr. John J. Abt: What -- what -- you were saying is that a registration statement should be filed anonymously.
Justice Felix Frankfurter: I don't mean a corporation or legal personality (Inaudible) anonymity.
It's an abstraction maybe but not an anonymity.
Mr. John J. Abt: But -- but Congress -- this Congress is legislating to get a registration statement signed or not signed rather, an unsigned registration statement so that nobody could be charged with responsibility for misstatements of fact, omissions of fact, perjury and what not.
Justice Felix Frankfurter: Do you think the preoccupation of Congress is to get equal for perjury?
Mr. John J. Abt: Well, in this statute, certainly it was, Your Honor.
If you read -- if you read the penalty of that statute --
Justice Felix Frankfurter: Is that -- is that legislation in this Court (Voice Overlap) --
Mr. John J. Abt: They -- they were -- they were --
Justice Felix Frankfurter: -- or to assume that people are going to commit perjury.
That's a good postulate for which we will begin to read, is it?
Justice Hugo L. Black: Do you think there's any possibility that this Court would ever hold that under this Act (Inaudible) without power to describe that somebody before this organization knows something about it's just a sign so that they will have something behind you.
Can you imagine that a regulation of that would --
Mr. John J. Abt: I -- I won't speculate --
Justice Hugo L. Black: (Inaudible) is without power to enact or promulgate such regulation as that?
Mr. John J. Abt: I won't speculate about the tort, Your Honor, but I can't ream that Congress had any such thing defined, Congress must have supposed that some human being having knowledge of the fact was -- was then assigned not to --
Justice Felix Frankfurter: Have you also urged rightly that Congress' concern to protect the privilege against self-incrimination?
So they wanted to do two things.
They wanted to get information and they did not want to make any (Inaudible) on the Fifth Amendment.
And therefore, you have to reconcile the two.
Mr. John J. Abt: No, but they -- they --
Justice Felix Frankfurter: It's not beyond the witted man to reconcile the suit.
Mr. John J. Abt: Congress -- Congress thought it had the wit to reconcile the two, Your Honor, and a part of it reconciled the two in Section 4 (f), not -- not your way by having an anonymous statement signed but by putting into the statute but if thought was a grant of immunity that would --
Justice Felix Frankfurter: I --
Mr. John J. Abt: -- do the trick.
Justice Felix Frankfurter: -- I didn't (Inaudible) what you've said about Congress.
I'm entitled to use my own way to do the -- this legislation, am I not?
Mr. John J. Abt: Surely, Your Honor, that -- that's what -- what any -- any court does when they construe the statute.
Justice Tom C. Clark: (Inaudible) it does here (Inaudible) construe the statute (Inaudible)
Mr. John J. Abt: That's correct, Your Honor.
Justice Tom C. Clark: Well (Inaudible)
Mr. John J. Abt: Well, I heard what Mr. Taylor said and I'm not sure that I noticed you but I am sure of one thing and I am not nearly familiar with this case as I am, Your Honor.
Justice Felix Frankfurter: (Inaudible) doesn't bind you?
Mr. John J. Abt: And I don't know if I take your time.
Justice Felix Frankfurter: You must (Inaudible)
Mr. John J. Abt: Section 4 (f), the immunity statute, as I indicated yesterday, it doesn't save the registration provisions from attack on Fifth Amendment grounds because of the immunity it grants is not coextensive with the privilege.
This is so because Section 4 (f) does not bar prosecution of an accused for a crime which might never have been discovered except for the lead provided by its registration nor does it prevent the prosecution from proving the party membership of an accused by evidence to which his registration statement applied the lead.
And therefore, it's not immunity.
It's not coextensive of the privilege within the meaning of (Inaudible)
Justice Potter Stewart: The Government signs an agreement though.
Mr. John J. Abt: Government concedes that, yes.
The majority of the court below held and the Government argues here that adjudication of the privilege is premature in this proceeding.
The argument is that the privilege must be claimed to be enjoyed, a petitioners' officers may never claim it and that those who so desire will have an opportunity to do so on a registration form to be supplied by the Attorney General.
The Government never suggests, I may say that registration maybe accomplished without having somebody who knows the fact signs (Inaudible).
The Government's argument, I had to say its argument that privilege can be claimed on the registration form to be supplied by the Attorney General.
That argument overlooks the crucial fact which makes the situation of the officers in this case unique.
The fact is that a claim of the privilege to the Attorney General is itself in an incriminating admission that the claimant is an officer of the petitioner.
The procedure which the Government suggests gives the officers an illusory choice to clean making the incriminating admission by signing and filing a registration statement and making the same admission by asserting our privilege not to file the statement.
Since in the circumstances of this case to assert the privilege is to surrender it, its assertion cannot be made a condition to adjudication that the privilege protects the officer.
Defendant also contends that the self-incrimination issue was premature because a claim of privilege, if and when asserted, might be found to have been waived by some of the officers.
Now, showing in our brief that none of the factors which the Government suggests might supply a waiver even if they were applicable to the persons, who were the petitioners' officers at the time of registration is required, would in fact waive the privilege.
But -- but apart from that and -- and more important than that, the question of waiver by a particular individual can arise only at the time when he asserts the privilege.
The Act, however, deprives the petitioners' officers of any opportunity for its assertion.
Hence, the issue of waiver can never arise.
The Government also argues that if the claim of privilege is made by an officer in honor or by all the officers, the only result would be to make the registration order unenforceable and not void.
This argument rests on the same clause premise as all the others.
Since the Act in the registration order necessarily conflict with the privilege by making the assertion of the privilege itself incriminating, the Act and the order are not only unenforceable on a particular case but avoid on their face.
On our brief we show that all of the contentions of the Government, which I've just enumerated here, are squarely refuted by the decision of this Court in Boyd versus United States.
I can't take the time of my argument for the Court to go into that case if I refer the Court to our brief on it.
Finally, the Government contends on the authority of United States versus White, that the privilege does not protect the petitioners' officers against signing and filing the registration statement.
The White case is inapplicable.
It held that an officer of an organization is not privileged to withhold records of the organization on the claim that the contents of the record might incriminate them.
Here, it isn't the contents of the records but the admission of officership in the Communist Party which is incriminating and it is that admission that can't be compelled.
Moreover, the decision in White was carefully limited to the production of the records themselves.
This also appears from the Court's more recent decision in (Inaudible) versus United States.
The registration order, however, does not call for the production of organization records but for the preparation and filing for original statements.
It follows, therefore, that the privileges available to the officers and that --that its assertion in this proceeding is not premature.
Since registration, as I've shown, would very materially and -- and substantially injure the petitioner and has standing to challenge thus, the constitutionality of the requirement of the officers incriminate themselves by filing a registration statement.
Accordingly, as Judge Bazelon held, the statute could be held invalid as conflicting with the privilege against self-incrimination.
Justice John M. Harlan: The privilege that you're talking about here is the privilege of the officer.
Mr. John J. Abt: Yes, sir.
Justice John M. Harlan: Assuming that the officer required to sign the registration statement.
Mr. John J. Abt: Correct.
Justice John M. Harlan: It's not the privilege in the members tell that your claim -- that you claim would be asserted as such at this stage at least by the officer.
Mr. John J. Abt: We argue that -- we argue the members' privilege in our brief, Your Honor.
I hadn't found it to argue orally.
We say that just as Your Honor held in N.A.A.C.P. versus Alabama, the members and the organizations are in effect identical
Justice John M. Harlan: Oh, but that involves the First Amendment not (Inaudible)
Mr. John J. Abt: I -- I understand, Your Honor.
Justice John M. Harlan: They just --
Mr. John J. Abt: Well, I -- we think that the same principle is applicable.
We argue that in our brief.
Mr. Forer will continue.
Chief Justice Earl Warren: Mr. Forer.
Argument of Joseph Forer
Mr. Joseph Forer: Mr. Chief Justice, may it please the Court.
I should like first to take up our point that the Act is unconstitutional because it deprives the petitioners' members of liberty and property without due process of law.
Now, Mr. Abt pointed out once the registration order becomes final, it outlaws the petitioner as an organization.
And it's also clear, however, that the order will have catastrophic effects on the members of the petitioner.
First of all, their names and addresses have to be listed on a public register with the Attorney General as members of this organization that's been condemning as a foreign control seditious conspiracy and this register is open to public inspection.
This is the same as making them wear an armband or making them wear a scarlet letter insofar as subjecting them to social ostracism, social appropriate and social reprisal.
Secondly, the Act subjects the members by its terms in special sanctions enforceable by criminal penalties.
This -- this also been listed by Mr. Abt.
They include barring the member from an extensive range of private employment barring him from any labor union office or employment, barring him from government -- governmental employment, preventing him from receiving or applying for a passport, denaturalizing him under certain conditions, reporting him, at least, an alien.
Justice John M. Harlan: Could I ask you a question?
Mr. Joseph Forer: Yes, Your Honor.
Justice John M. Harlan: Those sanctions all come into play either by the registration or when made the final order?
Mr. Joseph Forer: As soon as the order becomes final, the sanctions become affected --
Justice John M. Harlan: And the --
Mr. Joseph Forer: -- whether or not they are registered.
Justice John M. Harlan: -- and the Attorney General has to send out notice of the order made.
He has to send out notice saying that the organization is required to register to the members.
Mr. Joseph Forer: Yes, but actually, these member sanctions come into play even before he sends the notice.
Justice John M. Harlan: But what I'm -- my question is, can a member relieve himself of all of these sanctions by resigning to New York position once these -- once the order to -- to register becomes final?
Mr. Joseph Forer: Yes, with one exception.
Justice John M. Harlan: What is the exception?
Mr. Joseph Forer: His name -- his -- the -- the listing, so far as listing on the register, the listing has included everybody with a member for the last 12 years --
Justice John M. Harlan: So --
Mr. Joseph Forer: -- last 12 months, I beg your pardon.
Justice John M. Harlan: -- so that it -- to be -- to take a specific illustration of the fellow ones who member of a registered organization wants to join the governmental service and he bona fide him, makes a bona fide resignation --
Mr. Joseph Forer: Then he's eligible.
Justice John M. Harlan: He's eligible.
Mr. Joseph Forer: Yes.
Justice John M. Harlan: Then after he gets out of his governmental service, if he wants to rejoin the Party, is there any reason why he shouldn't?
Mr. Joseph Forer: He just take an awful chance.
No -- no reason --
Justice John M. Harlan: But I mean there's no reason why he can't rejoin.
Mr. Joseph Forer: No, except for the other sanctions.
Justice John M. Harlan: Where is this -- well, the -- the sanction and -- maybe there's some difference --
Mr. Joseph Forer: He can get rid of the sanctions by putting the organization.
Justice Felix Frankfurter: Let me ask you this --
Mr. Joseph Forer: But --
Justice Felix Frankfurter: -- Mr. Forer.
Mr. Joseph Forer: Yes.
Justice Felix Frankfurter: Assume now, assume that I'm assuming, assume that there's constitutional power by Congress to compel registration as foreign government controls enterprise congregated together or collected together in the from of a party.
Assume there is constitutional, I'm not talking about this statute, I'm not saying what I think of this statute or anything like that, but assume that, for purposes of my question, if there is constitutional power to compel such disclosure as such a foreign government controlled organization, what is the difficulty -- what is the limitation upon constitutional power to exercise that power although the consequences are that individuals who belongs to it with full knowledge of what it is, full knowledge of its purposes and they're on adherence with purposes, suffering needs social consequences.
Mr. Joseph Forer: Well, your question assumes some of the things that I'm going to come to because that includes as --
Justice Felix Frankfurter: Well, you take your own time.
Mr. Joseph Forer: Yes, well for I get in -- just let me answer your question.
Assuming, for example, a member with full knowledge of the purposes of the organization, and that's one of the first things I'm going to come to with something.
I think I will answer your question in the course of my argument.
But if the member remains a member and doesn't resign, he becomes, for all practical purposes, a member of a special class of inferior people.
He -- he becomes -- the -- all the members become what you might call a class of untouchables.
Justice Felix Frankfurter: Well, once -- once there is a public declaration by the Attorney General announcing the state --
Mr. Joseph Forer: He can --
Justice Felix Frankfurter: -- he can --
Mr. Joseph Forer: -- quit.
Justice Felix Frankfurter: -- he cannot not know.
Mr. Joseph Forer: Well, I -- I'm coming to what he has to know in a minute, Mr. Justice Frankfurter.
Justice Hugo L. Black: I hope you can answer the question on the basis that Justice Frankfurter's assumption.
Mr. Joseph Forer: What?
Justice Hugo L. Black: I hope you will answer the question on the basis of the assumption.
I think his question is very personal.
Mr. Joseph Forer: If his question is --
Justice Hugo L. Black: On his assumption.
Mr. Joseph Forer: -- can -- or his assumption, yes.
I intend to answer that.
But the point I am making, and I think this is -- distinguishes the Act from what Justice Frankfurter assumed, that under the Act, the member gets this untouchable status because of one thing only and that is the bare fact that he is a member of an organization ordered the register.
Now, the order against the organization, and I'll elaborate that in a moment, the order against the organization is based on findings that the organization is under Soviet control that the organization is advancing the objectives of the world communist movement but nobody ever finds that the members under foreign control, nobody ever finds that the member is advancing any sinister objectives.
Furthermore, the sanctions of the Act are applicable whether or not the member has any intent, they are applicable to the member whether or not he -- he has this activity factor and they are applicable to the member whether or not he has any knowledge that the -- the purposes of the organization are bad.
They are even applicable if he has no knowledge that a registration order was issued and detained point.
Justice Felix Frankfurter: Doesn't it -- I --
Mr. Joseph Forer: This answers --
Justice Felix Frankfurter: (Voice Overlap) -- I thought the Attorney General has to make a pronouncement.
I thought the -- the atmosphere of United States is, as it was saturated in the notice of this one.
Why do make the contrary assumption?
Mr. Joseph Forer: No.
Your Honor, the Act says, and I have to go by what the Act says, that these sanctions are enforceable against a member through with knowledge or notice and Section 13 (a) of the Act says that a member gets notice when the registration order is published in the federal register.
Now, I am perfectly willing to concede that anybody who is a member of the Communist Party will undoubtedly get notice and will undoubtedly know that this order of the Board was affirmed.
So it is true that a member of the Communist Party will know what any member of the Communist Party in his right mind must already know and that is that the Government condemns the Communist Party.
But he doesn't have to know, he doesn't have to know that the Communist Party is a bad organization.
He doesn't have to know.
He doesn't -- that the Communist Party is controlled by the Soviet Union.
He doesn't have to know that the Communist Party has bad objectives.
Justice John M. Harlan: In other words, what --
Mr. Joseph Forer: He --
Justice John M. Harlan: -- you're saying --
Mr. Joseph Forer: -- all knows is that the Government says that.
He knew that already.
Justice John M. Harlan: What you're arguing, I take it, is that he shouldn't be stocked, the individual member should not be stocked by the Board determination without an opportunity to say that the Board is wrong or he didn't know the illegal argument or the purposes of the Party.
Mr. Joseph Forer: Well, I don't --
Justice Felix Frankfurter: Is that what you're saying?
Mr. Joseph Forer: Not quite.
That -- that --
Justice John M. Harlan: Well --
Mr. Joseph Forer: -- should in a somewhat different part.
What I am saying is --
Justice John M. Harlan: Where am I wrong about what your --
Mr. Joseph Forer: Well --
Justice John M. Harlan: -- if I misunderstand your argument (Inaudible).
Mr. Joseph Forer: I'm -- well, you -- you're saying he shouldn't be stock without getting an opportunity.
Justice John M. Harlan: Well, you mean -- you said he gets a notice.
How do you know this is the Board determination?
Mr. Joseph Forer: I'm saying that you're talking in terms of what should be.
I prefer to talk in terms of what the Act is.
That's the only difference between them.
Now, maybe it's just phraseology but that just happens in the way I think.
But under the Act, the fact is that he gets stock if he knows or has notice and I don't care, I'm assuming -- assume that he knows.
If he knows that the Subversive Activities Control Board thinks that the Communist Party is just terrible organization and that the Supreme Court of the United States apparently bought so too at least to the extent of affirming the order of the Board.
Justice Felix Frankfurter: It wouldn't have to think so at all in order to observe.
Mr. Joseph Forer: It would have to think that there was a basis for the Board's order.
Justice Felix Frankfurter: We have to think that Congress had the constitutional power to bring about that result.
That's all it could have, isn't it?
Mr. Joseph Forer: Well, I -- I think that one of the issues is whether the -- the Court's order is supported by the evidence.
Justice John M. Harlan: Where you leave me hanging is -- well, I know that because your argument finished.
Mr. Joseph Forer: My argument is this.
In Wieman against Updegraff, this Court condemned the indiscriminate classification of innocent with knowing activity and specifically held that you can't bar an individual from a privilege, in that case, government employment, because of membership in a bad organization unless in a minimum, the individual knew that the organization was bad.
Justice John M. Harlan: My hypothesis is he knows that because the Board is asked for a hearing --
Mr. Joseph Forer: No.
Justice John M. Harlan: -- and made that determination.
Mr. Joseph Forer: Your hypothesis is wrong.
He doesn't know that.
All he knows is that the -- is that the -- the Ford County.
Now, in Wieman against Updegraff, he knew, Mr. Wieman knew, I guess with Mr. Wieman not Mr. Updegraff.
Mr. Wieman knew that the organizations have been found bad by a government agency because these were organizations on the Attorney General's list.
In Adler against the Board of Education, Mr. Adler knew that the organization had been found bad.
Justice John M. Harlan: No, but the Attorney General's list adversary hearing would find a judicial review by the Court with a wholly different proposition.
Mr. Joseph Forer: Well, that's -- but in Adler against Board of Education, that's exactly what they had.
They had an adversary -- administrative adversary proceeding with judicial review by the Court.Let me put it this way.
If you put the sanctions on the member because he is stubborn enough to believe that the Subversive Activities Control Board is wrong and because he is stubborn enough to disagree within the decision of this Court, I think you're violating due process or the Act is violating due process because you are punishing them not for being bad or for knowing anything bad, you're punishing them for being stubborn.
