Communist Party of United States v. United States

• Decision Date: 03 March 1967
• Docket Number: 19881.,No. 19880,19880
• Citation: 384 F.2d 957
• Parties: The COMMUNIST PARTY OF the UNITED STATES of America, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

384 F.2d 957 (1967)

The COMMUNIST PARTY OF the UNITED STATES of America, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19880, 19881.

United States Court of Appeals District of Columbia Circuit.

Argued May 17, 1966.

Decided March 3, 1967.

Mr. John J. Abt, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Joseph Forer, Washington, D. C., was on the brief, for appellant.

Mr. Kevin T. Maroney, Atty., Dept. of Justice, with whom Asst. Atty. Gen. J. Walter Yeagley, Messrs. David G. Bress, U. S. Atty., and George B. Searls, Atty., Dept. of Justice, were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty. and Mr. Joseph A. Lowther, Asst. U. S. Atty. at the time the record was filed, also entered appearances for appellee.

Before PRETTYMAN, Senior Circuit Judge, and DANAHER and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

These consolidated appeals are from judgments of conviction under two indictments returned, respectively, on December 1, 1961 and February 25, 1965. Each charged appellant, a voluntary association, with eleven counts of failing to register as a Communist-action organization as required by the Subversive Activities Control Act of 1950, and one count of failing to file the statement which Congress directed should accompany the act of registration. 64 Stat. 987-1005, 50 U.S.C. §§ 781-798 (1964). Appellant was convicted on all counts of both indictments,¹ with the exception of the registration statement count of the second indictment which the Government abandoned when forced by the trial court to elect between it and the corresponding count in the first indictment. The maximum punishment of a $10,000 fine in respect of each count was imposed. Because we have concluded that the results of the statutory scheme for the control of appellant, when viewed as a whole in relation to these particular punishments, are hopelessly at odds with the protections afforded by the Fifth Amendment, and that scheme if here applied would particularly run counter to the Fifth Amendment's ban on compelled incrimination, we reverse the convictions.

I

The Board order which appellant is charged with failing to obey was before the United States Supreme Court in Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). Challenges of various kinds to its validity were made and, with one exception, explicitly rejected. The exception was one founded upon the Fifth Amendment's self-incrimination clause. The prevailing majority of the Court were of the view that it was premature to resolve the claim that the statute was unconstitutional insofar as it embraced any requirement that the Party's officers or governing members comply with the registration requirements on its behalf. The disposition of this issue, so it was said, could await the time when, if ever, "enforcement proceedings for failure to register are instituted against the Party or against its officers." Id. at 109, 81 S.Ct. at 1417. (Emphasis supplied). Four members of the Court dissented from this staying of the judicial hand, and, with varying shades of emphasis, expressed doubts as to the invulnerability of the statutory scheme to Fifth Amendment attack.

This was the state of higher authority when appellant's first conviction came before us. We reversed that conviction (Note 1, supra) on the ground that (1) the self-incrimination privilege was available to the officers of the Party, (2) that privilege had in fact been adequately asserted, and (3) to the extent registration could, under the regulations, be effected by an "agent" or "other person," conviction must, at the least, rest upon proof of the availability of such a person.² We left the constitutional issues unstirred for the most part, stating expressly that we ventured "no opinion concerning the Communist Party's duty to submit the data demanded." 118 U.S.App.D.C. at 69, 331 F.2d at 815.

Since this action on our part, a number of things have happened. One is, of course, that the Government has re-tried appellant, and a second conviction is before us on this appeal. Another is that the Supreme Court has addressed itself further to certain aspects of the Subversive Activities Control Act.³ The most significant of these later adjudications for present purposes is Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L. Ed.2d 165 (1965). In that case the Court made short shrift of our emulation of its restraint in dealing with the self-incrimination claim in the earlier Communist Party case; and, without awaiting a tender of the issue in criminal enforcement proceedings, invalidated under the Fifth Amendment a Board order requiring, in default of registration by the Party and as commanded by the Act, registration by persons found to be members of the Party. Although Albertson exhibits the self-incrimination issue in a somewhat different posture from that involved in this appeal, both the mode and the manner of the Court's decisive intervention to vindicate the privilege in that case suggest that it is in order for us to come to grips with the issue deferred by it in the Communist Party case, that is to say, the essential question of whether, because of its impact on the Party membership, the weapon of compelled disclosure can, consistently with the Fifth Amendment, be trained upon appellant.

