Brief for the United States — United States v. Brown

Supreme Court brief1965

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INDEX.

" Jurisdiction - -..-.-------- Sais Se ee ee

Question presented... . ----------------+--777~ Mewes

Statutes involved. .---------------------2- ooo rrr

Statement...-------------------- Per ees Pe Ae

Summary of argument... ----------- 5 ncikiaoneacas nee

ArGuMeRt....-- <2 -'--- 002-05 enor en HF" ae ase mean = =

I. Congress may, consistently with the First Amend-

ment, enact a statute aimed at keeping members

of the Communist Party from positions of

_ power in the labor movement... .-------------

A. The constitutional principles of American

— Communications Association Vv. Douds

_ apply to this case..------------------

/ B. Legislative investigations and other evi-

dence supported Congress’ decision in

. 1959 that a substantial threat to the

economy was presented by Communist

infiltration of labor organizations- - - - --

II. Section 504 is a constitutional substitute for

“Section 9(h)..--------------------- gcunkee

A. Section 504 incorporates a demonstrably

sounder legislative approach- than Sec-

tion 9(h)...------------------------*

1. The affidavit requirement was con-

sidered offensive and prompted

principled non-compliance. -s -- -

2. The affidavit requirement created

serious administrative burdens- -

3. The affidavit requirement did not

‘stop Communists from assuming

positions of leadership in labor

uniohs.«....--0<sf-~-----+----

4. The truth of the affidavits could

not be adequately policed under

18 U.S.C. 1001....---<---<*---

ie ©)

161-444-—65-.— 1

. 12

Argument--Continued 7

II. Section 504, etc:—Continued

. Section 9(h) Continued

_ A. Section 504, etc. —Continued |

5. Denial of Board facilities to unions Page

__-was an inequitable remedy. - - - - 34

6. Denial of Board facilities to unions

: left: enforcement of Section 9(h) —

io - in the hands of employers__..:- —~ 35

; 7. Denial of Board facilities resulted

in delay and confusion- -- - - el 36

8. Denial of Board facilities created

tensions within a union-------- a

B. Secfion 504 is not.a more “drastic” abridg-

ment of freedom of association than

Section 9(h) - - --- eeyewitzesievegqecuse 41

Conchision- - -- --------------------------------+-4-- 47

CITATIONS

Cases:

American Communications svete v. Douds, 339° +

2 Re AIT ap dat ritesa ene tS RRR Bote 10, 12,

jee . 18, 14, 15, 16, 17, 19, 20, -23, 24, 29, 31, 45, 46

American Federation of Musicians v: Wittstein, No. 27,

this Term, decided December 7, | eee 19

Aptheker v. Secretary of State, 378 U.S. 500_------ 20, 21, 22

Board of Governors v. Agnew, 329 U.S. 441_----+---- 23,45 —

Bryson v. United States, 238 F. 2d 657 see Ee eg he 33

Calhocu v. Harvey, No. 17, this Term, decided Decem-

eee Fak ela wa wee ses cows es ewatopens 19

Cox v. Louisiana, No. 49, this Term, decided January

BE Wi oincnce Mo ciccccncsSennwecdcuceseot nee t6, 45

Dennis v. United States, 341 U.S. 494___-.---------- 16

Fisher v. United States, 231 F. 2d99_____---------4 33

Garner v. Los Angeles Board, 341 U.S. 716_-------- ——

Gerende v. Board of Supervisors, 341 U.S. 56... ------ 18

. Heart of Atlanta Motel, Inc. v. United States, No. 515,

this Term, decided Dieceenbor MH, 1964. .....-=- 2 15

Horning v. District of Columbia, 254 U.S. 135-------- 47

_ Hupman v. ‘United States, 219 F. 2d 243, certiorari

, denied, 349 US - 953 RelA apainciats ‘t comaheweesscwe say 33°

Oases—Continued : 3 - Seno

Killian v. United States, 368 U.S. 231 ae eunnial ese 33

Konigsberg v. State Bar, 366 U.S. 36..-.------------ 17,

_ Lathrop v. Donohue, 367 US. 820....---<---------- 18

Leedom v. International Union of Mine, Mill - A iby

Smelter Workers, 352 U.S. 145..-.--------------- -2

Lohman v. United States, 266 F. 2d 951, certiorari

. denied, 361:US. 923.........-..--------------- 33

National Labor Relations Board v. Highland Park Mfg.

ee LL See eee 14, 29

Noto v. United States, 367 U.S. 290. Settee Pe eae . 22, 45, 46

Osman v. Douds, 339 US. 846-.-------------- Akers x 12

Scales v. United States, 367 U.S. 203... . ---- 2S sabe 45, 46

Shelton v. Tucker, 364 U. ee ee - 20

Speiser v. Randall, 357 v6.30... ... Ss tees 16

Steele v. Louisville & Nashville R. Co.; 323 U.S..192.- - 18

Travis v. United States, 364 U.S. 631_-------------- 33

United Public Workers v. Mitchell, 330 U.S. 75------- 22

United States v. Harriss, 347 U.S. 612_--.----------- 7

West v. United States, 274 F. 2d 885, certiorari denied

sub nom. Haug et ux v. United States, 365 U.S. 811-- 33

Constitution and statutes: ,

United States Constitution:

- ‘First Amendment. --------- 4, 14, 16, 23, 29, 30, 41, 42,

With Ansemdeient..... >... ..2 2-0 one see -o- 4,14

National Labor Felations Act, as geacaric by the

Labor-Management Relations Act of 1947, sec: 9(h) —

‘ (formerly: 29: U.S.C. 159(h)); repealed by Section

201(d) of the Labor-Management Reporting .and

- Disclosure Act of 1959, 73 Stat. 519, 525---------- z,

* 9, 10, 11, 12, 13,°14, 15, 16, 17, 18, 20, 21, 23;

24, 28, 29, 30; 31, 32, 34, 35, 36, 37, 38, 39. 40, 41,

42, 43, 44. j

Labor Management Reporting -and Disclosure Act of

1959, 73 Stat. 519, et seqg.:

Sec. 2(a), 29 U.S.C. 401(a).-.------------+---- 19

ie 0 OR AG oo esct en 19

Secs. 401-403, 29 U.S.C. 481-483. ..-.--------- 1G?

Sse, 508, TE CHC, OM... 2 0528L.- <2 2-2, 2,

4,7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 20, 21, 23, 24,

28, 29, 30, 36, 40, 41, 42, 43, 44, 45, 46, 47.

18 U.S.C. 1001. -..--------10, 32, 33, 42, 43, 44.

~Congressional ssabinial:

~~. Rept. No. 741, 86th Cong., Ist Sess. (1959) _--.--

H. Rept. No. 1147, 86th Cong., 1st Sess. (1959)—~ - -\-

‘Hearings before the House Committee on Un-American

Activities, Communist Infiltration of Vital Industries

and Current Communist Techniques in the Chicago,

Illinois, Ared, 86th Cong., 1st Sess. (1959) --------

Hearings before Permanent Subcommittee on Investi- -

gations of the Senate Committee on Government

Operations, Communist I nfiltration’i in Defense Plants,

84th Cong., Ist Sess, (1955) -..------------------

Hearings before a Special Subcommittee of the House

Committee on Education and Labor, Investigation

of Communist Influence in the Bucyrus-Erie Strike,

80th Cong., 2d Sess. (1948)..-..---.-------------

Hearings before the Subcommittee to Tuvestigate the

Administration of the “Internal Security, Act and

* Page

25, 34

24.

other Internal Security Laws of the Senate Com- °

mittee on the Judiciary, Communist Domination of

Union Officials *m Vital Defense Industry—Inter-

/national Union of Mine, Mill and Smelter Workers,

82d Cong. 2d Sess. (1952) _.-------------------

Hearings before a Subcommittee of the Senate Com-

mittee on Labor and Public Welfare, Communist

Domination of Unions and National Seourity, 82d

Cong., 2d Sess. on coeccbenwneeenwewee

1 Leg. Hist. Tabor } Management Reporting - Dis-

closure Act/of 1959:

A a ey See

Reaper en one ROG SERN ie daccueen

aie a ca Na

ys P. WE case se ee ew cop ade reediardehuae=

Public Policy and Communist Domination of Certdin

Unions, S. Doc. No. 26, 83d Cong., Ist Sess. (1953): -

v .

Congressional material—Continued Page

| See cetuawiecsenapweeseswewes ee

~ 2 SAREE cca Meee.

SO Ee RR ee se ee

aS ee Renae en -

§.-1555, 86th Cong., ist Seas../....----------« 37, 38, 42

S. Rep. No. 187, 86th Cong., Ist Sess. (1959) - - ----- . 37, .

| 38, 39, 42,43

Miscellaneous: ;

Cox, Some Aspects of the Labor-Management Relations

Act, 1947, 61 Harv. L. Rev. 1 (1947)------------ 35.

Daykin, The Operation of the Taft-Hartley Act’s Non-

Communist Provisions, 36 Iowa L. Rev. 607 (1951) - 36°

Freund, The Supreme Court and Civil Liberties, 4 Vand.

S Sie, O08 NE... : os ~- eae 45

Morgan, The Supreme Court and the Non-Communist ~

Affidavit, 10 Lab. L. J. 28------------------+---- 35

N.Y. Times, July 1, 1951, p. 17, col. 3-------------- 33 |

Official Reports on the Expulsion of Communist Dom- -

inated Organizations from the CIO, compiled by the

Publicity Department, CIO’ Publication No. 254

(Sept. 1954)_..-<------------------+----- = --- 7, 28 -

Shair, One More Year With 9(h), 3 Lab. L. J. 35 (1952). © 38

imo wenren nap reee

——

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3 the Sapeeme Court of the Bred 1 Stats |

oO pam Term, 1964

Sula, No. 399 , sons

Unrrep States oF AMERICA, PETITIONER

pig Brown

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPBALS FOR THE NINTH CIROUIT .

_ BRIEF FOR THE UNTTED STATES

oPrNroNs BELOW ; :

- The .opinions of the court of appeals are reported

at 334 F. 2d 488. | a ae |

‘JURISDICTION

The judgment of the- -eourt of appeals was entered

on June 19, 1964 (R. 278). On July 17, 1964, Mr.

