# Killian v. United States/Dissent Black

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* Dissenting Opinions Black Brennan
United States Supreme Court
368 U.S. 231
Killian v. United States
Argued: Oct. 10, 1961. --- Decided: Dec 11, 1961
Mr. Justice BLACK, dissenting.
As a prerequisite to his union's right to seek relief from unfair labor practices before the National Labor Relations Board, petitioner was compelled to subscribe to an oath which stated: (1) 'I am not a member of the Communist Party or affiliated with such Party;' and (2) 'I do not believe in, and I am not a member of nor do I support any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.' The Government now claims that in submitting to this compulsion petitioner made false statements as to his membership in and affiliation with the Communist Party, and on the basis of these allegedly false statements it seeks to send petitioner to prison. I agree with Mr. Justice DOUGLAS that if the Government is to be allowed to do this sort of thing at all, it should only be upon a showing that petitioner was a member who engaged in illegal activities in connection with his Communist Party membership. But I wish also to reiterate my own belief that our Constitution, properly interpreted and applied, would prohibit this prosecution completely-regardless of the nature of petitioner's connection with the Communist Party. I think the Constitution absolutely prohibits the Government from sending people to jail for 'crimes' that arise out of, and indeed are manufactured out of, the imposition of test oaths that invade the freedoms of belief and political association-freedoms which the Founders of our Nation recognized as indispensable to a democratic society.
The test oath is an historic weapon against religious and political minorities, but the fact that this practice has survived the centuries surely cannot be pointed to either as a source of pride or, in my judgment, as evidence that the practice is constitutional. Quite the contrary, I think that history shows test oaths to be one of the most generally and continuously hated and dangerous forms of governmental intrusion upon individual freedom that liberty-loving people have had to contend with. It was squarely in the face of this history of almost universal condemnation that this Court, in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, upheld the test oath requirement upon which this prosecution is based, resting its decision upon the ground that however obnoxious test oaths may be, they must be endured in the interest of interstate commerce. Eleven years have elapsed since that decision and I think it is fair to say that this recent experience with test oaths in this country has done nothing to change the evil reputation they gained throughout previous centuries in other countries. The question before us now is thus no different from that originally presented to us in Douds: Can Congress, in the name of regulation of interstate commerce, circumvent the history, language and purpose of our Bill of Rights and impose test oaths designed to penalize political or religious minorities? I would overrule the decision in Douds and order this prosecution dismissed. As I said there, 'Whether religious, political, or both, test oaths are implacable foes of free thought. By approving their imposition, this Court has injected compromise into a field where the First Amendment forbids compromise.' Id., at 448, 70 S.Ct. at 709.
Mr. Justice DOUGLAS has asked me to add the following: 'I deduce from what the Court does today that the Douds decision was good for one Monday only and that it is being overruled sub silentio on the point now in issue. I did not participate in the Douds decision as I was necessarily absent when it was argued. I would, however, be content to decide this case within the framework which the Douds case established. Yet since the Douds decision is now apparently discarded on the point in issue, and since we face anew the precise question it tendered, I see no constitutional answer to the opinions of Mr. Justice BLACK in that case and in the present one that Congress has no power to exact from people affirmations or affidavits of belief, apart from the accepted form of oath of office demanded of all officials.' Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
This is a prosecution under 18 U.S.C. § 1001, 18 U.S.C.A. § 1001 which penalizes the making of false statements on a matter within the jurisdiction of a federal agency. The false statements charged in the indictment involve 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), which is § 9(h) of the National Labor Relations Act-the provision that required the filing of the so-called non-communist affidavit before the National Labor Relations Board could entertain petitions of a union. See Leedom v. International Union, 352 U.S. 145, 77 S.Ct. 154, 1 L.Ed.2d 201. One count charged that petitioner's affidavit, filed under § 9(h), that he was not 'a member of the Communist Party' was false. A second count charged that the affidavit was also false in averring he was not 'affiliated' with that party. After a jury trial, petitioner was convicted under both counts and sentenced to terms that run concurrently.
