Archie Brown v. United States

334 F.2d 488

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 9, 1964
• Docket: 18005
• Status: Published

Opinions

MERRILL, Circuit Judge.

This appeal challenges the constitutionality of § 504 of the Labor-Management and Reporting Act (29 U.S.C. § 504) which makes it unlawful for a member of the Communist Party to hold office in a labor union. /

The section is set forth in the margin.¹ It will be noted that the criminality is achieved in two stages: First, the holding of such office by a member of the Communist Party is prohibited as a regulation of interstate commerce; second, the violation of this regulatory prohibition is made a crime. ’•

Section 504 was enacted in 1959 as part of the Labor-Management Report--' ing and Disclosure Act and is the successor of § 9 (h) of the Taft-Hartley Act, which was then repealed. The latter section barred the facilities of the National Labor Relations Board to any labor organization the officers of which failed to file with the Board affidavits that they were not members of .or affiliated with the Communist Party. \

There can be little doubt, in the light of the legislative history of § 504, that it was designed to achieve the same Congressional objectives as former § 9 (h) and achieve them more effectively.² The purpose of the former section and the evils Congress intended it to combat were fully explored by the Supreme Court in American Communications Ass’n v. Douds (1950) 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. There the court stated, at pages 388-389, 70 S.Ct. at page 678-679:

"One such obstruction, which it was the purpose of § 9 (h) of the Act to remove, was the so-called ‘political strike.’ | Substantial amounts of evidence were presented to various committees of Congress, including the committees immediately concerned with labor legislation, that Communist leaders of labor unions had in the past and would continue in the future to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government. * * *

“It is sufficient to say 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, including the advocacy of change by democratic methods, but to make them a device by which commerce and industry might be disrupted when the dictates of political policy required such action.”

Section 504, then, was enacted in a continuing effort by Congress, in its regulation of interstate commerce, effectively to prevent the interruption of a free flow of commerce by political strikes.

Appellant has been a member of the Communist Party since at least 1935. In elections for the years 1959, 1960 and 1961, he was, while a party member, elected a member of the Executive Board of Local 10 (San Francisco, California) of the International Longshoremen’s and Warehousemen’s Union. Thereafter, while a party member, he served in this official capacity. He was thereupon indicted for a violation of § 504. He was tried and convicted and this appeal is taken from judgment of conviction.

Before we reach the constitutional problems which the appeal presents, it is necessary to deal with a matter of statutory construction. Appellant contends that the executive board of the local to which he was elected is not a “governing body”; that it is not the sort of “executive board” to which the statute applies.

The court instructed the jury that the Union’s executive board was an executive board within the meaning of the statute.\Appellant assigns as error the action of the district court in taking this question from the jury and in refusing to instruct the jury that it had to find that the board had power to impose its policies upon the Union and thus to engage the Union in activities which might disrupt the flow of commerce.

Two questions are presented by these contentions. First, was a jury question presented as to whether or not the executive board of the Union was an “executive board or similar governing body” within the meaning of the statute ? Second, if not — if this question was a question of law — was it correctly answered by the court? Upon both issues we agree with the district court.

As to the nature of the Union’s board we find no factual dispute to be resolved. -The constitution of Local 10, setting forth the nature and powers of the executive board, was put in evidence and was read to the jury by appellant’s counsel.³ Appellant introduced testimony to show that the- executive board was primarily a recommending body whose resolutions were subject to review (and rejection) by the total membership before being translated into action.

We may accept as true all factual contentions asserted by appellant to have been established by this proof; specifically, that the board was without power on its own authority to bring about the evil with which Congress was concerned.

The true issue presented by the contentions of appellant was not as to the authority actually possessed by the Union board, but whether a board having the nature and powers specified by the local’s constitution for this board, even though limited in its powers as factually contended by appellant, was an “executive board or similar governing body” within the meaning of the statute. This was a question of law.

Upon that question we note first that under the local’s constitution the “executive board” was an integral part of the frame of government set up by that document for the local.

In our judgment appellant reads § 504 too narrowly in attempting to confine “executive board” or “governing body” to one which, on its own authority, could take or require action threatening an interruption of commerce. While the statute was designed to strike at such interruptions its concern was not limited to those of executive authority who might by executive order accomplish such interruption. It included as well those who might by their position or office have power to influence such a result.