Justice Goldberg extended the time for filing a- peti-

. tion for a writ of certiorari, to and including August

18, 1964 (R. 278). - The petition was filed on August

18, 1964, and was granted on November 9, 1964 (R.

279). The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

(1)

CRORE NEE AOI ABR CR A As te ce

» ’

QUESTION PRESENTED

Whether "29 U.S.C. 504, which makes it unlawful

for a member of the Communist Party to serve as an

officer, director, trustee, or member of the executive

board of a labor organization, is constitutional.

| | STATUTES INVOLVED! —

Section 504 of the ‘Labor-Management Reporting .

“and Disclosuée Act of 1959, 29. U.S.C. 504, provides

in pertinent part: 3

§ 504. Prohibition against certain persons hold- .

ing office; violations and penalties.

(a) No person ‘who is or has been a member

‘of the Communist Party or who has been con-

victed of; or seed any part of a prison term’

resulting from his conviction of robbery, brib-

‘ery, extortion, embezzlement, grand larceny,

burglary, arson, violation of narcotics laws,.

murder, rape, assault with intent to kill, as-

--gault which inflicts grievous bodily injury, or

a violation of subchapter ITI or IV of this

chapter, or @onspiracy to. commit any . such

crimes, shall §erve— : :

(1) as an offieer, director, trustee, mem-

‘ber of any executive board or similar gov- —

erning body, husiness agent, manager, or-

ganizer or other employee (other than as

an employee performing exclusively eleri- —

eal or custodial duties) of any labor or-

ganization, * ** © | : |

Y * * * *

during or for five years after ‘the termination

of his membership in the Communist Party, or

_ See

for five years after such conviction or after —

the end of such imprisonment * * *. note 2

(b) Any person who willfully violates this

section shall be fined not more than $10,000 or

imprisoned for not more than one year, or both.

tion 9(h) of the National Labor Relations Aet,

as amended by the Labor Managenient Relations Act.

of 1947 (formerly 29 U.S.C. 159(h)), which was Té-

pealed by Section 201(d) of the Labor-Management .

Reportirig and Disclosure Act of 1959, 73 Stat. 519,525, _

provided:

§9(h). Affidavits showing union’s officers free

from Communist Party affiliation or

belief.” : ae

No investigation shall be made by the Board of

any question affecting commerce concerning the

representation ef employees, raised by. a. labor

organization under subsection (c) of this sec- ©

tion, and no complaint shall be issued pursuant

to a charge made by a labor’ organization under

subsection (b) of section 160 of this title, unless

there is on file with the Board an affidavit ex-

ecuted contemporaneously. or within the preced-

‘ing twelve-month period by each officer of such ©

labor organization and the officers of any na-

— tional or international labor organization of

which is an-affiliate or constituent. nit that

he is not a member of the Communist Party or

affiliated with such party, and that. he does

not believe in, and is not a member of or sup: |

ports any organization that’ believes in ~or~

teaches, the overthrow of the United States

Governtnent by force or by any ilegal or un- |

constitutional methods. The provisions of sec-

761-444—65——2

“4°

}

i f < .

{ j : -* © ; :

y 4 ; . F

tion 35A of the Criminat-€sde shall be ee ee

_cable in respect, to such ‘affidavits. °

: STATEMENT

| ‘Weepecis was sical. in a a indietment

. -peturned in the Northegn District of California on

May 24, 1961, ’ with violation of .29 U.S.C. 504, in

| that from October 1959 up to and including the date.

_ of the indictment he knowingly and willfally. served

as a member of the Executive Board of Local 10,-.

International Longshoremén’ s and Warehousemen’ s

Union (“ILWU”), while a. member: of the- Com-

munist Party 4). After trial by j jury, respondent

_ was convicted sentenced to six months” imprison-

-ment.. On appeal, the original three-judge panel, sua

sponte, ordered the case set for reargument before the

eourt en banc. ‘The court, ‘by'a vote of 5 to 3, ordered :

the conviction set aside and the indictment dismissed,

~*. The court ruled that Section 504, insofar as it relates .

to members of the Communist Party, is. unconstitu-

‘tional under the First Amendment and: under the due —

: process clause.of the Fifth ‘Amendment. : —, 3

Evidence adduced. at. the trial established that re-

spondent was elected to the Executive Board of Local:

10 of the ILWU in the years 1959,’ 1960, and 1961. °

(R. 34-35), that he atfended daict-one regular and

_ special meetings of the Board during the indictment

period (Gov. Ex. 7; R. 39, 47, 49), and that he took \

some active part in twenty-one of these ome a (€.9.5°°°

_ B. 50-60, 104).

According to the. ‘conatitutioni of Lotal 10 (Gov. Ex.

2), the Executive Board ‘is “the advisory board of the

Local”’ (Art. XVI, See. 10(a)). it consigts of offi

fers of the Loeal and 35. other members (Art. IV,

Sec. 2(7) ; R. 68), and is given the poWer generally to |

conduct the Loeal’s- business." The Local’s secretary-

- treasurer testified that the usual “channel of pro-

cedure” was to funne¥ the business of the union

through the Executive Board, subject to — al'approval

by the members .(R. 186). - S

_ Witnesses testified that respondent, during a ale

meeting at Stanford University on ‘May 23, 1960,

stated, “I have been a member of the —

Party for 25 years and I am now a m the

Communist Party” (R, 114, 126-128). Aalnek Bower .

ernment witness, who had been a member of. the Com M -

~ munist Party, testified that. she was present at sixteen

. different Communist Party meeting’ with respondent

during the indictment period (R. 131-134), She fur-

2 Art. Gres Sec. 10, enumerates these powers :

* *\* They shall have the power to adopt such meas-

- ures as are deemed necessary frofn time to time for the \.

good and welfare: of the local, subject to the appro of .

the membership. Boalt

(b). The Executive shall attend, to. all ‘matters

referred ‘to it by the local, also suggest remedies for im-

meeting. ,

cations not of interest to the local and cooperate in every .

‘way so that: the’ business to be covered. at a regular meet -

ing may be accomplished.

~ (d) In cases of emergency the Executive Board ‘ is empow-

ered to act to protect the interests and welfare of the local.

(e) They must study.the labor movement closely end.

formulate concrete ‘policies to strengthen ‘our local—said

policies to be i in. second ‘with tHe. LL.W.U... rl

eo.

. mediate and permanent benefit and report to the regular ri

ORs ee

ther testified that seujsltiad ‘was chairman of the

Rules Committee of both sessions of the District Con-

_ vention of the’ Communist Party in' November. 1959. -

and February 1960 (R. 132, 135) ; that he was a dele-

gate to the ‘Party’ s 17th. National Convention in San —

Francisco in ‘ate December 1959 (R. 133-134) ; that

. he ‘attended and was active at numerous: meetings of

the District Committee of the Communist Party dur-

- ing 1960 and 1961 .(R. 134-135, 136-143) ; and that

he swas chairman of a meeting of the Trade Union

Commission of the Communist Party in December |

_ 1960 (R. 140-144). |

‘ — Also introduced. into evidence was a jshieraen of

- October 1) 1959, addressed to Harry Bridges, president

of the ILWU, from: the then Secretary. of Labor,

-Janies B. Mitchell. The telegram called Mi Bridges’

attention to. Section 504 of the newly enacted Actand =

set forth that section substantially verbatim. It te- .

quested that:Mr. Bridges advisé whether any ILWU

personnel: fell within its prohibition (R.. 43-44). A

reply to this telegram, dated October 9,° 1959, re-

spectfully declined to comply with the request (R.

44-46). Subsequently, a letter was sent to-all ILWU

locals by the secretary-treasurer of the ILWU, enclos- >

ing the Mitchell-Bridges correspondence and stating

that the ILWU attorneys had advised that any in-

quiries of local unions similar to Secretary Mitchell’s

-* inquiry’ be transmitted to. counsel me tle Interna--

tional Union (R. 46-47). :

The evidence also showed that at a caucis s of. the -

delegates : from the Northern California District to the

17th N ational Siviiiitan of the Countnunist Party in

New York. City, respondent was “nominated for tiie

office of national committeeman representing the

Northern California District (R. 144).- The Chafte.

- man of. the Northern California’ District, who was

presiding. at the caucus, stated that he felt that it —

would be unwise for respondent to accept that nomi-

nation because respondent had keen elected to an office

in his union as a possible test case for the Landrum-

Griffin Bill (R. 144). Respondent replied that “this”

was true and that he felt it was far more important

that he continue with that activity rather than accept’

nomination for the national cominittee, because he had.

"been elected to the office with the understanding of

‘the leadership of his imion” (R. 144). :

‘SUMMARY OF ARGUMENT

This’ ease concerns, the constitutionality of the pro-

vision of 29 U.S.C. 504 which makes it a criminally |

punishable. offense for a member of the Communist

‘Party to serve in any of an enumerated list of leader-

ship positions in a labor organization. This pro-

vision was enacted in 1959 as a substitute for Section

9(h) of the National Labor Relations Act (as amended

by the Labor Management Relations Act of. 1947),

which had conditioned a union’s access to the National _

Labor Relations Board on the filing of non-Commu-

nist affidavits by all the union’s officers. Section ~

9(h) which, like the challenged provision in this case,

was intended to eliminate Communist Party members

from leadership position in the labor movement, was

scatuimell ‘wy thin Oinast’ aqnindt », copetitetionnl chit

Douds, 339 U.S. 382.. The constitutional principles

underlying the Douds decision apply to the provision —

- involved in this case, an and those principles are still valid

today.

‘The Court held $ in Douds that Congten’ could per-

:-missibly exercise its interstate-commerce Bower to

eliminate the danger of “political strikes” by keepihg

from union leadership the class of/ persons who. would:

be likely to‘engage in such disruptive activity—i. é,

those, whose allegiance: is’ to & cause W hich seeks the

> ove throw of the government by force and. ‘violence.

It observed that Section 9(h) had .an indirect effect

lenge’ in American Communications. Association v. -

_ om freedom of association in that it discouraged. law- —

fui membership in the Communist Party, but-it up-

held: the statute notwithstanding this incidental effect

on First Amendment liberties. 4

Section 504, like Section 9(h), doés not directly

restrict speech or association but touches these con-

stitutionall; protected liberties only conditionally.

