# Communist Party of the United States of America v. Subversive Activities Control Board

> Court of Appeals for the D.C. Circuit · May 31, 1955 · 223 F.2d 531

URL: https://www.frixlaw.com/law-library/cases/9444659

## Case

- **Full name:** COMMUNIST PARTY OF THE UNITED STATES of America, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** May 31, 1955
- **Citations:** 223 F.2d 531
- **Precedential status:** Published
- **Opinion:** Dissent by Bazelon
- **Judges:** Bazelon, Danaher, Prettyman
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Communist Party of United States v. Subversive Activities Control Bd., 351 U.S. 115 (1956).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9444659

## Opinion text

BAZELON, Circuit Judge
(dissenting).
Suppose an Act of Congress required bands of bank robbers to file with the Attorney General statements of their membership and activities, and imposed criminal penalties upon their leaders and members for failure to do so. Such an Act would compel individuals to disclose their connection with a criminal conspiracy. No argument could reconcile such an Act with the Fifth Amendment’s command that “No person * * shall be compelled in any criminal case to be a witness against himself.”
The registration provisions of the Internal Security Act of 1950 are similar. 1 They compel individuals, under criminal penalties, to disclose intimate association with the Communist Party, a disclosure which the Supreme Court has held to be incriminatory. 2 . Every “Communist-action” organization must register with the Attorney General, 3 list the names, aliases, and addresses of its members and officers during the preceding twelve months, and account for all money received and spent during that time. 4 *The organization must register within thirty days after a final order of the Board, 5 under a penalty of $10,000 for each day’s delay. 6 In addition, if it fails to register, § 7(h) 7 requires certain officers to register on its behalf. 8 If the officers do not register within sixty days after the final Board order, § 8(a) requires all individual members to register. 9 *577 Noncompliance by individuals with either § 7(h) or § 8(a) is punishable by a fine of $10,000, five years’ imprisonment, or both, for each day’s delay. 10
The registration of the organization, required by § 7(a), must necessarily be executed by some individual or individuals. Congress and the Attorney General have recognized this obvious fact. Section 15(b) 11 punishes “individuals” who willfully falsify or omit a required fact in executing a registration statement required under § 7; 12 and paragraph 6 of the Attorney General’s instructions which accompany the registration form for organizations (Form ISA-1) requires the statement to “be signed by the partners, officers, and directors, including the members of the governing body of the organization.” My colleagues recognize that some individual will be “called upon to sign or swear to a registration statement” and may be incriminated by having to disclose his aliases. 13 But they fail to recognize that his signing is a complete though tacit admission that he knows the names of the Party’s officers and members, and its organization; that he is himself a member or a confidential employee of the Party; and that he has access to Party books and records. Blau v. United States is decisive of this case. The Supreme Court there held that an admission that one is “employ[ed] by the Communist Party or [has] intimate knowledge of its workings” might furnish a “link in the chain of evidence needed in a prosecution” under the Smith Act and therefore could not be required. 14
It is true that the present Act does not in.direct terms require any individual to execute a statement for the organization during the thirty-day period within which it must register. But of necessity and also by the Attorney General’s instructions, the only individuals who can execute a statement for the organization are those upon whom § 7(h) of the Act, supplemented by § 11.205 of the Regulations, places a duty to register for the organization if it defaults; 15 and these officials are subject to the *578 severe criminal penalties of § 15(a) (2) 16 if they fail to perform this duty. Since they will be subject to criminal penalties for failure to register shortly after the thirty-day period has run, 17 as a practical matter they are under heavy pressure to prevent it from running. 18 The “compulsion prohibited by the fifth amendment is not alone physical or mental duress, such as comes from unlawful commands and authoritative orders * * *,” 19 “the test being whether all things considered the testimony in question was voluntarily given.” 20
Nor are the compulsory self-incrimination provisions of the Act saved by § 4(f). That section provides that “the fact of the registration of any person * * * shall not be received in evidence * * * in any prosecution for any alleged violation of subsection (a) or subsection (c) * * * or for any alleged violation of any other criminal statute.” 21 Since this provision merely bars the “fact of registration” as evidence, and leaves the registrant exposed to prosecution for everything to which the registration relates, it does not meet the command of the Supreme Court in Counselman v. Hitchcock. There, as here, a statute prevented use of extorted disclosures as “evidence” in any criminal proceeding but, as the Court pointed out, the statute did not prevent their use “to search out other testimony to be used in evidence * * * in a criminal proceeding.” No grant of immunity is sufficient unless it provides “complete protection from all the perils against which the constitutional prohibition was designed to guard.” 22 Nothing less than “absolute immunity against future prosecution for the offense to which the question relates” can serve as a “full substitute for that [constitutional] prohibition." 23
But my brethren say, in effect, that under the doctrine of United States v. White, 24 no officer of the Communist Party can assert the constitutional privilege to avoid giving information about the organization which § 7(a) requires. I do not think the White doctrine can be so applied.