We note further that by specifying “any executive board” as well as “director” Congress apparently intended to include boards with a scope of authority different from that ordinarily possessed by a corporation’s board of directors. By including within the prohibition all employees save those performing exclusively clerical or custodial duties, it has clearly manifested its desire to bring within the purview of § 504 persons other than those who ultimately control the unions.

We also note that this Act and this section apply to persons convicted of certain crimes as well as to Communist Party members. Congress’ wish to rid labor unions of racketeering and corruption by driving out criminal elements cannot reasonably be said to be restricted to upper-echelon positions of real power.

We conclude that the district court did not err in instructing the jury as it did.

This brings us to a consideration of the constitutional issue: whether criminal punishment of any and all Communist Party members who become union officers, regardless of lack of intent to bring about the evil the statute was designed to prevent or to further other unlawful aims of the Party, infringes the guarantees of the First and Fifth Amendments.

The district court, in denying motions to dismiss the indictment and for acquittal, held that no proof of specific intent of any kind was necessary under the statute and that so construed the statute was constitutional.⁴

We turn first to a consideration of the question whether, as so construed, this x’egulation constitutes an impermissible restraint upon appellant’s First Amendment “freedom of association for the purpose of advancing ideas and airing grievances.” Bates v. Little Rock (1960) 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480. In support of the district court judgment the Government relies upon American Communications Ass’n v. Douds, supra. There it was stated, at page 390 of 339 U.S. at 680 of 70 S.Ct.:

“There can be no doubt that Congress may, under its constitutional power to regulate commerce among the several States, attempt to prevent political strikes’ and other kinds of direct action designed to burden and interrupt the free flow of commerce.”

It held that Congress could attempt to prevent Communists from serving as union officei'S by legislation providing that the important benefits of the National Labor Relations Act, including access to N.L.R.B. facilities, should be denied to unions having any Communist officers.

The Govexmment urges that from this it follows that Congress, in order to make more effective its remedy for the conditions it could thus reasonably have found, could also impose personal criminal sanctions on this same general basis of political affiliation, by providing that mere membership in the Communist Party, when combined with union officership, is conclusive of guilt. We cannot agree.

At least grave doubt is cast upon such a contention by the more recent Supreme Court decisions in Scales v. United States (1961) 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, and Noto v. United States (1961) 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836. The thrust of these decisions was that a criminal conviction for becoming a member of an organization advocating overthrow of the government —in these cases the Communist Party— can escape First Amendment condemnation only if in each case it is proved (1) that the organization was engaged in the type of advocacy, of action to accomplish overthrow, that is unprotected by the First Amendment, and (2) that the defendant was an “active” member of such an organization with a specific intent to further such unlawful purposes. The court’s rejection of membership per se as a constitutionally sufficient ground of conviction was based upon the recognition, also voiced in Douds, 339 U.S. at 393, 70 S.Ct. at 681,⁵ that the Communist Party has both legal and illegal aims and carries on both legitimate and illegitimate activities, and the further recognition that there may be members “for whom the organization is a vehicle for the advancement of legitimate aims and policies” alone. “If there were a * * * blanket prohibition of association with a group having both legal and illegal aims,” the court reasoned, “there would indeed be a real danger that legitimate political expression or association would be impaired,” Scales v. United States, supra, 367 U.S. at 229, 81 S.Ct. at 1486, for “one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.” Noto v. United States, supra, 367 U.S. at 299-300, 81 S.Ct. at 1522.

In Douds the court, at page 400 of 339 U.S., at page 684 of 70 S.Ct., states the problem posed by that case as follows:

“In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by § 9(h) pose continuing threats to that public interest when in positions of union leadership. We must, therefore, undertake the ‘delicate and difficult task * * * to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.’ Schneider v. State, 1939, 308 U.S. 147, 161 [60 S.Ct. 146, 84 L.Ed. 155].”

In discussing the extent to which the holding in Douds bears upon the present case it is essential that the dimensions of the restraint (both in that case and in ours) be examined.

In one respect the dimensions coincide: how far into the rights involved the restraint cuts.

The court in Douds, at page 402, 70 S.Ct. at page 686, notes:

“The statute does not prevent or punish by criminal sanctions the making of a speech, the affiliation with any organization, or the holding of any belief.