Its. primary. concern is conduct—serving in union

offices—which, if committed by individuals Fesponsive

to the directions of a foreign-dominated power, pre-._

sents a grave threat to our national economy. To the

extent that the challenged provision has an impact on

speech or association, it affects relatively few indi-

-viduals and restricts them only conditionally, i.e., only

’ if they retain their union offices. On the other hand,

the statute preserves the integrity of labor unions,

ae. om

" which, ‘under the National Labor Reiations Act

and its ° amendments, have been delegated quasi-

. governmental powers over their members. It. also.

shields interstate commerce from the crippling effect

of “political strikes” which - ‘serve no legitimate pur-

pose and which benefit only the world Communist

movement. Those results could not be achieved by

' any less “‘drastic’’ means than the kind of statute

_ represented by Section 504 and. its predecessor, See-.,

tion 9(h). :

ahs

Tn ‘enacting Section 504 Congress had before it not

only tht results of the investigations conducted prior.

to the enactment of Section 9(h), which established

the danger of political strikes, but also the fruit of

legislative investigations subsequent to 1947. These

inquiries Showed that Communist infiltration into the

‘labor movement had not ceased with the enactmént

of. Section 9(h) -but was a continuing menace. ~

The investigations, as well as the history of the ad-

_ ministration of Section 9(h), also demonstrated that

“there were significant flaws in the remedy provided

by Section 9(h), which produced inequitable results:

The affidavit provision was resented by union offi-

cials; it created serious administrative burdens; it did

not effectively, prevent Communists from assuming’

union office ; and the criminal sanction for false fil-

ing was inadequate to deter the submission of un-

truthful statements. Even more serious was the un-

fairness, of the indirect “discouragement” which Sec-_

+ tion 9(h) imposed. - By being denied access to the

- National * Labor Relations Board, ‘imnocent union |

members were furced to suffer for their officers’ re-

- fusal to file the required: ‘affidavits, and the indirect

remedy put the power to enforee Section 9(h) 4 ‘m the

hands of employers rather than in the hands of. the

government. The challenged ‘provision in ths case.

was enacted as a more fair and reasonable method of”

achieving the desired result.

The court of appeals erred in concluding that Sec-

f.¥

ir 2“

‘ tion 504° was. nore severe than Section 9(h). ‘The—

historyof Section 9(h)’s administration discloses that

the success of nearly all major.unions depended sai

access to the National Labor Relations Boayd. Hence.

freedom of lawful association with the Comm -

Party was not promoted by. giving’ a union the option

of retaining a Communist officer and ep ng ac-

cess tothe. Board. The practicable co a

taken by many members of the Communi t Party who .

wished to refain union office) was to file false non-Com-

munist affidavits. This left. the members ppen to ~

| criminal prosecution. under 18 U.S:C. 1001—a conse-

_ quence’ which is almost identical to the remedy. pro-

vided in Section 504(b).

‘ARGUMENT Be

In American Communications. Association v. Douds,

_ 339 U.S. 382, this, Court sustained the constitution-

_ ality of Section 9¢h) of the National Labor, Relations

Act as amended ' y the Labor Management Relations

Act of 1947, 61 Stat. 146, which conditioned the e right

of a union to use the facilities of the- > National Ti Labor

Z “—

Relations Board upon the -filing of. affidavits by the

union’s officers attesting that they are not members of

or affiliated with the Communist Party (pp. 3-4, supra). . :

In enacting the Labor-Management Reporting ‘and

Disclosure’ Act of 1959, Congress repealed Section

9(h) and, in order to achieve the same result as See-

tion 9(h) was intended to produce, substituted: for

that statute ithe protision which is under constitutional

.. attack in this case. _We submit,for reasons stated

Séction 504 which prohibits’a current niember of the Commu~..

$e unconstitutional.

fully below, that the constitutignal principles set forth

in the- Douds decision are still valid and applicable to

this case; that the threat of ‘political strikes and other

improper disruptions of interstiite commerce, which

- prompted the enactment of Section 9(h) in 1947, also

warrafited the enactment of a similar protective meas-

ure in 1959; that the law.then-enaected=29 U:S.C.

' 504—remedied many of the inequities and adminis-

trative difficulties of Section.9(h) which emerged dur-

ing the twelve years of its enforcement, while achiev-

ing much the same practical result as Section 9(h) ;

and that none of the differences between Section 9(h)

and Section 504 justifies a re that the latter is

?The only provision Jjevebved in this case is that part of

nist Party from holding union office. Different. questions

would be presented, of course, ima case in“which a person who

had resigned from the Communist Party within five years prior

' to his election was convicted ‘under Section 504. When we

speak of “Section 504” throughout this brief, we refer only to

that portion of if which prohibits simultaneous membership in’

the Communist Party and service in any of tlie enumerated

union -positions: “3

_ 161-444 65-3 :

44 2s

\ *

Tq |

‘ . '

', CONGRESS MAY, CONSISTENTLY WITH THE FIRST AMEND

MENT, ENACT A STATUTE AIMED AT KEEPING MEMBERS

OF THE COMMUNIST PARTY FROM POSITIONS OF POWER

IN THE LABOR MOVEMENT

A. THE CONSTITUTIONAL PRINCIPLES OF AMBRIOAN COMMUNICATIONS

: ASSOCIATION Vv. poubs APPLY .TO THIS CASE

~ In 1950 this Court, - by. a-vote of five-to-one (with —

three Justices not participating), sustained the con-

stitutionality® of Section 9(h) ‘of. the National Labor

'- Relations Act (as amended by the Labor-Management -

Relations Act of, 1947). insofar as it it required all°offi-

cers of unions seeking t6 use the facilities.of the Na- -

tional Labor Relations Board to file affidavits stating

that they were not members of or affiliated with the

i ‘Communist Party.’ American Communications Asso-- f

- ciationev« Douds, 339 U. S. 382. Sée also Osman v.

Douds, 339 U.S. 846. The Douds decision was based

‘on the stated propositions. (1) that ‘‘Congress had a

great mass of material before it which tended to. show

that Communists and others proscribed by the statute

had infiltrated union organizations not to support and

' . further trade union ‘objectives * * * but to make ;

them a device by whieh commerce and industry might

3A severable provision of Section *9(h) also required each

~ affiant 'to,state “that he does not believé in, and is not a mem-

ber of or supports any organization that believes in -or teaches,

the overthrow of the ‘United ‘States Government by force or by: 7 >

any illegal or unconstitutional methods.” This provision, which

_. Has no’ counterpart in the statute nere in question, sas the bais

of the - partial dissents in Douds by Justices Frankfurter and

- Jackson.

. eh.

i €%

. es

. :

| ae ; Pa :

be aciiais when the‘ dictates of political poliey ay |

"quired such action’ + (339 U.S,,at 389) ; (2) that ““Con-

i “gress ‘may, under its constitutional po wer f to _—

- commerce ‘mong ‘the several States, attempt to .

' vent ‘political strikes and * * * that the réthedy = :

vided by §9(h) bears reasonable relation to the evil:

- which the statute was designed to r ” (339 U.S.

| at, 390-391) ; (3) ‘that “*Section 9¢ ) is designed to

protect the public not against what. Communists and

others “identified therein adyocate or believe, but

against what Congress has s sencluded they have done -

and are ‘likely to do aga” (339 U.S. at 396); (4) *

that ‘‘[w]hen particuld@’ conduct -is regulated in the

interest: of public order, and ‘the regulation results. in

an indirect, conditional, partial abridgment of speech,

- the duty. of the courts is. to determine which of these

two conflicting in interésts demands ‘the greater protec-

fion’ under’ the particular circumstances presented” %

(339 U. S. at 399) ;. (5). that ‘‘the public interest in’

- the good faith exercise of [union] power is very”

great,’’ while the-effect.of Section 9(h) on the rights.

of speech ‘and. assembly is only an indirect ‘‘discour-

agement’? (339 U.S. at 402); (6)*that ‘“‘Tt]he. ‘dis-

, couragements’ of §:9(h) proceed, not against the

~ <proups or beliefs ‘idéntified therein, but only. against *

' the, combination of those affiliations or beliefs with ..

occupancy of a position ‘of great ‘power over the econ-

- omy of the country’’ and it ‘‘Jeaves those few who are |

affected free to maintain their’ affiliations and beliefs

: subject only to possible’ loss of positions * ‘which Con-

gress has concluded Bre being abused to the injury of =A

c 4

: 14

the. public by’members of the described groups’’ {339 —

US. 403-404); and (7) that ‘“Congress should not

be powerless. to remove the. threat [of political

strikes], not limited 7 punishing the: act”’ (se US.

at 406).

These principles are, we ubanit, entirely sound, and

. xthey are as applicable to the presentigase as they were

to Douds. As the degislative history of Section 504

onclusively demonstrates (pp. 36-40, infrg),. it was

enacted in 1959 to meet the very same problem that

“moved Congress to pass Section 9(h) in 1947. This

‘Court observed.in another. decisiot“ involving Section

“ ch) that the purpose of thats statute was “to. ‘wholly

_ labor movement, at each and every: level, adherents to

the Communist party.,and: believers in the unconstitu-

. tional overthrow of our Government.’” National La- -

bor Relations Board v. Highland Park Mfg. Co., 344

ey U.S. 322, 325. . Bection 504, on its face, carries out this

purpose, and it obviously does so much more directly

than did its predecessor. -

’ Reserving for a later section of our argument an

analysis of.the particular distinguishing ‘gharacteris-

*tics between Section’9(h) and Section 504 whith im-

pelled the Court of Appeals for the Ninth Cirtuit to

hold that, the latter statute is’ unconstitutional (see

pp. 41-47, infra), we submit that insofar as Section

504. singles out Communist Party members and bars

them from positions: of power in labor unions it isa ~

* permissible regulation (of interstate: ecommerce, and -

. does not violate thé First or Fifth Amendment. .This

~ conclusion is supported by the constitutional princi-’

; 9.°

pense. onenee 2

First, it is clear that Congress’ concern that Com- |

munist union officers may call political strikes—based

6n substantial legislative inquiry before the passage

ef Section 9(h) in 1947 and Section 504 in 1959 -(see

- pp. 24-28, 36-40, infra)—comes well within Congress’ -

regulatory power over interstate commerce. ‘In the.

absence of any countervailing constitutional right, it

would be entirely within Congress’ discretion to choose

the means whereby to prevent the unjustified disruption

. of commerce caused by. political strikes, just as it is

within Congress’ power’ to determine Wow to deal with

other kinds of interference. with interstate commerce.