And I think people are entitled to be stubborn even to the point when they think that -- that decisions of this Board are wrong.
Justice John M. Harlan: Well, it seems to me --
Mr. Joseph Forer: Maybe they'll agree with the dissenting opinion.
Justice John M. Harlan: -- what you're saying now shows that I did understand your argument.
Mr. Joseph Forer: What?
Justice John M. Harlan: It seems to me what you're saying now shows that I did understand your argument.
Mr. Joseph Forer: I think you did.
I would -- and what I was challenging was your hypothesis.
Justice Felix Frankfurter: Well, do you think this is Wieman against Updegraff?
Mr. Joseph Forer: I do because I think that this Act applies regardless of any intent and regardless of any knowledge on the part of the member.
And I'll go further, Mr. Justice Harlan.
If this hypothetical member should happen to read this long modified report of the Board and then should happen to read the last decision of the Court of Appeals, I think it might well confirm it in the belief that there was no case against the -- the petitioner.
And you could disagree with this Court -- with this Court affirmatively.
Now, the first due process restriction --
Justice Felix Frankfurter: I wonder why we have in Court the -- the supposedly the ultimate "determina" whether there is already enough evidence.
Mr. Joseph Forer: Yes.
Justice Felix Frankfurter: That doesn't mean you can't go out with -- you can't --
Mr. Joseph Forer: That's my --
Justice Felix Frankfurter: -- can't go to the -- a saloon and -- and tell the appropriate thing that a servant should do but the motion -- was anybody concede an extra judgment as the report has adjudicated that there are facts and then say, "Well, I know better," but --
Mr. Joseph Forer: And you shouldn't make him lose his job to say and I know better.
Justice Felix Frankfurter: But you don't make him lose his job, you make him lose his job in such as a social consequence because Congress has exercise the constitutional power, that's my assumption, of outlawing an organization has given notice and it said, "Anybody who belong to this organization and thereby ask to add strength must take a social consequence."
Mr. Joseph Forer: No, this isn't just a social consequence.
This is a legal consequence --
Justice Felix Frankfurter: And all the other consequences.
Mr. Joseph Forer: Alright.
Chief Justice Earl Warren: You may answer that --
Argument of Joseph Forer
Mr. Joseph Forer: -- is that the member sanctions are invalid not because they apply whether or not the member has knowledge that the organization is of the character that the Subversive Control Board says that it is and even though the member disagrees with the Court's estimate of its character.
But there is I think another due process restriction here other than that of this scientor as to the organization purposes and that restriction, I think was spelled out not in Warrington but in Adler against the Board of Education.
And the principle there is that a person cannot, because of membership in a bad organization, be excluded from privileges open to other people unless he personally has an opportunity to establish that despite his membership, he is a fit person to enjoy the privilege.
In other words, as I read Adler, it says that a presumption of unfitness to enjoy a privilege cannot be made conclusive because of organizational membership, the most it can be is a prima facie presumption which the member has to -- have a chance to rebut.
The Act doesn't give a member a chance to rebut at any such presumption.
He doesn't get a hearing as to his personal fitness.
He doesn't get a chance to show that even if he is a Communist, still that's not a good reason in his case, to deprive him of his job in General Motors or some other defense facility or to deprive him of his union office or to bar him from traveling abroad.
He gets no chance to show that despite his membership in the Party, he has no individual propensity of the wrong-doing and that he is an innocent and trustworthy and loyal person and for those two reasons alone, I think that the member sanctions are invalid.
If he resigns, if he's willing to give up his constitutional right to be a member of the Communist Party, then he gets out these sanctions.
Justice Hugo L. Black: That (Inaudible)
Mr. Joseph Forer: Do you mean the basic question of does a person have a constitutional right to be --
Justice Hugo L. Black: (Inaudible) when he has constitutional rights.
Mr. Joseph Forer: I think a person does have a constitutional right to be member of the Communist Party and I think that that -- that -- that was --was assumed by the Court in the Douds case.
I want to skip over now to various other constitutional questions in order to come to a question of application and construction of the Act and that involves the meaning of the term, foreign control.
Now, under Section 3 (3) of the Act, a Communist-action organization is defined in terms of two characteristics, both of which have existed.
In the first of these characteristics is that the organization be substantially directed, dominated or controlled by the Soviet Union.
In Board's convenience it is this component that we're calling the foreign control component of the definition of a Communist-action organization and the meaning of this foreign control component comes up in at least two ways.
First, we say that the Board and the court below, applied an erroneous concept to foreign control and that on this ground alone, the Court's order and the judgment below should be set aside.
And secondly, we say that under a correct definition of the foreign control component, it is clear that the evidence does not establish the existence of that component.
Now, the meaning that we would give and that we say the foreign control component should have requires a relationship in which the Soviet Union has and exercised some power to exact compliance with its demands from a domestic organization.
It's not satisfied merely by some voluntary conformity by the domestic organization with the Soviet Union.
We say that in a controlled relationship for the purposes of the statute, there has to be some course of means, direct or indirect, whereby the superior, in this case, the Soviet Union, can compel compliance with its requirements or impose sanctions for noncompliance and if there is no means of coercion, there cannot be any control.
Justice Charles E. Whittaker: This legal control (Inaudible)
Mr. Joseph Forer: Yes, but legal control involves some kind of coercive mechanism, but if -- if there is no means by which one or the -- the Soviet Union has any power to discipline or coerce the organization and a domestic organization nevertheless, imitates or follows or adheres to Soviet views or policies, that adherence is a product of voluntary conformity.
It's not a product of control and this gets us back very much to the initial question that Justice Black has.
Because if all this -- if all of that the foreign control of this statute requires, is not that the foreign government have any power to give any behest to the organization as Justice Black says, but merely that the domestic organization agrees and acquiesces in the views of the foreign power or even on its own, goes out and promotes those views, so that it is not anything like a genuine agent, then obviously a -- any constitutional source drawn from power to control foreign relations doesn't exist, it seems to me.
Now, this meaning of control that I am suggesting as some coercive mechanism --
Unknown Speaker: (Inaudible)
Mr. Joseph Forer: It follows I think from the dictionary definition.
It follows from the case definitions in other fields of law.
It's the only meaning which corresponds to the description in Section 2 of the Act of the relationship between the Soviet Union and Communist-action organizations in various countries and it is the only meaning which prevents the foreign control component from being a redundant here of the Section 3 (3) definition, because if all that the foreign control component means or -- is a voluntary following of Soviet objective, then it is absolutely nothing to the second component of a Communist-action organization in Section 3 (3), which is that the organization advanced Soviet objective.
And finally, if the foreign control component is satisfied by nothing more than the organization's voluntary conformity and it conforms to the Soviet ideas because it agrees with them, then it seems me, it magnifies the constitutional objections to the Act.
Now, the government seems to say that the definition I have suggested can't be correct because there can't be a relationship whereby a foreign group can coerce a domestic organization, but obviously this isn't so and domestic groups can be and are controlled by foreigners or by foreign sources in a lot ways.
And for example, financial subsidization can be a lever of control because the giver can withhold or threaten to withhold funds or subsidies by noncompliance with attrition or you can have control through property ownership, through financial indebtedness or in the case of a corporation, through stock ownership.
You can have levers of control through a power to punish essential supplies because under the organization's charter, the power to name some officers or directors is reserved to -- to the controller or through an interlocking directorate and so on.
Now, I am perfectly sure for example that Standard Oil of New Jersey has and utilizes levers of control over various foreign enterprises even though it doesn't actually own them.
Now, if we're right as to the meaning of control, then it is clear that the Board and the court below applied a wrong construction of the statute and this misconstruction is in fact, expressly stated in the court's second opinion.
But in addition to that, there is no evidence and there is no final by either of the Court or the Board that the Soviet Union or any Soviet organization has or utilizes any leavers whereby it may or does exercise any coercive authority over the petition.
And with regard to the subject of finances and I've mentioned finances as a potential lever, the Board itself expressly found and I quote and this is the court's finding, "The record contains no evidence of substantial financial aid subsequent to 1940 and none after 1944."
Now, in its second opinion, the court below appreciating and acknowledging the actions of evidence of any coercive means, held that the foreign control component does not require any coercive power and expressly said that the foreign control component is satisfied if an organization voluntarily follows Soviet direction.
Now, for reasons I have already covered, this is just wrong.
But even if this test is adopted, if it's enough to have a voluntary following a Soviet direction, it still was not applied by the court and it still was not met by the evidence because if the test is a voluntary compliance with Soviet directions, then the record has to show that the petitioner receives Soviet directions with which it then comply even voluntarily.
But the fact is that there is no evidence and there is no finding by either the Board or the court below that at any time since at least 1940, 10 years before enactment of the Act, 1940 the date when petitioner disaffiliated from the Communist International, there is no evidence, there is no finding that since 1940, petitioner received any Soviet directive or anything that could be construed to be a Soviet directive for him to follow voluntarily or involuntarily and the government's brief itself, acknowledge it and this is in its footnote on page 235, Footnote 84.
Petitioner, that's us, correctly states, that the Board made no findings that petitioner has continued to receive directives from the Soviet Union after his disaffiliation from the Communist International and that this disaffiliation as I've said was in 1940.
Now, we now agree at pages 99 to 100, we list all the contacts after 1940 between petitioner and the Soviet Union or Soviet citizens which are mentioned in the Board's modified report, every single one.
Justice John M. Harlan: What page is that?
Mr. Joseph Forer: Pages 99 and 100 of our brief and there are just five of them and this is what they are.
First, that in 1945, Elizabeth Gurley Flynn, one of petitioners' leaders and officers, while on a visit to France, ran into some Russian women and she chatted with them about child care, postwar reconstruction and the rights of women.
Second, in 1949, the petitioner sends Stalin a telegram, congratulating him on his 70th birthday and saying that he was a great man and that the Communist Party of the Soviet Union had -- had -- and -- and that the Soviet Union had great achievements.
That was his 70th birthday telegram.
Third, in December 1950, the Communist Party, the Soviet Union sent a telegram of greetings to petitioners' National Convention in which they set up among other things that petitioner was a -- was really standing up pretty good under all the unjust attacks from the Government.
Fourth, if petitioners' publications sometimes reprint articles and Soviet publication and its members sometimes read a newspaper put up by the -- now, debunked European Communist Information Bureau and five, the daily worker had a correspondent in Moscow.
Now these are all the contacts, if they've been be called contacts, since 1940, beginning 10 years before the -- the enactment of the Act.
They show no Soviet directions to the petitioner.
They show no Soviet assistance to the petitioner.
They show no dealings between the petitioner and the Soviet Union other than two congratulatory telegrams, one, in one direction and one, in the other.
They show no supervision by the Soviet Union.
They show no reporting by petitioners to the Soviet Union.
They just have no relevance to show foreign control any more than if the Government introduced evidence as I suppose they might have been able to do that American Communist wants to see a performance to this (Inaudible) ballot.
So it's abundantly clear that neither the Board nor the court below applied a meaningful definition of foreign control and furthermore that even under the loose definition of the court below of a voluntary following of directions, foreign control wasn't proved.
Now, this brings me to the next series of errors in the construction and application of the Act and that is the kind of evidence that the Board and the court below did rely on in finding that the petitioners are Communist-action organization and in finding the existence of foreign control.
This evidence is summarized in one paragraph in the last opinion in the court below and the paragraph is quoted on pages 12 and 13 of our brief.
And this paragraph and the Board's report and the summary to the Board's report that is very much a longer line from the paragraph, show that the determination of the petitioner is up -- is under Soviet control, rests on three bases.
The first basis is that prior to 1940, petitioner was a member of the Communist International.
Now, during this period, the petitioner bound himself to comply with directions of the International, the organization with -- which is its affiliate and the record contains rims and rims of evidence, put in at length by the Attorney General, concerning this pre-1940 period, in evidence that the petitioner received direction from the Communist International that it received financial assistance from the International, that it was supervised by and reported to the International.
Now, in 1940, the petitioner disaffiliated from the Communist International and thereafter, it had absolutely no contact with it of any kind. This disaffiliation was on a friendly basis.
Justice Charles E. Whittaker: (Inaudible)
Mr. Joseph Forer: Oh yes, well, you -- you can read this record from beginning to end and you will find no dealings, no pointing of dealings between petitioner and the Communist International after 1940.
And in 1943, the Communist International went out of existence, so there certainly couldn't have been any dealings after 1943.
Now, this disaffiliation wasn't on any hostile basis, but that the petitioner publicly announced that it was disaffiliating from the Communist International and that it thought it was in outrage that they'll have to do so, but -- but it was disaffiliating from the Communist International in order to avoid registering under the newly enacted (Inaudible) Act, then they made a public statement to that effect.
But regardless of its motivation, the fact is that the petitioner did disaffiliate and that thereafter, had no contacts or dealings with the International and I've listed all the contacts since 1940 where I -- I spoke them out with the Soviet Union and -- and they amount to nothing and as I said, the International itself dissolved in 1943.
But the Board just raveled in this evidence of the pre-1940 period, evidence of a relationship which had terminated and the Board and the court placed an overwhelming reliance on this pre-1940 evidence.
The Act however defines a Communist-action organization in terms of the present and the issue therefore, was the current character of the petitioner and character behind the administrative proceedings or at least after the enactment of the Act.
And under the rule of this Court's decision in the Cement Institute case, evidence of prior transactions and that is transactions prior to the critical period and in this case, since the petition -- since the case was started so soon after the Act was enacted, we can talk in terms of pre-act transactions, evidence of pre-act transactions was relevant.
Only where you had a continuing situation, where the pre-act or prior transactions tended reasonably to show or illuminate the purpose or character of the current transactions, in this case the post-act transactions, but here there weren't any current transactions that they illuminate.
And what the Board and the court did, was to treat as proof of a present relationship, a relationship and practices which had been discontinued 10 years before enactment of the Act and this a clear error.
In order for a relist at pages 106 and 100 -- through 108, all of the post-act matters sighted by the Board's report and since had 2 or 3 pages, I'm not going to read them but I just say that all you have to do is to examine them but see that none of these matters of any tendency to show the petitioner is controlled by the Soviet Union or operates to advance the objective prescribed in Section 2 of the act, in fact, they are certainly irrelevant.
Even the Government concedes in its brief and I quote now from pages 268 to 269 that, "The Government's evidence as the petitioner's post-1950 activities might perhaps not independently proved it to be a Communist-action organization.”
Now the Government goes to say that this evidence does show that petitioners' character hasn't substantially changed, since to the days of the Communist International.
Now of course that the post-act evidence is that well maybe it -- it doesn't show you're under foreign control, but it shows you haven't changed your (Inaudible).
Now of course, the question isn't whether petitioners' character changed or what petitioners' character is.
The question is what is the relationship shown by the record between petitioner and Soviet Union?
And it is perfectly clear that there was a change in that relationship in 1940 as a result of an end to petitioner's disaffiliation from the Communist International or by that disaffiliation petitioner removes itself from the only possible apparatus of control, petitioner removed itself from any further contacts, dealings or communication with the Soviet Union and after1940, petitioner no longer received any foreign directive or had any meaningful contact.
The -- this brings me to the other two bases for the finding against petitioner.
The first one is discontinued relationship, discontinued 10 years ago.
The other two bases are those which lead the Government to say the petitioner hasn't changed its character.
What is the second basis that is shown by the Court of -- of the summary of the court below?
The second basis is that if the petitioner disaffiliated from the Communist International, it continued to be Communist, it continued to adhere to and it still adheres to the principles of Communism and not only the principles of Communism, but the principle of Communism as they appear in the theoretical writing of Marx, Engels, Lenin, Stalin and others and apparently, these writings had such as terrific versatility because they proved a case under the Smith Act.
They proved foreign control under the -- under the McCarran Act and it is true that after 1940, the petitioner remained a Communist organization, it kept the name Communism and it adhered to the principles of Communism.
And it is those writings of Marx, Engels, Lenin and Stalin that the Board is referring to when it says in its modified report and I quote, this is at page 2409 of the record, footnote 2, "The really vital part of the Attorney General's case, is documentary evidence which to considerable extent, means relatively little to our illumination.”
So the first basis was the pre-1940 evidence, the second basis is that they plead in Communism and the third basis was the so-called non-deviation evidence that Mr. Abt referred to before lunch, and which is that petitioners consistently agreed with Soviet views, particularly in the field of foreign policy.
So as far as the period after 1940 is concerned, if we leave aside this irrelevant Communist International stuff, we're left solely with ideological matters as a foundation for the Board's order, namely and for the affirmance below, namely that petitioner subscribed to Communist principles or to Marxism and Leninism agrees with the Soviet Union, particularly in the field of foreign policy and thinks that the Soviet Union is the great power.
And that what this case is about, that's the clear and present danger, that's the foreign relation nexus that is supposed to justify outlawing the petitioner and making life in powerful for its members and for anybody that the Government say the members under Section 5.
And the court below recognized this fact in its last opinion, because it said in explanation of this conclusion and I quote and this is the quote, “this is right after its summary to the other, they conclude, “One who attaches himself by intellectual affiliation to a cause, assumes the name of the cause, puts on the (Inaudible) of the cause and adheres to the course of cause, is not mistreated if it be inferred prima facie, he is part of the cause."
And that's saying that the evidence justified the court in finding that the petitioner has an intellectual affiliation with the cause of Communism in that instant.
Now we don't dispute that intellectual affiliation.
We don't dispute that the petitioner has assumed the name of the cause of Communism that it adheres the Communism that it is a Communist organization from each point of view, but we do say that this intellectual affiliation of the Communism and that's all there is.
It is not a basis under the terms of the Act of finding that petitioner is dominated and controlled by the Soviet Union.
And if it were, if the Act permitted a finding foreign control and the subsequent outlawry to be based on that kind of intellectual affiliation, we say it would be a gross violation of the First Amendment to outlaw the petitioners, subject its members to the sanctions that make them untouchables because of their intellectual affiliation to Communism or anything else.
I'll now, pass over several other points in order to come to another point in the Court's application of the Act.
And this is our point that the court below erred in refusing to remand the case, because of the Board's erroneous reliance on a finding concerning secret practice.
