decided: April 26, 1965.
AMERICAN COMMITTEE FOR PROTECTION OF FOREIGN BORN
SUBVERSIVE ACTIVITIES CONTROL BOARD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, Goldberg; White took no part in the decision of this case.
Author: Per Curiam
[ 380 U.S. Page 503]
The Court of Appeals for the District of Columbia Circuit affirmed an order of the Subversive Activities Control Board requiring that the petitioner register as a "Communist-front" organization under § 7 of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 993, 50 U. S. C. § 786 (1958 ed.). 117 U. S. App. D.C. 393, 331 F.2d 53. We granted certiorari. 377 U.S. 915.
[ 380 U.S. Page 504]
Under the statute, a determination that an organization is a Communist front must rest on findings that it "(A) is substantially directed, dominated, or controlled by a Communist-action organization, and (B) is primarily operated for the purpose of giving aid and support to a Communist-action organization . . . ." § 3 (4), 64 Stat. 989, 50 U. S. C. § 782 (4) (1958 ed.). In Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, this Court sustained the Board's determination that the Communist Party is a "Communist-action organization" within the meaning of § 3 (3) of the Act; in doing so, the Court upheld the registration requirement against First Amendment attack and found an objection based on the Fifth Amendment privilege against self-incrimination not ripe for decision.
In the present case the Board's findings that petitioner is a "Communist front" were based primarily upon evidence taken at a hearing which was concluded in 1955. The findings which support the conclusion that the petitioner is controlled by and primarily operated for the purpose of giving aid and support to the Communist Party rest in substantial measure upon evidence of the activities of Abner Green, found to be a Party member expressly assigned in 1941 to be petitioner's executive secretary. Green died in 1959. The Board's order was filed on June 27, 1960, but the record discloses no findings or evidence concerning petitioner's activities after Green's death.*fn1 In the circumstances we think that the record
[ 380 U.S. Page 505]
should be brought up to date to take account of supervening events. Since a registration order operates prospectively, it is apparent that reasonably current aid and control must be established to justify a registration order. Our Communist Party decision on the Communist-action provisions did not necessarily foreclose petitioner's constitutional questions bearing on the Communist-front provisions.*fn2 Since petitioner's current status is not clear on this record, decision of the serious constitutional questions raised by the order is neither necessary nor appropriate.
[ 380 U.S. Page 506]
The judgment of the Court of Appeals is vacated, and the cause remanded for proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE WHITE took no part in the decision of this case.
117 U. S. App. D.C. 393, 331 F.2d 53, vacated and remanded.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE HARLAN concur, dissenting.
I dissent from the refusal of the Court to face up to the important constitutional questions squarely presented by this case. The Court's excuse is that Abner Green, the executive secretary, who was prominent in petitioner's affairs, died after the close of the hearings.*fn1
[ 380 U.S. Page 507]
Petitioner has never, so far as appears, alleged any facts indicating that with the death of Abner Green the nature of the Committee underwent any significant change. Yet this suggestion could have been made to the Board prior to its decision; and it could have been made to the Court of Appeals, for the Act in § 14 (a) specifically provides: "If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material, the court may order such additional evidence to be taken before the Board and to be adduced upon the proceeding in such manner and upon such terms and conditions as to the court may seem proper."*fn2
In determining that petitioner was a Communist-front organization, the Board was directed by the Act to consider other evidence in addition to evidence that petitioner's executive secretary was a member of the Communist Party. Section 13 (f) sets forth four different categories of evidence which must be considered by the Board in deciding whether an organization is a front: (1) the extent to which those who are active in the direction of the alleged front are also active in a Communist-action
[ 380 U.S. Page 508]
organization; (2) the extent to which financial or other support is derived from a Communist-action organization; (3) the extent to which the alleged front's funds and personnel are used to promote the objectives of a Communist-action organization; and (4) the extent to which the alleged front's positions on matters of policy do not deviate from the Communist line. Evidence in all four of these categories was adduced.
The Court takes a peculiar view of the evidence when it surmises that the death of petitioner's executive secretary may suddenly have changed the nature of the organization. It forgets what the Court said in the Communist Party case: "Where the current character of an organization and the nature of its connections with others is at issue, of course past conduct is pertinent. Institutions, like other organisms, are predominantly what their past has made them. History provides the illuminating context within which the implications of present conduct may be known." 367 U.S. 1, 69.*fn3
The Board found that the petitioner had existed in the United States since 1932 or 1933 and that it was eight or nine years later that Green became its executive secretary. The evidence before the Board established that Green was the "top functionary" of petitioner's national organization
[ 380 U.S. Page 509]
and that he was the "most influential official" therein, but he was not the only top official who was found to be a member of the Communist Party. The number two person in the national organization was Harriet Barron, the administrative secretary, who with Green carried on the organization's day-to-day activities. She was found to have been a member of the Communist Party at the time of the hearings and for a number of years prior thereto.