' See Heart of Atlanta ‘Motel, Inc. v.. United ‘States,

No. 545, this Term, decided December 14, 1964, p. 20.

Tf, as Congress has determined, the-danger of*politi-

cal strikes and other fornis of labor unrest inconsist-

ent with the national labor policy is substantiallyein- af

creased when members of the Communist Party oc-

"=. eupy positions of control in’ labor organizations, it is

‘a permisstble~exercise of the commerce power for

Congress to take oy steps to aceite this

danger.

es ‘Second, the challenged provision in this case, pool .

_ the statute in. Douds, is designed not to restrain

dissemination of ideas by Communist Party members

‘or even to reduce membership in or affiliation with

the Communist Party; it-is aimed only at preventing - De: :

persons who are members of the Communist Party from

assuming positions wherein they nes exercise écicate

”

7 ; oe '

e ne ; -@ 4.

}

thrust is not at:

i ee t 3

6 -a

* aie endanger the national economy. In other words,

ection: 504 i is a prophylactic measure directed at pre-

venting. future ‘conduct, not at punishing past speech

or deterring prospective association. The most that

can be said against it is that the ‘conduct at which it

’ is aimed i is “intertwined with expression ‘and. associa-

tion”’—a characteristic which does not make it immune .

decided January 18 1965. Since its primary

, _ from regulation. a) Louisiana, No.:49, this Term, :

or association. This distinction, “fully: articulated in

--the Douds opinion (339 U.S. at 396), has been- subse- cee

quently approved by this Court in Dennis v. United

States, 341'U.S. 494, 502-511, and in Speiser v. Ran-

dall, 357 U. So 513, 527, where, in speaking of’ cases .

like Douds, the Court said:

In these cases, * * * there was no attempt di- .

- reetly to ‘control speech but rather to protect,

from an evil shown ‘to be grave, some interest .

clearly within the sphere of governmental con- .

cern.. The purpose of the legislation sustained

in the Douds case, the : ‘Court found, was to.

| i gressional Purpose was 3 to achieve an objective

minimize the danger of political strikes disrup-

tive of interstate commerce by discouraging -

labor unions from “electing Communist Party

- members to union office. While the. Court rec-

ognized that the necessary effect of the legisla-

_tion was to discourage the exertise of rights .

protecied by the First Amendment, this conse-

quence was said to be only indirect, The con-,

st Amendment liberties as

"such; Section 504 (Iike.Section 9(h)) is eiititled to be.

tested under a different standard of constitutionality ;

from statutes which attempt directly to control speech :

— ye ae f

other than nasties on wae Only the.

method of achieving this epd touched:on -pro-

tected rights and that only tangentially: The » ’

‘. evil at which Congress had attempted to strike

in that case was thought sufficiently grave to’

justify limited infFingement of ‘political rights.

Similar considerations governed ' the other

, eases. Each case ‘eoncerned a limited class of

. persons in or aspiring ‘to public positions by

' virtue of which they ‘could, if evilly motivated, —

create serious danger to the public safety. The

84 principal aim of those statutes was not to

~ penalize political: beliefs put to deny ‘positions’

- to persons supposed to be dangerous ‘because ~

the position. might be misused to the detriment

of the public. _

: See also patted v. State Bar, 366 U. s. 36, —.

. 5A.

Third, since one of the comporients i in the wiaiiadtile.

‘test ‘of constitutionality is the seriousness. of the inci- -

_ dental ‘impact which the statute has on First Amend-

; ‘ment liberties, it-is important to observe that in this:

case, as in Douds, the sum total. of the harmful effect */

“of the regulation is that it ‘results in an indirect, con- —

| ditional, partial abridgment ‘of speech: ?” 339 U.S. at

~* 399. Section 504, like Section 9(h),. ‘touches only a

relative handful of persons, leaving the great major-*

ity of persons ‘of the identified affiliations and beliefs-

completely free from restraint: ”? 339 US. at 404. ee

also permits those few who | are affected to maintain

their ‘affiligtions and beliefs subject only do the loss”

of. position “which Congress has concluded are “being

, abused to the injury of the public by- mémbers of - }

described groups.” . I bgd. _ Of. United States vy. Har-

- mt. ‘

riss, 347°. U.S. 612, 625-626 Lathrop ¥. Donohue, 367

‘US. 820, 842-844,

‘Fourth, any assessment of the vil at which Section

504 (like Section 9(h)) was directed must be baged .

not’ only on the concrete: facts regarding ‘the threat to

interstate commerce presented by Communist controt

-of labor unions which were developed during legisla-

tive investigations and other studies (pp. 24-28, infra),

but ‘also on the substantial authority which. Congress

has_ delegated to labor organizations by. virtue of the

N ational . Labors Relations Act and its subsequent

- amendments. Having “seen fit to clothe the bargain-

ing representative with powers comparable to those ~

possessed-by a legislative body both to create and re-

. strict the rights'of those whom it represents’’ (Steele

v. Louisville & Nashville R.“Co., 323 U.S. 192, 202),

it was surely within. Congress’ power to conclude that _

it was then necessary, just, as it might be if a. ‘quasi-

legislative body werg actually imvolved (see Gerende

v. Board of Supervisors,.341 U.S. 56), “to protect the

*.* * service by establishing an employment qualifi-

cation of loyalty to the State and the United States.

** * Such a. _ qualification . would be] reasonably

designed to protect the integrity and competeney of

the service.’’ Garner v. Los;Angeles Board, 341 US.

716, 721.. Labor unions are hot mere voluntary i asso-

ciation to be left to theirown devices. They oceupy 4

- unique position under this country’s national labor

_policy, and their activities are “subject to a full net-

- work of federal regulation which includes restrictions

on the eligibility of candidates for union office (other

‘than the one involved in this ease) and the manner

in ‘which elections -and — ballots are to be held..

29 U.S.C. 411, 481-483, 504; see Calhoon v. Harvey,

_No. 17, this. Term, decided December 7, 1964; Amer- .

ican Federation of Musicians v. Wittstein, No. 27, this

Term, decided December 7, 1964.4 It is certainly

appropriate therefore,.for Congress to protect these | .

vessels of national economic policy against possible

‘misuse ‘by those who would’ employ them to serve the

political ends of. a foreign power which seeks to

achieve worldwidé domination. _Today, even more

than when Douds was decided, is the “authority [of

lahor organizations] derive[d] in part from Govern-

ment’s thumb on the scales,” and*now, at least as much

as a decade and a half ago, gn it be said that “the

public interest in the good faith exercise of _ power

is yery great.’’ 339 US. at 401-402.

Fifth, since an essential element of the test of éon-

stitutionality in this area is whether ‘‘less drastic

“means for achieving the same basie purpose’ ’ are

4 Sextion 2( a) of the Labor-Management ‘Reporting nit Dis-

closure ct of 1959, 29 U.S.C. 401(a), states the ‘underlying

Jegislative, finding :

_. The Congress finds that, in the siihlio in interest, it cogtinues

to be the responsibility of the Federal] Government to pro-

tect employees’ rights to organize, choose their own repre-

* sentatives, bargain collectively, and otherwise engage -in

concerted activitie; for their mutual aid or protection; that

the relations between: employers and labor organizations

and the millions of workers they represent. have a substan-

‘tial impact on the commerce of the Nation; and that in.

order to accomplish the objective of a ‘free flow of com-

merce it is essential that labor organizations, employers, and.

their officials adhere to the highest standards of. tesponsi-

, bility and ethical conduct in administering the affairs of

. their organizations, particularly as they affect labor-man-

" agement relations.

761-444 65——4 : a ¢.

available (Shelton v. Tucker, 364 U.S. 479, 488;

Aptheker v. Secretary of State, 378 U.S, 500, 512-

513), it is relevant to inquire whether other courses

could have been chosén by Congress to achieve the end

towards which Section 9(h) and Section 504 are di-

- rected. We-respond to the claim that Section 504 is

unconstitutional because it is assertedly more ‘‘dras- -

tic” than Section 9(h)—the basis for the court of

appeals’ eonclusion—at pp. 41-45, infra. The. fur- _

ther argument that either remedy is inappropriate

because Congress could have dealt® with _ political

strikes simply by prohibiting them under pain of

criminal penalty was squarely answered by this Court. :

in. Douds: (339 U.S. at 406): ‘‘The fact that the in- .

jury to interstate commerce would be an accomplished

fact before any sanctions could be applied, the possi-~

_ bility that a large number of such strikes, might be

called at a time of external or internal crisis, and the

practical difficulties which would be encountered in de-

tecting illegal activities of this kind are factors which

are persuasive that Congress should not be powerless

to remove a ‘threat, not limited ‘to punishing the

. act.”’

Nor can. it be said here, as it was in Aptheker v.

_ Secretary of State, 378 US. 500, that the ,statute

“sweeps too widely and too indiscriminately across the

- liberty guaranteed * * 4 378 U.S. at 514. Apart

from the fact that the “liberty” involved in Aptheker

-was not the freedom of association which a passport

applicant had exercised in the past by joining a Com-.

munist-action organization but the. ‘right to travel

a .

which was being denied when he could not obtain a

"passport (whereas the right to be a union officer—the

- parallel prospective right being asserted here—is not a

constitutionally prétected “liberty”), there are major

differences of scope between the. passport restriction

of the Subversive Activities Control Act on the one

- hand and Section 9(h) and Section 504 on the other:

The former covers individuals who do not know that

the group of which they are members is a Communist-

action group (378 U.S. at 509-510); the latter are.

limited to members of the Comnauaist Party itself.

While the former effectively prohibits foreign travel .

- regardless of its_purpose’ and the sensitivity of the

" area to which travel is sought (378 U.S.-at 511-512),

the latter are confined to a much more particularized |

kind of conduct—neither union membership nor any

type -of employment’ other than as an officer or ©

: policy-making employee of a union is prohibited.

