|Communist Party of the United States v. Subversive Activities Control Board No 12
100 U.S. 1
107 U.S. App.D.C. 279, 277 F.2d 78, affirmed.
[ Frankfurter ]
[ Warren ]
[ Black ]
[ Douglas ]
[ Brennan ]
Communist Party of the United States v. Subversive Activities Control Board No 12
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. JUSTICE DOUGLAS, dissenting.
The Subversive Activities Control Board found, and the Court of Appeals sustained the finding, that petitioner, the Communist Party of the United States, is "a disciplined organization" operating in this Nation "under Soviet Union control" to install "a Soviet style dictatorship in the United States." Those findings are based, I think, on facts, and I would not disturb them.
The other objections made are not of the character of those which led us to reverse and remand for additional hearings five years ago. There we had a record tainted by perjury. Communist Party v. Control Board, 351 U.S. 115, 124-125. No one -- no matter how venal -- could suffer penalties under our regime of law where perjury tainted the record. The present errors that are urged are not of that character.
Had they appeared in a normal administrative hearing and been timely claimed, they might give us pause. If we had before us the question whether a particular organization was, to use the statutory words, a "Communist front organization" (64 Stat. 987, 989, 50 U.S.C. § 782(4)) [p170] or a "Communist-infiltrated organization" (68 Stat. 775, 777, 50 U.S.C. § 782 (4A)), the errors urged might loom large. For then the decision might turn on intangibles to be closely appraised. The present problem, however, is in a somewhat different posture. We are in a field where Congress has found and declared that the Communist Party is "in fact an instrumentality of a conspiracy to overthrow the Government of the United States," that its "policies and programs" are "secretly prescribed for it by the foreign leaders of the world Communist movement," that it is "the agency of a hostile foreign power." 68 Stat. 775. These congressional findings amount to no more than facts of which some Justices have already taken judicial notice. See, e.g., Communications Assn. v. Douds, 339 U.S. 382, 427 et seq. (opinion of Mr. Justice Jackson). This does not mean that anything goes and that the hearings are pro forma. It does suggest, however, that where, as here, the case does not turn on nice nuances which in closer contests might have to be carefully weighed, we should not prolong the administrative hearings which already have extended a decade. With this as a starting point, I agree with the Court that the Court of Appeals did not err in overruling the objections based on procedural errors.
May then the Communist Party, under control of a foreign power, be required to register?
The vices of registration may be not unlike those of licensing. Despite Times Film Corp. v. Chicago, 365 U.S. 43, I think licensing is an impermissible form of regulation when it vests discretion in the authorities to grant or withhold the exercise of First Amendment rights or to permit them to be exercised only on condition. Lovell v. Griffin, 303 U.S. 444, 451-452. Licensing, like a tax payable on the exercise of a First Amendment right (Murdock v. Pennsylvania, 319 U.S. 105), is therefore [p171] unconstitutional. See Thomas v. Collins, 323 U.S. 516. Yet registration, like licensing, may have aspects of harassment and burden. That is why we said in Thomas v. Collins, supra, 540:
If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.