The restraint involved simply a loss of the right to hold union office — what the court refers to as “loss of position.”

However, the court makes clear that lack of direct restraint upon Communist Party membership does not eliminate the First Amendment problem. At page 402, 70 S.Ct. at page 686 the court states:

“But as we have noted, the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect ‘discouragements’ undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.”

That loss of position by virtue of Communist Party membership is not to be confused with the usual conflict-of-interest situation is pointed out by the court at pages 392-393, 70 S.Ct. at page 681:

“If no more were involved than possible loss of position, the foregoing would dispose of the case. But the more difficult problem here arises because, in drawing lines on the basis of beliefs and political affiliations, though it may be granted that the proscriptions of the statute bear a reasonable relation to the apprehended evil, congress has undeniably discouraged the lawful exercise of political freedoms as well. * * -x- By exerting pressures on unions to deny office to Communists and others identified therein, § 9(h) undoubtedly lessens the threat to interstate commerce, but it has the further necessary effect of discouraging the exercise of political rights protected by the First Amendment. Men who hold union offices often have little choice but to renounce Communism or give up their offices. Unions which wish to do so are discouraged from electing Communists to office. To the grave and difficult problem thus presented we must now turn our attention.”

In a second dimension — the quality of the restraint — the restraint confronting us is larger than that in Douds. There the court notes, at page 389, 70 S.Ct. at page 679:

“The unions contend that the necessary effect of § 9(,h) is to make it impossible for persons who cannot sign the oath to be' officers of labor unions.”

This the court denies, stating at page 390, 70 S.Ct. at page 679:

“The statute does not, however, specifically forbid persons who do not sign the affidavit from holding positions of union leadership nor require their discharge from office. * * * We are, therefore, neither free to treat § 9(h) as if it merely withdraws a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those persons who do not sign the affidavit from holding union office. The practicalities of the situation place the proscriptions of § 9(h) somewhere between those two extremes.”

The quality of the restraint in Douds was an indirect “discouragement” obtained through pressure applied to the union. In the language of the court, at page 412, 70 S.Ct. at page 691, it was “[t]o encourage unions to displace them [Communist Party members] from positions of great power * * *.”

In our case the restraint is imposed directly upon the individual. It is not discouragement. It is one of the “extremes”: flat prohibition.

In our judgment, yet a third dimension of the restraint must also be considered: the force with which it is applied. The court in Douds, at page 409, 70 S.Ct. at page 689, states:

“To hold that such an oath is permissible, on the other hand, is to admit that the circumstances-under which one is asked to state his belief and the consequences which flow from his refusal to do so or his disclosure of a particular belief make a difference. The reason for the difference has been pointed out at some length above. First, the loss of a particular position is not the loss of life or liberty. We have noted that the distinction is one of degree, and it is for this reason that the effect of the statute in proscribing beliefs —like its effect in restraining speech or freedom of association— must be carefully weighed by the courts in determining whether the balance struck by Congress comports with the dictates of the Constitution.”

Since it is the effect of a statute in restraining freedom of association with which we are concerned, we can hardly refuse to consider the consequences which are made to flow from a determined assertion of the rights in question in face of the regulation. In Douds the sanction was not a personal one; it was applied to the union, withdrawing from the union its rights to the benefits of the National Labor Relations Act. In our case, the sanction is not only personal, it is criminal. The imposing of a criminal sanction bears on the substantive quality of the restraint and poses new and different problems as to the reasonableness of the regulation. We are squarely faced with the principles enumerated in Scales and Noto.

This case, then, is far different from Douds. The restraint here bears directly upon the person of the one asserting First Amendment rights, and it does so with the duress of criminal sanctions.

It is with the personal and forceful character of the restraint in mind that we approach the question faced in Douds and which faces us here: whether, in the absence of specific intent to accomplish that which Congress seeks to prevent, there is sufficiently close relationship between the regulation and the achievement of the Congressional objective.

In Douds the court, at page 406, 70 S.Ct. at page 688, states:

“It is contended that the principle that statutes touching First Amendment freedoms must be narrowly drawn dictates that a statute aimed at political strikes should make the calling of such strikes unlawful but should not attempt to bring about the removal of union officers, with its attendant effect upon First Amendment rights.”