Hence Sectiqns 9(h) anf 504 ‘‘are more discriminately

tailored to the constitutional liberties of individuals’

- (378 U.S. at 514) than the passport restriction both |

in terms of the individuals covered ‘by the statute and

in terms of the activity foreclosed to the defined class.

It is true that one of ‘the vices of the statute held

unconstitutional on its face in A ptheker was that it

rendered “‘irrelevant the member’s degree of activity

in the organization and his commitment to its pur-

pose” (378 U.S. at 510), and the challenged provision -

in this ease is similar, in that respect, to the statute

involved in Aptheker. But the significance of this

generalization surely depends on the statutory context ©

in which it. is found. With the statute involved in

Aptheker, Congress wished to restrict the freedom of

€ommunist agents to travel abroad and act as couriers

for ventures in espionage or sabotage. This Court

held that the same result could have been achieved if; .

in the passport screening process—as-.in federal em-

ployment—membership in a Communist-action group

avould be ‘‘one factor to be weighed” (378 U.S. at 513)

rather than an absolute disqualification. In determin-

‘ing whether or not to issue_a passport under such a —

' hypothetical standard, the Secretary of State might -

then consider “the member’s degree of activity in the

oganization and his commitment. to its purpose.’’

, But there is no similar administrative process

whereby candidates for union office are evaluated

. and their qualifications approved. Hence the statute:

-itself must incorporate ‘a definite standard whereby |

the legality of future conduct can be determined. In

light of the otherwise narrow compass of the statute

and the fact that the threatened danger may be

presented even by persons whose membership in the

Communist Party falls short of the active and know- |

ing participation required to violate the “‘membership —

clause’’, of the Smith Act (see, e.g., Noto v.-United

States, 367 U.S. 290), Congress was certainly war-

ranted in drawing the line at Communist Party

membership, regardless of the particular member’s

activity or commitment. Moreover, here, as in United:

Public Workers v. Mitchell, 330 U.S. 75, 100-101,

where ‘a similar contention was made and rejected,

what Congress may have feared was ‘‘the cumulative

effect’’*which a contrary rule might have. If, for ex-

ample, it were permissible for inactive or less-than-

fully committed Communist Party members to become ©

°°. ynion officets, the combination of two or more’such —

persons in power in. any particular labor union might _

reinforce the views of each and thereby produce the

very evil which Congress sought to prevent.

In summary; we submit that the principles applied

in Douds to-sustain Section | 9(h) ‘are valid today and

warrant rejection of ‘respondent’s claim ‘hat Section

504 infringes on protected First Amendment liberties.

And énce the incidental impact. of Section 504 on

freedom of association is held to be constitutionally

_permissiblé, the provision amounts .to nothing more

than another federal regulation against conduct which

gives rise to a conflict of interest in an area which is

; legitimately of federal coneern. See the statutes cited

in Judge Chambers’ dissenting opinion in ‘this case

(R. 277). In Roard of Governors v. Agnew, 329

US. 441, for example, this Court applied a statute

whieh authorizes the Board of Governors.of the Fed-

~ étal Reserve System to order the removal-of an officer,

director or employee . of a member bank who-is simul-

taneously a partner or employee of a partnership en-

gaged principally in.the underwriting of securities.

The statute involved in Agnew provides a criminal

sanction against the offending individual’s retention

of such dual capacity just as Section 504 does, even

though that sanction’ (unlike Section 504) does not

take effect until after the removal order is disobeyed. —

-“*

24.

B. LEGISLATIVE INVESTIGATIONS AND OTHER EVIDENCE SUPPORTED

CONGRESS' DECISION IN 1959 THAT A SUBSTANTIAL THREAT TO THE

ECONOMY WAS PRESENTED BY COMMUNIST seach itl OF LABOR

ORGANIZATIONS

In the Douds decision this Court observed. that Con-

gress had before it, as a basis for its enactment of

Section 9(h), “[s]ubstantial amounts of evidence

+ at Communist leaders of labor unions had in

é the past and would continue in the future to subordi-

nate legitimate. trade union objectives to obstructive

strikes when dietated by Party leaders, often in sup-

aig of. the policies of.a foreign government.” . 339. :

US. at. 388-389. When it enacted Section 504 in

1959, Congress had not only the information obtained

«prior to the 1947 legislation - -but also further evidence |

pertaining to: “the same subject which was produced

“at hearings after Section 9(h) was enacted. See

' Hearings before a Special Subcommittee of the House

Committee on Education and Labor, Investigation of “A

Communist Influence in the Bucyrus-Erie Strike, 80th

Cong.; 2d Sess. (1948); Hearings before a Subcom-

mittee of the Senate Committee on: Labor and Public

Welfare, Communist Domination of Unions and

National ‘Security, 82d Cong., 2d Sess. (1952); Hear-

ings before the Subeommittee to Investigate the Ad-.

ministration of the<Internal Security. Act and ‘other

Internal Security Laws. of the Senate Committee on

the Judiciary, Communist Domination of Union Off-

cials in Vital Defense Industry—International Union |

of Mine, Mill and Smelter Workers, 82d Cong., 2d ~

| _ Sess. (195 2); Hearings before Permanent Subcom-

« mittee on ‘Thvestigations: of the Senate Committee on

icc

Government Operations, ‘Communist Fafiltration in ;

. Defense Plants, 84th Cong., 1st Sess. (1955) ; Hear-

ings before the House Committee on Un-American’

. Activities, Communist Infiltration of Vital Industries

and Current Communist ,Techniques.in the Chicago,

[linois,s Area, 86th Cong., IstSess. (1959).

~; Fhe later hearings produced. évidence such -as that

given by an F.B.F. undercover informant: who testi- . .,

fied to conversations he had had. with an official of the

International Union of Mine, Mill; and Smelter

Workers.in 1950. The official, alleged to have been —

a member’of the Communist Party, said that Com-

-munists within thé tnion were making efforts ‘‘to see

that a strike was called in the copper industry * * *

to cut down production of copper for. the Korean

war effort.” Hearings before the Subcommittee to

Investigate the Administration of the Interhal Secu

ity Act and other Internal Security Laws of the

Senate “Committee on the J udiciary, Communist |

Domination of Union Officials ty Vital Defense In-

dustry—International Union of Mine, Mill .and-

Smelter Workers, 82d Cong., 2d Sess. (1952), p. 193.

_ The union’s vice-president subsequently testified .be- —

fore the subcommittee that strikes were called in. 1950,

but he denied that’ they were “directed”’ by the Com-

: munist Party. Id. at 245.

On the basis of this kind of testimony, ‘ine

sional investigating committees concluded that Com-

munist infiltration of labor organizations was a con-

tinuing danger. In a 1953 report, for example, the

Subcommittee on Labor and Labor Management Rela-

re |,

5 : Wee. | | .

8 TAB

- tions of the Senate Committée a Labor and Public

. Welfare. coneluded : (Public “Roli¢s y and Communist

Domination o i Certlin Unions, De) Doe. No. 26, 83d

Cong.,. Ist 8 . (1953), pp. 24-25) :

(2) Communist-domin ated. unions are ‘cleatiy

identifiable as such because of the positive cor-

relation of their policies with the shifting

'” phases “of the foreign policy. of ° the Soviet

a Pig: Union.

, (3) The affirmative evidence of divect action

by Communist-dominated unions in support of

Soviet Russian foreign policy is less conclusive

but the potentialities of such direct action are

visible.

(4) There is evedible evidence that the cor-

‘relation noted above is not coincidence. but the

direct outcome of direction by Communist Party

functionaries. ,

* * * + *

(6) Communist-dominated unions are still

operating in defense production, although in

diminished strength. The ‘existence of a few

‘Communist-dominated ‘unions in key industries

may -in times of war or threatened war con-'

stitute a real danger-to the safety of the coun-

try. Espionage might be practiced through

communications and sabotage be committed in

the electrical, mining and smelting, and long-

shore industries. We should not blink our eyes

to these dangers. °

The evidence heard by the Congréssional cnenitiees

and the conélusiéns they reached on the basis of, this

. evidence more than adequately sustained ‘Congress’

e «

2 at

— e f ; . ;

determination in "1959 to. provide a-‘‘direct” remedy _

for the threat to the national economy presented by -

Communist domination of: labor unions. ‘The néed —

for such legislation in 1959 was surely no less than.

a need in 1947. é -

‘Nor was concern over Clenstenhiat infiltration into

labo’ organizations limited to Congressiortal commit-

“ tees. - Jn 1949 and 1950 the Congress of Industrial

Organizations expelled eleven- unions—-among which

were the International Union of Mine, Mill-and—

Smelter Workers and the International Longshore-

-men’s and. Warehousemen’ s Union (which is ‘involved

in this casé)*: —because of their Communist domination.

The reasons for the expulsion of these unions and the

«danger they posed to organized labor are spelled out

in the Official Reports on the Expulsion of Communist

Dominated- Organizations from the CI O, compiled

by _ the Publicity Department, CIO Publication

No. 254 (Sept. 1954), and we have reproduced

substantial, excerpts from this document in our brief ©

in American Committee for Protection of. Foreign

Born v. Subversive Activities Control Board, No. 44,

_ this Term, Appendix B; pp. ‘210-219. The basis for

fearing political strikes or other disruptive activity :

inimical to the interests of this country from .Com-

‘The other nine unions were: United Electrical, Radio &

Machine Workers; Farm Equipment Workers; American

@ommunications Association; Food, Tobacco, Agricultural &

Allied Workers Union of America; ‘International Fishermen &

‘Allied Workers of America; International Fur & Leather

Workers Union; -National Union of Marine Cooks & Stewards; |

United Office & Professional Workers of America; United -

Public Workers of America. *

i 28 | ee ;

a he ae S

_ munist-dominiated unions was summarized in the CIO*

‘ Reports (p. 13) as follows: Cee a,

The Communist Party is precisely this type — e

of organization which the CIO>is under a con-

stitutional mandate to oppose—one which would:

use power to exploit the people for the benefit

of Jan. alién loyalty. The Communist Party |

- ‘speaks in the words of unionism and American-_

ism. But getually it matters not to the Com-. .

munist Barty whether @ particular policy will

_advance or~hinder the best interests of Ameri-

can labor. The sole. test is whether the policy

is required. by the need of the. Soviet Union. .