An instruction, offered by defendant and refused by the Court, reads as follows:
'Whether intermittent or repeated, the act or acts tending to prove membership and that both the defendant and the communist party intended such a relationship to exist on December 11, 1952, must be of that quality which indicates an adherence to or a furtherance of the illegal purposes or objectives of the communist party as distinguished from mere cooperation with it in lawful activities. The act or acts must evidence a working alliance to bring the illegal program to fruition. Unless there is evidence which convinces you beyond a reasonable doubt of some illegal purpose or objective of the communist party on December 11, 1952 and that the relationship between the defendant and the communist party on and after this date was a relationship based on the illegal purpose or objective, you must acquit the defendant on Count I of the indictment.'
I do not see how denial of this instruction was consistent with the Court's decision in Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. In that case, as in the present one, the Court dealt with the constitutionality of the 'Affidavit of Noncommunist Union Officer.' The affidavit now, as then, reads as follows:
'The undersigned, being duly sworn, deposes and says:
'1. I am a responsible officer of the union named below.
'2. I am not a member of the Communist Party or affiliated with such party.
'3. I do not believe in, and I am not a member of nor do I support any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.'
It was this affidavit that petitioner executed.
In Douds the Court sustained the constitutionality of the required affidavit by tailoring it to exclude membership that did not include belief in the overthrow of the government by force or other illegal or unconstitutional means. Chief Justice Vinson said for the Court:
'We hold, therefore, that the belief identified in § 9(h) is a belief in the objective of overthrow by force or by any illegal or unconstitutional methods of the Government of the United States as it now exists under the Constitution and laws thereof.' 339 U.S. 382, 407-408, 70 S.Ct. 674, 688.
Mr. Justice Frankfurter, who joined the Court's opinion, filed a separate opinion in which he pin-pointed one of the objections running to the broad definition now, as well as then, given the term 'member':
'I cannot deem it within the rightful authority of Congress to probe into opinions that involve only an argumentative demonstration of some coincidental parallelism of belief with some of the beliefs of those who direct the policy of the Communist Party, though without any allegiance to it. To require oaths as to matters that open up such possibilities invades the inner life of men whose compassionate thought or doctrinaire hopes may be as far removed from any dangerous kinship with the Communist creed as were those of the founders of the present orthodox political parties in this country.
'The offensive provisions of § 9(h) leave unaffected, however, the valid portions of the section. In § 16, Congress has made express provision for such severance. Since the judgments below were based in part on what I deem unconstitutional requirements, I cannot affirm but would remand to give opportunity to obey merely the valid portions of s 9(h).' 339 U.S. 382, 422, 70 S.Ct. 674, 696.
Beliefs are as much in issue here as they were in the Douds case. If that case means anything, it means that one who was a member only to promote a lawful cause of the party should not be subjected to the legal odium that attaches to full-fledged members. The fact that one believes in peace, disarmament, a ban on nuclear testing, or the disbandment of NATO may put him out of step with the majority. But unless we toss to the winds the tolerance which a Free Society shows for unorthodox, as well as orthodox, views, the fact that a person embraces lawful views of the party should not establish that he is a 'member' of the party within the meaning of the Act. Membership, as that word is used in the Act, should be proved by facts which tie the accused to the illegal aims of the party. If beliefs are used to condemn the individual, we have ourselves gone a long way down the totalitarian path.
Killian's association with the party appears to have been restricted to lawful purposes: he was against this country's policies in Indo-China; he was for the recognition of Red China; he was against colonialism; he was against war; he urged people to subscribe to The Daily Worker. He attended party meetings, promoted a united front, discussed current political events, recruited Negroes for party membership, and the like. If his attendance at the meetings was for an illegal purpose, I have failed to find it in the record. I find no evidence that Killian used his affiliation with the party to promote immediately or even at long range the overthrow of the government. I find no evidence that he organized violence, promoted sabotage, collected arms, or spied for a foreign power. If he lied in his affidavit, he lied about his beliefs. But insofar as the record shows, he had a right to promote those beliefs alone or in association with others. All the beliefs I find espoused by Killian in this record were protected by the First Amendment. He had a right to advocate them alone or in conjunction with others. Some causes espoused by the Communist Party may be wholly lawful. Such was the case in De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, where speeches were made 'against illegal raids on workers' halls and homes and against the shooting of striking longshoremen' by the police and 'against conditions in the county jail,' id., at 359, 57 S.Ct. at 257. That 'peaceable assembly' and that 'lawful public discussion' (id., at 365, 57 S.Ct. at 260) were held not subject to punishment, even though the meeting was under the auspices of an organization that might have been prosecuted for other activities. If the De Jonge case means anything, it means there must be a separation of the lawful from the unlawful activities of a party when a 'member' is summoned to account for his actions.