And the situation here is that Section 13 here in the Act, sets up eight criteria which the Board is directed to apply in determining whether an accused organization meets the Section 3 (3) definition of the Communist-action organization.
The seventh of these criterions, Section 13 (e) (7), is the extent to which the accused organization engages in secret practices for the purpose of concealing foreign control or for the purpose of promoting the organization's objective.
Engaging in secret practices for other purposes, doesn't meet these criteria.
Now, in its original report, the Board found that petitioner engages in secret practices for both of the purposes stated in Section 13 (e) (7) and this was one of the findings on which it based its order.
One of the eight findings that made eight findings under -- under Section 13 (e) all of them adverse the petitioner and then it issued its order and this was one of the findings.
Now, when this got to the Court of Appeals on its first review and its first opinion, the Court Appeals held that the purpose finding in the Board was not supported by the evidence and it said we strike the finding and the purposes.
We don't think that the evidence disclosed as a clearly revealed purpose either way.
Now, the effect of this was to make the secret practices, purpose solicited from a legal point of view, but it made the secret practices standard of Section 13 (e) (7) inapplicable to the petitioner.
The court didn't say we were right when we -- we had introduced evidence as the purpose in the secret practices, was in order to protect the members of the Communist Party from unjust and unconstitutional persecution.
The court said, well, I will say, you're right but the Board certainly didn't do in this case.
So that meant that 13 (e) (7), one of the eight key findings of the Board was out.
But although the Court of Appeals thus reversed the Board on the one of its eight key findings, nevertheless, it affirmed the Board's order.
Justice William O. Douglas: This is on the first review?
Mr. Joseph Forer: This is on the first review and we immediately filed a petition for rehearing saying that, you can't do that.
They denied the petition for rehearing without any observation.
And when we took the first affirmance, when we came here on our first petition for certiorari, one of the questions we raised was, wasn't it wrong for the Court of Appeals to affirm rather than to remand?
As a matter of fact on the first review, they had not only stricken the finding on secret practices but they had also modified another one of the eight findings.
Well, this Court reversed the Court of Appeals on other grounds.
As you know the case went back to the Board and you never got with its question about the effect the Board's erroneous finding on secret practices.
But when the case went back and in the subsequent remand proceedings, the Board deleted from the record huge quantities of evidence, including much evidence which it had considered unfavorable to petitioner on the subject of secret practice.
No new evidence on the subject was added at all, so the record on secret practice was now better for us than it has before, because it has been the lead any of our evidence, if the lead allowed the Government (Inaudible).
Nevertheless, the Board retained in the modified report, one of the stricken purpose findings.
It yielded to the Court of Appeals to the extent of abandoning one of its original true purpose finding.
It now disclaimed making any finding that the secret practices were engaged in for the purpose of concealing foreign control, but contrary to the holding of the Court of Appeals, it repeated and restated its finding without even giving the Court of Appeals the deference of dimension, it repeated and reinstated its findings that petitioner engages in secret practices for the purpose of promoting its supposedly sinister objective.
So the result was that the criterion of Section 13 (e) (7) was again made applicable for the petitioners' disadvantage and it was just as applicable whether they had one purpose or both purposes.
When the case went back to the Court of Appeals, we called this -- the attention of the court and court said, the Board was wrong before and the Board is wrong again and the court repeated its holding that the Board's finding was not supported by the evidence nevertheless, it again affirmed the Board's order in (Inaudible)
Justice Hugo L. Black: On what ground?
Mr. Joseph Forer: On the grounds that once a court, a reviewing court, has held invalid a key finding on which an administrative order is based in part, the reviewing court, in this case the Court of Appeals, is obliged to remand the case to the Board, to the administrative agency for administrative predetermination on the basis of correct findings and not the substitute self for the agency by saying, while even if the -- the basis on which the agency acted was wrong, nevertheless, we think there is enough in the record.
Justice Hugo L. Black: But you say that, on the surface here it didn't qualify, what --
Mr. Joseph Forer: No, I said that.
Justice Hugo L. Black: I understood you to say --
Mr. Joseph Forer: Oh, you mean on what ground the Court of Appeals turned us down?
Justice Hugo L. Black: Yes, on that.
Mr. Joseph Forer: Oh, well, they turned us down and they said there's no more need to remand it now than there was in the first place.
They said we didn't remand it before, therefore there's no need -- need to remand it now.
They never told us why it didn't they remand it before.
So they still gave no explanation, if I -- I'm sorry, I misunderstood you before Mr. Justice Black, but they gave no reason.
They just said, we don't see anymore -- say we didn't remand before, why should we remand now.
Justice Hugo L. Black: Did they hold it was not an indispensable finding?
Mr. Joseph Forer: They didn't say that.
Presumably that's --
Justice Hugo L. Black: (Inaudible)
Mr. Joseph Forer: Where is what they said, the second time, you mean?
Justice Hugo L. Black: Yes.
Mr. Joseph Forer: That's at page 126 of this volume of opinions, appendices to the petition where we have the -- where we everything collected --
Justice Hugo L. Black: 126?
Mr. Joseph Forer: Page 126 and this is what they say.
In our original opinion on this matter, we struck as not supported by preponderance to the evidence, a finding respecting the purposes of the secret practices of the Party.
The Board has let the finding remain and its modified report on second remand.
The Party says the court must therefore again remand to the Board, for the administrative redetermination in the light of the striking to this finding.
We do not see why we should so. We did not find it necessary to reverse the order of the Board or to remand when we first struck the finding.
No new evidence on the point has been added since then and so we adhere to our first conclusion, but the necessity for remand is now no greater than it was and we think the Board is entitled to adhere to its view on the point until our view of it has been tested in the Supreme Court.
Now, we think that what the Court of Appeals did, usurp the function of the Board and violated the principles stated by this Court in the Chenery case that the grounds, “the grounds upon which an administrative order must be judged are those upon which the record discloses that agency's action was based, and that administrative order cannot be upheld unless the grounds upon which the agency acted or those upon which its action can be sustained."
And the situation here is the same as in the Virginia Electric and Power case, where the Court remanded a Labor Board order for administrative redetermination because the Board's ultimate conclusion rested in part on the finding which had insufficient evidentiary support and the Court did so even though it expressly recognized that the Labor Board might have reached, astoundedly had reached the same ultimate conclusion without the erroneous finding.
Now, the Government argues in brief that a remand is not required because it says the Board did not attach much importance to its secrecy finding and reaching its ultimate conclusion.
And the argument is wrong legally in the light of Chenery and Virginia Electric and Power, but it's also a wrong action.
In the first place, the Board is a tribunal, never said that its finding on secret practices was not essential and never said that its finding on secret practice wasn't important for the result.
That's just what the Government is saying now belatedly as a litigant.
And it's significant that the Board as a tribunal, refused to make that finding any -- refused to make any such disclaimer even though it knew when it repeated it, the offending finding that it was contradicting the Court of Appeals and that we were going to make exactly the same argument that I am making at this moment.
They could've taken most of the curse of the matter off if they had just said, well, we still adhere to this view, we still make this finding, but it doesn't make any difference anyhow.
They didn't say that.
In the second place, this isn't just an ordinary subsidiary finding.
This is a finding under one of eight statutory criteria established by section 13 (e), you -- so if you disparage the finding, you disparage the statutory criteria.
In this situation, an advocation is -- is worst than that, because of the eight findings under this criteria, the Government now defends the order on the bases of only 5 of the 8, one of which is the finding on secrecy and which the secrecy finding that makes the difference between a plurality of Section 13 (e) finding against the petitioner or in even division.
And finally, it's just impossible for me to see why the Board devoted 19 closely printed pages in the modified report that the subject had secret practices, they considered the entire subject to the unimportant and unessential.
Justice John M. Harlan: Could I ask you a question about your constitutional argument?
Do you draw any distinction as among the same (Inaudible) themselves as to their (Inaudible) authority or you think they're all bad?
Mr. Joseph Forer: Well, we think they're all bad.
Now, it's true that there is some question on the deportation statute because of what I considered the most important decision of this Court in Galvan against Press, but, we -- we think they're all bad.
There are some -- the alien sanctions of course, run into the problem that aliens may not have quite as many rights as a citizen.
The last point I will argue and I hope I can finish it, is also a remand point.
And it is that the Board and the court below erred in reducing to strike all the testimony of the Attorney General's witness Louis Budenz.
At the original Board hearing in 1952, Budenz testified among other things, the two supposed incidents which had come to be known in this litigation as the (Inaudible) in the Wiener conversation.
I -- I will save time.
I'm not going into what the testimony was, but there were two important subjects.
On cross-examination Budenz said, he has reported these incidents to the FBI orally and didn't know whether or to what extent the FBI had refused them their right.
So we move for the production of these statements or reports made by defense of the FBI about the historic letter in the Wiener conversation.
The Attorney General or his representatives objected to the motions and the Board denied that motion. When the case went back to the Board after the remand, we again moved for the production of Budenz's reports to the FBI on the (Inaudible) matters and this time added the alternative that at least the Board inspect them in camera.
Again the Attorney General objected, again the Board sustained the objection.
So we complained about these rulings to the Court of Appeals.
The Government in its brief from the Court of Appeals, defended the rulings on the grounds that there weren't any written reports by Budenz on these two matters, but at most, only some summaries prepared by the FBI and not seen by the defense.
On the basis of this representation, the Court of Appeals said, we weren't entitled to the statements.
We filed the petition for rehearing but this time for the first time it occurred to the Government that instead of making the representations that weren't any reports, perhaps, Government counsel should check with the FBI first.
So, they checked with the FBI which probably informed them that the FBI had recorded verbatim days and days of interview with defense including a material which would be relevant for the subjects of Wiener and (Inaudible) matter, so then the Government counsel filed a memorandum which they informed the Court of Appeals that they had finally checked with the FBI, they had learned that the FBI had the verbatim recording and then told the court that -- that they thought that -- that under the Jencks rule, we were entitled to get those portions of the recording which related to the Wiener (Inaudible), so the court changed this ruling.
Justice Potter Stewart: Was the Jencks case have been decided?
Mr. Joseph Forer: Already.
Justice Potter Stewart: Between the time that the Board has refused it?
Mr. Joseph Forer: Yes -- yes.
Justice Potter Stewart: And the -- and the time of (Inaudible)
Mr. Joseph Forer: Jencks' case has been decided even the Jencks' statute was enacted.
Now the court changed this ruling so as the -- require the production of these statements.
The case was going back for other purposes anyway.
So when the case got back to the Board level we cut excerpts from Budenz's talks with the FBI which are relevant to the (Inaudible) and Wiener testimony.
It became apparent to us. I think it becomes apparent to anybody that looks at them objectively, not only that they contradicted this testimony on this matter, but that they indicated a pattern typical of this witness that he had deliberately concocted testimony that fit the particular needs of the occasion.
So we said, call Budenz back, we call him because now, we wanted to be able to cross-examine him with the aid of the -- these statements.
Then hearing the examiner, who is the member of the Board, ruled that we were entitled Budenz recalled for this purpose.
Then it turns out that Budenz had a lasting illness, he was too sick to be examined.
So we never did get the opportunity to cross-examine with the aid of the statements, despite the fact that by now it was freely and finally conceded that we had been entitled for that opportunity when we had first asked them that there has been error to deny the opportunity in the first place.
Justice Charles E. Whittaker: Have you previously cross-examined on all except (Inaudible)
Mr. Joseph Forer: No, we had crossed examined them on those two matters, but we didn't have these valuable materials that make them out of the (Inaudible).
We didn't have it.
Justice Charles E. Whittaker: You think the cross-examine (Inaudible)
Mr. Joseph Forer: Yes, so we moved that because we have been the -- the pride of our right to cross-examination, we move that all of the Budenz's testimony be stricken.
Our motion was denied by the Board but the Board did strike those parts of Budenz's testimony which related to the (Inaudible) and Wiener matter.
It kept the rest of Budenz's testimony in and it made findings based on it.
The Court of Appeals affirmed this ruling, Judge Bazalon dissented.
And the question is therefore, what are the consequences of a deprivation -- of this deprivation of cross-examination caused by the witness' death or lasting illness?
Such authority there, as there is on the subject, is summarized by weight more to this effect.
First, if the witness or the party Wigmore has any sort of responsibility for the deprivation, then all of the witnesses' direct testimony must be stricken.
The illustration given by Wigmore is a case, where a party obtained the postponement to direct examination and the witness died or became sick during the recess.
Second, even if the Party offering the witness has no responsibility for the deprivation, nevertheless, all of the witnesses' testimony must be stricken if the deprived party suffers a material loss from the deprivation.
If this rule is applied we say, it is clear that all of Budenz's testimony should have been stricken for each of the two reasons given by Wigmore.
To get to the second thing first, by being deprived the opportunity to cross-examine this witness with the aid of these two statements which showed contradictions and consistencies and perjury on these two vital matters, we were denied the opportunity to discredit him on other matters and to show that he belonged in the same category as the Government's three other perjurers who appeared in this case Crouch, Johnson and Matusow, because we were deprived from that opportunity to discredit him generally and because the Board nevertheless, went ahead and made important findings based on his testimony, we suffered a material loss from being deprived of -- of this opportunity.
Secondly and this is the first reason given by Wigmore, the responsibility for the deprivation does rest on the Attorney General and the Board.
It was the Attorney General who made ill founded objections to our production demands.
It was the Board which made erroneous ruling to sustaining these objections and that caused the deprivation.
Moreover, the Attorney General had an additional responsibility because he withheld the fact that the FBI had the yet -- had the Budenz statements in its possession until it was too late to recall it then.
For this reasons, all of Budenz's testimony should've been stricken.
I don't know if we have any time left but we too, will reserve it.
Chief Justice Earl Warren: Mr. Solicitor General.
Argument of Rankin
Mr. Rankin: Mr. Chief Justice and may it please the Court.
During the recess, I asked for -- that the registration that they performed to be secured, I have enough copies so we could tender the Court as evidence (Inaudible).
In regards to that additional matter, I could -- I could try to clarify the problem. We do not cite in our brief, the portion of the --
Chief Justice Earl Warren: Did you -- did you give those to the first (Inaudible)
Mr. Rankin: The portion of the Code of Federal Regulations showing the regulation of attorney -- Attorney General, promulgated under the statute but it is Title 28, Section 11 (1) and following.
I think the particular section that you'll be interested in is Section 11.200, which says forms for registration of organizations, each Communist-action organization in each Communist front organization which had required to register with the Attorney General, shall accomplish said registration on a form hereby designated as form ISA-1.
This form is available at the Internal Security Division of the Department of Justice and so forth.
Now, that form is the one printed, mimeographed on white of the forms that the clerk has and it does provide explicitly for signature of the officers.
The only reference, --
Chief Justice Earl Warren: (Inaudible)
Mr. Rankin: The form is ISA-1 is the white, the pink form is for members themselves, as I recall or it maybe for the front organization.
So, the only reference in the regulations is to the form by this description.
However, it does provide for the officers to sign it.
Now the Government does not argue in its brief that the Communist Party could satisfy the requirements of the statute by not having officers sign it, but I do think it's a valid position and I'll try to tell you why at this point.
The parts of the statute are setout in the appendix to a petitioners' brief and on page 148 of the petitioners' appendix to his brief, not his brief but its appendix, he sets out Section 7 (c) which describes what is expected from a Communist-action organization and then in --
Unknown Speaker: (Inaudible)
Mr. Rankin: The appendices, yes.
Unknown Speaker: (Inaudible)
Mr. Rankin: 148.
Unknown Speaker: That's the statute.
Mr. Rankin: Yes, that's the statute, that's what I was trying to call attention to and in that statute, in Section 7 (c), subparagraph (c), you'll note that it describes what is expected of the Communist-action organization as to registration.
In one, in the case of an organization which is a Communist-action organization or a Communist front organization on the date of the enactment of this title and within 30 days after such day, the -- the registration required by Section (a) or (b) shall be made, taking sentence there or part of the sentence and starting with (c).
Then it goes on to (d), saying the registration made under subsection (a) or (b) shall be accompanied by a registration statement to be prepared in so forth.
So it's clear that it's contemplated by the Congress that two things will be involved, one of them is the registration of the organization itself.
Congress was interested in the identity and identification of the organization itself and then it goes on to provide in a separate portion for the registration statement which involves and contemplates substantially more, both from constitutional considerations and acts themselves then is involved in mere registration itself.
Unknown Speaker: (Inaudible)
Mr. Rankin: I think, they can just say, we register, in so many words and comply with the statute.
Unknown Speaker: (Inaudible)
Mr. Rankin: They can be filed by mail or otherwise, a statement that the Communist Party, a Communist-action organization registers and I think they would satisfy the requirements of the first part.
They do not require the -- or satisfy the requirements of the second.
And I think --
Justice William O. Douglas: Does the regulation ended up to a part of this law?
Mr. Rankin: Oh yes, I think they are contemplated under the -- the registration statement which is different from registration of the party.
Justice William O. Douglas: But (d) is the statement for (Inaudible)
Mr. Rankin: That's right.
Justice William O. Douglas: The registration statement that I all -- I suppose I have to look at this to find out what that involved.
Mr. Rankin: Yes, Mr. Justice.
Justice John M. Harlan: Quite effected any, do you think on the ultra vires, bot the ultra vires, the administrative regulations, do you think Section 1 (b) which says, "Nothing in this Act shall be construed or authorized or require or establish military and civilian censorship or anyway limit or brings upon in a depressed or a state of guarantee with the Constitution of the United States and no regulation shall be promulgated hereunder having that effect."
Mr. Rankin: Well, I think that you have to take that into account in construing the act and the acts of the Attorney General under the Act and I think you could determine that the Attorney General had no power to require officers to sign to register -- to sign any registration statement if it involves a constitutional problem that might otherwise invalidate the act because it shows the intention of the Congress that that shall not be done.
Now, I think that there are other --
Justice John M. Harlan: Well, all became so far as the First Amendment constitutional plans is concerned and not with respect to (Inaudible)
Mr. Rankin: Well, but I think also that it is bearing in the interpretation of the regulations made by the Attorney General, if they could be -- a portion of them separate it under separability that certainly you could say, "Well, the registered is sure of signing the names of the officers if that's properly and physically possible.