Freedom of association is included in the bundle of First Amendment rights. NAACP v. Alabama, 357 U.S. 449, 460. So if we had only the question whether those who band together to espouse a political, educational, literary, civic, or ideological cause could be made to register, I would protest. The late Zechariah Chafee spoke of the danger in limiting our freedoms under political pressures. "Universities," he wrote, "should not be transformed, as in Nazi Germany, into loud-speakers for the men who wield political power." The Blessings of Liberty (1956) 241. There have been attempts here to interfere by law in a myriad of ways with the shaping of [p172] public opinion through many groups, attacked because they were nonconformists of one kind or another. As we said recently, the identification of members of groups and fear of reprisal "might deter perfectly peaceful discussions of public matters of importance." Talley v. California, 362 U.S. 60, 65. There is, in my view, a disability on the part of government to probe the intimacies of relationships in the myriad of lawful societies and groups in this country. See, for example, United States v. Rumely, 345 U.S. 41, 48, 56-58 (concurring opinion); Bates v. Little Rock, 361 U.S. 516, 527 (concurring opinion); Uphaus v. Wyman, 364 U.S. 388, 401, 405-408 (dissenting opinion). From those precedents, I would hopefully deduce two principles. First, no individual may be required to register before he makes a speech, for the First Amendment rights are not subject to any prior restraint. Second, a group engaged in lawful conduct may not be required to file with the Government a list of its members, no matter how unpopular it may be. For the disclosure of membership lists may cause harassment of members and seriously hamper their exercise of First Amendment rights. The more unpopular the group, the greater the likelihood of harassment. In logic, then, it might seem that the Communist Party, being at the low tide of popularity, might make out a better case of harassment than almost any other group on the contemporary scene.
We have, however, as I have said, findings that the Communist Party of the United States is "a disciplined organization" operating in this Nation "under Soviet Union control" with the aim of installing "a Soviet style dictatorship" here. These findings establish that more than debate, discourse, argumentation, propaganda, and other aspects of free speech and association are involved. An additional element enters, viz., espionage, business activities, or the formation of cells for subversion, [p173] as well as the use of speech, press, and association by a foreign power to produce on this continent a Soviet satellite. [n1]
Picketing is free speech plus (Bakery Drivers Local v. Wohl, 315 U.S. 769, 776-777 (concurring opinion); Giboney v. Empire Storage Co., 336 U.S. 490, 497-503), and hence can be restricted in all instances and banned in some. Registration of those who disseminate propaganda of foreign origin (see Viereck v. United States, 318 U.S. 236, 251 (dissenting opinion)) has been thought to fall in the same category as barring speech in places that will create traffic conditions (Schneider v. State, 308 U.S. 147, 160; Cox v. New Hampshire, 312 U.S. 569) or provoke breaches of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568. Though the activities themselves are under the First Amendment, the manner of their exercise or their collateral aspects fall without it.
Like reasons underlie our decisions which sustain laws that require various groups to register before engaging in specified activities. Thus, lobbyists who receive fees for attempting to influence the passage or defeat of legislation in Congress may be required to register. United [p174] States v. Harriss, 347 U.S. 612. [n2] Criminal sanctions for failure to report and to disclose all contributions made to political parties are permitted. Burroughs v. United States, 290 U.S. 534. Publishers of newspapers desiring reduced postal rates have long been required to file with the Postmaster General and with the local post office certain data concerning ownership and circulation, and those disclosure requirements have been sustained. Lewis Publishing Co. v. Morgan, 229 U.S. 288. In short, the exercise of First Amendment rights often involves business or commercial implications which Congress, in its wisdom, may desire to be disclosed, just as it did in strictly financial matters under the Public Utility Holding Company Act of 1935. See Electric Bond & Share Co. v. Securities & Exchange Comm'n, 303 U.S. 419.
If lobbyists can be required to register, if political parties can be required to make disclosure of the sources of their funds, if the owners of newspapers and periodicals must disclose their affiliates, so may a group operating under the control of a foreign power.
The Bill of Rights was designed to give fullest play to the exchange and dissemination of ideas that touch the politics, culture, and other aspects of our life. When an organization is used by a foreign power to make advances here, questions of security are raised beyond the ken of disputation and debate between the people resident here. Espionage, business activities, formation of cells for subversion, as well as the exercise of First Amendment rights, are then used to pry open our society [p175] and make intrusion of a foreign power easy. These machinations of a foreign power add additional elements to free speech, just as marching up and down adds something to picketing that goes beyond free speech.
These are the reasons why, in my view, the bare requirement that the Communist Party register and disclose the names of its officers and directors is in line with the most exacting adjudications touching First Amendment activities.