This contention the court rejected, stating that “Congress should not be powerless to remove the threat, not limited to punishing the act.” The court then concludes :

“While this statement may be subject to some qualification, it indicates the wide scope of congressional power to keep from the channels of commerce that which would hinder and obstruct such commerce.”

In our judgment the regulation here— far broader than the threat it is designed to meet — is unreasonably broad. To relieve Congress from having to wait until it can punish the act, it is given power not simply to remove the threat but to punish it; and with no showing whatsoever that the act in fact is threatened by the person punished.

We conclude that this statute as construed by the district court constitutes an invalid restraint upon the freedom of association protected by the First Amendment.

Since § 504 involves criminal punishment, we are also faced with serious problems of due process under the Fifth Amendment, which were not before the Supreme Court in Douds. The question raised by § 504 is similar to that stated as follows in Scales v. United States, supra, 367 U.S. at 220, 81 S.Ct. at 1481: whether the section “impermissibly imputes guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct.”

Upon this question the court in Scales stated at pages 224-225, 81 S.Ct. at page 1484:

“In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by refer-, ence to the relationship of that status or conduct to other concededly criminal activity (here advocacy of Violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.”

And further, page 226, 81 S.Ct. page 1485:

“ * * * the enquiry here must direct itself to an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to de-' termine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability.”

And further, page 227, 81 S.Ct. page 1485:

“It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that ‘act’ alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing.”

In our judgment these constitutional standards of criminal imputability from association to individual are not met unless § 504 could be read as restricted to party members harboring .specific '■intent to use union pffino-éo-inj^grrupt interstate commerce or actively and purposefully participating in furtherance of illegal party activities aimed at overthrow of the Government.

It is true that in Scales and Noto the court was faced with a statute which attributed to an individual member of an organization, seemingly on the basis of membership alone, criminal conduct in which the organization was found to be engaged.

Here, it is argued, criminality is not based solely on attribution from association ; there is an individually and knowingly performed act — that of becoming a union officer — for which punishment is imposed.

We feel that this is not a valid point of distinction. In Scales the defendant might have been said to have knowingly and individually violated the law through his act of association. (He was indicted for being a member of the party with knowledge of its illegal purpose.) But this was not the gist of the crime — of that which society had found offensive. ijThe gist of the offense was the advocacy '"in which the organization -was engaged.

So here, the gist of the offense (and, indeed, the sole basis for federal concern) lies in the anticipated efforts of the individual to use union authority or influence to bring about union action which would interfere with commerce. This, to quote from Scales, supra, is “the underlying substantive illegal conduct.” It is the relationship of Communist union officers to this potential disruptive and illegal activity which alofie can- justify the punishment imposed by § 504. Ig. our judgment that relationship i's not sufficiently substantial to justify, under the due process clause, imposition of criminal punishment on the basis of union officership combined with Communist Party membership per se.

We conclude that the relationship between the conduct or status punished and the evil intended here to be prevented is not sufficiently close or substantial to meet the requirements of-either the First or Fifth Amendments unless § 504 can be construed as requiring proof either that the defendant has specific intent to use his union office to attempt to disrupt interstate commerce or that he is an active member of the Communist Party with specific intent to promote unlawful party advocacy and action directed toward overthrow of the Government.

We feel it clear that this statute is not susceptible of such a limiting judicial construction.

It is true that in Dennis v. United States (1951) 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, Yates v. United States (1957) 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 and Scales v. United States, supra, criminal statutes, as applied to Communist activity or membership, were construed narrowly to include requirements of intent and unlawfulness of advocacy that were sufficient to remove doubts as to the constitutionality. But in each_ease_ambiguous statutory language madg 'such construction available.⁶

Here we are not faced with ambiguous statutory expression but with a lack of expression. The segregation of guilty from what we have held must be innocent holding of union office is not at all suggested by the statutory language. It is wholly inappropriate to consider whether scienter should be deemed essential, for the very nature of the scienter that is constitutionally necessary is hidden. No Communist Party member could know, from a reading of the statute, whether, of the many party purposes, those which he personally embraces do or do not disqualify him from union office or employment.

Not only then, is the statute over-broad. It is so wholly lacking in notice of the constitutionally essential eompo-nents of the crime that it cannot be judicially narrowed.

