Bois Clubs of America v. Clark, No. 515

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; DOUGLAS
Citation19 L.Ed.2d 546,389 U.S. 309,88 S.Ct. 450
PartiesW. E. B. DuBOIS CLUBS OF AMERICA et al. v. CLARK et al
Decision Date11 December 1967
Docket NumberNo. 515

389 U.S. 309
88 S.Ct. 450
19 L.Ed.2d 546
W. E. B. DuBOIS CLUBS OF AMERICA et al.

v.

CLARK et al.

No. 515.
Decided Dec. 11, 1967.
Rehearing Denied Jan. 22, 1968.

See 390 U.S. 913, 88 S.Ct. 814.

William M. Kunstler, Arthur Kinoy, Melvin L. Wulf, David Rein, Monroe H. Freedman and Floyd McKissick, for appellants.

Acting Solicitor General Spritzer, Assistant Attorney General Yeagley, Kevin T. Maroney, George B. Searls and Lee B. Anderson, for appellees.

PER CURIAM.

On March 4, 1966, the Attorney General petition the Subversive Activities Control Board for an order, after appropriate hearings, requiring the W. E. B. DuBois Clubs of America to register with the Attorney General as a Communist-front organization.1 On April 26, 1966,

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before hearings were held, appellants attempted to bypass the Board by suing in the District Court. 2 Appellants' complaint in the District Court alleged that the Communist-front registration provisions of the Act were unconstitutional.3 The complaint also alleged that the 'very pendency of these administrative proceedings * * * has resulted and will continue to result * * * in immediate and irreparable injury to fundamental constitutional rights * * *.' Appellants asked the District

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Court for an order declaring the Communist-front registration provisions unconstitutional and also for an order enjoining the Attorney General and the SACB from enfocing them. A three-judge District Court, convened on appellants' motion, dismissed the complaint because appellants had failed to exhaust their administrative remedies.4 This appeal followed.

Before there may be proceedings to punish appellants for failure to register with the Attorney General, the SACB must first find that the DuBois Clubs is a Communist-front organization and issue an order to that effect.5 The Act provides for a full evidentiary hearing which is to held in public. Appellants may be represented by counsel, offer oral or documentary evidence, submit rebuttal evidence, and conduct cross-examination. The SACB must make a written report and state its finding of fact. If appellants are aggrieved by the Board's order, they may obtain review in the United States Court of Appeals for the District of Columbia Circuit which may set aside the order if it is not 'supported by the preponderance of the evidence.'6 Upon motion of a party, the Court of Appeals may order the Board to take additional evidence. Of course, if the Board and the Court of Appeals find that the Act does cover appellants, they may challenge its constitutionality either as applied or on its face. Judgments of the Court of Appeals are reviewable by this Court on certiorari.7

It is evident that Congress has provided a way for appellants to raise their constitutional claims. But appellants, denying that they are within the coverage

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of the Act, wish to litigate these claims in an injunctive proceeding in the District Court. The effect would be that important and difficult constitutional issues would be decided devoid of factual context and before it was clear that appellants were covered by the Act.8 We have previously refused to decide the constitutionality of the very provisions involved here because it was not clear that the Act would be applied to the objecting parties. American Committee for Protection of Foreign Born v. SACB, 380 U.S. 503, 85 S.Ct. 1148, 14 L.Ed.2d 39; Veterans of the Abraham Lincoln Brigade v. SACB, 380 U.S. 513, 85 S.Ct. 1153, 14 L.Ed.2d 46. Similarly, the District Court should not be forced to decide these constitutional questions in a vacuum.

Appellants rely on Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), to support their contention that the usual rule requiring exhaustion of administrative remedies9 should not apply in this case. In Dombrowski, however, the constitutional issues were presented in a factual context. Upon a record demonstrating a history of harassment of appellants in connection with their exercise of First Amendment rights, the Court ordered a federal district court to issue an injunction against pending criminal prosecutions under state statutes. This Court held the statutes 'void on their face,' and it concluded that, in the circumstances of that case, if appellants were required to submit to a criminal prosecution, the injury to First Amendment freedoms which had already taken place would be compounded. Accordingly,

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the Court allowed appellants to assert their claims in an equitable proceeding.