While the Act is pregnant with constitutional questions, I deal now with only one, viz., whether § 7 of the Act is unconstitutional and void as conflicting with the provision against self-incrimination accorded by the Fifth Amendment.
The registration statement prepared by the Attorney General pursuant to § 7(a) and (b) of the Act asks in Item 2 the name, address, position, and functions of any individual
who at any time during the twelve months preceding the execution of the statement was an officer, director, or person performing the functions of an officer or director
of the Communist Party. Item 3 requires a statement of any alias of any person listed in Item 2. Item 11 asks for the name, alias, and address of each individual "who was a member of the organization at any time during the period" of twelve months prior to the filing of the registration statement. The statement must be signed by the partners, officers, directors, and members of the governing body. 28 CFR, 1960 Supp., § 11.200, Form ISA-1.
Those provisions are not conditional. The Government, with all the authority it possesses, has ordered the Party to register.
The duty to disclose the names of the officers, directors, and members is explicit. The duty is to make the disclosure [p176] here and now. The individuals who must make the disclosure are definitely described. There is no uncertainty as to what must be done. The question is whether the command made is constitutional under the Fifth Amendment.
If the requirement of Form ISA-1 that the statement be signed "by the partners, officers, and directors" were deleted and the statement was allowed to be filed by "any agent," the act of signing that implicates the partner, officer, or director would be eliminated. If the Court, sensitive to the high role performed by the Fifth Amendment, also deleted the compulsory disclosure of the others whose association with the Party is required to be disclosed without immunity, the problems presented by those disclosures would disappear. But the Court does none of these things. It requires officers and directors to sign; it requires that the names of officers, directors, and members within the 12-month period be disclosed. Thus, the question of self-incrimination of each of those individuals is squarely presented.
First, as to the officers, directors, and others who must sign the registration statement. These individuals, who could be prosecuted as "active" Communist agents under Yates v. United States, 354 U.S. 298, and Scales v. United States, post, p. 203, cannot, in my view, be compelled to sign a registration statement. A compulsory admission of that ingredient of a crime would plainly violate the Fifth Amendment.
If a person who was on the witness stand in a courtroom or appearing before a Congressional Committee were asked whether he was an officer or director of the Communist Party, our decisions in Blau v. United States, 340 U.S. 159, 161, and Quinn v. United States, 349 U.S. [p177] 155, would protect him from self-incrimination. Under our system, federal officials who desire to establish guilt must use the grand jury to get an indictment and a petit jury to obtain conviction. They cannot require the accused to "do their job for them." Chafee, The Blessings of Liberty (1956), p. 207.
The clause of the Fifth Amendment with which we are here concerned provides that "No person . . . shall be compelled in any criminal case to be a witness against himself." The clause has been hospitably construed. The Court said in Counselman v. Hitchcock, 142 U.S. 547, 562:
It is impossible that the meaning of the constitutional provision can only be, that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases, but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.
As recently stated by Judge Samuel H. Hofstadter:
The privilege is applicable to civil cases, grand jury proceedings, legislative inquiries, and virtually every other form of official proceeding. It applies whether the witness is a party to the civil or criminal case or merely a witness. And it applies whether the testimony is directly in issue or is collateral. The witness himself is the judge in each case; he may not be compelled to give testimony which he himself in good faith believes might, in any manner whatever, pave the way to possible prosecution. To claim the privilege requires no special combination of words; the [p178] clause is liberally construed to protect the right it was intended to secure.
The Fifth Amendment and the Immunity Act of 1954 (Fund for the Republic, 1955), p, 10.
How then can the Government ask a person to sign a registration statement which makes admissions that would not survive challenge under the Fifth Amendment if asked orally of the individuals that the disclosure implicates?