Justice Charles E. Whittaker: I understand you involve section 7 (a), (c), (c) and (d), your suggestion through document is contemplated by statute or required by in here.
I wonder what one may call registration from (Inaudible) and to our statement setting forth, I think they are numerated one, two, three and seven, but the registration that is required of section 7 (a) is a registration with the Attorney General on a form described by law.
What I'm asking you is and look at it, is a form of registration, what is the form of registration that is required by the regulations disregarding for the moment according to one kind, the validity of the reservation.
What kind of (Inaudible) --
Mr. Rankin: Oh, yes.
Justice Charles E. Whittaker: Would -- would satisfy the (Inaudible) of what you say, registration as such.
Mr. Rankin: Well it performs --
Justice Charles E. Whittaker: (Inaudible) Communist Party of America?
I just want to know, is this transformed in the document?
Mr. Rankin: It -- Mr. Justice, it is set forth what is expected of the registration.
Unknown Speaker: (Inaudible)
Mr. Rankin: Yes, that's true.
Unknown Speaker: (Inaudible)
Mr. Rankin: That's correct, Mr. Justice.
I'm saying that I think that you could construe the Act to not reach the constitutional question or to decide that the regulation was beyond the Attorney General's power in applying the Act insofar as he required the officers because the -- act does not anyplace, say that this has to be done by officers.
Unknown Speaker: (Inaudible)
Mr. Rankin: That would require you only to readout the question of whether or not the regulation is beyond the Attorney General's power.
If the only way that the -- the fling could be accomplished, was in violation of the Constitution and his regulation required that, then I think that the interpreting of the Act, you would stop surely.
Unknown Speaker: (Inaudible)
Mr. Rankin: Yes, when he -- certainly couldn't require just anything as far as the form is concerned.
That's my point.
Justice Charles E. Whittaker: So I misunderstand ISA-1 that that's one that controls is that right, that's the form, ISA-1?
Mr. Rankin: Yes, Mr. Justice.
Justice Charles E. Whittaker: Now, that doesn't say, (a) (Inaudible) read (b) furnish the following information that any individual (Inaudible)
Mr. Rankin: Mr. Justice, I think they're just -- a footnote at the bottom here that describes how it's to be signed.
Unknown Speaker: (Inaudible)
Mr. Rankin: That's Number 6, paragraph 6 on the front page.
Justice Hugo L. Black: Oh, (Inaudible).
We don't have to sign this one.
There's no statutory requirement if they sign anything (Inaudible)
Mr. Rankin: Well, it goes on to the question --
Justice Hugo L. Black: We're talking about the statute that says that we (Inaudible) prescribed by the Attorney General, is this the only form you have?
Is there any other form?
Mr. Rankin: Yes this -- no, this is the only form.
Justice Hugo L. Black: Then there's no way they -- would violate the statute because they didn't -- they didn't sign it, didn't sign it?
Mr. Rankin: I think they would have to file something, Mr. Justice Black.
Justice Hugo L. Black: Well, if they have to file something acroding to (Inaudible) described by the Attorney General.
Mr. Rankin: Well, they would have to go as far --
Justice Hugo L. Black: That's what you said.
Mr. Rankin: I think they could say -- they have to invoke their privilege and they could say, "If we reveal our officers, it would incriminate the officers and therefore we will go as far as we can."
I think, that's what the holding of this Court show and invoke it as to the part that they couldn't do.
Now, they could say we are Communist organization, we have certain things that we can reveal and without affecting any problem of incrimination and then say we can't fill out this or that because it would --
Justice Hugo L. Black: The (Inaudible) could be throughout without furnishing proof, they might convict him of being a communist (Inaudible)
Mr. Rankin: Well, it seems to me --
Justice Hugo L. Black: Which part?
Mr. Rankin: -- that on the construction of the White case of this -- of this Court -- the decision on that case, that this Court made it very plain, that the officer as such, did not have the privilege that if he said, I am an officer of so and so labor organization and therefore, I don't want to bring the books and records into court that there was no privilege for him as an officer.
He had a privilege only as an individual and that is of great importance to law enforcement in this country.
Justice Hugo L. Black: Can this be signed in at the record by an individual?
Can it be supplied by -- it can't be supplied by this Court and in (Inaudible)
Mr. Rankin: Oh no, but -- let us look at that with the White case.
There were papers and records of a labor organization and you couldn't possibly get him -- get them into court without having the identity of the officer revealed as a part of that transaction and he complained about it.
He says -- he said they -- that may incriminate him.
Justice Hugo L. Black: He said the people -- you'd say was held by him as an officer of the corporation.
It would incriminate him and the Court held as I understand it (Inaudible) that he's reporting on for the corporation, his records cannot be required.
Where he can find the registration (Inaudible)?
The registration accepted to go that he was guilty of crime or might be found guilty or might be (Inaudible)
Mr. Rankin: Well, he claims that it might tend to incriminate him or direct to produce the records.
Justice Hugo L. Black: Produce the records –
Justice Charles E. Whittaker: Suppose he had (Inaudible)
Mr. Rankin: That's right and the Court said that the fact that he is an officer, as an official, he has no privilege whatsoever.
Now, as an individual, he did.
Justice Hugo L. Black: Now, you want to extend the White case to raise and make a man testify the claim rather than use in record?
Mr. Rankin: Oh, no.
Justice Hugo L. Black: Though he's an officer.
Mr. Rankin: I want to deal with that separately Mr. Justice Black.
I think that's a different problem but I -- I do want to insist that the -- what the White case held was not as counsel presented it and it's most important to law enforcement in this country because it doesn't only mean in this case, but it means wherever you have anyone who's asked to produce the -- the books and records of a corporation or any association in this country who says, why, if you find out I'm an officer, it will lead to a -- a chain that will convict me of a crime and I won't produce it and that would close up vast areas of proof that this Court has permitted and approved ever since the White case.
Justice Felix Frankfurter: Well, the White case wasn't anything new.
That was held way back in (Inaudible) more than one way.
Mr. Rankin: That's right Mr. Justice, but I think --
Chief Justice Earl Warren: You automatically -- General is here automatically the man becomes subject to prosecution to find.
The mere fact that he had -- the he admits that he -- he has in his (Inaudible), he -- he then subjects himself as a according to theory he's had been hearing here a lot there so, he becomes an active member of the party and he can be prosecuted for it.
Mr. Rankin: Well, I could --
Chief Justice Earl Warren: Isn't that something that's in the reports might -- might lead to -- to his incrimination but the very fact that his admission in filing the claim makes him subject to these sanctions and to prosecution for as you say, under the Smith Act, for being a member.
Mr. Rankin: Well Mr. Justice, I think it's the -- that's merely per se.
I don't think it reaches beyond that at that point.
Chief Justice Earl Warren: Well, Mr. -- Mr. Davis told us the man even paid dues.
He was more than a per se member that he was then a member who came within the purview of the -- of the statute.
Now, here's a man who -- who has knowledge and -- and has documents and he -- he registers for the Party and wouldn't that be more substantial than the just paying dues?
Mr. Rankin: Well, I -- I think it would be more substantial as far as activity is concerned, but as I heard Mr. Davis and (Inaudible), maybe I misinterpret him, his words to the Court, it seemed to me, he was distinguishing between the intent and the membership and the activity when you said that he thought paying dues would be activity and he was trying to answer the question whether that was activity as a part of membership and he didn't think and told you that that was not enough, merely, activity and membership was not enough.
In fact, I think to Mr. Justice Brennan's question, he indicated that that would in some cases, be it merely, per se.
Justice Hugo L. Black: In your argument, (Inaudible) under this distinction that it would not seem to incriminate the nature of Congress, he only can incriminate the nature of Congress and had to be joined (Inaudible) had an intent and so forth.
Mr. Rankin: Well, that's the position of the Government in the membership cases.
Justice Hugo L. Black: What kind of (Inaudible) allowed.
(Inaudible) was held that a person cannot be asked if they were (Inaudible) paying the privilege against him.
The cause of the (Inaudible) any different, what do you want to rule Blau?
Mr. Rankin: Well, I think Blau was going into the question of what the records contained.
Justice Hugo L. Black: Blau was going to get that (Inaudible).
It was held that could be done, if you tend to incriminate under the opinion of Chief Justice Marshall (Inaudible)
Mr. Rankin: Well I think that --
Justice Hugo L. Black: That -- that was enough.
How can -- how can you make the argument you are making without asking us to overrule Blau.
Mr. Rankin: This problem here with the act as an officer as distinguished from his --
Justice Hugo L. Black: His act getting to the point where the officers not merely (Inaudible).
You say that doesn't tend to incriminate him because being a Communist is not enough.
You must show that he has the intent to overthrow the Government.
But -- but in the Blau case it was held under the said Act, (Inaudible) mere estate has to (Inaudible) authorized the witness to claim the privilege against self-incrimination.
Mr. Rankin: Well, I'd -- I'd -- Mr. Justice, I don't think the Blau case held that that was enough for the membership clause, but I do -- do think it held that it would -- might furnish evidence that would be in the chain --
Justice Hugo L. Black: That's right.
Mr. Rankin: And that -
Justice Hugo L. Black: That -- that's enough, isn't it to claim the privilege to self-incrimination?
Mr. Rankin: Yes, but he's not acting.
In this capacity, he signs as an officer, as an individual --
Justice Hugo L. Black: But he's asked to.
Mr. Rankin: And he can --
Justice Hugo L. Black: Somebody has to show that -- that he produces it unless you get somebody who knows nothing about it (Inaudible) activity associated with the Communist Party.
Mr. Rankin: But he can withdraw from being an officer and not have any responsibility just like the man in the White case.
Justice Hugo L. Black: I suppose Mrs. Blau could've withdrawn from the Communist Party and then maybe that's what (Inaudible)
Mr. Rankin: Well I think that's a separate problem, but I -- I'm trying to say and I think this Court has held very clearly, a number of cases including the last time that I recall White as an officer, has no privilege in regard to the books and regards of the association or corporation when he's asked to produce it.
Now this goes, this case has not applied.
Justice Hugo L. Black: (Voice Overlap) is that what this is asking?
Mr. Rankin: No, I think this case goes beyond that and I don't think --
Justice Hugo L. Black: It goes to asking a question or somebody can deal -- will be associated with the Communist Party wouldn't it?
Mr. Rankin: Well, I think this has asked him to not just bring the records, books and records in, but to bring forth a statement that he incorporates things that are on those books and records.
So it goes beyond the White case in that regard.
Now, I don't -- I think this case is premature in regard to that problem, because he -- you don't have a case where he has the problem of registering and he says, I can't do it because it will incriminate me.
You don't have that before you and he just says, I can set answer to this and this, which is exactly what the books and records show, but we don't have a detailed membership for this and so I'd have to make that up and I don't have to furnish that so I include the Fifth Amendment on that and you could take any number of things that some of them you might say, there is a real detriment that's involved and some you might say, are not.
And then he would have to answer some and he wouldn't have to answer some, but he can under the Board case, he can -- on the Sullivan case, he can take the form and answer what he can.
Justice Hugo L. Black: You believe anybody can answer this for the Communist Party where that shows that this maybe alright.
Well, that shows if he's actively associated with them, can he comply with the requirements of this Act?
If he wanted to comply, not merely by the order (Inaudible) can he comply without believing the fact, he's actively associated with the Communist Party?
Mr. Rankin: Well, he certainly reveals that he is an officer of the Party.
He signs as an officer.
Justice Hugo L. Black: Suppose he's not assigned as an officer, yet signed it, gives all the information --
Mr. Rankin: Well that doesn't necessarily show he has any connection that could incriminate.
If I could assign it, well, Mr. Abt could sign it as a lawyer and lawyers do many things as agents.
And it wouldn't prove that --
Justice Hugo L. Black: Under one of the -- under one of these provisions, it looks like getting anybody to close the case, never had anything to do with it or write anything about it.
Mr. Rankin: Well, that's to --
Justice Hugo L. Black: Or follows any advice where then it could get an objective or what he's going to do.
Mr. Rankin: Now that -- that's an argument Mr. Justice Black that is not justified in this Courtroom.
The reason is this --
Justice Hugo L. Black: But one of -- one of had -- had followed.
Mr. Rankin: They -- they made that argument and I want to tell you what's wrong.
That Section of the statute in Section 5 of the 1954 Act, deals with the problem of a prosecution, a criminal prosecution against an individual for membership from the Party and then it proceeds to say, these different elements shall be considered as to whether he is a member in accordance with instructions to the jury in a jury trial.
Now that's entirely different from the problem in this case.
It doesn't in anyway, say that in this statute or in that one as it amends this, that that shall be used in regard to who are members of the Communist Party.
They are to file and say who their members are and then if anyone is prosecuted under the (Inaudible) those are considerations.
It doesn't say that anybody who happens to be affiliated is a member.
There aren't any such words in the statute, but it says if he's paid money, if he's affiliated, if he's attended meetings, those are things that should be considered and Congress was reasonable in taking those various things as considerations for the jury to examine and the jury was -- and jurors say and if the court didn't sort the case by directing verdict that many of those things that the evidence was not substantial and showing the real connection, were not enough to have any jury convict a man of membership.
So that it isn't kind -- that is no definition either by contemplation or anyway in your -- can construe this statute of what membership is in this context.
They ought to try to determine what the membership is and presumably, Congress thought they ought to know if they are people in leadership of this part and then it gets to the question of the individual and he if the Party doesn't register him, he is to come forth, but there all kinds of protections for the individual, too.
He has an opportunity at anytime to withdraw and the list isn't made public, for a considerable period of time.
And it doesn't say whether he was a member for 12 months as counsel remarked here, prior to the time of filing.
The statute says, if he was a member at the time of the filing and what he wants to get off the list, Congress provided that he can come forward and he can tell the Attorney General, I'm not a member of the Communist Party and therefore, I ask my name be removed and there can't be any publication of his name until a later date after all that question was settled and a provision for an appeal to the Board and he doesn't have to say, I was not a -- a member at the time that they were ordered to file or at the time they order became final.
All he has to say, he has a period of 30 days in which to do anything like that.
After notice, is I deny that I am a member of the Communist Party.
That's all he has to do and come forth and make presentation to Attorney General throughout that period, his name is not to be published in anyway and no lists has been published that included his name until after that whole question is tried out and this criteria are not the -- the test at all for whether he's -- he's a member of the Communist Party at that time.
So the Congress did try to protect the person who wanted to get out and who was mistakenly put in or listed and all of those things that might catch someone who in, did not intend to be connected with Communist-action or Communist Party.
Now there is this element enough that has been discussed to here, about whether or not, he gets any independent trial.
It's a position with the Government that this is a -- an administrative proceeding in which the due process is provided for by the Congress for this Board.
There is complete judicial review for the action of the Board and the standard is higher than this Court has approved for administrative proceedings many times in that it require a clear preponderance of the evidence.
And the Court of Appeals in examining the matter, said that, that was a much more stringent test and I'm sure that Your Honors will recognize this it's much more a strength of test and it conscientiously tried to apply that test to the record in this case and to such an extent that it took some 76 pages of an opinion to examine all of this evidence and not only say that their findings were justified by the evidence, but going step-by-step to every finding, as been claimed here that some of these findings under 13 (e), some eight of them, they were not complete.
That is there were some that they did not find and therefore, since they didn't find any under those three or four sections of or paragraphs of 13 (e) that they were not justified in finding this a Communist-action organization under the 3 (e) (3), but the statute is not developed or built in and properly construed that way.
The test of whether it's a Communist-action organization is clearly set forth in Section 3 -- 3 in parenthesis, and which is defined what a Communist-action organization is.
And then that Congress set up in 13 (e), eight different items of evidence to consider and it said, you shall determine in arriving at whether or not a -- an organization satisfies the requirements of Section 3 (3).
The words were, the extent of and we all know in trial of cases, in juries in courts, before juries and otherwise, in courts that that means take into account the extent whether a little bit, none at all or a great (Inaudible) of each of these items.
And then determine from that, whether or not, you satisfy the standards of Section 3 (3).
Now they're construing and I think, entirely and properly and the Court of Appeals agreed with the Government that it should be construed that those were items to consider the extent of it and if you found that they didn't have any and under anyone of them, it didn't mean that you couldn't find that it satisfied the requirements of Section 3 (3), but you were to -- the Board was to consider each of them and then determine the extent of and so under that kind of -- which we think is the proper construction and the Court of Appeals, adopted and followed that very meticulously.
It was a question of whether or not, they -- there were some evidence or none evidence -- no evidence that the Board couldn't say, well will just disregard that and not even consider it. That's the way we read Section 13 (e) and the Court of Appeals examined it very carefully and did likewise.
Justice Hugo L. Black: The court of number thought they would file that (Inaudible)?
What effect does that have on the number if his name was -- were on them, what effect does that have on that obtain things that they could have obtained but to the fact that their names' on the list?
Mr. Rankin: Well it has some serious sanctions Mr. Justice Black, in that effect.
Now, they do have a period of 30 days to --
Justice Hugo L. Black: Safe after they separate -- after they (Inaudible)
Mr. Rankin: You may say, well I don't have to separate so you have to get to that question, then we say there are certain sanctions that the Act provides and they're each separable, so it's the question under that -- terms of the Act it's a question of whether you would sustain anyone of the sanctions against the individuals or all of them or none of them.
We still say it's a disclosure statute.
Justice Hugo L. Black: What do you mean by sanction?
Mr. Rankin: Well, these are the provisions of what would happen to the individual that you're just asking about.
Justice Hugo L. Black: What are those things?
Mr. Rankin: One of them is that, he can't obtain or apply for a passport.
Another one is the effect on an alien deportation that has been described here.
Another one is the effect on his ability to either obtain a job in federal employment or apply for one.
Justice Hugo L. Black: Apply for one?
Mr. Rankin: Yes, And --
Justice Hugo L. Black: You mean he couldn't apply?
Mr. Rankin: The Act prohibits his application for it if he continues to be a member after the decision, the final decision on review, that this is a Communist-action organization.
Justice Hugo L. Black: (Inaudible) him that, he could either try in anyway of that on his own or would that any?
Mr. Rankin: He could get a trial on his own of the question of whether he'd violated the law and there was criminal liability, yes.