III

The Supreme Court's decision in Communist Party presumably retains enough vitality to suggest that there is very much indeed that Congress may do in the pursuit of a single purpose to regulate the Communist Party by the device of disclosure. The difficulty is that the purposes of Congress in respect of the Communist Party have not been single in nature. They have, rather, sought in effect to compel both disclosure by the Party and, at the same time, the incrimination of its members. The Congressional enactments applicable to the Communist Party have, severally but simultaneously, exposed it in substance to outlawry as well as to an obligation to disclose its records and affairs. We may assume for the moment that either approach was, and is, constitutionally feasible. We can not, because of the Fifth Amendment, safely assume as much in the case of the co-existence of both purposes.

In Albertson, the Court noted (382 U. S. at 79, 86 S.Ct. at 199) that the self-incrimination claims there made were "not asserted in an essentially non-criminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of a crime." Earlier in that opinion (at 77, 86 S.Ct. at 198) the Court had identified the membership clause of the Smith Act, 18 U.S. C. § 2385 (1964), and Section 4(a) of the Subversive Activities Control Act as "only two federal criminal statutes" it might mention as exposing members of the Party to prosecution. The Court coincidentally characterized itself as having already held that, short of membership, "mere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege." Ibid. Also in Albertson, the Court confirmed the conclusion reached by us in appellant's appeal from its first conviction that the immunity provision contained in Section 4(f) of the Act falls short of the dimensions necessary to blunt the Fifth Amendment claim.

An aspect of Albertson not least in significance is the concurring opinion of Mr. Justice Clark, one of those who voted to defer the Fifth Amendment issue in the review proceeding of 1961. He noted (at 85, 86 S.Ct. at 202) that the invalidation effected in Albertson had been "forecast in 1948" in a letter by him as Attorney General to the Senate Judiciary Committee, responding to a request for the views of the Department of Justice on one of the bills which led to the eventual passage of the Act. That letter voiced the opinion that "the measure might be held (notwithstanding the legislative finding of clear and present danger) to deny freedom of speech, of the press, and of assembly, and even to compel self-incrimination. Cf. United States v. White (322 U.S. 694 , 64 S.Ct. 1248, 88 L.Ed. 1542)."⁴

Attorney General Clark, as he then was, was far from alone in his fear that Congress was following a dual approach to the Communist Party which might well be self-defeating. A bill which started out as an effort to treat the Party like other political parties in terms of disclosure ended up as legislation which singled the Party out for subjection to the combined sanctions of compelled disclosure and criminal punishment. As this duality began to take shape more clearly, more and more voices in Congress were raised in warning that irreconcilable goals were being sought; and that, to the extent that publicity for the Communist Party and disclosure of its affairs for all to see was the paramount Congressional objective, it was being jeopardized by parallel efforts to put the Communist Party and its members under the restraints of the criminal law.⁵ In floor debate, Senator Humphrey referred to "the testimony of noted lawyers, such as Charles Evans Hughes, Jr., and John W. Davis, who have doubts as to its constitutionality. They believe that it may be in violation of the Fifth Amendment, which provides that a man shall not be required to testify against himself." 96 CONG.REC. 14487 (1950). Several other Senators voiced Fifth Amendment objections, noting the interplay between the disclosure requirements, on the one hand, and the substantive prohibitions of the bill plus the already enacted Smith Act, on the other. E. g., S.REP.No.2369, 81st Cong., 2d Sess. 12-13 (1950) (Minority Views). Senator Lehman observed that "registration would constitute self-incrimination, if not under the terms of this law, then under the...