In White an officer of a labor union had appeared before a grand jury in response to a subpoena duces tecum but had declined to produce union documents. His mere appearance as a union officer was not, and was not claimed to be, incriminatory. Instead, he invoked the privilege on the theory that the demanded documents were incriminating. *579 The Court replied that he could not “place under the protective shield of the privilege * * * official union documents held by him in his capacity as a representative of the union.” 25 The vice of the present statute is not that it compels someone to produce incriminatory documents, but that it compels someone to identify himself as a. Communist Party functionary. Such identification, unlike identification as a corporate or union official, is incriminatory under the Blau case. 26 That situation was not involved in White; nor in Rogers v. United States, since the witness there had “freely described her membership, activities and office in the Party.” 27 This fundamental difference makes the White case inapplicable. There are two further distinctions.
(1) Section 7(d) requires the preparation of a statement naming the organization, listing its members and officers (and their aliases), describing the officers’ duties and functions, and accounting for money received and spent. Hence incriminating information is, in effect, “forced from the lips of the [executing officer], rather than obtained from the records or books.” 28 As the Second Circuit has held, “the production of records must be distinguished from * * * testimony as to what the records would contain, had they been produced.” 29
(2) I do not think the White doctrine applies even as to books and records of the Communist Party, notwithstanding the dictum in Rogers that there is no privilege with respect to the books of the Party. Under the White test, the privilege is unavailable to officers of an organization only when the organization’s character is “so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only.” 30 The “impersonal” criterion, as discussed by the Court, clearly indicates that unions, other lawful associations, and corporations are to be distinguished from criminal conspiracies. 31 *580 Only by ignoring the history of the decade since White can the Communist Party be equated to an ordinary corporation, union or association. For in that decade it has been established that officers of the Communist Party are engaged in a conspiracy to violate the Smith Act. 32 Since these officers, unlike the officers of “impersonal” organizations, are co-conspirators, bound by the acts of other officers in pursuance of the conspiracy and subject to criminal penalties for' such acts, the White ease does not touch the self-incrimination problems posed by this Act.
