331 F.2d 53 (D.C. Cir. 1963), 15960, American Committee for Protection of Foreign Born v. Subversive Activities Control Bd.

Docket Nº:15960.
Citation:331 F.2d 53
Case Date:December 17, 1963
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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331 F.2d 53 (D.C. Cir. 1963)




No. 15960.

United States Court of Appeals, District of Columbia Circuit.

December 17, 1963

Argued Oct. 3, 1962.

Certiorari Granted April 27, 1964.

See 84 S.Ct. 1181.

Mr. Joseph Forer, Washington, D.C., for petitioner.

Mr. George B. Searls, Atty., Dept. of Justice, with whom Mr. Frank R. Hunter, Jr., Gen. Counsel, Subversive Activities Control Bd., Mr. Kevin T. Maroney, Mrs. Lee B. Anderson, Messrs. Benjamin F. Pollock and Robert L. Keuch, Attys., Dept. of Justice, and Messrs. Charles F. Dirlam and Peter P. Hanagan, Attys., Subversive Activities Control Bd., were on the brief, for respondent.

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Mr. Edward J. Ennis, New York City, filed a brief on behalf of the American Civil Liberties Union, as amicus curiae.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and DANAHER, Circuit Judge.

PRETTYMAN, Senior Circuit Judge.

Petitioner is before the court seeking to have set aside an order of the Subversive Activities Control Board issued June 27, 1960, requiring it to register with the Attorney General as a Communist-front organization pursuant to the provisions of the Internal Security Act, Section 7. 1 On January 8, 1962, after a petition for review had been filed, this court remanded to the Board for purposes not now relevant. The Board issued its Report on Reconsideration on March 18, 1962. That report and the original report of the Board are now before us. Oral argument was heard in October of 1962.

The American Committee for Protection of Foreign Born was organized in 1932 or 1933 and has its main offices or headquarters in New York City. Its activities have centered around 'the foreign born with considerable effort and attention given to the legal and propaganda defense of individuals involved in deportation and denaturalization cases.' Many of those defended have been members of the Communist Party, and many have not been. The Board also found that the Communist Party has a 'continuing policy' in this area. The Board said:

'The aims and purposes of the Party have been: (a) to seek to prevent the denaturalization and deportation of officers and members of the Party, and (b) to win the goodwill of the foreign born and obtain from them adherents to and support for the Party and for Party programs. The record also shows that it was the policy of the Communist Party to carry out and advance these aims and purposes through and by an organization separate from and not a part of the Communist Party as such.'

The Board concluded that petitioner operates to serve this twofold purpose of the Communist Party and is substantially 'directed, dominated, or controlled by the Communist Party of the United States, a Communist-action organization * * * and * * * primarily operated for the purpose of giving aid and support to such Communist-action organization.'

In reaching the result required by the evidence in this case, we need not attempt to resolve the constitutional questions advanced by petitioner. However, in determining whether there is a 'preponderance' of evidence to support the Board's conclusions, it must be kept in mind that the Subversive Activities Control Act requires the Attorney General to make a particular showing as to Communist organizations before the requiring of registration can be constitutionally upheld. "So long as no more is involved than exercise of the rights of free speech and free assembly, (an organization) is immune to such a restriction.' (Citing Thomas v. Collins, 323 U.S. 516, 540, 65 S.Ct. 315, 89 L.Ed. 430.) The present statute does not, of course, attach the registration requirement to the incident of speech, but to the incidents of foreign domination and of operation to advance the objectives of the world Communist movement-- operation which, the Board has found here, includes extensive, long-continuing organizational, as well as 'speech, ' activity.' 2'The statute is not applied like a spray to all persons who hold certain ideas or who may become tainted by brushing against ideas or people.' 3

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In an earlier opinion in this series of cases, 4 this court has said that, before it will sustain a finding that an organization is controlled and dominated by the Communist Party, the Government must present proof which is 'specific, direct and timely.' 'The Communist Party appears, and was declared by the Congress, (citing Sec. 2(15), Subversive Activities Control Act of 1950, 64 Stat. 989, 50 U.S.C. § 781(15)), to be a rigidly disciplined, well-organized, active organization. Its management is real, not happenstance, and its representation is definite, not whimsical. Mere membership does not establish active management or responsible representative capacity.' 5

In recent months the Supreme Court itself has inquired into the adequacy of proof of Communist infiltration before it would sanction a legislative inquiry into the membership lists of the involved organization. 'The strong associational interest in maintaining the privacy of membership lists of groups engaged in the constitutionally protected free trade in ideas and beliefs may not be substantially infringed upon such a slender showing as here made by the respondent. While, of course, all legitimate organizations are the beneficiaries of these protections, they are all the more essential here, where the challenged privacy is that of persons espousing beliefs already unpopular with their neighbors and the deterrent and 'chilling' effect on the free exercise of constitutionally enshrined rights of free speech, expression, and association is consequently the more immediate and substantial.' 6

The Supreme Court has also spoken on the right of an organization and 'its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights.' In this regard the Court said:

'[L]itigation * * * is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts. Just as it was true of the opponents of New Deal legislation during the 1930's, for example, no less is it true of the Negro minority today. And under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.' 7

With these principles in mind we turn to the case at bar. As we have noted, our petitioner devotes 'considerable effort and attention * * * to the legal and propaganda defense of individuals involved in deportation and denaturalization cases.' Indeed this appears to be its main interest and activity. It has a constitution. It has officers and honorary officers. It holds an 'Annual Conference' each year, to which any and all members of the public are welcome and in which they may participate upon payment of the registration fee. It has an executive committee, elected by the annual conference, and it has full-time, paid administration officers. It has been in continuous operation since its organization. It seems clear, and the Board found, that the active directing force in the Committee was its executive secretary, Abner Green. Second to him was his assistant, Harriett Barron. The evidence was overwhelming that the

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board of directors and the annual conferences were perfunctory, as such boards and conventions so frequently are in unincorporated associations, and the real direction and control were in the hands of the chief executive officer. It was clearly established that Green and Barron were members of the Communist Party.

We have discussed at length the meanings of various provisions of the Internal Security Act of 1950. 8 We will not repeat that discussion here.

We inquire first into the management, or control, interrelationship of the Committee and the Communist Party. This is clause (A) of the statutory definition of a Communist front. 9

It is not claimed, and the Board did not find, that Green or Barron were active in the management or control of the Party. But the first 'criterion' in the statute 10 includes also the extent to which the active director of the named organization is a representative of the Party. A representative, obviously, need not be a participant in the management of his principal.

There was direct and specific testimony that Green was put at the head of the Committee by authority of the Party. The witness Lautner testified that he and one Landy, both of the Nationality Groups Commission of the Party, were delegated by the Central Committee of the Party to decide upon the leadership of the Committee for Protection of Foreign Born. They named Green, 'and that decision was carried out.'

Green on the witness stand flatly contradicted Lautner, but this created a problem of credibility, which was for the trier of the facts who saw and heard both witnesses. The Act provides that findings shall be supported by a preponderance of the evidence, but evidence which is not believed by the trier of the facts has no weight in that scale. Of course the fact-finder cannot be arbitrary. But in the case before us that complication does not appear to be a real one on this point, despite the claims of the Committee.

Green said that he was made head of the organization through election by an annual convention. But convention election of officers already actually selected by one person or a...

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