# The Communist Party of the United States of America v. United States > Court of Appeals for the D.C. Circuit · March 3, 1967 · 384 F.2d 957 URL: https://www.frixlaw.com/law-library/cases/9453097 ## Case - **Full name:** The COMMUNIST PARTY OF the UNITED STATES of America, Appellant, v. UNITED STATES of America, Appellee - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 3, 1967 - **Citations:** 384 F.2d 957; 127 U.S. App. D.C. 389; 1967 U.S. App. LEXIS 7228 - **Precedential status:** Published - **Opinion:** Concurrence by Prettyman - **Judges:** Prettyman, Danaher, McGowan - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453097 ## Opinion text PRETTYMAN, Senior Circuit Judge (concurring). I agree that the disclosure provisions of this statute are valid in and of themselves, and I agree further that the provisions for criminal sanctions are valid in and of themselves, separately. Upon the problem whether the combination of the two, as presented to us on this record, is valid, I reach the same result as do my brethren, but by a slightly different course of reasoning. The Communist Party is an unincorporated association, and, being an incorporeal entity, it can perform physical acts, such as signing and filing, only through the instrumentality of human individuals. Therefore, when the statute requires the Party to sign and file, it is in reality requiring some individual to sign and file. The Government seeks, by threat of punishment of the Party, to compel an individual to sign and file a list of the Party members. Membership in or association with the Communist Party involves such a threat of prosecution as to give rise to Fifth Amendment rights in members or associates. The Supreme Court so said in Albertson, 1 and in that case the Court held that members of the Party cannot be compelled to sign and file on behalf of themselves a statement that they are members. It seems clear to me that in view of that decision Party members cannot be compelled to sign and file on behalf of anybody or anything else a statement that they, the signing individuals, are members of the Party. 2 The constitutional protection is against compulsory incrimination of oneself. The means or method of the compulsion are immaterial so long as there is compulsion. Therefore the members cannot be compelled to incriminate themselves in order to protect the Party against punishment. Furthermore, since the Party is an unincorporated group of individuals, the fine upon the Party is in reality a *969 fine upon the individuals comprising the Party. I think no member of an unincorporated group can be compelled to incriminate himself in one respect in order to avoid another criminal punishment threatened against him as a member of the group. In this consideration it makes no difference whether the group as such is constitutionally protected or not. The individual is protected as an individual, no matter in what capacity. If the compulsion is visited upon him through the intermediary group as a conduit, the compulsion is forbidden. The cases, like White, 3 which hold that an officer of an association can be compelled to incriminate himself by revealing group records, rest upon the thesis that the public interest in the visitorial power over associations nullifies the individual officers’ Fifth Amendment protection. But that thesis does not apply here, because Albertson held that the Fifth Amendment rights of Party members do not yield to the public interest in the disclosure of the Party membership. The suggestion is made that a volunteer might come forward and register the Party and that the two F.B.I. agents (undercover members) are such volunteers. But those two, willing though they be, do not have the wherewithal to register the Party; they do not have the list of the membership. So the question is whether the officers or some member can be compelled to supply the willing volunteers with copies of the list. The purpose for which the volunteers want the list is to file it, thus bringing upon the listed members a threat of criminal prosecution. It seems clear to me that a person cannot be compelled to supply another person (volunteer or not) with the means by which to incriminate the first person. This is two-step incrimination, but it seems to me that the person is incriminating himself just as effectively as if he himself handed the list to the Government; and he cannot be compelled to do it. The same reasoning as that outlined in the preceding paragraph applies to the suggestion that the Party might hire an agent and pay him a fee to execute the registration. It might, of course, but our problem is whether it can be compelled to do so. It seems to me close to frivolous to suggest that a person protected by the Fifth Amendment can be compelled to hire an agent, furnish him with the means to instigate a criminal prosecution against him (the giver), and then authorize him (the agent) to do so. I think the Government cannot compel people to incriminate themselves, either by testifying or by supplying documentary evidence, and either by themselves supplying an incriminatory document or by giving it to a volunteer or a hired agent to give to the Government. In short, I think a person cannot be compelled to incriminate himself, either directly by his own action or by a second-, third- or fourth-hand action through some complicated intermediary process. I emphasize that no part of my thought rests upon Fifth Amendment rights of the Party itself. I am concerned only with the Fifth Amendment rights of the individual ' members or agents. I think a statute which requires members or agents of an unincorporated organization to incriminate themselves in order to protect their organization against a fine in a criminal action is invalid as thus applied. . Albertson v. Subversive Activities Control Board, 382 U.S. 70 , 86 S.Ct. 194 , 15 L.Ed.2d 165 (1965). . Cf. Communist Party of the United States v. United States, 118 U.S.App.D.C. 61 , 331 F.2d 807 (1963), cert. denied, 377 U.S. 968 , 84 S.Ct. 1646 , 12 L.Ed.2d 737 (1964). . United States v. White, 322 U.S. 694 , 64 S.Ct. 1248 , 88 L.Ed. 1542 (1944). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453097. Public record. Not legal advice.