In Boyd v. United States 33 the Supreme Court declared “unconstitutional and void” a statute'which merely imposed economic pressure to produce incriminating documents. State courts have invalidated various statutes that compelled self-incrimination, 34 including two that required members of the Communist Party to register, 35 I would do the same with the present statute. Section 14(a) 36 permits a “party aggrieved” by respondent’s order to obtain judicial review. Plainly the Communist Party is “aggrieved.” Therefore it may challenge the legality of the Board’s order even though the constitutional rights invaded are those of other persons and not of the Party itself. 37
The Government and my brethren would postpone determination of constitutionality until a Communist Party official has declined to register for the Party on self-incrimination grounds. First, they say that an official may register voluntarily. But as I have pointed out, the coercion to register precludes voluntary compliance as a matter of law. In Boyd the Supreme Court held a statutory disclosure requirement “void” although, theoretically at least, someone within its scope might at some time have voluntarily made the required disclosures. Second, they argue that a Communist Party official might suffer no “substantial detriment” either because he had already disclosed his Communist affiliations in other proceedings or because he had already been convicted under the Smith Act. But the privilege can never be lost in any such way. “The privilege is not waived by testimony given in a previous independent proceeding, even in the same case.” 38 It is waived only by testimony in the same proceeding. Hence the individuals referred to *581 by my brethren as having admitted Communist Party affiliations at the hearing before the Board did not thereby waive their privilege. 39 And the previous conviction of some Communist Party officials confers no immunity upon them from further prosecution based upon later Communist affiliation. Third, it is urged that the privilege “must be specifically asserted at the time a particular question > is asked * * 40 13 ut that doctrine applies only where it is not plain from the inquiry itself that incriminating disclosures are demanded. 41 It is plain here. Since any person who comes forward, even to claim the privilege, thereby identifies himself as a Communist Party functionary, 42 to require him to claim the privilege would, in the words of Chief Justice Marshall, “strip him of the privilege which the law allows * * * » 43
In reviewing administrative action, the court “may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action.” 44 Equitable principles, *582 even in the absence of a statute providing for judicial review, justify the relief I would grant in this case. Truax v. Raich is in point. There the complainant was an alien employee who was threatened with discharge because of a state statute which penalized only the employer for employing more than a certain percentage of aliens. It did not penalize employees. The Supreme Court held the threatened injury to the complainant brought the case “within the class in which, if the unconstitutionality of the act is shown, equitable relief may be had.” 45 And Government officers have been enjoined “from bringing criminal proceedings to compel obedience to unconstitutional requirements.” 46
Since Congress has enlarged the area of incrimination with regard to the Communist Party, and since the Supreme Court has found the enlargement permissible, we must see that the constitutional guarantee against compulsory self-incrimination is co-extensive with the widened danger.
The Fifth Amendment, as Dean Gris-wold has said, “is a clear and eloquent expression of our basic opposition to. collectivism, to the unlimited power of the state. It would never be allowed by Communists, and thus it may well be regarded as one of the signs which sets us off from Communism.” 47
Since I would void the Act on Fifth Amendment grounds, I do not consider the petitioner’s other contentions.
. In 1951, sitting as a member of a three-judge District Court, I voted to deny the motion of the Communist Party for a preliminary injunction. 96 E.Supp. 47. The relief sought by that motion was a stay of the proceeding which the Attorney General had theretofore instituted before the Subversive Activities Control Board. I based denial of discretionary preliminary relief upon a series of estimates of probabilities, which was all we had before us. The Communist Party pointed to nothing in the conduct of the administrative proceedings themselves which would necessarily violate constitutional rights. The issue of coverage remained to be determined by the Board, which might have found that the Communist Party was not a Communist-action organization, and there was nothing in the administrative procedure or in the provision for judicial review which indicated that they were unconstitutional on their face. Since the Communist Party has been found to be a Communist-action organization, the questions posed now are different. Because they are different, as Mr. Justice Jackson said, quoting Baron Bramwell, “ ‘The matter does not appear to me now as it appears to have appeared to me then.’ ” McGrath v. Kristensen, 1950, 340 U.S. 162, 178 , 71 S.Ct. 224, 233 , 95 L.Ed. 173 (concurring opinion.)
. Blau v. United States, 1950, 340 U.S. 159, 161 , 71 S.Ct. 223 , 95 L.Ed. 170 .
. Section 7(a), 50 U.S.C.A. § 786 (a).
. Section 7(d), 50 U.S.C.A. § 786 (d).
. Section 7(c), 50 U.S.C.A. § 786 (c).
. Section 15(a) (1), 50 U.S.C.A. § 794 fa) (1).
. 50 U.S.C.A. § 786 (h).
. Section 11.205 of the regulations promulgated under the Act supplements the list of officers who must register. 19 Eed. Reg. 6035-36 (Sept. 18, 1954).