United States v. White, 322 U.S. 694, held that the privilege does not excuse an officer of an organization from producing its records on the grounds that the contents of the records will or may incriminate him. As to the officer or director, it is plain that he incriminates himself not merely by producing records, but by signing and filing the registration statement. The preparation of the registration statement and its execution are in the same category as the giving of testimony in the Blau and Quinn cases, if the Fifth Amendment is to have continuing vitality. Part of what is today required is the furnishing of statements and admissions from the pens of men and women whose very signature may start them on the way to prison. We made clear in Curcio v. United States, 354 U.S. 118, that the ruling in the White case was restricted to the production of books and records. We there upheld the custodian's privilege against testifying as to the "whereabouts of books and records" where that testimony might incriminate him. We said
. . . The cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.
It would seem to follow a fortiori that a custodian who need not testify concerning the whereabouts of records if that testimony would tend to incriminate him, need not put into writing the admission that he is an officer or [p179] director of the Communist Party. What more incriminating admission could be compelled? This was the position of Judge Bazelon in the Court of Appeals, 96 U.S.App.D.C. 66, 114, 223 F.2d 531, 579, and it seems to me unassailable. See also Shapiro v. United States, 335 U.S. 1, 27; Wilson v. United States, 221 U.S. 361, 385.
Electric Bond & Share Co. v. Securities & Exchange Comm'n, supra, is irrelevant to our present problem under the Fifth Amendment. No claim was made in that case that the preparation and filing of a registration statement might implicate an officer or director and that the Fifth Amendment therefore protected him against signing unless immunity was granted. The problem in the present case is quite different. It raises the following kind of question: can Congress, which has made embezzlement of national bank funds a criminal offense, require embezzlers to register without granting them the full immunity (cf. Ullmann v. United States, 350 U.S. 422) to which they are entitled? That is the closest analogy to the present case.
The compiling, the signing, and the filing of the registration statement required of officers, directors, and others by the registration form is a form of elicited testimony, not the surrender of preexisting records. Where, as here, such disclosure will reveal knowledge of and relations with the Communist Party, I do not see how it can be demanded, unless immunity is granted.
The Bill of Rights does not go so far as to forbid all interrogation under threat of punishment. It does not prevent the breaking of myriad bonds of secrecy at the command of the Government. It protects only the individual who has himself become the object of the Government's punitive powers. From him it removes the humiliating presence of the questioner. The power of the Government is limited, so that it cannot punish either the silence or the passive hostility of one who claims the [p180] privilege, whether he be a criminal or a prophet or merely a bewildered citizen suddenly caught in the sinister web of suspicion.
The privilege is often criticized as a shield for wrongdoing. But not every hostile silence which greets official interrogation has its beginning in wrongdoing. In a Nation such as ours, the Government must often meet with hostility; we are not constrained to admire its activities; we are free to detest them. That freedom could not long remain if the Government were free to require us to recount all our doings. The Government may still threaten silence with prison, but its power to do so stops short when information sought is incriminating. Even so ardent an advocate of the totalitarian state as Thomas Hobbes respected this core of privacy:
A covenant not to defend myself from force, by force, is always void. For (as I have shown before) no man can transfer or lay down his right to save himself from death, wounds, and imprisonment, the avoiding whereof is the only end of laying down any right. . . . A covenant to accuse oneself, without assurance of pardon, is likewise invalid. For, in the condition of nature, where every man is judge, there is no place for accusation: and in the civil state the accusation is followed with punishment, which, being force, a man is not obliged not to resist.
Leviathan, 23 Great Books 90.
The cases dealing with the duty to keep records [n3] (see Shapiro v. United States, supra) can be put to one side. Under the Smith Act, 18 U.S.C. § 2385 the very subject matter under regulation is interwoven with criminal activity. Where individuals compile and sign [p181] the registration statement, as they must, it is the very making of the registration statement that will incriminate them, not the underlying documents.
Signing as an officer or director of the Communist Party -- an ingredient of an offense that results in punishment -- must be done under the mandate of law. That is compulsory incrimination of those individuals and, in my view, a plain violation of the Fifth Amendment.