We conclude that § 504 of the Labor-Management and Reporting Act, in- its. imposition of criminal sanctions upon Communist Party members, must be held to conflict with the First and Fifth. Amendments of the United States Constitution, and upon this ground to be void.

Reversed and remanded with instructions that judgment be set aside and the-indictment dismissed.

1 . Ҥ 504. Prohibition against certain persons holding office; violations and penalties

“(a) No person who is or has been a member of the Communist Party or who has been convicted of, or served any part of a prison term resulting from his conviction of, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of subchapter III or IV of this chapter, or conspiracy to commit any such crimes, shall serve' — ■

“(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, or

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during or for five years after the termination of his membership in the Communist Party, or for five years after such conviction or after the end of such imprisonment * * *.

“(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. * * * ”

2 . See H.R.Rep. No. 741 on H.R. 8342, 86th Cong., 1st Sess., 33-35, 79 (supplementary views), I Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, 791, 837. The original bill as it passed the Senate on April 25, 1959, contained no criminal disability provision relating to Communists. See S. 1555, 86th Cong., 1st Sess., § 305 (a) (1959), and S.Rep. No. 187 on S. 1555 at 12-13. The Senate recognized the defects of the affidavit procedure then in use, but sought to make detailed changes with respect to the time for filing, the role of the N.L.R.B. in administrating the procedure, etc., while preserving the affidavit framework for control of Communists in the labor unions. S.Rep. No. 187, supra, 36-37, I Legislative History, supra, 430 — 432. It was the House bill, H.R. 8342, passed in July of 1959, which first contained a prohibition against Communists holding office in labor unions together with a repeal of 9(h). See §§ 201(3) and 504(a) of H.R. 8342, supra. In conference the House amendment to the Senate bill S. 1555 was agreed to with various substitutions, including an added criminal sanction against any labor organization or official thereof knowingly permitting any person to violate § 504. See Confce.Rep. 1147 on S. 1555, 86th Cong., 1st Sess., 36 (1959), I Legislative History, supra, 940.

3 . The Constitution described the executive board as “the advisory board of the Local,” and provided that its powers and functions were: “to adopt such measures as are deemed necessary from time to time for the good and welfare of the local, subject to the approval of the membership; * * * attend to all matters referred to it by the local, also suggest remedies for immediate and permanent benefit and report to the regular meeting; * * * dispose of communications not of interest to the local and cooperate in every way so that the business to be covered at a regular meeting may be accomplished; * * * In cases of emergency í! * * to act to protect the interests and welfare of the local; * * * study the labor movement closely and formulate concrete policies to strengthen our local —said policies to be in accord with the I.L.W.U.”

4 . The district court rejected appellant’s offer of evidence that he had no intent to bring about any substantive evil, and it refused to give requested instructions requiring a finding of such intent.

5 . 339 U.S. at 393, 70 S.Ct. at 681: “Communits, we may assume, carry on legitimate political activities.”

6 . Thus Dennis held that proof of intent to overthrow the Government by force was an essential element of both § 2(a) (1) of the Smith Act (making it unlawful “to knowingly or willfully advocate * * * or teach” forceful overthrow of the Government), and § 2(a) (3) of the Act (making it unlawful “to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage” such overthrow). The opinion of Chief Justice Vinson, for four members of the court, declared that implicit in the very nature of advocacy of and organization for advocacy of overthrow is an intent to bring about that overthrow. 341 U.S. at 499, 71 S.Ct. 857. Scales involved conviction under the Smith Act clause making it unlawful to become or be a member of any such society advocating or teaching overthrow of the Government, “knowing the purposes thereof.” The court declared that the reasoning in Dennis “applies equally to the membership clause,” and held that the clause requires proof of specific intent to further illegal and constitutionally unprotected party activities directed toward forcible overthrow of the Government. In Yates, Seales and Noto v. United States, supra, the court, by construing the word “advocate,” held that the activity which is punishable by the first clause of the section and in which the organization must engage to warrant punishment of its members under the membership clause, is “advocacy ‘not of * * * mere abstract doctrine of forcible overthrow, but of action to that .end, by the use of language reasonably and ordinarily calculated to-incite persons to * * * action’ immediately or in the future.” Noto v. United States, supra, 367 U.S. at 297, 81 S.Ct. at 1520 quoting from Yates v. United States, supra, 354 U.S. at 316, 77 S.Ct. 1064.