. 50 U.S.C.A. § 787 (a).
. Section 15(a) (2), 50 U.S.C.A. § 794 (a) (2).
. 50 U.S.C.A. § 794 (b).
. See Note, The Internal Security Act of 1950, 51 Col.L.Rev. 608, 620 (1951), where the author states: “It is obvious * * * that an organization cannot register unless its officers, or other persons designated by the membership, execute a registration statement and continue to make the necessary annual reports.”
. Majority Opinion, 223 F.2d 550 .
. 1950, 340 U.S. .159, 161, 71 S.Ct. 223, 224 , 95 L.Ed. 170 . The admissions implied in executing the statements for the Communist Party are the very admissions sought from Mrs. Blau: “ ‘Mrs. Blau, do you know the names of the State officers of the Communist Party of Colorado?’ ‘I)o you know what the organization of the Communist Party of Colorado is, the table of organization of the Communist Party of Colorado?’ ‘Were you ever employed by the Communist Party of Colorado?’ ‘Mrs. Blau, did you ever have in your possession or custody any of the books and records of the Communist Party of Colorado?’ ‘Did you turn the books and records of the Communist Party of Colorado over to any particular person?’ ‘Do you know the names of any persons who might now have the books and records of the Communist Party of Colorado?’ ‘Could you describe to the grand jury any books and records of the Communist Party of Colorado ?’ ” Id., 340 U.S. at page 160, n. 1, 71 S.Ct. 223 . See cases collected 19 A.L.R.2d 388 .
. Under the statute the duty to register falls upon the organization’s executive officer, secretary, or the individuals performing the ordinary and usual duties of such officers, and upon such other officers as the Attorney General may prescribe. Under the regulation, “(a) The president, chairman, or other person who is chief officer of the organization, (b) The vice-president, vice-chairman, or person performing similar function, (c) The treasurer. (d) Members of the governing board, council, or body” “jointly with the executive officer and secretary” are made liable to register for the organization after the expiration of thirty days.** It will be recalled that paragraph 6 of the Attorney General’s instructions specifies that tlie organizational registration form shall bo signed by the organization’s “partners, officers, and directors, includ *578 ing the members of the governing body # * *
. The officers are subject to a fine of $10,000 and imprisonment of five years for each offense. Any offense is defined as one day’s failure to register, so that two weeks’ nonregistration could mean a fine of $140,000, seventy years in prison, or both.
. The designated officers must file the statement within ten days after the organization’s thirty-day period has run. Regulations, § 11.205, 19 Fed.Reg. 6036.
. Cf. United States v. Bell, 6 Cir., 1897, 81 F. 830, 837 , where it was held that a witness, although “technically not under the compulsion of a subpoena,” had nevertheless been under compulsion in testifying before an “official having the power to compel him to come, if he should be recalcitrant about it * *
. United States v. Bell, 6 Cir., 1897, 81 F. 830, 837 ; cf. Boyd v. United States, 1886, 116 U.S. 616, 621-622 , 6 S.Ct. 524 , 29 L.Ed. 746 (holding that it is equivalent to the compulsory production, of papers to make their nonproduction a confession of the allegations it is contended they will prove); and see McKnight v. United States, 6 Cir., 1902, 115 F. 972, 981 .
. United States v. Neff, 3 Cir., 1954, 212 F.2d 297, 312 .
. 50 U.S.C.A. § 783 (f); emphasis supplied.
. 1892, 142 U.S. 547, 564, 585, 586 , 12 S.Ct. 195, 199 , 35 L.Ed. 1110 .
. Ibid. For law review comment asserting the purported immunity to be inadequate, see Meltzer, Required Records, The McCarran Act, and the Privilege against Self-Incrimination, 18 U. of Chi.L.Rev. 687, 724 (1951); Comment, Communist Registration under the McCarran Act and Self-Incrimination, 1951 Wis.L.Rev. 704, 715 (1951).