Justice Hugo L. Black: On -- on what?
What would -- what is to be left to decide?
Mr. Rankin: Well I think, under the decisions of this Court, in administrative tribunal where the judicial review, called judicial review --
Justice Hugo L. Black: I talking about a trial --
Mr. Rankin: Then --
Justice Hugo L. Black: Does he have a trial in court for a judge and jury?
Mr. Rankin: Yes, I -- I think it would be open to him whether he violated the order of the administrative tribunal that had become final.
Justice Hugo L. Black: What would be the cases left open then (Inaudible)?
Mr. Rankin: Merely, if whether he had violated the order.
Justice Hugo L. Black: What would that be?
Violated by what?
Mr. Rankin: By a member, by applying.
Justice Hugo L. Black: By applying.
Mr. Rankin: As a member.
Justice Hugo L. Black: It had tried out one issue before the jury and that was that he has applied for a job or applied for a passport.
Mr. Rankin: Well, if there was an order of the National Labor Relations Board that there was unfair labor practice and it became final and a man violated the order, this Court wouldn't allow him to have a reexamination of whether or not, the order was valid.
Justice Hugo L. Black: It doesn't matter?
He kept a --
Mr. Rankin: As a contempt proceeding and I think that --
Justice Potter Stewart: Mr. Solicitor General, isn't your position that the congressional position that the so-called individual sanctions are not now before the court and that it has been Mr. Justice Black's question as to what he did try out, couldn't he under that theory, try out the constitutionality of each one of these sanctions to think it were (Inaudible)
Mr. Rankin: Well, the Government argues that that is a not open to him in our brief but we say that the matters now not before the Court, but it's premium to it and that the Court could at that time, determine the extent of -- of what he could do in trying out the issues at that time.
Justice William J. Brennan: This means you disagree with the Court of Appeals to start the (Inaudible)
Mr. Rankin: Yes, Mr. Justice.
We think that the statute is fundamentally a disclosure statute.
Justice William J. Brennan: And I could (Inaudible) and I'm so confused about self-incrimination.
Let's assume the secretary of American Communist with this petition, in fact signed an ISA-1, with more or less, they're all answering the questions or not, just signed it as secretary of the Communist Party of the United States, as I understanding you to say, getting back in the state of this argument and their secretary, the activity factor of a (Inaudible) members of provision to the Smith Act, would be satisfied merely from the fact that he was secretary of the Party.
And may he be prosecuted under the membership clause if the Government, with other evidence satisfied the other elements as I understood Mr. Davis, elements of knowledge and intent satisfying the activity factor merely by showing that the he had signed ISA-1 as the secretary?
Mr. Rankin: Well I don't think it is proven in that ways because that Act expressly provides that you can't, so that we have to prove independently.
I don't -- that adds nothing unless you could, by that discover that he was the secretary when he didn't know it otherwise.
Justice William J. Brennan: Now -- now, he's admitted it and he can't use the fact that he signed it, but may he use it as a lead to discover other evidence -- other signatures for example, on other documents that who signed the (Inaudible)?
Mr. Rankin: Well, I don't think the immunity clause go with as far as (Inaudible).
I don't think this is sufficient to include of privilege and so it might give you a lead except you would have the further problem but he doesn't --
Justice William J. Brennan: Well, that was great, it -- it might give you a lead.
Mr. Rankin: Yes.
Justice William J. Brennan: If it does give you a lead, could you use what you got even if it was a lead and as far as (Inaudible)
Mr. Rankin: The statute doesn't say --
Justice William J. Brennan: What do you think constitutionally?
Mr. Rankin: Well, here is a -- that's the easiest case on the Constitution because the secretary did sign the agreement (Inaudible) for the party.
Justice William J. Brennan: Let's take this chance if you don't mind.
Mr. Rankin: If you take a more difficult case, if we don't know whether --
Unknown Speaker: (Inaudible)
Mr. Rankin: And -- alright, take that case (Voice Overlap) that's a more difficult case for me.
I think that you couldn't use the material as a lead without infringing upon Constitution.
Justice William J. Brennan: Alright, that's your position (Inaudible) on perjury, but when you subpoena (Inaudible) someone or requiring someone to sign this registration form, your identity as an officer of the Communist Party (Inaudible) it is all your doing to require and to produce perfect books and records, then even as to the nexus aspect, (Inaudible) furnishing the lead you say that under White, you still can force him to produce the corporate records, even though the (Inaudible) of it is that he personally identified himself as a member of the organization is that – is that (Inaudible)
Mr. Rankin: That -- that is my position.
Justice William J. Brennan: Before my question --
Mr. Rankin: You say it is not?
Justice William J. Brennan: The question -- my question is assume he filled out ISA-1 and signed himself as secretary of the Communist Party, but I don't see that question leads to Mr. Justice Harlan's question.
Mr. Rankin: I'm confused.
I -- I feel, in order to try to make myself clear about White.
I understood the Court to say in White that the fact that a person is an officer and by coming forth as an officer in presenting books and records, he might incriminate himself, revealing it as an officer or what was in the books or records, either one, there is no privilege for him as an officer.
Justice Hugo L. Black: Those books and papers, they have no privilege (Inaudible)?
Mr. Rankin: Although, when the Court went on to say that, there's no privilege for him as the official.
Justice Hugo L. Black: Right because the books dictate to that.
Mr. Rankin: Well, but it reveals that he is the man that's got them.
Justice Felix Frankfurter: He has to go on the witness stand and produce those books.
Mr. Rankin: That's right and if he -- and it's inherent and as the Court said there --
Justice Hugo L. Black: Why does he have to go on the witness stand?
Justice Felix Frankfurter: Because his feelings are (Inaudible)
Justice Hugo L. Black: You think he has to go in the witness stand when he is ordered to produce books and papers and testify?
Mr. Rankin: Oh, Mr. Justice --
Justice Hugo L. Black: Something that would incriminate him, I am talking about members of the Court, I am talking about that you?
Mr. Rankin: I think that -- I think he would have to produce them in the court room and make it clear that he was associating himself as an official with those books and records.
Justice William J. Brennan: But Mr. Solicitor I'm sorry we can't get the witness on this way, but what I'm trying to get at is this.
As I understood Mr. Davis' argument, the fact that he was secretary would satisfy that element of the Smith Act offense, which involves under the Government's theory, the necessity of the two active members, is that right?
Mr. Rankin: Yes, Mr. Justice.
Justice William J. Brennan: Now, the mere fact that he signed this paper, as I understand it, has nothing to do with the contents of the records, he can answer all of the questions, but the mere fact he signs as secretary, supplies then doesn't it, if it's usable, an ingredient in the Smith Act.
Mr. Rankin: Well, it seems to me the statute is clear that it's not intended to be used that way.
Justice William J. Brennan: Alright, now I want -- now, I want to go beyond that to the question I asked you --
Mr. Rankin: The immunity --
Justice William J. Brennan: As a lead.
Mr. Rankin: I think the immunity would cover the lead as well --
Justice William J. Brennan: Where?
Mr. Rankin: Because it's intended by this immunity to make it clear that you cannot use this registration as any evidence and I don't think you could use it as a lead without getting into this proposition.
Justice William J. Brennan: Alright, unless that's so to the extent that 7 (a) compelled signature of an officer unless what you now conceded as true, 7 (a) would be unconstitutional, wouldn't it?
Mr. Rankin: Oh, I think it is a serous problem.
Justice John M. Harlan: (Inaudible) ask you this question.
Now suppose the Court in the White case, every time, no matter what the statute, a person comes into the Court and says I raise my Fifth Amendment privilege.
In a sense he is giving the Government the lead because even though the Fifth Amendment privilege doesn't prove anything in the way of guilt, it might suggest to a practical prosecutor that is they smell out and look hard enough they would be able to connect him up with something.
Mr. Rankin: Well, I think that's inherent, in all inherent, in all such – invoking of the Fifth Amendment, but I don't think that has anything that the courts recognize can be protected against --
Justice John M. Harlan: Therefore, you don't have to stand just on the White case, if that's a sound proposition, do you?
Mr. Rankin: I don't understand what you mean Justice Harlan.
Justice John M. Harlan: Well, when you (Inaudible) your position entirely here, it seems to me, on the White case, this fellow being (Inaudible) --
Mr. Rankin: As an officer.
Justice John M. Harlan: As an officer.
Mr. Rankin: Yes.
Now, I was not treating with the problem as he invokes his -- the Fifth Amendment, which I -- I don't regard as a problem in this situation at all.
I think the Court has said that invoking the Fifth Amendment is not any indication of guilt, whatsoever and has to be treated that way.
Justice John M. Harlan: This does (Inaudible) your some possible connections as far as the lead is concerned for the Government.
Mr. Rankin: That's -- that's always possible.
Justice John M. Harlan: Always, always have been.
Mr. Rankin: Yes.
Justice Charles E. Whittaker: (Inaudible)
Mr. Rankin: Oh, yes.
Justice Charles E. Whittaker: That is just (Inaudible)
Mr. Rankin: That's what I was trying to say and I think that he is clearly identified as being official that has the possession of the books and records.
Justice Charles E. Whittaker: Is that the incrimination?
Mr. Rankin: Well, of course as I say, as said in White and is not, that he has no privilege as an officer and that it's his duty to bring the books and records in and it's most important to law enforcement that he will be continued in the force and effect.
Justice John M. Harlan: Your certification (Inaudible) a little further than that.
You ask us to certify (Inaudible) on page 5, how do you think that -- that certification (Inaudible) case?
Mr. Rankin: I think the certification may go farther than the White case and I have tried to indicate to the Court that I think when the case comes up, the representative of the Party might say, we'll answer so much, we'll plead the Fifth Amendment as to something.
We'll fill out part of the registration statement or we won't do any of those things.
We'll bring the books and records in here, lay them down on the Attorney General's desk and we've satisfied the statute and that's all we'll do.
Justice John M. Harlan: That assumes your -- your regulation (Inaudible)
Mr. Rankin: Yes.
Justice John M. Harlan: Of course, if that's permissible and leads the registration statement as a valid registration statement under the Act, all that's talked about in the Fifth Amendment (Inaudible) goes out the window.
Mr. Rankin: Well, I don't think that -- it's properly in.
Justice William J. Brennan: I didn't understand you to take that (Inaudible)
Justice John M. Harlan: I don't think Mr. Abt did that.
Mr. Rankin: I don't understand it.
Justice John M. Harlan: If this registration statement can be furnished without anybody signing it at all, at all, no name on it, no individual name on it, then there is no Fifth Amendment problem as far as an officer is concerned, does he -- is there a -- nobody signed it.
Mr. Rankin: Well I think that's right Mr. Justice Harlan, on the other hand, there was some inquiry from the Court, here as to whether or not, you -- the Government will accept an irresponsible statement and I don't (Voice Overlap) I don't want to imply that.
Justice Felix Frankfurter: There was a difference between an irresponsible statement and the statement in an appropriate name.
It always burden (Inaudible) has an -- has a corporate entity, has a legal personality.
Everything can consist of the individual and suppose -- I suppose thousands and thousands of documents are signed everyday just by a corporate name without more, isn't that true?
Mr. Rankin: I'm sure it is Mr. Justice.
And I --
Justice Felix Frankfurter: That is nothing in, that isn't anonymous as just having (Inaudible) everyday maybe, the corporate entity, now there's a personality.
Justice William O. Douglas: But your form has precluded as signing of the Court to rule without more.
Mr. Rankin: Yes, the form would, the form requires (Inaudible)
Chief Justice Earl Warren: Was it leaving your form out, do you think General that that -- that that would sufficient under the statute?
Mr. Rankin: Well I think that -- I do think that the statute properly construes, involves several things. One of them, important to register, just plain, come in and register and I think that would satisfy that, now I don't think it satisfies the part about a registration statement giving detail of their officers, members and their finances.
I think there are two parts to it and Congress wanted them to come forth and register in any form and then it also wanted this detailed information for good reason.
They wanted to know who the officers were and who the members were and what kind of financing this type of organization has.
But I think that's clear that there are two parts and I don't think the forms contemplate that.
I think the forms make it clear that the regulation of the Attorney General was to provide for this one form, ISA-1 (Inaudible) called and the form said in so many words that the officers have signed it, but I don't think the statute contemplated that is the only way to do it.
I think statute contemplated registration and the registration statement and it says so and so many words.
And the Court can satisfy itself as whether or not, it does, well that is a proper interpretation of the statute.
But that's the way I think it's clear from the language of it and I think with the Congress (Inaudible).
First, they were in (Inaudible) this Act in several claims, they wanted to be -- they considered the question of trying to outlaw the Party.
And they passed on to the question of disclosure. They decided they preferred the idea of trying to get out in the open, who was at the back of the Party and all the information they could.
The vice that Congress saw in this thing was not what counsel have been talking about here, as to whether or not they could add or talk about Marxism and Leninism as such, as an ideology.
That wasn't what Congress is trying to reach at all.
It was trying to reach a foreign control by the Soviet Union Party that was operating in the United States to try to carryout the objectives of that foreign or that world Communist movement and it wanted to get that kind of a Party.
And if this particular Party, the petitioner here was not that kind of a Party, there wouldn't be any problem.
It wasn't interesting, but if it was that kind with that kind of foreign domination control and trying to further the objectives of that kind of world Communist movement within the United States, it want to reach it.
And it want to reach it first, to get it out in the open, so everybody knew what it was, who its officers were, who its members were and what its finances were.
That's the first part and it was also interested in having the people of this country, have the adjudication and they weren't interested in adjudication just by some Board or administrative agency, they provided for an appeal with the preponderance of -- of the evidence to be the determination -- determining factor and appeal to the Court of Appeals to review that evidence and then for a right to come to this Court on certiorari.
So they wanted to be sure that there was a clear opportunity for a judicial process in addition to the administrative process to make this determination.
Once that had happened, upon the fair hearing, this Court was to determine finally whether there was a barrier, they wanted the people of the United States to know just exactly what kind of an organization this was, not because anybody would claim it before this Court or in some other court or claim it in the press or as individuals, but because they'd had a hearing and it was adjudicated and they placed great importance on it.
Then they wanted to get the information before the public and this Court in regard to that, has recognized in quite a number of statutes that there doesn't have to be any clear and present danger for disclosure statutes and has recognized the power of Congress to provide for disclosure, for there's a proper reason.
Justice Hugo L. Black: How can you limit this (Inaudible)
Mr. Rankin: Because, I think --
Justice Hugo L. Black: (Inaudible)
Mr. Rankin: Mr. Justice Black, the Government's position and I think it's valid, is that it is disclosure plus but it's separable and if you think any part -- part of the rest is not constitutional, where it goes too far for the power of Congress, then you slice that part off so that now, I think that properly to consider the statute, you have to take the disclosure part as the fair bones first and then take the various sanctions that go with it and say, “Well, you can't do that or you can do it.
You can't do this or you can do it.”
And then when you get down to the members individually, you can do these things or you can't do it, but since it is separable, it's a question of whether disclosure alone, Congress was very careful about making assessment in -- in the language that you -- that you have to examine it section by section it seems to me to see what Congress was doing and if it had constitutional policy to make disclosure as a requirement, then it can do that much.
And if you say, well when they say that you can't get a passport and you can't travel without a passport --
Justice Hugo L. Black: That's what (Inaudible) where is the value of the (Inaudible)
Mr. Rankin: It seemed to me you have to take it piece by piece in that manner to examine the constitutional problem and then you --
Justice Hugo L. Black: Made – is that a reason why made as a rule which is in NAACP versus Alabama with reference to organization's right to claim the privileges of the members, so there's a sufficient nexus to allow the organization here wrapped up as it is and all of the consequences (Inaudible) so that whether or not, publication of (Inaudible) was subject to (Inaudible).
Mr. Rankin: Mr. Justice --
Justice Hugo L. Black: So that they can raise the questions on it?
Mr. Rankin: Mr. Justice Black, I think some of these things, the organization is defending a case and is binding its members by its defense and I think it has a right to raise some of the questions in regard to that, here in the constitutional problems because it is representing those members.
Justice Hugo L. Black: If it -- if it's binding on them as you are here, so that it cannot be adjudicated again, (Inaudible) why isn't this (Inaudible) to let the question be raised (Inaudible) by the --
Mr. Rankin: Well -- organization (Inaudible)
Justice Hugo L. Black: Prepare to be (Inaudible)
Mr. Rankin: I think, Mr. Justice Black that some of the questions can be, but you run into the problem --
Justice Hugo L. Black: (Inaudible) which is at least in the minds of some people as part of the Constitution and (Inaudible) with reference to self-incrimination.
Mr. Rankin: Self-incrimination?
Justice Hugo L. Black: Yes.
Mr. Rankin: Well, I think that the problem that you have there is whether or not that facts are before are before you so that according to the rules that you have laid down over the years, you will consider that question with such limited or sketchy facts.
We have to imagine the various things that might be done.
For instance, it was claimed when they tried to get an injunction against this proceeding in the lower courts and they abandoned that case, that nobody would come forth and testify because of fear of self-incrimination in this case, but several of the leaders of the Party did come forward.
They also signed the pleadings in this case.
The secretary signed the pleadings on behalf of the Party and identified himself.
Now, it was claimed that those things wouldn't or couldn't be done and so, you have the problem of whether or not they're going to claim the Fifth Amendment and you generally deal with it only when it's invoked.
You have the problem of whether or not there is a waiver, but the all the information is so public and regardless of a particular individual that there is no --
Justice Hugo L. Black: Evidence are not very (Inaudible) weren't have to be opposed.
Mr. Rankin: Well, it maybe public as to some, it maybe not public as to who takes their place their tomorrow or changes or things of that kind. And that's the only reason why I think your -- the rules will always adhere -- are proper if you examine that case when it's presented with all the facts.
Justice John M. Harlan: I'm bothered by that for this reason that if we accept your argument I would suppose if we just have to dismiss this case as improvidently granted and then let it come up, I don't know how in the context is the Fifth Amendment claim, I -- we reach anything if we don't reach the Fifth Amendment.
Mr. Rankin: You've certainly reached the question of whether they should register.