The compulsory disclosure of those who have been officers, directors, or members of the Party during the last 12 months is equally objectionable under the Fifth Amendment. Membership in the Party is, by virtue of federal statutes, the start [n4] of every prosecution, whether it be for active "membership," as in Scales v. United States, supra, or for conspiracy to teach the doctrine, as in Dennis v. United States, 341 U.S. 494. Membership is a "link in the chain of evidence" needed for such prosecution, as we held in Blau v. United States, supra, 161; Quinn v. United States, supra. It is therefore in the class of disclosure which we have held since the time of Chief Justice Marshall [n5] (see United States v. Burr, 25 Fed.Cas. [p182] No. 14,692e) could not be demanded by reason of the Fifth Amendment. The compulsory disclosure of membership in the Communist Party, which the Blau and Quinn cases have put within the protection of the Fifth Amendment, is the necessary and immediate effect of filing as a public record the registration statement required by § 7. As in case of officers and directors who must sign the registration statement, this is, in my view, compulsory incrimination of the members, and a plain violation of the Fifth Amendment.
If Congress can, through use of the registration device, compel disclosure of people's activities that violate federal laws, the Fifth Amendment would be cast into limbo.
As I have said, each person required to be listed in the registration statement, were he to be brought before his interrogators, could not be compelled to admit what the statute here requires petitioner to set forth at length. The only difference that exists between compelling each member and officer and between compelling petitioner is the thin "veil" of petitioner's fictitious juridical personality.
Hale v. Henkel, 201 U.S. 43, held that a corporation could not claim a privilege against self-incrimination. That case and others -- such as Wilson v. United States, [p183] supra, and United States v. White, supra, which I have mentioned -- have implemented a constitutional policy of publicity for associational activities which would be abhorrent if required of individuals and in matters that were less clearly within the realm of day-to-day administrative regulation.
The present requirement for the disclosure of membership lists is not a regulatory provision, but a device for trapping those who are involved in an activity which, under federal statutes, is interwoven with criminality. The primary effect of the required registration is not disclosure to the public, but criminal prosecution. I do not see how the Government that has branded an organization as criminal through its judiciary, [n6] its legislature, [n7] and its executive [n8] can demand that it submit the names of all its members -- unless it grants immunity for the disclosure.
Prior to today, [n9] the nearest the Court ever came to allowing the registration device to be used as a mechanism [p184] for compulsory disclosure of criminal activities was United States v. Kahriger, 345 U. S; 22. See also Lewis v. United States, 348 U.S. 419. Gamblers were required to register with the Collector of Internal Revenue and to pay an occupational tax. The defense of the Fifth Amendment was rejected on grounds that seemed to some of us at the time to be specious. Registration could be required, the Court held, because it pertained only to "the business of wagering in the future." United States v. Kahriger, supra, 33. The Fifth Amendment, the Court said, "has relation only to past acts, not to future acts that may or may not be committed." Id. 32. The sluice gates, opened a hair's width by that case, are now flung wide. I remain in agreement with what MR. JUSTICE BLACK said in United States v. Kahriger, supra, 37: "[W]e have a Bill of Rights that condemns coerced confessions, however refined or legalistic may be the technique of extortion."
It is said that the Party has no standing to assert the rights of its officers, directors or members.
The privilege against self-incrimination is a personal one. It must be claimed; it may be waived. In ordinary circumstances, there is no Fifth Amendment privilege against incriminating another. Rogers v. United States, 340 U.S. 367. And see Hale v. Henkel, supra, 69-70; United States v. White, supra, 704. On the other hand, the intimate connection between associations and their members has long been recognized. In Beauharnais v. Illinois, 343 U.S. 250, 262, MR. JUSTICE FRANKFURTER writing for the Court said:
Long ago, this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. [p185]
The case cited was American Foundries v. Tri-City Council, 257 U.S. 184, where the right of a union to speak for its members was recognized. In NAACP v. Alabama, supra, the Association was allowed to assert its members' constitutional rights:
If petitioner's rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertable by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because it and its members are, in every practical sense, identical.