. 1944, 322 U.S. 694 , 64 S.Ct. 1248 , 88 L.Ed. 1542 .
. Id., 322 U.S. at page 704 , 64 S.Ct. at page 1254 .
. See n. 14 and text, supra.
. 1951, 340 U.S. 367, 372 , 71 S.Ct. 438, 442 . In United States v. Field, 2 Cir., 1951, 193 F.2d 109 , an official of the Bail Fund Committee of the Civil Rights Congress declined to produce the organization’s documents on the ground that to do so would in itself be incriminatory. The argument was rejected by the Second Circuit solely on the ground that earlier, in the same proceeding, he had admitted being a trustee of the fund.
. United States v. Daisart Sportswear, 2 Cir., 1948, 169 F.2d 856, 862 . See Note, The Internal Security Act of 1950, 51 Col.L.Rev. 606, 621 (1951), where the author states: “The execution of a registration statement by an individual would at least require him to confirm and transpose selected material from the organization’s records to the registration statement. Since an organization need not keep complete records prior to registration, in many eases the officer would be forced to execute the registration statement by relying on his own knowledge. It is clear that in both instances the offleer is doing more than producing records and identifying them. He is disclosing other matters of his personal knowledge.”
. 169 F.2d at page 862 .
. 322 U.S. at page 701 , 64 S.Ct. at page 1252 .
. In finding unions similar to corporations, the Court enumerated features common to both which are clearly inapplicable to criminal conspiracies: “Duly elected union officers have no authority to do or sanction anything other than that which the union may lawfully do;” “no member or officer has the right to use [the union’s books and records] for criminal purposes * * * ”; “the actions of one individual member no more bind the union than they bind another individual member unless there is proof that the union authorized or ratified the acts in question”; and “the members are not subject to either criminal or civil liability for the acts of the union or its officers as such unless it is shown that they personally authorized or participated in the particular acts.” 322 U.S. at page 702 , 64 S.Ct. at page 1252 .
. Dennis v. United States, 1951, 341 U.S. 494, 516-517 , 71 S.Ct. 857 , 95 L.Ed. 1137 ; Frankfeld v. United States, 4 Cir., 1952, 198 F.2d 679 .
. 1886, 116 U.S. 616, 638 , 6 S.Ct. 524, 536 , 29 L.Ed. 746 .
. In re DeWar, 1930, 102 Vt. 340 , 148 A. 489 (statute rquiring persons convicted of intoxication to disclose name of person from whom liquor obtained held “unconstitutional and void”); People v. Reardon, 1910, 197 NX 236, 90 N.E. 829 (statute compelling individual to submit to investigation of books and papers kept in private business for purpose of furnishing evidence in criminal prosecution held to violate self-incrimination clause of State constitution); State v. Simmons Hardware Co., 1892, 109 Mo. 118 , 18 S.W. 1125 , 15 L.R.A. 676 (statute requiring officers of every corporation to inform Secretary of State whether company is violating State anti-trust law held void).
. People v. McCormick, 1951, 102 Cal.App.2d Supp. 954 , 228 P.2d 349 ; Maryland v. Perdew, 19 U.S.L. Week 2357 (Md. C.C., Allegany Cty., 1951).
. 50 U.S.C.A. § 793 (a).
. National Coal Ass’n v. Federal Power Commission, 1951, 89 U.S.App.D.C. 135 , 191 F.2d 462 ; Associated Industries of New York State v. Ickes, 2 Cir., 1943, 134 F.2d 694 .
. United States v. Steffen, D.C.N.D.Cal. 1951, 103 F.Supp. 415, 417 ; see also Marcello v. United States, 5 Cir., 1952, 196 F.2d 437 ; United States v. Field, 2 Cir., 1951, 193 F.2d 109 ; United States v. Peckhart, D.C.N.D.Cal.1952, 103 F.Supp. 417 ; United States v. Malone, D.C.N.D.Cal.1953, 111 F.Supp. 37 (waiver before grand jury held not to bar privilege at trial on indictment returned by same grand jury); Note, 36 A.L.R.2d 1403 (1954). Other state authorities are collected in United States v. Steffen, supra, 103 F.Supp. at page 417, n. 4 . See Wigmore, § 2276(4) (3d ed. 1940).