Justice Felix Frankfurter: You're not getting that anybody who personally claims under the Fifth Amendment on your argument and that's getting that plain personal claim, it all claimed under the Fifth Amendment (Inaudible).
You're not suggesting that anybody's personal claims under the Fifth Amendment is foreclosed by any (Inaudible) be happy to make that claim?
Mr. Rankin: No, I do not.
Justice John M. Harlan: Well I have a question to you, that supposing this Act is construed as it's been argued here, it should be construed, as requiring the force of the Attorney General's regulation make signature on the registration, aren't we now and immediately faced (Inaudible) the act is unconstitutional because it forces self-incrimination.
And if we're not faced with that now, what is -- how can we adjudicate the registration in the abstract so to speak (Inaudible)
Mr. Rankin: Well, I think that the registration can be done without --
Justice John M. Harlan: That's a different question and I have said and suggested that if view is accepted that you are now espousing that you can excise the requirement of individual signatures, the Fifth Amendment claim as distinguished from the First Amendment claim disappears from this law suit, but that's a different question.
I'm not taking the Act on the premise that has been argued here by your opponents that you can't excise that requirement with the Act as to rewriting of the Act and whatnot and that therefore, we have to judge the Fifth Amendment claim on the premise that the registration thing has to be signed by somebody and my question here, if that's true, then if we don't reach the Fifth Amendment question now, what is there left for us to do except to dismiss the writ as improvidently granted?
Mr. Rankin: Well, it seems to me you have other questions that in regard to the registration that the First Amendment question and the other questions and -- and the question is that --
Justice John M. Harlan: Yes then we'd still be left with -- if we decided all those, one way the -- supposing we decided all those in the Government's favor, we'd still have a Fifth Amendment attack on the statute which on your view, we couldn't reach it now.
When will we ever reach it?
Mr. Rankin: You might not reach it at all, what if they all came forward and cite all the officers, would you say that you had to decide --
Justice John M. Harlan: Well then, I'm saying that the -- what I'm suggesting is that this case unreleased on the Fifth Amendment claim, would have to go back and the officers either come in and say, “We refuse to sign or as more likely, they'll do nothing and when -- when is this question ever going to (Inaudible)
Mr. Rankin: Well, if they take the form and say whatever they can about their membership, whatever they can about their officers, whatever they can about their funds or they do nothing, then the procedure can be brought against them for not registering in accordance with the final Board.
Justice John M. Harlan: Will it be done, who they are?
Mr. Rankin: If you can't secure the necessary procedures or you can't --
Justice John M. Harlan: Well, the only thing that's left is floating around in the air some place.
Mr. Rankin: That's right.
That's the problem in any case though, Mr. Justice, if you can't (Voice Overlap) if you can't find out who were the people in charge of a -- a corporation's assets or anything, you have to secure that information in someway or you have to do it on information and belief and try to prove it the best you can.
You always have that problem.
What I'm saying is that in this particular case, you don't have to reach this Fifth Amendment problem in regard to this registration, because it isn't here.
They could come in not inconceivable at all hence and signing this very blank, fill out whatever information they're willing to fill out and sign it as officers.
Justice John M. Harlan: What should we do then if that view is accepted with this case?
Mr. Rankin: Well, I think -- I still think you have the problems of the question of the -- the merger in the First Amendment and all of the questions of whether the judicial review is adequate in your judgment and you still have the problem --
Justice John M. Harlan: I thought you said those questions weren't here too and that you were just to take simply the registration itself minus all the sanctions and minus the Fifth Amendment claim.
Mr. Rankin: Oh, no --
Justice John M. Harlan: But I thought that should be there.
Mr. Rankin: I don't want to be misunderstood on that.
There is clearly here, the question of whether or not, the -- the Congress had the power to provide for this determination that this Communist-action organization and require this disclosure under the First Amendment.
They urge that and it's here, then there's also the question of whether or not, the judicial review by the Court of Appeals was added.
There's also the evidentiary question, separate and apart from the Fifth Amendment question and the sanctions.
Justice William J. Brennan: Now, what about the (Inaudible)
Mr. Rankin: Well, I don't think the sanctions are here.
Justice William J. Brennan: I just want to be clear.
As I understand you there is the First Amendment problem here in any event, this is along the NAACP v. Alabama (Inaudible) and then there's the judicial review, the issue that matter whether --
Mr. Rankin: What it was adequate.
Justice William J. Brennan: They properly found that the established case beyond --
Mr. Rankin: Preponderance of the evidence.
Justice William J. Brennan: Preponderance of the evidence but that's definitely sufficient to the evidence.
No one else (Inaudible)
Mr. Rankin: They -- they raised the question of Budenz's testimony.
Justice William J. Brennan: Yes.
Mr. Rankin: And the Gitlow testimony, under the Jencks' (Inaudible)
Justice William J. Brennan: (Inaudible) adjudicate all those questions now (Inaudible) I can't understand why they aren't purely advisory opinions, if ultimately, this case comes back as you're having gone through further procedures and somebody refused to sign the registration statement and then we knock out the statute, knock out the registration and this registration clause, everything else falls because the Fifth Amendment claim is here and it can't be to the (Inaudible) why you're not asking us to judge on that premise an academic case.
Mr. Rankin: Though, I'm hoping you weren't going to do that.
That's the final point.
Justice William J. Brennan: It wasn't that something -- it was that something like that (Inaudible) in the Court of Appeals and the Court of Appeals said, we got to take to take this as a package dispose of all these things, was it?
And once they didn't make a lot of sense in perjury matters.
Mr. Rankin: Well, we didn't so because --
Justice William J. Brennan: I know you don't think so, you --
Mr. Rankin: Because --
Justice William J. Brennan: It's there --
Mr. Rankin: Well, Mr. Justice, you have the problem.
What kind of facts you're going to deal with there?
And it's very real, in the Court of Appeals' opinion that they were trying to explore various, various, hypothetical possible facts instead of having concrete trust.
Justice William J. Brennan: Maybe that's the nature of these (Inaudible)
Mr. Rankin: Well, I don't believe so because certainly if they -- if they're required to register, then it seems to me you have a valid action that requires them to take some action and it can be done without incriminating them in any way or they can come forth and say, we don't invoke the privilege and it's said time after time, but the privilege has to be invoked in all of these cases and you don't examine that question.
Now, I do think that there are some sanctions in regard to the argumentation itself that you want to examine (Inaudible)
Justice William J. Brennan: Now, --
Mr. Rankin: Yes.
Justice William J. Brennan: That this -- what are they?
Mr. Rankin: That's the question of the contributions that can -- that cannot be made by employees of the Government and the fact they aren't any exemptions, under the income tax laws for them after the adjudication.
Unknown Speaker: (Inaudible)
Justice Potter Stewart: These sanctions -- these --
Justice Hugo L. Black: (Inaudible)
Justice Potter Stewart: These organizational sanctions --
Mr. Rankin: These organizations --
Justice Potter Stewart: Pose upon the organization as such --
Mr. Rankin: Yes.
Justice Potter Stewart: Follow from a --
Mr. Rankin: Adjudication.
Justice Potter Stewart: From an adjudication to -- to register rather than as well as (Inaudible) and whether or not, there is ever any registration.
Mr. Rankin: That's right.
Justice William J. Brennan: And this includes the mail, so I suppose the labeling.
Mr. Rankin: And the label.
Justice Potter Stewart: Labeling and the tax exemption (Inaudible)
Justice William J. Brennan: Well in this contend, on -- on your approach, the Fifth Amendment claim can't be asserted by the organization, either for officers or members of this kind.
Mr. Rankin: That's right.
Justice William J. Brennan: Is there anything else?
Or -- nor any -- any of the individual sanctions applicable either as officers or as members.
Mr. Rankin: That's right.
Justice William J. Brennan: Is that it?
Mr. Rankin: That's the position --
Justice William J. Brennan: Due Process argument (Inaudible)
Chief Justice Earl Warren: Nor can it be raised of any other time, unless they refuse to file the claims, they remember is (Inaudible)
Mr. Rankin: Yes.
Justice Hugo L. Black: (Inaudible)
Mr. Rankin: Well, you -- you do have a problem of -- of these other sanctions that Mr. Justice Brennan, just described.
Justice Hugo L. Black: Oh but the -- but the --
Mr. Rankin: They would affect the organization as soon as they are ordered to register.
Justice Hugo L. Black: Yes --
Mr. Rankin: But you --
Justice Hugo L. Black: -- they -- they -- that we register.
You say it, as I understand it, really that's all that's here.
It's all we need this time.
We don't have (Inaudible) have anybody sign, don't have anybody's name will just to say Communist Party, we register.
You don't think that's enough to decide, do you?
Mr. Rankin: Well, I think that's here but I -- I don't want to be misunderstood about its regulation.
I think that you have to consider the fact --
Justice Hugo L. Black: Should it be considered, shouldn't it?
Mr. Rankin: Well --
Justice Hugo L. Black: This is a -- this is a large and important Act then we're (Inaudible) we don't want this thing (Inaudible) having to decide it on the basis to avoid conflict.
We shouldn't consider that they had the time just as you asked, if they confide with the law.
Mr. Rankin: Well, I want to make a claim if the law provides that they shall act in accordance with the Attorney General's regulations and the Attorney General has made those regulations so that I think you have to consider those regulations and whether or not, the extent of the effect that they have, in addition --
Justice Hugo L. Black: Might effect the question of self-incrimination are they not?
Mr. Rankin: Well you might --
Justice Hugo L. Black: At least under the argument.
Mr. Rankin: You might consider whether or not, taking that Act would involve that problem.
I don't think you have to reach the question of whether any of the officers would be incriminated.
Justice John M. Harlan: It had put (Inaudible) supposing we took your view and we adjudicated everyone, all deficiencies (Inaudible) except the Fifth Amendment finding, we say that (Inaudible) did you -- did you consider that in those circumstances, any of these sanctions came into effect?
Mr. Rankin: Yes, because I think the statute provides that they have to the effect when they're ordered and there's a final adjudication.
Justice John M. Harlan: Yes, but there would have been a final adjudication as the Fifth Amendment claim is still outstanding?
Mr. Rankin: Oh, I don't understand your statement and because I had summed that you would say, in your whole and that the Act itself that in the orders valid by the Board and (Inaudible) as proved by the Court of Appeals and therefore, all of the operating conditions of the Act come into play which means that they have to register.
Justice John M. Harlan: How could you say that, (Inaudible) adjudicated Fifth Amendment claim.
Mr. Rankin: Well, because --
Justice Potter Stewart: The judgment would be affirmed under my hypothesis (Inaudible)
Mr. Rankin: Well, I think so because what I'm try -- trying to say is that then, the question would be up to them like it is in cases -- case of adjudication before to either file or not file.
If they file, we don't have any problems about the Fifth Amendment because they haven't raised that.
Justice Felix Frankfurter: (Inaudible)
Mr. Rankin: That's what I'm trying to say, I'm very inept at it apparently, that's what the seems --
Justice William O. Douglas: We have more, under your argument -- your position on just the political disclosure because there certain possibility that would pass to the register, if you didn't pass it from those wouldn't it?
Mr. Rankin: At this time, --
Justice William O. Douglas: Yes.
Mr. Rankin: I -- I think that you would want to examine the questions about the sanctions that affect the organization as distinguished from the individuals at this time, in addition to the, whether or not, there's been judicial review and whether or not, there's a First Amendment problem and then, say that they have to register if you think that -- that the statute, is within the power to Congress and otherwise the Constitution is valid.
And then, if they come forward and say, they've been filed and signed the papers, then they don't raise the Fifth Amendment problems at all and you don't have to worry about it.
If they do, raise them, then that case is ripe.
They may say, we raised the Fifth Amendment about part of it.
We don't raise the others, they may take to bring their books in and lay them in the Attorney General's Office (Inaudible) and there, I don't think there's -- I think the -- the Attorney General is satisfied with that and requires nothing more.
Then there's no problem that you ever had to adjudicate.
Justice Hugo L. Black: (Inaudible) declined to pass on Government -- Government determination there and they register and there is registration with the (Inaudible)
Mr. Rankin: Well, I think --
Justice Hugo L. Black: (Inaudible) did they only get the question of self-incrimination accepted by defending themselves against the charge of a crime?
Mr. Rankin: I don't know whether it could be brought up by a territory judgment proceeding or not, but I know that it could be brought up in the prosecution and there, you would have to determine whether or not, they had commit the crime or whether they complied with all that the law required and I'd think, it would be ripe for it.
Justice Hugo L. Black: (Inaudible) good position administration in connection with (Inaudible) if they judge people not merely with the (Inaudible) weight under the (Inaudible) they maybe convicted of crime, in order to see whether or not, that claim of self-incrimination would be good.
Mr. Rankin: Well, the Court has many times (Inaudible) that's what required, they wouldn't examine questions that was right.
Chief Justice Earl Warren: We'll recess now.
Argument of Ranklin
Chief Justice Earl Warren: -- versus Subversive Activities Control Board.
Mr. Solicitor General.
Mr. Ranklin: Mr. Chief Justice and may it please the Court.
Returning to my argument, I tried to give some further consideration to this problem of separability and see if I couldn't draw upon the decisions of the Court to find a case that might elucidate, illuminate the questions better than I have been doing.
And I thought that it would be helpful to the Court if I would call its particular attention to the case of Electric Bond Company versus the Commissioner, in 303 U.S. 419.
You probably immediately recall that that's the Public Utility Holding Company Act and it provided for a number of things in the Act and one of them was of course registration and another was that they file a registration statement and then there were a long list of other provisions that were also included in the Act.
And a very bitter controversy occurred before this Court, which the petitioners in that case, claim that the Act was inseparable and that you had to construe all of the various provisions together.
I make my position clear in this case on behalf of the Government, in telling the Court yesterday that the Communist Party alone could register.
I did not mean to indicate that I was giving up, on behalf of the Government, any of the other provisions.
I was trying to make it clear that I thought the Court had the duty, under the law and under its decisions, to take each part of the statute step by step and examine each part since there was a separability provision and determine the validity of each provision as it became ripe because of its properly coming before this Court under its decisions for determination as to each of the various portions.
And I did not mean to indicate, if anyone misunderstood me, that the Communist Party should not be required to register on a statement as the next step after registering as a Party.
And that then various other provisions of the Act would still be applicable unless this Court determined that they were unconstitutional or invalid in a proper case.
In such event, and each one that the Court would strike down, would disappear from the Act but the rest of it would be enforceable.
I also tried to indicate that I thought that this Court only has before it, limited issues at this time because the other issues were premature and not ripe.
Now, in the Electric Bond and Share case, we have a case that is exactly parallel on this element of separability.
I'm not saying for a moment that it involved a First Amendment problem.
In this case, it does not but it does involve the -- the problem of whether or not, an Act has numer -- numerous provisions and whether those provisions should be treated separately when the Congress says so in how this Court should Act in such a matter and treatment.
Justice Hugo L. Black: Did it involve the Fifth Amendment problem (Inaudible)
Mr. Ranklin: Well, Mr. Justice Black, I think it could've been in this regard.
It -- the registration statement, of course, required all the kinds of information as I'm sure you are familiar with and a part of that, for example on the Insul Holdings, there are all kinds of fraudulent transactions alleged with regard to (Inaudible) about stock transactions.
Justice Hugo L. Black: It doesn't mean setting up another action in fact?
Mr. Ranklin: No, I mean that -- that that was a factual situation that came -- that was revealed to the public in connection with the Insul and if --
Justice Hugo L. Black: It required for them to deal in the future and the present facts?
Mr. Ranklin: Yes, but it also would probably give a lead to who the officers in the Insul Empire were in regard to all of these various transactions that were alleged to be fraudulent about the issue of the Insul stock, if you recall, at that time so that I think there was the problem of whether a registration statement would reveal, although it was not developed in the case as -- as decided by the Court.
Justice Hugo L. Black: Was there evidence to suggest (Inaudible)
Mr. Ranklin: It was not suggested in this as far as the opinion of the Court rules, but it did deal with the question of separability and the duty of the Court to -- where there was such a provision like there is in this case to separate out a portion of the statute that was divisible and you said there was a presumption in that regard and it should be followed.
And therefore, the statute was found to be enforceable and valid.
Justice Felix Frankfurter: Is that – the case dealt with it, the case turned on?
Mr. Ranklin: Well, that's what I mean Mr. Justice Frankfurter.
That was the heart of Chief Justice Hughes' opinion in regard to it and the contention was bitterly made that you couldn't consider a registration and the registration of statement as a separate matter, but you had to -- had to consider them altogether and the Court said, "That was not correct and that you should take those separately.
Justice Hugo L. Black: I understood they were raising and may be I am wrong about it, the place is in fact different, possibly a district case.
The argument here that I can gather to each of the problems is, what is decided in the Act in Communist Party in fact, amounts -- well, not expressly declare it to a direct money unequivocal practical outlawry of the political party, which at least, in some of the evidences is (Inaudible) small political party.
The plaintiffs argue -- argued outlawry and that cannot be done.
Only way I see it is to determine that it does not invade the Party and its outlaws and the criminal fee of the Party (Inaudible).
The only way perhaps, that it grieves death certificates to see whether taken as a whole, it does amount with the three outlawing of (Inaudible) when illegal Act relates to Justice Stewart's opinion to -- I recall the Mr. Justice Brandeis -- if he made a crime but you couldn't go all the way to the bridge between them of speak and express influence, simply because some of the activities were illegal.
I assume that that is done. And assuming that you can only find that out by looking at the whole Act and all of its statutes, how could the Court and members of the Senate merely to registration as the other Parties.
Mr. Ranklin: Well, Mr. Justice Black, in the Electric Bond case, it was claimed that that was a Death Sentence Act and all of these provisions were so extreme, including prohibition of use of mails for legitimate purposes that it would kill the Utility Holding Company.
So the same parallel contention was being made and the Court said the examination should not be made on that basis.
The question was to carry out the will of the Congress and deal with it on a separable basis and take each part and see whether that could be enforced in dealing with the problem.
Justice Hugo L. Black: Do you have any other cases, as I understood, of that case under the light -- that case which did not refer to freedom of speech, prayer and proximity as far as I recall it and (Inaudible).