Only tothe extent that the Soviet. line permits

will the propaganda mill of the Commynist

eek: ’ Party grind out platforms which are in con-

“& . sonance withthe ideals of American labor. In

~ — event of conflict, however, between the needs of

' the Soviet Union and the best, interests of

- American labor, ‘the former must: seit

. prevail. .

; The danger to the natioial economy setisichs by

these unions and ;other nonaffiliated Communist-

dominated labor organizations could not, of course, be |

eliminated simply. by expulsion from the CIO. Gov- -

ernmental action was necessary. - +

II =

SECTION 504 IS A CONSTITUTIONAL | SUBSTITUTE:

FOR SECTION 9 (h)

The court of appeals held that the challenged pro-

vision is wnconstitutional, not because it suffers from

some infirmity which Will also invalidate a statute jike

Section 9(h), but because, -unlike Section 9(h), it is

“far broader than the threat it is designed to anget” 3

“. low, that not only gould Congress, reasonably prefer

29 . se

"-and is, therefore, ‘‘unreasonably broad”? (R. 259)- re

This contlusion rests on the premise that- Section 9(h)

is, at least, a preferable means of achieving the legis- —

lative purpose and that it is a ‘‘less drastic’A, measure

‘than Section 504. We submit, for reasons stated be- -

the approach taken by Section 504 (which is the ap-_

propriate test of constitutionality), but that this ap- y

proach i is, in fact, demonstrably sounder. And or:

the assertedly ‘‘drastic’’? nature of Section

show that its effect on the First Amendment li

allegedly abridged is not significantly greater than

‘the effect of Section 9(h).° Accordingly; the decision, .

in American Communications Association . Vv. Douds,

839 U.S. 382, ‘controls this case and requires that the |

judgment of the court of appeals be reversegl.

A. SECTION 504 INCORPORATES A DEMONSTRABLY SOUNDER LEQISL ATIVE

APPROACH THAN SECTION 9(h)

-ewee s clear that Congress’ “purpose in enacting Sec-

ah 9(h) and Section 504 was to eliminate the threat

. of Communist-controlled political strikes by “ ‘wholly

eradicat[ing] and: bar[ring] from‘ leadership in the

American ‘labor movement, at each and every level,

adherents to the Communist party ‘and believers in

the ungonstitutional overthrow of our Government. nar

National Labor Relations ‘Board v. Hightand Park

* . Mfg. Co., 341 U.S. 322, 325. Section ‘9(h) was struc-.. |

tured to achjeve this result fot -by a direct prohibi-

~ tion, addressed to Communist Party members and to

union ‘leaders but by indirect “discouragementf.\

By requiring all union officers to file non-Communist |

affidavits and then denying the facilities of the Na-

tional Labor Relations Board to: unions whose offjeers

.4 os

said

we wbha not :filed: the affidavits, Congress sought to apply

the equeeze on union members in the expectation that

. potential Communist officers would feel the pinch.

~ hibition”: (R. 258).

Section 504, on the other hand, announced a\“‘flat pro-

'. The court of appeals’ conclusion that the latter is .

“unreasonably broad”’ while the former is permissible

must proceed "from the Premise that Section 9(h) is .

& more reasonable, means of ‘achieving

results in a lesser abridgement’ of First Amendment

liberties than another (but see pp. 41-45, infra) is not

alone enough to characterize the greater ‘abridgement - .

as ‘‘unreasonable.’’. One must also’ consider-whethed

the narrower restriction would be, in fact, adequate to.

» meet the anticipated evil aad whether ‘its other conse-

quences (apart from the effect on constitutional liber-:

. ties) would be unfair, unworkable or oppressive.

isi Congress’ would ‘be. deprived of its -well-

ecognized legislative prerogative to choose the ap-

propriate means for dealing with a public evil in light ©

'- of the many factors comprising the public interest.

‘A comparisun of the zemedies provided by Sections

9(h) ‘and 504 demonstratés that rather ‘than being

4 unreasonably broad,” the. latter provision is-more

appropriately, and fairly calculated. to achieve the: ’

legislative purpose. The following are several of the

shortcomings of Section 9(h) which were cured by

Section 504: . ~* Les |

1. The affidavit requirement was considered offen-

_ sve and prompted principled non-com pliance.—Sec-

intended.

' Result. Surely the fact’ that one regilation assertedly-

~<a

. : , * ‘ * e

. . i ; ~~ i .

| eer re

; ay i ( mis \ ‘ '

Me [s : 31 P ee sie

_ .“ tion 9(h): was an affront to the labor‘movernent. _It ‘

. - singled ‘ynion officials out. of ‘the entire community

and requited them to swear that they eré loyal.

Mr. Justice J ackson, concurting dnd ‘dissenting in

Douds (see note 3, ‘supha), voiced the objections

‘of many labor. leaders when he said (339 U. 8. at

; 434-435) : |

I am aware that vn oath is resented by, many ;

dat labor leaders. of unquestioned loyalty and above

‘ "suspicion of Communist connectioris, indeed by

‘some who have themselves taken bold and

cult steps to rid the labor movement of

munists. * I “suppose no one likes to be

pelled to exonerate himeelf from sinha

he has never acquired. ~

The resentment had an effect on the sileniaiaivition

refused to submit the required affidavits at anytime

‘during the. 15-year life of Section 9(h). As a result,

their unions were deprived of the facilities of the

National Labor. Relations: Board even though there _.

_ was no suspicion of Communist influence.

2. The affidavit requirement created serious admin-

istrative burdens -—Bection 9(h)’s comprehensive affi- —

¢In order to remove the affront<it was even suggested that

employers—i.e., officers of’ corporations subject to the National

' Labor, Relations Act—be required’ to filé similar affidavits. See

Public Policy and. Communist Domination of Certain Unions,

‘ - §. Doc. No. 26, 88d Cong., Ist Sess, (1953), pp. 24, 30;.1 Leg-

islative History of the Labor-Management; Reporting and Dis- «

closure Act (hereinafter Leg: Hist. LMRDA) (1959), p. 366. _

of Section 9(h).° Certaja labor leaders—notably |

those in the United Mine Workers of America—.

32°

davit:- obligation posed pene ae administrative difficul-

ties for. the Board. Tif total number of affidavits

on file at any given time often exceeded 200,000 —

€e. 9 Public Policy and Communist Domination of

. Certain Unions, 8. Doc. No. 26, 83d Cong., 1st Sess.

(1953), p. 5), and it was necessary-for the Board to

keep the records current by. requesting new affidavits

whenever a union election occurred or whenever the

affidavits on file were more than twelve months 6ld.

~ Bince compliance would have to be.established before

- the issuance of 4 complaint by the Board, the Board

_—S

had the difficult administrative task of keeping up- .

to-the-minute records on each union which could ap-

pear before it. ?¢ -

3. The affidavit requirement did. not stop Com-

. munists from assuming positions of leadership in labor -

_ unions.—The Senate. Subcommittee vn Labor and -

Labor-Management Relations observed in 1953 that the

effectiveness of Section 9(h) was substantially im-

paired by the fact that “‘well known Communist party

followers signed the affidavits when they realized that it

would be impossible for the unions to function without

_ access to Board proceedings. ” Public Policy and —

Communist Domination of Certain Unions, S. Doc.

No. 26, 83d Cong., 1st Sess. (1953), p. 6; see id. at 24.

The only remedy available against these individuals

was to prosecute them under 18 U.S.C. 1001 (Leedom

v. International Union of Mine, Mill &-Smelter Work-.

ers, 352 U.S. 145) for having submitted false sworn

- Statements. Hence the effect of Section 9(h) under

ee oe. SS

wor (88 ,

these circumstances was to transform the intended re-

striction against Communists in:union leadership posi-

tions into criminal charges under 18 U,S.C. 1001—an

obviously: inappropriate transposition.’

4. The truth of the affidavits could not be ade-

_ quately policed under 18 U.S. 1001.—Prosecutions

_. under 18 U.S.C. 1001 encountered serious obstacles

- “for the reason given by the then Attorney General

‘in a 1951 letter to the Chairman of the Senate ware

‘and Public Welfare Committee: °

Difficulty is experienced in the maintenance —

of prosecutions under this section because of |

the necessity of ‘proving that-an affiant at the

time of the making of his affidavit was a mem-

ber of the Communist Party or affiliated with

the ‘Party, or that he then. believed in. or was

a member of or a supporter of an organization

6 United States Government by force or by any

illegal or unconstitutional methods. |

Testifying before the Senate Subcommittee of the

Committee on Labor and Public Welfare: in 1952, a

*There were , several eucgessful prosecittions ender the false-

statements statute. See Fisher v. United States, 231 F. 2d 99

(C.A. 9); Bryson v. .United States, 238 F. 2d 657 (CA. 9);

Hupman v. United States, 219 F. 2d 243 (C.A. 6), certiorari

denied, 349 U.S. 953; Lohman v. United States, 266 F. 2d 951.

‘(C.A. 6), certiorari denied, 361 U.S. 923; West v. United:

States, 274 F. 2d 885 (C.A. 6), certiorari denied sub nom. Haug —

et ua. v. United States, 365 U.S. 811; cf. Killian v. United

States, 368 U.S. 231; Travis v. United States, 364 U.S. 631.

* Quoted in Shair, One More Year With.9(h), 3 Lab. ‘LJ.

35, 38 (1952) ; see N.Y. Times, July.1, 1951, p. 17, col. 3.

representative of the Department of Sustie offered

a similar: explanation: °

Because of this requirement that the affidavit

be couched in the present tense, a prosecution -

can be undertaken with some hope of obtaining

a conviction only where it is. possible to prove

. that on the very day the affidavit was executed |

the -affiant was a member of the Communist

Party, .or affiliated therewith or. was engaged

in other proscribed conduct or mental processes____

ra It is a simple matter for an individual to dis-

-eontinue, formally, the. prohibited membership,

_ affiliation; and conduct and execute the pre-

scribed affidavit on the next ves and thus cir-

cumvent the law.

