Socialist Workers Party v. Attorney General of U.S.

• Decision Date: 24 December 1974
• Docket Number: No. 638,D,638
• Parties: SOCIALIST WORKERS PARTY et al., Plaintiffs-Appellees, v. ATTORNEY GENERAL OF the UNITED STATES of America et al., Defendants-Appellants. ocket 74--2640.
• Court: U.S. Court of Appeals — Second Circuit

Page 253

510 F.2d 253

SOCIALIST WORKERS PARTY et al., Plaintiffs-Appellees, v. ATTORNEY GENERAL OF the UNITED STATES of America et al.,

Defendants-Appellants.

No. 638, Docket 74--2640.

United States Court of Appeals, Second Circuit.

Argued Dec. 24, 1974.

Decided Dec. 24, 1974.

Steven J. Glassman, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., Southern District of New York, and John S. Siffert, Asst. U.S. Atty., of counsel), for defendants-appellants.

Herbert Jordan, New York City (Rabinowitz, Boudin & Standard, New York City, of counsel), for plaintiffs-appellees.

Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.

PER CURIAM:

In this action, filed in the District Court for the Southern District of New York in July, 1973, the Socialist Workers Party (SWP), its youth-arm, Young Socialist Alliance (YSA), and several members sought wide ranging injunctive and monetary relief against a large number of Government officials with respect to alleged activities directed against the two organizations. Various pretrial steps had been taken, and trial early in 1975 appeared to be in prospect. On October 25, 1974, plaintiffs moved for what was styled a 'preliminary' injunction restraining the Director of the Federal Bureau of Investigation (FBI) and his agents 'from attending, surveilling, listening to, watching, or in any way monitoring the fourteenth National Convention of plaintiff Young Socialist Alliance to be held at the Jefferson Hotel in St. Louis, Missouri, from December 28, 1974, through January 1, 1975, and further restraining them from threatening any of the said acts and from causing or threatening to cause any of the said acts.' After receiving affidavits and hearing counsel on three occasions, Judge Griesa, on December 13, 1974, rendered an extensive oral opinion and entered an order granting the injunction sought. ¹ The defendants promptly appealed and moved for a stay ² and for a preference or an expedited appeal, claiming inter alia that non-attendance by the informants would compromise their usefulness and even entail risk to their safety. On December 19 we set a briefing schedule which would bring the motions on for argument on December 24. Since decision on the motion for a stay would in effect determine the appeal and the briefs appeared to include all considerations relevant thereto, we later advised counsel that we would hear the appeal itself.

A few facts are undisputed: The convention is open for attendance by any person under the age of 29. This is true even of 'delegated' sessions where only elected delegates may speak and vote but all registrants are welcome as observers. Persons attending the meeting wear identification badges. There is to be no electronic surveillance. Although at one time the FBI had developed a program to engage in disruptive activities at SWP and YSA conventions, this was formally discontinued in April 1971, and there is nothing to show it has been renewed. While the district judge and the plaintiffs make some general references to 'surveillance', the Government has represented that at the 1974 convention there will be none in the ordinary sense and that the investigating method will be the use of informants who will attend the meetings as any member of the public, including the press, has been allowed to do. Despite some contrary allegations by the plaintiffs, there is no evidence that the FBI sends the names of persons attending the conventions outside the Federal Government; it does send them to the Civil Service Commission which has made use of them as a basis for questioning those who are Government employees or seek Government employment.

Although not disputing that at one time the SWP aimed at the overthrow of the government of the United States by force and violence, plaintiffs assert and the district court found that this policy had long since been formally abandoned. The Government contends, however, that, despite official disapproval, a minority in the SWP, called the Internationalist Tendency (IT), endorses and supports the current use of violence in line with the views of the International Majority Tendency of the Fourth International, a Trotskyist-communist organization headquartered in Europe with which SWP, although claiming not to be affiliated, concedes it has 'a sympathetic, fraternal relationship'. The FBI has also come upon information indicating that the IT regards as its 'most important priority' an 'interventionist' role in the YSA which will lead that organization to adopt the revolutionary aims of the IT. ³

At first blush there would hardly seem to be a role less appropriate for or capable of effective performance by the federal judiciary than advance supervision of the investigative methods of the FBI on a case-by-case basis, particularly in the field of national security. Recent instances where national security has been inappropriately invoked should not obscure that, as the Supreme Court has observed, 'unless Government safe-guards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered,' United States v. United States District Court, 407 U.S. 297, 312, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972), where the Court also quoted from Chief Justice Hughes' opinion in Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941). ⁴ The Government distinguishes the Supreme Court decisions mainly relied on by plaintiffs, notably NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Gibson v. Florida Legislative Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963), and DeGregory v. New Hampshire, 383 U.S. 825, 829, 86 S.Ct. 1148, 16 L.Ed.2d 292 (1966), on the ground that these did not involve the judiciary in exercising prior restraints on an investigative agency in the executive or legislative branch but rather represented a refusal to permit legal processes to be used against individuals or associations in a manner violative of First Amendment rights. Indeed, it claims that the injunction here issued flies in the face of the holding in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), that a complaint seeking to enjoin the Army's data-gathering system with respect to lawful civilian political activity did not present a justiciable controversy. It relies particularly on the statement, 408 U.S. at 15, 92 S.Ct. at 2326:

Carried to its logical end, this approach (of the Court of Appeals for the District of Columbia Circuit, 144 U.S.App.D.C. 72, 444 F.2d 947, 958) would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the 'power of the purse'; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.

The district judge and the appellees say that this case comes within the qualification at the end of this wise observation of the Chief Justice. Although a number of reasons are asserted, two appear to be most important. The one principally relied on by the district judge was that plaintiffs in Laird v. Tatum had showed only a 'subjective chill' whereas the plaintiffs here had submitted affidavits asserting that attendance at YSA conventions had in fact been discouraged by knowledge of FBI surveillance...