The mere registration is met to providing or to make any changes as for the -- the other members to bring about a conviction.
Mr. Ranklin: Well, there were all kinds of Fifth Amendment claims in that case, but they were question of whether you take the property without due process but they were there and they were apparent that they were doing real damage.
Justice Hugo L. Black: You prevent that case in disposing of the case.
Mr. Ranklin: Well, I think it is on the separability question.
Justice Felix Frankfurter: Would the Court subsequently, if he was -- do you claim that other Fifth Amendments --
Mr. Ranklin: Well, it the expressed --
Justice Felix Frankfurter: I don't mean -- I don't mean in this -- I don't mean the Electric Bond and Share but later to just (Inaudible) it's under (Inaudible) clause.
Mr. Ranklin: Yes, Mr. Justice and the Court said to all those questions to reserve --
Justice Felix Frankfurter: I mean the -- those -- those were not privilege questions.
They were -- being asked by this Court.
Mr. Ranklin: Well, I don't contend that they shouldn't be in this matter.
They're all there.
Justice Felix Frankfurter: And the plaintiff established what?
What the issues were in the Electric Bond and Share or whether they weren't.
Mr. Ranklin: Yes.
Justice Felix Frankfurter: I think it came out to affect, I don't know the cause and perhaps the validity of the death sentence which was refused to be passed on in Electric Bond and Share, is that correct?
Mr. Ranklin: That's correct, Mr. Justice.
Justice John M. Harlan: But I assume --
Justice Felix Frankfurter: Unlike the -- I wish you could tell me what the metaphor of outlawing, what did any bearings that the Communist Control Act of 1954, in his statement, therefore, the Communist Party should be outlawed there if anything (Inaudible)
Mr. Ranklin: We don't think it has any.
Justice Felix Frankfurter: What -- what does that -- what is -- what's the function?
What purpose to that?
Mr. Ranklin: None at all, as far as the Government is concerned.
It's merely a -- a recital of the statement by Congress, but it didn't act to do that.
Justice Felix Frankfurter: And so instead the (Inaudible) is learning the fact. That's just the -- an exaltation or a belief, is that it?
Mr. Ranklin: That's right, Mr. Justice --
Justice Hugo L. Black: Well, you argue here that any party -- any party that operates as a party, rather than act like just the Smith Act, as I understand you.
Mr. Ranklin: Well, let me try to --
Justice Hugo L. Black: Incumbent practice as an outlawing.
Mr. Ranklin: I make myself plain on that, Mr. Justice Black.
The Government does not treat this or believe that this is just a party.
It thinks that the --
Justice Hugo L. Black: I understand that, I understand you.
Mr. Ranklin: And that makes all of the difference in the world.
Justice Hugo L. Black: Well, then it changes but -- but you can't change it by giving it a different label, can you?
Mr. Ranklin: No, we can by --
Justice Hugo L. Black: And does -- does it -- does it or has it, or has it not and I'm not talking about in all of the claims.
Has it or has it not as to provoked sought votes, sought members on public questions which -- which -- to some of which is said to be wholly illegal but has it or not, acted in that respects and that element was there as a party?
Mr. Ranklin: Yes.
Justice Hugo L. Black: As a political party.
Mr. Ranklin: And presumably, it has done lawful acts as well as unlawful act.
Justice Hugo L. Black: What I'm getting at is this.
We've said that the reference to the littering in the streets that there are other ways to prevent littering in the streets that bars freedom of speech and press.
You could go after the direct act to consider.
Does this -- do these laws (Inaudible) make it legal or illegal (Inaudible) is not a punishment of what the Congress wanted to do, tried to do, to outlaw the parties which burdens on it that make it impossible to act in the Party to any of the things that the Party is doing.
Do you believe that it could possibly act through the Party, with these things, these laws, I think.
Mr. Ranklin: Well, I think it could do -- it could act as a party, yes.
Justice Hugo L. Black: How?
Mr. Ranklin: But I think that it would have --
Justice Hugo L. Black: How could they manage to check what's presented to your members?
Mr. Ranklin: Well, he could continue to --
Justice Hugo L. Black: Wouldn't it be better to meet the case in on to put on something down.
Congress has intended to the Communist Party, it imposed sanctions that amount to outlaw (Inaudible).
It is not singled out action which it has -- it has imposed, although it hasn't said so but in doing that it can place the burden as to the burden which would seem to bond from doing all of the -- to the business of the Party, would have to be the function.
Tactics, no -- no tactics as that there is no (Inaudible).
How could it function as a party?
Mr. Ranklin: Well, the Congress was not trying that issue that it's just a party and I'm trying to --
Justice Hugo L. Black: And I -- I understand that, I agree with that (Inaudible)
My question is based on that assumption.
Did it believe and said that was -- that they engaged in business of advocating some kind of reason at all, whatever it was to the old law of this Government by the Court upholds toward the staff and that's the reason that Congress had -- as I read the Act and sought to make it impossible to (Inaudible).
Perhaps, someone may have thought, as was suggested by distinguished citizens that it would find the outlaws, would violate the Constitution.
Whether it could be done, simply, by imposing the sanctions of the burden and they did impossibly and that is -- is the form of sanctions.
I'm not criticizing it as to that but isn't that what we have to meet here in this case and taken as a whole that this Act, insofar the various threats hanging over to all these sanctions, but the operation of it is advised.
Mr. Ranklin: Well, I think that you have to assume what Congress provided that it had to be a -- a party that was dominated and controlled.
Justice Hugo L. Black: I -- of -- of course.
Of course --
Mr. Ranklin: -- by a foreign country.
Justice Hugo L. Black: Of course.
Mr. Ranklin: And that it --
Justice Hugo L. Black: And it maybe that that is what would save its constitutional analysis that allowed the foreign (Inaudible) and the outlaws.
But what I'm saying is, why (Inaudible) -- why not meet the case or can say that this Congress has had, does it outlaw the party because insofar -- far (Inaudible) and because it's perfect eventually that this (Inaudible).
Why not meet that constitutional issue which is plainly in it to mean --
Mr. Ranklin: I think you have to recognize the separability decision too which -- and ends by the Congress, so as to carry out whatever there is of the statute that you consider to be valid because that's a part of it.
Chief Justice Earl Warren: But General, if we -- should -- if the Court should disagree with you on the question as to whether the First Amendment problems and the Fifth Amendment problems aren't before us at the present time.
Suppose we should conclude that all of those problems are before us, would we then proceed with the -- with the -- your separability theory in accordance with the case you have cited and still do justice to the case.
Mr. Ranklin: I think we could, Mr. Justice -- Mr. Chief Justice.
I think that in the first place, I have not tried to indicate -- I thought the First Amendment problem was here but I thought it was in regard to each separate part of it, as there is a First Amendment case in a registration and the registration statement.
I don't want this -- help you to understand that I don't think there's any First Amendment involved.
Justice John M. Harlan: Could I ask you one question and -- and I -- as far as I'm concerned, I hope you cover the individual sanctions.
Chief Justice Earl Warren: I wonder if I can -- I think you may have to, unless --
Justice John M. Harlan: I beg your pardon.
Chief Justice Earl Warren: Unless you have to (Inaudible) please the Court.
Justice John M. Harlan: Sorry.
Mr. Ranklin: Well then, I think you would have to view it in each question when it becomes right.
If the registration statement is answered and they sign in their names and don't raise any Fifth Amendment problems, I don't think you have any question or problem in it whatsoever.
They have a right to come in and sign their names, say they're officers, say who the members are, what their finances are, and that's their legal right under the law and this Court has so held.
Chief Justice Earl Warren: But General, my point is -- is this that suppose the Court disagrees with you on that and believes that both refers to the Fifth Amendment problems of the officers and members of the organization are before us as they were in NAACP then would you still say that -- that we could impose the separability clause in a manner that you have indicated what was done under the -- the case you cited.
Mr. Ranklin: Well, of course the -- if you would determine that it couldn't considered that way, then I would think you would decide that Congress is dividing for separability, although they've tried to do it, could not lawfully do it.
I think that's the way you would have to decide what you're asking me now.
And that you know they said that it was separable but you couldn't find if they were separable as a matter of constitutional law.
In that case, you would have to go further.
What I'm trying to say is that in this case, exactly the same distinction was made and the Court rejected, and said it had to do if it could, what Congress said and take it piece by piece.
Nor to that answer because I'm trying to --
Chief Justice Earl Warren: Well, I -- I didn't think there are any Fifth Amendment problems in that case.
Mr. Ranklin: Well, there were claims --
Chief Justice Earl Warren: -- because I didn't -- I didn't --
Mr. Ranklin: A different kind of Fifth Amendment.
Chief Justice Earl Warren: -- I didn't really believe there were any First Amendment problems --
Mr. Ranklin: No.
Chief Justice Earl Warren: -- in the case either.
Mr. Ranklin: No.
Chief Justice Earl Warren: Now, and my point is specifically this.
Suppose this Court was of the opinion that those problems are before us in this case, can we then adopt the reasoning of that case in this one, and determine separability.
Mr. Ranklin: Well, I think you can as to certain phases of it.
For instance, I think you might well think -- consider that First Amendment was in the provisions in regard to registration and the Fifth Amendment might be in regard to some.
But then you got the problem of the registration statements and whether or not the Government can ask for the information and you have not said, as I read the case, that they can't ask for the information.
And you say -- and you have said they can't compel the information.
Therefore, until you know whether someone is going to invoke their privilege or give you the (Inaudible) the Government the information, you don't have the case ripe for decisions before the Court and I don't think you reached that particular point, although you reach others.
Justice Felix Frankfurter: Mr. (Inaudible), I think you and the Chief Justice understate there are (Inaudible)
Mr. Ranklin: Sorry.
Justice Felix Frankfurter: -- in determining whether the Fifth Amendment was or wasn't involved in the Electric Bond and Share.
The privilege against self-incrimination provision of the Fifth Amendment was not involved.
The Due Process Clause of the Fifth Amendment was involved.
Mr. Ranklin: I think I said that -- I tried to say and I --
Chief Justice Earl Warren: I so understood you, yes.
Justice Felix Frankfurter: Well, it -- it can't be subject if Fifth Amendment was not involved because it wasn't involved.
Mr. Ranklin: Yes, Sir.
Justice Felix Frankfurter: In regard to the issue that came before it on the merits and you have the statute label, so the Fifth Amendment was as much involved there, in here or different portions.
Chief Justice Earl Warren: We're talking about self-incrimination in this case throughout, not any other portion it has said.
Mr. Ranklin: I think so.
Justice John M. Harlan: I don't want to take up any much of your time but answer this question, putting aside the Fifth Amendment claims in a -- on a question of sanctioning, assuming if we were to accept your argument that we should not reach any of the sanction, would there be any other factors other than the factors which are present now that would -- present in the adjudication of the sanction (Inaudible)
Mr. Ranklin: Well --
Justice John M. Harlan: Basically, your basis that aren't equally before us now.
Mr. Ranklin: Well, on some of them, there wouldn't and in some there would --
Justice John M. Harlan: Which ones?
Mr. Ranklin: On the registration, I think the facts would be very important.
Justice John M. Harlan: Oh, registration, I'm talk -- I'm talking about sanctions distinguishing it --
Mr. Ranklin: Well, I think that many of those might be right for adjudication in a declaratory judgment, the action and --
Justice John M. Harlan: Well, aren't they equally ripe now?
But why aren't they equally ripe now?
Mr. Ranklin: Well, as to those who are members and apply for a passport for instance, you have the problem of whether or not there is a law outstanding at that time that then was -- was triable which is the constitutional right to having a passport and how you will interpret that provision and -- and how the application of the regulations to that provision might be made.
I think that those questions, according to your holdings in the past and all you've reserved until they come before you with a Party who was asking for that particular relief.
Well, then when some organization claims it on their behalf, I don't think that any of your cases would sustain your -- a passing upon that kind of question in this context.
Now, time after time, people appeared before this Court asking you to pass on constitutional questions.
You say we'll never reach that question because you have to and it seems to me, all of those sanctions would have to be treated under those holdings as you adhered to when they come up, depending upon on the context in which they're presented and not reaching out to get them decided in this case when they're not necessary.
Justice John M. Harlan: Alright, this is the question originally.
Now, they say this is the question, a part of the Constitution attack here (Inaudible) the -- that this (Inaudible), it's part of the Constitution in terms under registration provision.
Mr. Ranklin: Yes, but it doesn't appear that it's necessary to a decision in this case that those sanctions be passed upon now until that particular case comes up, just like in the Holding Company Act when the death sentence provisions were passed upon when they came up by an independent procedure.
Justice Hugo L. Black: As I recall it (Inaudible) that -- that the -- as I recall it, the basic idea of inseparability is one of them.
If we look to see, we'll have enough time.
And we have certain things that apply to a part of the Act, as I see it, (Inaudible).
You can't get to various parts of it (Inaudible), except there has to be one paragraph that may have stated, the Communist Party requirement, could stand up to something (Inaudible) or statement where you register under this Act.
Mr. Ranklin: Yes, Mr. Justice --
Justice Hugo L. Black: What if they would -- you thing that was a good decision for the no name, nor anyone would take somebody's statements (Inaudible) with the Communist Party's statement, now, with registration. If you're asking (Inaudible) orders for that, do you say that's one thing that's a bit of -- that that could -- if you make the standing alone, is that what you (Inaudible)
Mr. Ranklin: Well, I think it's clear they did.
Justice Hugo L. Black: What would they get Mr. Solicitor General if they all have from the act of local -- of an action and say it's Communist Party (Inaudible) without any -- any officers (Inaudible)
Mr. Ranklin: Well, you see the act provides for the registration without this kind of a hearing too, voluntary registration and the Congress was willing and happy to have that if they could get it.
Justice Hugo L. Black: To have what?
Mr. Ranklin: A voluntary registration without any trial merely a -- a mere recognition by the Party.
Justice Hugo L. Black: To that effect, (Inaudible)
Mr. Ranklin: Yes.
Justice Hugo L. Black: It's all they wanted.
Mr. Ranklin: They -- they -- no, not at all.
Justice Hugo L. Black: Well, do you think -- do you think it's anybody that was (Inaudible), they have much confidence.
As in that, provided nothing in the file in the paper by somebody and signed, maybe by (Inaudible), it has something to Communist Party to statement of registering.
Is that what the argument you made just today (Inaudible), I think part of this.
Mr. Ranklin: Well, I don't want to be misunderstood to say that they need a responsible act which --
Justice Hugo L. Black: I'm not talking about being responsible.
You just suggest it in a way that it would be a responsible action.
You just -- if they just emphasized statements, pre registering.
That does have -- under the act, you could include the statements insofar as the (Inaudible) one of them is that and the other was (Inaudible)
Mr. Ranklin: All I can say is what Congress did say and it was -- it very -- it very clearly said that they could satisfy the requirements of registration by coming forward itself without a trial or hearing or anything else and say, "We do register."
That was one particular section of it and they wanted that, and it meant a lot because it would be a recognition that this party --
Justice Hugo L. Black: But on your -- on your argument before to this case, I assume that everything they say is standing -- that we consider nothing else in the world except one provision, it means no more than that pre registering.
And we say it's best that the separable parties and that makes it -- we had the (Inaudible) and that would be the -- we can (Inaudible) it to that is fairly treatment, an act of Congress (Inaudible)
Mr. Ranklin: Well, I didn't say it's --
Justice Hugo L. Black: How about 10 years, in separate facts.
Mr. Ranklin: I didn't mean to say that that is the only Party that the Government is contending as valid.
Justice Hugo L. Black: I understand that.
Mr. Ranklin: The Government is contending for all of that but it does take the position that -- that with the separability clause, you take section by section and see what you can sustain under the law and that it was -- would satisfy one of the purposes of Congress.
It's very important to have them just come forward and say, "We register with nothing more."
Another purpose was to get information in the registration statement and I think you can properly and should consider that separately -- separately.
And that the Government can ask questions and they don't have to answer, which this Court has said.
They can say this will incriminate us, we don't answer or would tend to incriminate.
Justice Hugo L. Black: Your argument (Inaudible) that we should consider it all (Inaudible) on the question of (Inaudible), it's under attack.
Mr. Ranklin: Well, I -- only make that argument and saying, if you find that they can't do more, you can say that much is valid, but I don't want to be misunderstood to say it that I -- I'm not urging that you find much more than that valid.
But I say that Congress said and I can only resort to their words, and I think the history is plain and I think the Court in this case, Electric Bond and Share, said, "We turn to that language and it was contended by counsel that you look at the legislative history and Congress wouldn't have -- have urged any -- passed such a bill with just the registration."
That same argument was made and they said, "Look at the legislative history," and the Court said, "Look at the language that Congress said."
Justice Hugo L. Black: And they have then resolved the question of whether or not that would confiscate their properties at a reasonable familiarity than the -- and I do not believe that it was impossible to say at that time under the Act (Inaudible) where they confiscated enough -- it confiscate, once they found out how they did it.
Therefore, it was the Government but I understand that it was far more subject to the matter there.
Justice Felix Frankfurter: Could I ask you -- inappropriate --
Justice William O. Douglas: (Voice Overlap) and put down ultimately to the question, I suppose and in these case, of whether any words of the Electric Bond and Share opinions I have used, the various parts are so interwoven that you -- you must know how to disposes of the one question of treatment or treat more than just that one (Inaudible)
Mr. Ranklin: Yes, Mr. Justice.
Justice William O. Douglas: I think those words were interwoven.
Mr. Ranklin: I guess but -- I think that if you read that opinion and you examine it again, I'm sure you would agree that it was expressly said -- said by the Court, that the duty of the Court was to try see if it wasn't separable and make it such because Congress said so.
That's where you start.
You don't start in the other presumption.
So it seems to me, with that kind of a presumption, if you have duty to see if you can't make any portion of it standup alone.
Now, you might find you couldn't and that's something else again.
Justice William O. Douglas: My difficulty is that once a registration statement of the form of -- prescribed by the Attorney General if filed with all the data, a lot of other things come into play.
We know, state laws, loyalty boards, Boards of Education, state laws that disqualify people from holding though a certain jobs, would seem to come into play.