. In the three-judge court suit brought by the Communist Party (see n. 1, supra), one of the grounds urged for enjoining hearings before the Board was that to properly defend itself at such hearings Communist Party officials would necessarily have to testify and that such testimony would necessarily entail their admission of Communist Party affiliations. Those officials who testified at the hearing did so only after denial of relief in that suit. Moreover, they testified more than two years ago. A fresh disclosure of continued Party office would clearly constitute a “substantial detriment,” particularly in view of the intervening Board determination that the Party is a Communist-action organization.
. Brief for Government, p. ,56.
. In a judicial or legislative proceeding, where most questions asked will not necessarily require incriminating answers, the tribunal must be put on notice that in a particular instance the Fifth Amendment may apply. See, e. g., U. S. ex rel. Vajtauer v. Commissioner, 1927, 273 U.S. 103, 113 , 47 S.Ct. 302, 306 , 71 L.Ed. 560 , where the Court said: “It is for the tribunal conducting the trial to determine what weight should be given to the contention of the witness that the answer sought will incriminate him, * * * a determination which it cannot make if not advised of the contention. * * * The privilege may not be relied on and must be deemed waived, if not in some manner fairly brought to the attention of the tribunal which must pass upon it." [Emphasis supplied.] Similarly, under a revenue statute requiring all taxpayers to give information about their sources of income either in a return or an investigation, the enforcing authorities must be put on notice that as to a particular taxpayer the Fifth Amendment may bar the required disclosure. See United States v. Sullivan, 1927, 274 U.S. 259 , 263 47 S.Ct. 607 , 71 L.Ed. 1037 , where the Court said: “If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” The matter was well expressed by the Seventh Circuit in Murdock v. United States, 1932, 02 F.2d 926 , 927: “ * * * a citizen from whom information is sought under a statute enacted pursuant to authority granted to Congress by the Sixteenth Amendment may invoke or waive the protection provided by the Fifth Amendment. And likewise the courts will compel the production of information, subject, however, to the right of said taxpayer to justify his refusal so to do by showing facts that bring him within the protection of the Fifth Amendment. Thus construed, the statute under consideration is not unconstitutional.” [Emphasis supplied.]
. This is so because the only persons within the class required to act are Communist functionaries. As in the case of the hypothetical bank robber statute, to claim the privilege is to admit that one is within the class to which the statute relates.
. United States v. Burr, 4 Cir., 1807, 25 Fed.Cas. pages 38, 40, No. 14692(e); see also Hoffman v. United States, 1951, 341 U.S. 479, 486 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 , where the Court declared: “* * * if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee.”
. Ford Motor Co. v. National Labor Relations Board, 1939, 305 U.S. 364, 373 , *582 59 S.Ct. 301, 307 , 83 L.Ed. 221 ; United States v. Morgan, 1939, 307 U.S. 183, 191 , 59 S.Ct. 795 , 83 L.Ed. 1211 ; see Davis, Administrative Law 727 (1951).
. 1915, 239 U.S. 33, 39 , 36 S.Ct. 7, 9 , 60 L.Ed. 131 . See also Terrace v. Thompson, 1923, 263 U.S. 197 , 44 S.Ct. 15 , 68 L.Ed. 255 ; Pierce v. Society of Sisters, 1925, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 .
. Philadelphia Co. v. Stimson, 1912, 223 U.S. 605, 621 , 32 S.Ct. 340, 345 , 56 L.Ed. 570 . See also Ex parte Xoung, 1908, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 , and cases cited n. 45, supra.
. Griswold, The Fifth Amendment As a Symbol, Harv.Law School Record (Oct. 21, 1954).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9444659. Public record. Not legal advice.