American Committee for Protection of Foreign Born v. Subversive Activities Control Board

380 U.S. 503, 85 S. Ct. 1148, 14 L. Ed. 2d 39, 1965 U.S. LEXIS 1352

Opinions

Per Curiam.

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.

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.¹ In the circumstances we think that the record 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.² 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.

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.

Footnotes

1

Petitioner raised the point when, on February 11, 1960, the Board heard oral argument on the sufficiency of the evidence. At that time, petitioner’s counsel urged as an independent reason for “throwing out this case" that “[t]his case is stale and you ought to throw it out because you can’t enter an order under the Act. . . . [The Attornej'- General] talks about what a devil Abner Green was, or Harriet Barron, the two people he said ran the organization. Well, the fact is that it has been years since Harriet Barron has had any connection with the [petitioner], and Abner Green to my great sor row is now dead. Things have changed, and times have changed . . . you can’t conscientiously-enter an order in the present in view of the terrific amount of time that has passed and the changes in time. . . .” XVIII Transcript 7492-7493. The Board made no mention of this argument in its report.

2

That the issues are not plainly foreclosed is illustrated by President Truman’s veto message:

“Insofar as the bill would require registration by .the Communist Party itself, it does not endanger our traditional liberties. However, the application of the registration requirements to so-called Communist-front organizations can be the greatest danger to freedom of speech, press and assembly, since the alien and sedition laws of 1798. This danger arises out of the. criteria or standards to be applied in determining whether an organization is a Communist-front organization.

“[T]he bill would permit such a determination to be based solely upon ‘the extent to which the positions taken or advanced by it from time to time on matters of policy do not deviate from those’ of the Communist movement.

“This provision could easily be used to classify as a Communist-front organization any organization which is advocating a single policy or objective which is also being urged by the Communist Party or by a Communist foreign government. . . . Thus, an organization which advocates low-cost housing for sincere humanitarian reasons might be classified as a Communist-front organization because the Communists regularly exploit slum conditions as one of their fifth-column techniques.” H. R. Doc. No. 708, 81st Cong., 2d Sess., p. 6. See also Note, 74 Yale L. J. 738 (1965).