There's a radiation from it that that is very pronounced, isn't that -- wouldn't that be true?
Mr. Ranklin: I think there is -- the radiation that you describe is involved in the Act.
I think you could say that certain portions are valid without allowing the -- the other to come into play and that's what I mean by taking step by step to see whether it's here and if it is here, whether it's necessary and if it's invalid, you leave what you can to itself.
Justice Felix Frankfurter: You see (Inaudible) as to these questions on the assumption that you will permit them that the legislative history of the Public Utility Holding Company has.
Do you mean by that, the report doesn't -- submitting (Inaudible) Congress in the long, long debates in those (Inaudible) and I would like to ask you whether you think, and on reading those debates and those reports, you are prepared to say that Congress would've been satisfied that all Congress wanted to that elaborate process with which one is familiar in that particular legislation and that all that Congress wanted is to establish instant right, a letter saying I am the boss of this holding company.
Mr. Ranklin: Well, Mr. Justice Frankfurter, I can't answer the question with the assumption because I'm only familiar with the newspaper accounts at the time and I haven't examined that history.
But from the newspaper accounts, it was clear that Congress wanted more and that was the argument that was made in this particular case and the Court rejected it saying, "We'll turn to the language of the separability clause that governs our duty and we'll follow."
Justice Felix Frankfurter: Now, the next question I want to ask you, whether you think that with reference to the death sentence statute to the very main important which was involved in the death sentence statutes, whether you think there were no radiation with reference to that Act flowing from the fact of registration, whether the -- the opportunity to the -- in the national market, whether the relationship between either corporate bodies of the great Insul Empire, etcetera, etcetera. Whether no radiations in that situation?
Mr. Ranklin: Well, there's no question that there were on the burden of the argument of the petitioners in that case, was that the radiation for such that -- that registration in itself was part of -- only a part of what the Congress wanted and these other steps were up -- attached to it and bound to do them such injury.
And of course, the recitals in the legislation, the purpose of it were the terrible evils that the Public Utility Holding Companies were to indicate what the Congress was trying to do.
I think that was clear that there were plenty that would flow from the mere registration and the filing of the registrations.
Justice Hugo L. Black: Plenty of what?
Mr. Ranklin: Plenty of radiations as to other effects.
Justice Hugo L. Black: What injury?
What constitutional injury (Inaudible) think can find it that's declared to them of that by confiscation of the property if -- if they meant to choose, provided in the Act to abolish the (Inaudible)
Mr. Ranklin: Well, when you say except that, that's pretty involved in the Section.
Justice Hugo L. Black: But what if anything else but that?
Mr. Ranklin: No, but they argued that they were taking their life away and taking their properties --
Justice Hugo L. Black: Yes, that's right.
Mr. Ranklin: -- in effect and all of these property would be destroyed of tremendous values.
Justice Hugo L. Black: Can you think of any way that their property would -- would be taken except by registration?
Can you think -- would that have barred them from using the (Inaudible)?
Would it have barred them from getting acted up?
Would it have destroyed them, though financially to mere registration?
Mr. Ranklin: The failure to register add a penalty that they couldn't use the mails and that was upheld, right in the same case.
Justice Hugo L. Black: Yes, but they -- they got -- they got around that by registering.
Mr. Ranklin: Well, that was --
Justice Hugo L. Black: What -- what would follow -- what would follow if they register, that would be dangerous to this?
Would they lose the right if they registered?
To a -- in fact there are so many things, I can't remember them all, but was there any, as to their restraint of possible (Inaudible), the kind that there is here.
They would suffer from the mere acts of registration.
Mr. Ranklin: Well, in the climate of those days, I'm sure that registration --
Justice Hugo L. Black: I'm not talking about the climate.
What did the Act provides --
Mr. Ranklin: Well, registration would --
Justice Hugo L. Black: -- that we've done to them by merely registering?
Mr. Ranklin: Registration in itself, Mr. Justice Black, would have all of the reflection and the bad effects of being a Public Utility Holding Company --
Justice Hugo L. Black: Would it bar -- would it bar them from using mails?
Mr. Ranklin: Well, if they fail to register --
Justice Hugo L. Black: I'm talking about registration.
Mr. Ranklin: Well, but I think you (Voice Overlap) seen in the others.
Justice Hugo L. Black: What would've happened to them -- what was the injury?
Is it -- is it clear to them by registering under that Act by registering alone?
What property would have been taken from them?
Would they have lost the -- the various lives of tax deductions, or any of the things like that that have provided them this Act by registering?
Mr. Ranklin: Well, I think the registration would be an acknowledgment that was involved in the -- in the other files.
Justice Hugo L. Black: Well, I -- I understood you to say the separate and that Court held that was separate.
It wouldn't involve and they could attach that later.
By registering, they did not injure themselves.
According -- under the constitutional claims there, they didn't think it barred them from all these things.
It's barred them from injury.
Justice Felix Frankfurter: Practically, what would have happened?
The fact that --
Justice Hugo L. Black: Yes, and I -- I'm not --
Justice Felix Frankfurter: -- if anything have happened --
Justice Hugo L. Black: I'm not speaking about the truth.
Justice Felix Frankfurter: -- administering into will be that.
Would he -- nothing would have happened.
Mr. Ranklin: No, (Inaudible)
Justice Felix Frankfurter: It's market is financing one of those and I'm just -- just saying that (Inaudible) will be call on just the same.
The evaluation of it is changed, would've been just the same?
Mr. Ranklin: Well, the claims were that as immediately as the one that registered, they would lose all the tremendous values.
Justice Hugo L. Black: I'm talking about is, what does the Act provide by law that could be done to them, the way they (Inaudible) from doing anything of any kind or any nature by registering.
What did the act say, will be a legal consequences that will destroy your business by mere registration.
Mr. Ranklin: I don't think the Act said in itself that by registration, there would be further consequences.
Now, in the same case law, the Court said that the registration was statement is also valid separately.
And they -- and that certainly would reveal all kinds of things that would have damaged them and adversely affected the values of their properties.
It isn't personal rights but it is property rights that they were contending for.
Justice Hugo L. Black: As a matter of law.
Mr. Ranklin: It's very real.
Justice Hugo L. Black: It is a constitutional right if they are (Inaudible)
Mr. Ranklin: Yes.
Justice Hugo L. Black: I'm -- I'm -- It's not what I'm -- not what I'm talking about.
I'm talking about the legal consequences of the registration.
Here, you admit, I thought they would be barred from various things that you get practical (Inaudible) what other (Inaudible)
Mr. Ranklin: Well, they would --
Justice Hugo L. Black: When -- when -- why else would it be (Inaudible) registering?
They would not register alone.
Mr. Ranklin: They would be barred from getting the contributions from government employees and they would also have to make a disclosure on their -- their label, their publications that they were communist -action organization.
That much they would also have.
Justice Hugo L. Black: Acted up to the (Inaudible)
Mr. Ranklin: Yes and the tax deduction of course, were a matter of grace (Inaudible) and whether they were entitled to exemptions and on behalf to --
Justice Hugo L. Black: So that's separation here, treating this as the only thing that we consider, these consequences don't come which are incomparably away from the legal -- legal consequences provided by the Act and those that were the form -- that would have (Inaudible) on the whole sense.
Mr. Ranklin: I want to try to answer your question frankly, Mr. Justice Black.
Justice Hugo L. Black: If that's not correct, I'd like to know why.
Mr. Ranklin: You're treating the registration as being -- as being a separate part when this case treats both the registration and the requirement of a registration statement as being separable parts that could be sustained separately.
Justice Hugo L. Black: I'm talking -- what I'm talking about here is, is it not – is it not true that if they had merely come up and say, "Sign a statement or somebody's going to pay for it because we probably have thought you appeared here by race."
Would that -- are there any consequences such as acts of the Government and so forth that would have to be a part of (Inaudible) under the Act which would practically destroy their ability to continue what they're doing of the Party.
That was not legal consequences under the wholly (Inaudible) of the Act on registration alone.
Mr. Ranklin: I think there is left, the distance between the two.
Justice Hugo L. Black: Do you see this claim that, there's no relevance.
Mr. Ranklin: No, I -- I do think, Mr. Justice Black, that it's unreal to say that these people weren't -- wouldn't be hurt under the Public Utility Holding Act by a registry, but it's not --
Justice Hugo L. Black: Well, they're about to have certain by passing the Acts.
Mr. Ranklin: Well, it is not the legal consequence that you're asking about but certainly, the mere fact that registering would have its impact upon the value of all their property.
Justice John M. Harlan: In all of the questions, whether we decide the sanctions now or whether of the statute that he can build, whether values has a priority to impose the elements -- the elements of --
Mr. Ranklin: Well, the ultimate question of whether if you will abstain.
Justice John M. Harlan: If the sanctions are good and Congress had the power to pass on the outlawry claim, has no dependable distance to that saying.
Mr. Ranklin: hat's right, Mr. Justice.
Justice John M. Harlan: So that the ultimate question whether we review the sanctions as it is viewed now or whether we view them piecemeal as they arise, ultimately, the question you have to decide in either instances whether the sanction is justifiable to -- to his constitutional (Inaudible) in this sense.
Mr. Ranklin: That's right.
Justice John M. Harlan: Isn't it?
Justice Hugo L. Black: And view all of the sanctions together, amounting to the outlawry, whether you call it so or not, if he had a question of outlawry.
Mr. Ranklin: I don't think so, Mr. Justice.
Justice Hugo L. Black: Even if all of it amounts to that?
Mr. Ranklin: No because -- because I'm saying you slice off one-half from another --
Justice Hugo L. Black: Yes, yes, as I understood.
Mr. Ranklin: -- you may not agree with that but I'm trying to make it clear, what I think the Congress said and if you think that out of eight sanctions, eight --
Justice Hugo L. Black: Well, the reason I asked that before is, you answered the question which said the outlawry would have nothing to do with the -- all the claims and is a matter of -- you answered that here and as I understand you to make your -- make your claim.
But -- the question would still remain if all the sanctions to that -- and as well as all of them amounts on outlawry of all the activities of a political party and whether that could be constitutionally be done.
Mr. Ranklin: Well, I didn't understand the question in that way.
I think that if you would say in -- in your question as I understand -- your question now that the accumulation of all of them makes it impossible for them to do any lawful acts.
Justice Hugo L. Black: That's right.
Mr. Ranklin: Then you still have that problem.
I agree that you would.
Justice Hugo L. Black: Would -- would --
Mr. Ranklin: But I don't agree that that problem is in the case because I -- I contend, on behalf of the Government that this is not lawful action and I say it's comparable to your situation in an antitrust case where there is a conspiracy, say, a group get together or by persons and they agree in writing to conspire to restrain trade and they put down the various acts they're going to take and amongst that are a number of acts that are lawful that no one could take offence to but they will contribute to the conspiracy and if they proceed to do any of those acts, this Court has said, "You can't proceed to do lawful acts to accomplish an unlawful purpose."
Now, you might not agree that that is the -- what we have before the Court here, but that is the concept and I think it's a valid one.
And I think that when they take peace for instance or when they say, "In Soviet Russia today we have a free press."
They're not talking the same language that we are and when they say that kind of thing or when they say they're -- they have peace, they're for peace, they use that as a means to accomplish their -- their objective and their purpose to support this foreign power and you can't use lawful means for that illegal purpose.
Now, that's the difference whether you agree with it or not, but I'm trying to point out and I don't think that you can use advocacy either for an unlawful purpose if you tie them together, trying to carry out that unlawful purpose.
I think that's the problem in the case.
Justice Felix Frankfurter: That -- I meant to ask you just for clarification in view of your answer to Justice Harlan's question, namely, whether isn't it a fact that the question on this separability gets down to whether the Court decides the matter now or later.
And use, if I may take them, if I correct it said, yes, it does get down with the Act.
And I don't want to stop this but the fact that it may happen to decide it later, justify deciding it now.
Mr. Ranklin: Well, all I know is what I read in your cases in this Court and constantly, those cases said, "You don't decide constitutional questions until you reached them."
Justice Hugo L. Black: Not as a matter of choice but as a matter of usage.
Mr. Ranklin: That's right.
In principle to have them before you in that form that you'll consider this.
And I think time after time, you've said that not to instruct the lawyers but because it's basic to the function and to the duty that you perform on behalf of the country.
Justice John M. Harlan: And Suppose the assumption to the that is here now, whether you carve it up or (Inaudible) up or you could package it that denies the distinguished constitutional question that the individual members, independently in the organization that were raised.
It's a different problem.
But the First Amendment question is right here whether you carve it up or whether you deal with it as a package in here.
Mr. Ranklin: I think I can --
Justice John M. Harlan: So you're not postponing any First Amendment question.
Mr. Ranklin: I said that a number of times, Mr. Justice Harlan but I wasn't saying the First Amendment question was not here.
Justice John M. Harlan: Yes.
Mr. Ranklin: But I did want to make it clear on the other constitutional questions if they're properly here.
I'm not saying this Court shouldn't decide --
Justice John M. Harlan: Wouldn't you say -- wouldn't you say that their summary of this whole discussion is that either courts with a permissible cause for the Court to adopt, the Court of Appeals shows to regard this as a package and their -- their view can be expressed -- that judgment to be equally well postpone adjudication?
And could adjudicate the sanctions if you wished to, but either course would be permissible.
Mr. Ranklin: But the fact that the Court of Appeals adopted, shows that other people disagree but the Government does not think they're here now.
Justice Felix Frankfurter: But that isn't what was done when we said and ruled in the Electric Bond and Share.
It is not a choice.
It doesn't (Inaudible) to the whole Court to the legal instructions and said when -- when validity is in question, divisibility and not integration in the (Inaudible) and I don't know what it means to say the First Amendment to could (Inaudible) what you want.
It's here after requiring it to registration by the Communist Parties.
Mr. Ranklin: That's right.
Justice Felix Frankfurter: And everything that derived from that in relation to the First Amendment could (Inaudible) and to talk at large that the First Amendment could see it, it is not analyzing the problem as I see it.
A First Amendment problem is here but not the First Amendment problem (Inaudible)
Mr. Ranklin: Mr. Justice Frankfurter, I wanted to be clear that I was not saying to the Court there was no First Amendment problem before the Court.
But I do say that it is limited, and should be taken step by step as to every single respect to it.
Justice Felix Frankfurter: That means, as I understand you that First Amendment claimed by individual on the separability clause not --
Mr. Ranklin: That's right.
That's our position.
Justice Hugo L. Black: Do -- do the order require individual (Inaudible)
Mr. Ranklin: Not at this point.
Justice Hugo L. Black: What would you say about an individual?
Mr. Ranklin: It directs the Party to register.
That's the effect of the --
Justice Hugo L. Black: (Inaudible) can you think off?
Mr. Ranklin: You -- you see the -- the whole Act that I was trying to describe is conceived of the idea of reserving the question of the individuals and the individuals, when the Party has to act, then are given a time in which to try to get out of the Party if they decide to do so.
Chief Justice Earl Warren: Mr. Abt.
Argument of John J. Abt
Mr. John J. Abt: Thank you Mr. Chief Justice.
May it please the Court.
Yesterday, an answer to a question from Mr. Justice Harlan, I stated that the question of the privilege would drop out of the case if the Act could be construed as permitting the filing of an unsigned registration statement.
I was wrong.
The question would still remain on the case because Section 7 (d) requires a statement to list the names of all officers and members of the organization, and Section 15 (b) punishes omissions from the statement.
Thus, if an officer or a member of petitioner prepared a statement, he would be obliged to incriminate himself by listing his name as such even if he didn't sign the statement.
Again, that the state -- statement was submitted by a lawyer, as Mr. Rankin suggested, the lawyer would have to get the names of the officers and members from one of them and the latter would have to incriminate himself by furnishing his name to the lawyer for inclusion in the statement.
Hence, there is no escape in this case from a question of the privileges.
Justice Hugo L. Black: (Inaudible)
Mr. John J. Abt: Someone would have to give him the books and in doing so, identify himself as an officer or a member of the organization who had possession of the books and that in itself would be the findings.
Justice Felix Frankfurter: But to say this, would you say the parties hopes he hasn't surrendered them.
Mr. John J. Abt: We do -- we will examine our brief on the question of wide services in the discussion length during Mr. Rankin's argument, I think you'll find that -- and distinguished by them -- let's.
I'd like -- I only have a -- what?
Justice Felix Frankfurter: But how do you distinguish it?
Mr. John J. Abt: I have only one moment, Mr. Justice Frankfurter and I'd like to come to the second point.
Mr. Rankin urges that the Court should not pass upon the sanctions now but should await criminal prosecution for their violation.
But once the order is affirmed, the sanctions have immediate and devastating consequences from the organization by writing that the way its members through making them ineligible for jobs, passports, making them subject denaturalization of what not, and drives away its contributors and supporters and that it even drives away its potential audience.
Thus, if the sanctioned -- as that aren't passed upon now, the patient will die before the doctor arrives.
The organization will be destroyed before the validity of the sanctions would have passed upon and in this aspect this case is entirely different from Bond and Share.
The heart of the Public Utility Holding Company Act was the so-called death sentence of Section 11.
Of that which required, under certain circumstances, public utility companies, when ordered to do so by the SEC to dispose off their operating companies.
But that this sentence never came into operation without an administrative hearing before the Section, with all kinds of opportunity for judicial review.
And when Mr. Justice Frankfurter used the Court in your time have finally got around to testing on the validity of a sentence.
You were reviewing an administrative determination made after an administrative hearing and the judicial review in the Court of Appeals.
Justice Felix Frankfurter: Aren't we reviewing here?
Mr. John J. Abt: Here -- I could --
Justice Felix Frankfurter: Aren't we (Inaudible) here the determinations of the Board and men of the Court?
Mr. John J. Abt: Yes, but they're quite different, Your Honor.
Here, the sanctions of the Act automatically go to effect as a result of the registration order.
In Electric Bond and Share, the registration order was a first step and the Court -- Mr. Justice Hughes discussed the so-called incidence of registration.
What he didn't discuss and what he said were reserved for later, was a death sentence which didn't go into effect as a result of registration, didn't go into effect until there was a full hearing before the Section -- an order by the SEC and judicial review.
That's the difference.