- During hearings conducted in 1959 Sidins the House —

Un-American Activities Committee in Chicago, union

officials who had been- identified as Communist Party

members testified ‘that Communist Party members had

signed non-Communist affidavits after merely nominal

"resignation from the Communist Party” *

- 5. Denial of Board facilities to unions was an in-

equitable remedy. —Section 9(h)’s indirect ‘“discour-

agement” is to deny the facilities of the Board to a

union whose officer has not filed the required affidavit.

This Temedy is inequitable because it wréaks retribu-

s Hearings before a Subcommittee of the Senate Committee on

Labor and Public Welfare, Communist Domination of Unions

and National Security, 82d Cong., 2d Sess. (1952), p. 54.

‘ %°See Hearings before the House Committee on Un-American

Activities, Communist Infiltration of Vital Industries and

' Current Communist Techniques in the Chicago, Illinois, Area,

86th Cong., Ist Sess. asi PP. 519, 576. . ‘

—

Seal on innocent union members. for the misconduct

‘of a single officer. ‘The section as written and as

interpreted: has the effect of depriving entire groups —

' of workers of valuable economic privileges if an indi-

vidual officer decides: not to file affidavits, either

because’ he cannot, without risking prosecution or

because he will not for reasons of principle. ” Mor-

gan, The Supreme Court ‘and. the Non-Communist

__ Affidavit, 10-Lab. L. J. 28,. 43; see Cox, Some Aspects

of the Labor Management Relations Act, 1947, 61

Harv. L. Rev. 1, 35 n. 148 (1947). |

6. Denial of Board facilities to unions left enforce- -

ment of Section 9(h} tn the hands of the employer.—

Section 9(h) did not prohibit employers -from bar-

gaining collectively with non-complying unions ; we

merely denied such unions access to_the Board to

- enforce their rights against employers. ~ Consequently,

-an-employer could, if he chose, use a union’s non-com-

pliance as a devastating weapon to deny it recognition

~ and to refuse to bargain with it. But if the union

was strong, or if the employer favored it, he could

sign a collective-bargaining agreement with it. ‘Phe

' résult was, in the words of the executive vice-pres-

ident of the CIO, that Section 9(h) “‘place[d] in the

hands of the employer, rather than of the Govern-

ment, the decision of whether a particular union is

‘to be penalized for Communist leadership.’”’ Hear-

ings before a Subcommittee of the Senate Committee

on Labar ‘and Public Welfare, Communist Domina-.

tion of Unions and National Security, 82d Cong., 24°

~ Sess. (1952), pp: 273-274.

; =

1. Denial of Board facilities resulted in delay and

confusion.—Since compliance with Section 9(h) was

a condition ‘precedent to the filing of a complaint by

the Board on a union’s behalf, the delays caused by

negligent failure-to comply or by the fact that filed _

affidavits had become outdated: resulted in delayed

processing of a uniori’s charges. The effect of this

was to penalize union members even when there was

no suggestion whatever of any Communist participa- _

_ tion in the affairs of the union. Di

| 8. Denial of Board facilities created tensions within

" @ union—Since Section 9(h)~ penalized the entire

union ‘for the conduct of a single officer or for the .

-action of a voting majority in electing that officer, its

tendency was to create dissension within such a union .

and possibly to produce the very kind of disruption

of commerce which the statute was designed to pre-_ -

vent. It has been observed that the statufé had this

effect on the Electrical Workers organization. See

Daykin, The Operation of the Taft-Hartley Act’s

‘Non-Communist Provisions, 36 Iowa L. Rev. 607, 627 .

(1951). 3 ou 5.

. The above shortcomings and inequities of Section

9(h) are all attributable to its affidavit requirement

aot to the remedy it provides—i.c., denial of access to

facilities of the National Labor Relations Board.

“Neither of those features is found in Section 504.

When Congress undertook in 1959 to re-examine

various aspects of the National Labor Relations Act,

as amended, its first reported version of what ulti-

mately became the Labor-Management Reporting and

37.

Disclosure Act (58-1555, 86th Cong,, Ist Sess.) elimi-

nated the sanction of Section 9(h). Speaking gen-

erally of den¥ing access to the Board as a means of —

coercing compliance with various other reporting re-

quirements, the Senate Committee report stated (S.

Rep. No. 187, 86th Cong., Ist Sess. (1959), p. 9; 1 Leg.

- Hist. LMRDA 405) : rae:

~ To deny a union access to the National Labor

.. . Relations Board because its officers did not file

a. proper report is unwise for four reasons.

First, it would be ineffective in-the case of

strong unions not dependent upon NLRB fa-

cilities ; second, it is unfair to the members who _

have done no wrong but who would suffer both =

the denial of information and loss of NLRB

‘ protection ; third, the rights and duties created

by the National Labor Relations Act exist for.

the benefit of the public, and such legal obliga-—

tions should be enforced equally in all cases,

not traded off against one another as a system.

of rewards and punishments; andy, finally, ex-

_ perience with a similar provision in the present

law clearly demonstrates that conditioning the

use of the NLRB processes on compliancé with

not wholly related: requirements such as this

can result in frustrating the principal purpose’

of the Labor Management Relations Act, that-~

is, settlement of labor disputes in an orderly,

efficient, and expeditious manner. .

Hence the proposed bill substituted “‘a positive obli-

gation’ to make full and accurate reports, subject to

ctiminal penalties” (ibid.) for the conditional obliga-

‘tion previously imposed by Sections 9(f) and 9(g).

The bill would have substituted for Section 9(h) an

obligation, resting on both union officers and em-

Ployers, to file non-Communist affidavits. The obli-

‘ gation would have been enforced by the general crim-

inal provision governing any.willful violation or fail-

ure to comply with the provisions of the statute (Sec-

| tion 108(a), S. 1555, 86th Cong., Ist Sess. ; 1 Leg. Hist.

LMRDA 357) and by subsequent disqualification from

service ds a union officer (Section 305(b), S. 1555,

86th:Cong., Ist Sess.; 1-Leg. Hist, LMRDA 380).

The Committee Report accompanying the bill ex-

- plained that‘one of the guiding principles followed’.

by the draftsmen of the legislation was (S. Rep. No.

187, 86th Cong., 1st Sess. (1959), p. 7; 1 Leg. Hist.

LMRDA 403):. | a

3. Remedies for the abuses should be direct. |

Where the law prescribes standards, sanctions

for their violation should also be direct. The

Committee rejects the notion of applying de-

structive sanctions to a union, i.e., to a group of

working men and women, for'an offense for

which the officers are responsible and over

_ which the members have, at best, only indirect

‘control, * * * |

-The committee does not believe that the record.

‘demonstrates that the iniposition of indirect

sanctions, such as penalizing the union and its

‘members for malpractices of its officers, would

be effective in insuring compliance. Moreover,

on the basis ‘of information -available to this

11 An exception was included for unions which‘ did not use

the facilities of the Board for a one-year’ period ‘prior to the

date on which the affidavit was due. .

committee, it is clear that the requirements of

present law with respect to the filing of financial

and other data have hampered the administra- .

tion of the National Labor Relations Act,. have.

disrupted labor-aggnagement relations and have

been expensive t0. administer. —

With respect to Section 9(h), the Committee noted

several advantages over the then-existing law (S. Rep.

187, supra, at 35; 1 Leg. Hist. LMRDA 431): .

First, the non-Communist oaths submitted

under section 122 of the bill would be subject

to the full investigatory power of the Secre-

tary and to the criminal penalties imposed for

false filing, thus strengthening the effectiveness

‘of existing provisions of law. Second, under

these procedures there would be no question

of the appearance of official governmental ap-

proval of a union because of a filing of an ‘affi-

davit by an officer which is the case today.

Third, by taking the filing requirement out of

the machinery for settling labor. management

[disputes, the] NLRB would be relieved of a

substantial administrative burden and a ‘sig-

nificant cause of delay in case handling would

be eliminated.

The Committee explained this concluding reason as

follows. (S. Rep. 187, supra, at 35-36):

-’ Finally, the committee believes that condi-

tioning use of Board facilities on the filing of

non-Communist affidavits has not been a satis-

* factory procedure. It has complicated and de-

layed the processing of cases before the Board

and has had no material effect on improving

safeguards against Communist infiltration.

° nd 40

‘The bill passed tie’ Senate with these provisions.

See 1 Leg. Hist. LMRDA 537, 545-546, 563. The

House of Representatives, however, dropped the non-

Communist affidavit requirement eipictely and sub-

os te

8342, the bill in | which Section 504 first appeared. in

its abet: form, stated that this section had been

adopted ‘‘as a more effective restriction against Com- __

‘ munist infiltration of labor organizations than is con-

tained in subsection (h) of section 9 of the National .

Labor Relations Act, as amended.” H.° Rep. No.

741, 86th Cong., Ist Sess. (1959), p..33;-1 Leg. Hist.

LMRDA 791. The House version was agreed upon

at conference with one addition (see H. Rep. No. 1147,

86th -Cong., 1st Sess. (1959), p. 36; 1. Leg. Hist.

LMRDA 940), and it was enacted into Jaw.

The above analysis and legislative history demon-

strate that the two basic changes from the approach.

taken by. Section 9(h) to that taken by Section 504—

#.e., from an affida requirement to a ‘‘flat prohibi-

tion’”’ and from cigs Suan remedy of denying the

union facilities of the Board to the direct: remedy of

@ criminal penalty against the offending officer—are

deeply rooted in reason and. in sound policy judg-

ménts. -Rather than transforming the statute into’

an “unreasonably broad”’ provision ‘(as the court of

appeals believed), the 1959 enactment substituted a

rational, and enforceable statutory command for a

circuitous and unworkable procedure which produced

inequitable results.

a |

’ B, SECTION 6504 IS NOT A. MORE “DRASTIC” ABRIDGMENT OF FREEDOM

si OF ABSOCIATIGN THAN SECTION. 9(h)

The court-of appeals held that Section 504 is un-

constitutional because it exceeds Section 9(h) in “the

quality of the restraint” (R. 257) on freedom ‘of asso-:

ciation and in “the foree with which [the. restraint]

is applied’”’ (R. 258). ‘These distinctions between the

statutes were held to affect the constitutionality of the

1959 enactment presumably because they significantly —

'_ inereased the restrictive effect which the applicable

law imposed on First Amendment liberties. A closer

‘analysis of the effect of the.changes produced by the

' enactment of Section 504 demonstrates, we submit, _

that it did not substantially alter the incidéntal

abridgment on’ free association which accompanied

the predecessor statute and which was held to be

constitutionally permissible by this Court. in Douds.