In varied situations this Court has refused to bring down on people heavy penalties for being a 'Communist' or for being 'affiliated' with that party where the acts to prove it were intrinsically innocent.
The Court took that view in cases under the Smith Act. Scales v. United States, 367 U.S. 203, 222, 81 S.Ct. 1469, 1482, 6 L.Ed.2d 782:
'We decline to attribute to Congress a purpose to punish nominal membership, even though accompanied by 'knowledge' and 'intent,' not merely because of the close constitutional questions that such a purpose would raise * * * but also for two other reasons: It is not to be lightly inferred that Congress intended to visit upon mere passive members the heavy penalties imposed by the Smith Act. Nor can we assume that it was Congress' purpose to allow the quality of the punishable membership to be measured solely by the varying standards of that relationship as subjectively viewed by different organizations. It is more reasonable to believe that Congress contemplated an objective standard fixed by the law itself, thereby assuring an even-handed application of the statute.'
In light of the Scales decision and the prior decision in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, it is difficult to see why, if membership is to be punished, a different standard should be applied here from that applied in the Smith Act. The constitutional overtones are as pronounced here as they were in Yates and Scales. Attributing to Congress a purpose to impose punitive measures 'upon mere passive members' is as unwarranted here as in those other situations. We should say here what was said in Scales, supra, 367 U.S. pp. 229-230, 81 S.Ct. p. 1486.
'The clause does not make criminal all association with an organization, which has been shown to engage in illegal advocacy. There must beclear proof that a defendant 'specifically intend(s) to accomplish (the aims of the organization) by resort to violence.' Noto v. United States, post, (367 U.S. p. 290,) 81 S.Ct. (1517,) at page 1522. Thus the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute: he lacks the requisite specific intent 'to bring about the overthrow of the government as speedily as circumstances would permit.' Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.' Cf. Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140.
To convict petitioner for membership linked only to the lawful objectives of the party is inconsistent with the holding in the De Jonge case, with what the Court did in Yates and Scales, and with the definition of 'member' spelled out with particularity in the Douds case.
It may be that a jury on this record could find that petitioner was a member who adhered to the illegal purposes of the Communist Party. But unless the issues are so restricted, beliefs that were held in the Douds case to be immune from the Government's inquiry now become elements of a crime.

## Notes

* ↑ It was repealed by the Act of September 14, 1959, 73 Stat. 519, 525.
* ↑ 'It is altogether impossible to reason from the opinions which a man professes to his feelings and his actions; and in fact no person is ever such a fool as to reason thus, except when he wants a pretext for persecuting his neighbours. A Christian is commanded, under the strongest sanctions, to be just in all his dealings. Yet to how many of the twenty-four millions of professing Christians in these islands would any man in his senses lend a thousand pounds without security? A man who should act, for one day, on the supposition that all the people about him were influenced by the religion which they profess, would find himself ruined before night; and no man ever does act on that supposition in any of the ordinary concerns of life, in borrowing, in lending, in buying, or in selling. But when any of our fellow-creatures are to be oppressed, the case is different. Then we represent those motives which we know to be so feeble for good as omnipotent for evil. Then we lay to the charge of our victims all the vices and follies to which their doctrines, however remotely, seem to tend. We forget that the same weakness, the same laxity, the same disposition to prefer the present to the future, which make men worse than a good religion, make them better than a bad one.' Macaulay's Essays (N.Y.1869), p. 668.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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