We dealt there with a Negro group asserting the First Amendment rights of its members. The members, it was argued, would be harassed if their names were disclosed, and that harassment would abridge their First Amendment rights. We agreed with that view, id. 460-462, and held that NAACP could not be forced to disclose to Alabama its membership lists. We did not, I assume, write a rule good for that day only. Nor did I think we wrote only for Negro groups.
Nor did I think we restricted the assertion by a group of the rights of its members to those asserting First Amendment rights. In Anti-Fascist Refugee Committee v. McGrath, supra, three groups, under circumstances somewhat similar to the present case, claimed the right to invoke their members' rights under both the First and the Fifth Amendments. They had been designated as "communist" by the Attorney General, and the impact of that classification on the status of the members as federal employees was striking and immediate. Could that classification be constitutionally made without a hearing? The consensus of opinion among those who [p186] reached the issue seemed clear -- that the groups could raise objections that involved the constitutional rights of their members. The view was forcefully asserted by Mr. Justice Jackson. Id. 186. As MR. JUSTICE FRANKFURTER stated:
Designation works an immediate substantial harm to the reputations of petitioners. The threat which it carries for those members who are, or propose to become, federal employees makes it not a finicky or tenuous claim to object to the interference with their opportunities to retain or secure such employees as members.
Id., 159. That was my own view then, id. 174-175, and now.
This analysis has support in a long line of cases where the Court has allowed A to assert B's constitutional right in seeking redress or prevention of harm to himself. The root of this doctrine is found in equity. In Truax v. Raich, 239 U.S. 33, an injunction had been sought by an employee who was an alien, seeking to restrain enforcement of an Arizona statute. The right invoked was the employee's own right under the Fourteenth Amendment. But the statute imposed no penalty on the alien for working. It penalized his employer for hiring him. Nevertheless, the injunction issued. In Pierce v. Society of Sisters, 268 U.S. 510, the proprietors of a private school, to protect their monetary interest in preserving the school, were allowed to assert rights of parents in the education of their children. Similarly, a white vendor was allowed to assert his Negro vendee's rights in enforcing a contract to sell real property, subject to a restrictive city ordinance, in Buchanan v. Warley, 245 U.S. 60. See also International Harvester v. Department of Taxation, 322 U.S. 435; Barrows v. Jackson, 346 U.S. 249; Bates v. Little Rock, 361 U.S. 516.
Bryant v. Zimmerman, 278 U.S. 63, which sustained a state law requiring the Ku Klux Klan to file its [p187] membership lists with state officials was explained in NAACP v. Alabama, supra, 465, as a case involving an organization whose acts were "unlawful intimidation and violence," not First Amendment activities. That explanation was adequate for that case as only First Amendment rights were being considered in NAACP v. Alabama, supra. No Fifth Amendment question [n10] was, however, raised in Bryant v. Zimmerman, supra.
Petitioner, the Communist Party, seeks in this case to assert that the statute under which it is ordered to register is unconstitutional, because it will have the necessary effect of depriving members of their privilege against being compelled to reveal their connection with the Party. This is not a case, as the majority opinion admits, like United States v. Sullivan, 274 U.S. 259, where a taxpayer, because he claimed the privilege against self-incrimination with respect to the source of some of his income, argued that he was wholly excused from filing a tax return. Nor is this a case where "one who is required to assert the privilege against self-incrimination may thereby arouse the suspicions of prosecuting authorities." For here, if an individual were to attempt to claim the privilege against filing for the Party, he would admit an ingredient of a crime, namely, his connection with the Party. ,
Clearly, this is a situation in which only the Party can effectively assert the privilege of its officers, directors, and members. This is the teaching of NAACP v. Alabama, supra, and of the opinions of Mr. Justice Jackson, MR. JUSTICE FRANKFURTER and myself in Anti-Fascist Refugee Committee v. McGrath, supra, and of the [p188] other cases discussed above. When we reject those precedents, we create a special rule for this day only.