A great deal of the evidence heard by the Board related to the local branches of the petitioner. The Board found: "The management, direction, and supervision of the branches (local committees) have been by Communist Party members such as Ruth Hillsgrove for the New England Committee; Evelyn Abelson and Bess Steinberg for the Western Pennsylvania Committee; Saul Grossman for the Michigan Committee; Marion Kinney for the Northwest Committee; and Delphine Smith for the Los Angeles Committee." This evidence establishes that the petitioner cannot possibly be regarded as a one-man organization. It is true that Green was the leader of the national organization in New York and that he appeared at some meetings of the local committees. But the nature and existence of these local committees, which the Board regarded as "part of" the national organization, indicate clearly that the organization had an existence above and beyond Green himself.
In this regard the genesis of the Northwest Committee is instructive. The Board found that the organization of this branch resulted from discussions in Communist Party meetings in Seattle about the need for a local branch of the American Committee to defend Party members. This was in 1949 when the Party designated member Kinney to head this organization. Green was not present at the meetings which led to the formation of this
[ 380 U.S. Page 510]
branch, and seems to have had little, if any, part in it. The first mention of Green in connection with this branch seems to be the testimony that in 1952 he made a speech at a meeting that was in some way connected with the activities of the local committee.
The ultimate finding of the Board as to these local organizations was: "We find on the entire record that the American Committee and the various area or local committees are associated together for joint action on particular subjects. Together they constitute a voluntary association and one organization within the meaning of the term 'organization' set forth in section 3 (2) of the statute." (Emphasis supplied.) One simply cannot read the record and come to the conclusion that this congeries of individual organizations, loosely united under the aegis of the national committee, was merely Green's alter ego and would therefore change upon his death.
A Communist-front organization is one which is controlled by a Communist-action organization and which is primarily operated for the purpose of giving aid and support to Communism. To prove this latter part of the definition the Attorney General introduced before the Board evidence showing that the Committee engaged in the legal defense of Party members who were defendants in deportation and denaturalization proceedings. Much of this evidence appears to have concerned the activities of the local committees. The Board found, for example, that "the cases of Joe Weber, Refugio Ramon Martinez, and James MacKay [were] handled by the Midwest Committee; the Mexican deportees and a group referred to as the Terminal Island Four [were] handled by the Los Angeles Committee; and the Giacomo Quattrone-Ponzi case [was] handled by the New England Committee." There is no reason to believe that this work of the local committees has been discontinued because of Green's death.
[ 380 U.S. Page 511]
The case is very much alive; and the record is by no means stale. We should face up to the serious issues presented and in no way affected by Abner Green's death.
MR. JUSTICE BLACK, dissenting.*fn*
While I have joined the dissents of MR. JUSTICE DOUGLAS from the Court's action in remanding these cases without deciding the important constitutional questions involved, I have additional reasons for objecting to the remands. In Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 137 (dissenting opinion), I stated at some length my reasons for believing that the Subversive Activities Control Act of 1950, as amended, 64 Stat. 987, 50 U. S. C. §§ 781-826 (1958 ed.), on which the Government's case here rests, violates a number of provisions of our Constitution and Bill of Rights in many respects. See also Aptheker v. Secretary of State, 378 U.S. 500, 517 (concurring opinion). I think that among other things the Act is a bill of attainder; that it imposes cruel, unusual and savage punishments for thought, speech, writing, petition and assembly; and that it stigmatizes people for their beliefs, associations and views about politics, law, and government. The Act has borrowed the worst features of old laws intended to put shackles on the minds and bodies of men, to make them confess to crime, to make them miserable while in this country, and to make it a crime even to attempt to get out of it.*fn** It is difficult to find laws more thought-stifling
[ 380 U.S. Page 512]
than this one even in countries considered the most benighted. Previous efforts to have this Court pass on the constitutionality of the various provisions of this freedom-crushing law have met with frustration on one excuse or another. I protest against following this course again. My vote is to hear the case now and hold the law to be what I think it is -- a wholesale denial of what I believe to be the constitutional heritage of every freedom-loving American.