1. In condemning the “quality of the restraint’’—

i.e., the fact that Section 504 addresses its sanction

“directly upon the individual” in the form of a “flat. |

prohibition” (R. 258) rather than to the union which

| _he represents—the court of. appeals has, as we have |

- shown (pp. 34-36, supra), mistaken a virtue for a vice.

Apart from the administrative . problems. created by

the affidavit requirement, it was certainly appropriate —

for Congress to trafisfer the burden of the conse-

quences of a union official’s refusal to comply with

the statute from the members of his union to the

official: himself: By directing the sanction at: the

official personally, Congress has aimed the pressure

of the: statute “at the source of the evil, and not at

innocent third parties. a

Equally significant is the fact that such a “direct”?

sanction does not really have a substantially greater °

impact on First Amendment liberties than the indirect

“‘diseouragefent’’ of Seetion 9(h). The history ‘of

‘Section 9(h)’s administration has shown that most

major unions are unable to function without the access:

to National Labor Relations Board facilities which is’

‘provided by the federal labor laws. Consequently, all

" but two of the major unions in the country” ulti-

mately complied with the Section 9(h) affidavit re-

quirement by -the time of Section 504’s enactment in °

1959." “As Congress found “well before 1959, union *

officers who were members of the Communist Party

were’ instructed to file false non-Communist affidavits

and to risk the possibility of discovery and. prosecu-

tion under 18 U.S.C. 1001. Several such pérsons

: : ,

* The two exceptions were -the International Typographical’

- Union (AFL-CIO) ‘and the United Mine Workers of America.

‘*The compliance records of the National Labor Relations

Board show, for example, that whereas 15,678 local unions had

* complied with the requirements of Sections 9(f), (g) and (h)

in June 1951, this number increased to ‘19,614 in March 1954

and to 22,405 by March 1957. ;

' *The committee report accompanying S. 1555 :stated:

The assumption upon which the present non-Communist

davit requirement was based. is that officers of unions who

were Communists would*not file affidavits. - This assump-

tion, on. the basis of the record, has not proved sound. ° As

the Department ‘of ‘Justice. indicated to the committee, the

Communist’ Party after passage of the non-Communist

affidavit requirement “instructed its members who were union .

officers to file affidavits and to continue their party mem-

bership on a secret basis.” Indeed, the record clearly.

demonstrates that the officers of unions alleged to be Com-

Be:

: ~were, in fact, successfully prosecuted under 18 U. 8.C.

1001. See cases cited’ ‘in note 7, supra. Hence the

restrictive effect of Section 504 was no more serious

than that of Section 9(h). For if, as the compfianee

records demonstrate, ‘a union did not really have th

. practical alternative of doing without Board remedies

and electing Communist Party members to union

office, a Communist Party member who wished to be-

come.a union officer was as fully denied, the right to

retain Communist Party ‘membership, as if a “flat

prohibition”’ or statute applicable “directly upon the

‘individual’’ were on the books. His only other choice —

- was to retain Commutiist Party membership and ‘sub-

mit a false” affidavit—a course which would subject

him to the risk of a criminal prosecution in which the

issue would be—just as the issue is under Section

504—whether he was simultaneously a meniber of the

Communist Party and an officer of the union (i.e.,

at the time when the affidavit was executed).

2. This demonstrates, as well, That the court of

appeals’ second ground for concluding. that Section

504: was more “drastic’’—that it differed in “the force

with which [the restraint] is applied’’. in that it op-

erated ‘‘with the duress of criminal sanctions”’ (R. 258,

259) is also insubstantial. The practical consequences

munist infiltrated have been most punctilious about filing

non-Communist affidavits. * * *

S. Rep. No. 187, 86th Cong., Ist Sess. (1959), p. 35; 1 Leg. Hist.

LMRDA 451. See also Public Policy and Communist Domina-

tion of: Certain’ Unions, S. Boe. No. 26, 83d Cong., ist Sess

| 44

of Section 9(h) were, as we have shown, to make 18

U.S.C. 1001 the only effective deterrent. Prospeetive

'* union officers who wished to associate: with the Com-

-munist Party could -not realistically weigh the non-

eriminal consequen¢es of retention of such member-

ship; it’ was just practically unfeasible for.a union—

particularly a small or weak one—to expect to be.

. + successful if it was denied access to the Board. Hence

' the non-criminal aspect of Section 9(h)’s sanction.

could simply be takén as an absolute bar. The only

real choice remaining was to conceal Communist Party

_ membership, file a false: affidavit, and risk the possi-

bility «f criminal prosecution. That choice—without

thé affidavit £ meraies equally available under

' Moreover, it seems entirély clear that the criminal.

nature of the sanction does not really exert more

“force” than if the remedy were civil. If, for ex--

ample, Congress substituted for subsection (b) of

the Secretary of: Labor to obtain injunctions against

service by any Communist Party’ member in any of

the eapacities enumerated in subsection (a), the effect

absence of any criminal sanction. An individual in.

respondent's position could be enjoined .and, if he

were to disovey the injunction, criminal contempt

proceedings might ensue. The prohibition would be

equally absolute; and the “discouragement” for all

but secret ‘Communist Party members would be as.

effective as any criminal penalty. This is because

the exterit of abridgment of freedom of expression

by laws such as Section 504 or Section 9(h) ‘cannot

AS ay

be measured simply by whether the statute is criminal

or civil, or by whether it falls into one ‘or another |

broad category of statutory measures. See Freund, *

The Supreme | Court” and Cwil en. 4 Vand. L.

Rev. 533, 537-539 (1951). ;

-Nor does the criminal sanction of Section 504 war- 3

rant the court of appeals’ further suggestion that,

statute ‘would violate the Fifth Amendment if ra were -

not “restricted to party members harboring specific

intent to. use union office to interrupt interstate com-

merce or actively and purposefully participating in

furtherance of illegal party activities aimed at.over-

throw of the Government” (Re261). Unlike Scales

v. United States, 367 U.S. 203, and Noto v. United

_ States, 367 U.S. 290, this case does not inv olve a crim-

inal prosecution based solely on membership in the

Communist Party; the offense in this case was com-

mitted when respondent combined his Communist

Party membership “with occupancy of a position

of. great power over™ the economy of the coun-

try.’ American Communications Association v.

Douds, 339 U.S. 382, 403-404. As we have previously

observed (pp. 15-16, supra), this case—unlike Scales |

and Noto—involves a restraint primarily upon con-

duct, not upon speech or advocacy. It is intended to

- deter individuals from combining positions which cre-

ate “tempting” opportunities” (Board of Governors v.

_-« Agnew, 329 U. S. 441, 449) to perform acts inconsist-

regulation of “eonduet * * * intertwined with expres-

sion and association’’ (Cox v. Louisiana, No. 49, this

Term, decided January 18, 1965) and thus distinguish-

able from. ee of en as 3 such. Mr. Justice

Se an eae

J. tia: concurring and dissenting in ‘Douds, dlearly

-Stated the reasons .which. distinguish this type of stat-

ute from the type‘of statute involved in S les and

- Noto (339 U.S. at 434):

_ Counsel stress that this is a civil-rigihs or a

free-speech or a freé-press case. But it is

important to note what this Act doés not do.

The Act does not suppress or outlaw the Com-

munist Party, nor prohibit, it or its members

' from engaging in any aboveboard activity nor-,

mal in party struggles under ‘our political sys/

. tem. It may continue to nominate candidates,

_ hold ‘meetings; “conduct campaigns and issue

propaganda, just as other parties may. No in-

dividual is foxhidden to be or to become a phil- |

osophical Communist or a full-fledged member

_ of the Party: No one is penalized for writing

_ or speaking in favor of the Party ordts philoso-

phy. “Also, the Act.does not require or forbid

anything whatever to: ‘any person merely because

he is a member of, or-is affiliated with, the Com-

munist Party. It applies only to one who be- _ eas

comes an officer of a labor union.”

When a law is directed at advocacy alone—as if the

“membership clause” of the Smith -Act—it may. be

constitutional only if the defendant’s membership in ~

_ the proscribed organization is stich as.to involve him

actively and knows» ly in its iHegal endeavors. Oth-

erwise, there is a substantial danger that persons who .

are engaged in constitutionally protected activity may _

de swept in under the criminal prohibition. But °

when tle purpose of the law is.to prevent conduct

” ‘Section 504 does “forbid? * a member of the Communist Party

. | from becoming a union leader, but in this regard it merely .

carries into. effect the purpose of the statute. Consequently, this —

prohibition is not an added deterrent to free association, :

‘ Ps. , ‘ : 47

which gives rise to conflicts of interest and member-.

ship in a proscribed organization is only one element

of the offense, there is no such danger. Congress may

then draw its net more broadly to bring within the

first element of the offense all those who, according

to objective and - readily-determined criteria, -are

likely to present the danger.”

CONCLUSION

* For the foregoing reasons, the. judgment of the

court of appeals should be reversed.

Respectfully submitted.

| | ARCHIBALD’ Cox,

| Solicitor General.

J. Water YEAGLEY,

‘Assistant Attorney General.

“N ATHAN LEWIN,

Assistant to the Solicitor General.

Kevin T. Maroney,

. GrorcE B. SEARLS,

, Attorneys.

Rurus W. McKInney, Sot ig

Attorney,

Department of Labor.

J ANUARY- 1969.

16 There is no merit to respondent’s contention—rejected by a

majority of the court of appeals—that it wds error for the dis-

‘trict court to take from the jury the question whether the execu-

tive board of his local was the kind of executive board to

which Section 504 applies. Even accepting respondent's ver-

sion of the facts, the board to which “he belonged qualified

under the statute since it. was authorized to act in cases of

emergency and had other directorial functions. See note. 1,

supra. Under these circumstances, it was proper for the court

to tell the jury what the. law was as applied to this case

(Hor ning v. District of Columbia, 254 U.S. 135), so long ‘as

it left to the jury, as it did (R. 233-241), the ultimate fact-

linding of guilt or innocetice.

U.S. GOVERNMENT PRINTING OFFICE: 1965

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.