The Party is the proper party to raise the objection, because no one else can raise it effectively. The community of interest between the Party and its members is indeed closely analogous to the community of interest between a corporation and its stockholders. See Stevens, Corporations (1949), pp. 788-789. Since the command to register cannot be separated from the means of registration, an attack is properly made on the incriminating features of the statute by petitioner who is commanded to register. See The Employers' Liability Cases, 207 U.S. 463, 500-502; United States v. Reese, 92 U.S. 214, 221. Cf. Electric Bond & Share Co. v. Securities & Exchange Comm'n, supra.
In Boyd v. United States, 116 U.S. 616, 638, a court order to produce an invoice, claimed to be privileged under the Fifth Amendment, was held to be unconstitutional and void. One need not, I have assumed, obey an unconstitutional command and raise his constitutional objection only on compliance. Of course, defiance of a governmental command because it is unconstitutional is deep in our traditions. Thomas v. Collins, supra; Staub v. City of Baxley, 355 U.S. 313. Yet heretofore a person claiming that a disclosure would violate his Fifth Amendment rights need not first tender the information claimed to be privileged. A person asked whether he is a member of the Communist Party can invoke the Fifth Amendment and refuse to reply since under existing federal laws the answer would tend to incriminate him. Quinn v. United States, supra, 162; Blau v. United States, supra, 161. The answers now demanded by the registration form and the regulations require precisely the kind of answers we held protected against self-incrimination in the Quinn and Blau cases. [p189]
The fact that there may be other times when the issue may be raised -- as, for example, if a registration statement is not filed and officers or members are prosecuted for that default under § 15 of the Act -- seems immaterial. This case is not in the category of those challenges of a law made before it is known how and in what manner it will be enforced and applied. Cf. Rescue Army v. Municipal Court, 331 U.S. 549; Federation of Labor v. McAdory, 325 U.S. 450. A final order to register under the Act has been issued. The disclosure requirements are clear and specific. Now is the time to raise Fifth Amendment questions. To relegate the parties to another time and place in order to raise those constitutional objections is to fashion an extremely harsh rule to fit the Communist Party, but no one else. Default means the risk of criminal prosecution. No person, I think, should be forced to wait until his default to raise his constitutional objection. The great injustice in what we do today lies in compelling the officials of the Party to violate this law before their constitutional claims can be heard and determined. Never before, I believe, have we forced that choice on a litigant. See Terrace v. Thompson, 263 U.S. 197, 216. The modern trend has indeed been to protect a person against prosecutions that may involve infringements of his constitutional rights. At times even equity has stepped in. See Philadelphia Co. v. Stimson, 223 U.S. 605. The prevention of peril and insecurity, involved in the sanctions of some laws, has led to a generous use of the declaratory judgment procedure so that a person need not run the gauntlet of a criminal prosecution to get an adjudication of his rights. See Railway Mail Assn. v. Corsi, 326 U.S. 88; United Public Workers v. Mitchell, 330 U.S. 75, 91-94. Cf. McGrath v. Kristensen, 340 U.S. 162. The order requiring registration [p190] requires disclosure; the constitutionality of that disclosure requirement is before us here and now. This case presents the only effective opportunity to secure the benefits of the Fifth Amendment guarantee. Indeed, if the question were not raised now, the strict rule of Rogers v. United States, supra, might mean that the question had been waived.
My conclusion is that, while the Communist Party can be compelled to register, no one acting for it can be compelled to sign a statement that he is an officer or director nor to disclose the names of its officers, directors, or members -- unless the required immunity is granted. Why then, one may ask, do we have a registration law? Congress (past or present) is attempting to have its cake and eat it too. In my view, Congress can require full disclosure of all the paraphernalia through which a foreign dominated and controlled organization spreads propaganda, engages in agitation, or promotes politics in this country. But the Fifth Amendment bars Congress from requiring full disclosure by one Act and by another Act making the facts admitted or disclosed under compulsion the ingredients of a crime.