In this case, the complaint and the affidavits constitute no more than conclusory allegations that the purpose of the threatened enforcement of the Act was to 'harass' appellants and that harassment was the intended result of the Attorney General's announcement that he had filed a petition with the SACB. Further, appellants are not being forced to assert their claims in a criminal prosecution. As the court below made clear, 'Congress has made careful provision that no tangible sanction can come into play until the facts have been explored in open hearing (before the Board) and the courts have scrutinized what they show, both in their adequacy to support a registration order and in their constitutional impact upon the statute itself.'10 In the context of this case, we decline to require the court below to permit substitution of an injunctive proceeding for the civil proceeding which Congress has specifically provided.

The motion to affirm is granted and the judgment is affirmed.

Affirmed.

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

I believe that the provisions of the Act now challenged are void on their face, that there are no factual issues to be resolved which should condition the outcome of the litigation, and that therefore there is no reason for the lower court to abstain from exercising its jurisdiction.

The statute defines 'Communist-front organization' as one which is substantially directed, dominated, or controlled by a Communist-action organization and which is primarily operated for the purpose of giving

Page 314

aid and support to a Communist-action organization, a Communist foreign government, or the world Communist movement. 50 U.S.C. § 782(4). A Communist-front organization, as defined, is not a group engaged in action but in advocacy; or if action is included, so is advocacy, for § 781(15) in describing the growth of the Communist movement speaks of those who seek 'converts far and wide by an extensive system of schooling and indoctrination.'

Legislation curbing or penalizing advocacy even of ideas we despise is, I submit, at war with the First Amendment. Under our Constitution one's belief or ideology is of no concern to government. One can think as he likes, embrace any philosophy he chooses, and select the politics that best fits his ideals or needs. That is all implicit in the First Amendment rights of assembly, petition, and expression. Those rights merely enforce, protect, or sanction the beliefs or ideology to which one is committed. So does the right of association which we have said over and again to be part and parcel of those First Amendment rights. Basic in this scheme of values is the immunity of beliefs, ideas, and ideology from government inquiry, probing, or surveillance. 1

Jefferson expressed the American constitutional theory:

'(T)he opinions of men are not the object of civil government, nor under its jurisdiction * * *. (I)t

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is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order * * *.' Jefferson, A Bill For Establishing Religious Freedom, in The Jeffersonian Cyclopedia 976 (1900).

That is my reading of the First Amendment. Those who can be officially pilloried or punished for having a particular philosphic or political creed are effectively deterred from exercising First Amendment rights.

I see no constitutional method whereby the Government can punish or penalize one for 'being a Communist' or...

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    ...or activity by the person (requesting advice)." Pub.L.No.96-187, § 107, 93 Stat. 1358 (1980). 39 Cf. W. E. B. DuBois Clubs v. Clark, 389 U.S. 309, 312, 88 S.Ct. 450, 452, 19 L.Ed.2d 546 (1967) (per curiam) (declining to reach merits of first amendment claim in view of administrative me......
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    ...Court[s] should not be forced to decide ... constitutional questions in a vacuum." W.E.B. DuBois Clubs of Am. v. Clark , 389 U.S. 309, 312, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967) ; Am.-Arab Anti-Discrimination Comm. v. Thornburgh , 970 F.2d 501, 511 (9th Cir. 1991). Rather, federal courts......
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    ...see Brief for Appellee at 26--thus dilutes the deference to be accorded it. 27 United States v. Correll, supra note 25, 389 U.S. at 307, 88 S.Ct. at 450, 19 L.Ed.2d at 28 Commissioner v. South Tex. Lumber Co., supra note 25, 333 U.S. at 501, 68 S.Ct. at 698, 92 L.Ed. at 836. 29 United State......
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  • Babcock and Wilcox Co. v. Marshall, AFL-CIO and L
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    ...or activity by the person (requesting advice)." Pub.L.No.96-187, § 107, 93 Stat. 1358 (1980). 39 Cf. W. E. B. DuBois Clubs v. Clark, 389 U.S. 309, 312, 88 S.Ct. 450, 452, 19 L.Ed.2d 546 (1967) (per curiam) (declining to reach merits of first amendment claim in view of administrative mechani......
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    ...see Brief for Appellee at 26--thus dilutes the deference to be accorded it. 27 United States v. Correll, supra note 25, 389 U.S. at 307, 88 S.Ct. at 450, 19 L.Ed.2d at 28 Commissioner v. South Tex. Lumber Co., supra note 25, 333 U.S. at 501, 68 S.Ct. at 698, 92 L.Ed. at 836. 29 United State......
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