There is a giving of evidence by the filing of a registration. Its filing is the equivalent of officials testifying in investigations conducted by the Executive or Legislative Branch. It is compulsory disclosure of evidence which links officers, directors, and members of the group with a crime. Force and compulsion are outlawed techniques for federal law enforcement. Coerced confessions are taboo because of the long bitter experience of minorities in trying to maintain their freedom under hostile regimes. Our Constitution protects all minorities, no matter how despised they are.
Accordingly, I dissent. [p191]
1. For accounts of the attempts of Communists to infiltrate American trade unions, see S.Doc. No. 89, 82d Cong., 1st Sess.; Taft, The Structure and Government of Labor Unions (1954), pp. 19 et seq.; Murray, American Labor and the Threat of Communism (1951), 274 Annals Am.Acad.Pol. & Soc. Sci. 125; Paschell and Theodore, Anti-Communist Provisions in Union Constitutions (1954), 77 Monthly Lab.Rev. 1097.
Eric Sevareid, writing in the Washington Post for January 15, 1961, said:
Americans get too hysterical about the Marxists in their midst. Americans do, considering that there are so few. But I notice that it is the hard core of Marxists who now threaten to split Belgium in two; that it was the hard core of Marxists who drove the British Labor Party down the official policy line of neutralism.
2. The dissents in that case were on grounds not material to the bare issue of registration now before us. The concealment of the main interests behind legislative proposals has been conspicuous. The example of the American Fair Trade League -- controlled by manufacturers but purporting to represent retailers only -- is told in Federal Trade Commission, Report on Resale Price Maintenance (1945), pp. 43-48.
3. See Meltzer, Required Records, The McCarran Act, and the Privilege Against Self-Incrimination, 18 U. of Chi.L.Rev. 687 719-728.
4. It is also the starting point for certain other quasi-penal disabilities, including the roundup of those who may be put in detention camps by virtue of 50 U.S.C. §§ 812-814.
5. In answering a claim of the prosecution that a witness cannot refuse to answer unless the answer, unconnected with other testimony, would be sufficient to convict him of a crime, Chief Justice Marshall said:
This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable, case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact, of itself, might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description.
What testimony may be possessed, or is attainable, against any individual the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws.
25 Fed.Cas. at 40.
6. See Barenblatt v. United States, 360 U.S. 109, 128.
7. See Communist Control Act of 1954, § 2, 68 Stat. 775, 50 U.S.C. § 841.
8. See List of Organizations, App. A, 5 CFR, part 210 (1949 ed.); Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 124-129.
9. Section 6 of the Mann Act (36 Stat. 825, 827, 18 U.S.C. § 2424) provides that anyone harboring an alien woman in a house of prostitution must register. There is no required form -- merely a statement in writing giving the following information: the name of the woman, the place where she is kept, all of the facts as to the date of her entry into the United States, the port of entry, her age, nationality, parentage, and all facts concerning her procuration to come to this country within the knowledge of the person required to furnish the statement. One who files is immune from prosecution by the United States for anything reported in the registration statement. See United States v. Mack, 112 F.2d 290, 292. But this provision was held in violation of the Fifth Amendment in United States v. Lombardo, 228 F. 980, aff'd on other grounds, 241 U.S. 73, because the immunity extended only to federal, not state prosecutions.
10. The Court had held years earlier in Twining v. New Jersey, 211 U.S. 78, that the Fifth Amendment was not applicable to the States. And see Jack v. Kansas, 199 U.S. 372, holding that, if immunity from state prosecution were granted, the defense that it offered no immunity from federal prosecution would have been of no avail.