# Scales v. United States (367 U.S. 203)/Dissent Brennan

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* Dissenting Opinions Black Douglas Brennan
United States Supreme Court
367 U.S. 203
Scales v. United States
Argued: Oct. 10, 1960. --- Decided: June 5, 1961
Mr. Justice BRENNAN, with wo m The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
I think that in § 4(f) of the Internal Security Act Congress legislated immunity from prosecution under the membership clause of the Smith Act. The first sentence of § 4(f) is: 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.' The immunity granted by that sentence is not in my view restricted, as the Court holds, to mere membership, that is to membership which is nominal, passive or theoretical. The immunity also extends to 'active and purposive membership, purposive that is as to the organization's criminal ends,' which is the character of membership to which the Court today restricts the application of the membership clause of the Smith Act.
In its approach to the relation of the first sentence of § 4(f) to the membership clause of the Smith Act, I think the Court asks the wrong question. The question is not whether the Congress meant in § 4(f) to 'repeal' the membership clause of the Smith Act. The 'repeal' of a statute connotes its erasure from the statute books. The grant of immunity from prosecution under a criminal statute merely suspends prosecution under the statute so long as the immunity is not withdrawn. For example, when we recently decided in Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249, that the Narcotic Control Act of 1956, 18 U.S.C.A. § 1401 et seq., legislated immunity from prosecution under state, as well as federal, narcotics laws, our decision did not remotely suggest that the immunity effected the 'repeal' of either the state or the federal criminal statutes.
The Congress was faced with a dilemma in legislating the policy of compulsory registration of Communists into the Internal Security Act. This statute represented, in the words of the late John W. Davis, a policy of 'ventilation rather than prohibition.' Communists were to be forced to expose themselves to public view in order that the menace they present might be dealt with more effectively. The registration provisions of the Act are the very vitals of that measure. But compulsory disclosure of membership would compel admission of a crime, or provide a link to proof of a crime. Communists then could invoke their constitutional right to silence and the registration provisions would be wrecked on the rock of the Self-Incrimination Clause of the Fifth Amendment. It is no disparagement of the Congress to say that their deliberations reflect great uncertainty how to resolve the dilemma. Congress wrote the Internal Security Act knowing that the privilege against self-incrimination was a solid barrier against compulsory self-incrimination by congressional fiat. The legislative history of § 4(f) is murky but I think there clearly emerges a congressional decision to extend immunity from prosecution for any membership in a Communist organization in order to safeguard against constitutional frustration the policy of disclosure embodied in the registration provisions.
The purpose of the first sentence of § 4(f) seems clear in the setting of the Act. In § 2 Congress describes the Communist Party as a group bent on overthrowing the Government by force and violence, such as is described in the Smith Act, and establishing a totalitarian dictatorship in the United States. Section 4(a) makes it a crime to conspire to that end. Sections 7 and 8 provide for compulsory registration of Communist organizations and members. Penalties for not registering are imposed. If members were required to register under the 1950 Act and if membership were a crime under the 1940 Act, then self-incrimination in violation of the Fifth Amendment might be required by the registration requirements of the 1950 Act. Plainly it was with that problem that Congress dealt in § 4(f).
The bills introduced in the Eighty-first Congress provided for compulsory registration of members of the Communist Party, but afforded no immunity for registering. When the House Committee reported out its bill, a provision was included which forbade receipt in evidence of the fact of registration under the Internal Security Act. When the bill reached the floor, Congressman Celler pointed out that the immunity provision was constitutionally insufficient. In the first place, that bill only provided that the fact of registration under the Act should not be received in evidence against the registrant in prosecutions under the Act. Congressman Celler pointed out that there were other criminal statutes, including the Smith Act, for which no immunity was granted. He secondly pointed out that the immunity to be constitutionally protective must be complete; and he discussed Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, in support of that thesis. During these debates and in response to the challenge made by Congressman Celler, the manager of the bill, Congressman Wood, offered an amendment extending the same protection against prosecutions 'for any alleged violation of any other criminal statute.' It was adopted without discussion and the bill passed the House.
At that juncture it seems obvious that restricting the immunity to use of the fact of registration in any criminal prosecution did not satisfy the constitutional requirements. Such a limited immunity was granted by statute in Counselman v. Hitchcock, supra. Yet as the Court stated in that case, 142 U.S. at page 564, 12 S.Ct. at page 198:
'This, of course, protected him against the use of his testimony against him or his property in any prosecution against him or his property, in any criminal proceeding, in a court of the United States. But it had only that effect. It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted.'
Meanwhile the Senate bill was reported out. The late John W. Davis had stated in a letter to the Senate Committee that compulsory registration might make a member 'involuntarily incriminate himself.' The Senate bill accordingly provided that neither holding office nor membership in the Communist Party should constitute a violation of certain provisions of the bill; and it also provided that the fact of registration should not be received in evidence against the registrant in prosecutions under those provisions. Senator Kilgore in a minority report made the same point that Congressman Celler had made in the House-that this immunity provision did not even purport to avoid self-incrimination in relation to the membership clause of the Smith Act and did not provide that complete immunity which Counselman v. Hitchcock, supra, held essential.
Senator Lehman spoke to the same effect when the bill reached the floor:
"In support of the statement made by the Senator from Illinois that the real Communists would simply fail to register, and could not be forced to register, and would be outside the control of the law-enforcement officials, is it not a fact that there would be every reason why a real Communist should not register-because if he did register, would not he make himself liable to incrimination under the Smith Act?'
'Mr. Douglas. 'Certainly.'
'Mr. Lehman. 'So he would be virtually pleading guilty of a penal offense; would he not?'
'Mr. Douglas. 'Yes; the real leaders would be."
Senator Lehman stated on another day of the debate:
'What dyed-in-the-wool Communist will run to the nearest registration office to list himself as such and expose himself to the penalties contained in the Mundt-Ferguson bill? Obviously, if he did, he would lose all of his effectiveness as a Communist, besides subjecting himself to the penalties set forth in this bill. He would also expose himself to the penalties set forth in other laws, such as the Smith Act, under which the 11 top Communist leaders were recently convicted. In fact, registration would constitute self-incrimination, if not under the terms of this law, then under the terms of the Smith Act. Obviously, the Communists would not register.'
Senator Humphrey voiced the same objection:
'* * * his registration would be equivalent to testimony; and under the interpretation of very prominent attorneys, it could be that he could be prosecuted under the Smith Act.'
The answers to these objections were wide of the mark. Senator McCarran said that the registrant a § immunized from prosecutions under § 4 of the bill. The relevancy of the Smith Act was not recognized. Senator Ferguson and Senator Mundt likewise did not meet the point. They noted that membership was held irrelevant to the Smith Act in the prosecution of Dennis v. United States, supra, overlooking the fact that that case involved not membership but a conspiracy to practice the Communist dogma.
But no change in the bill was made in this respect before it passed the Senate. The important changes in § 4(f)-the ones that are critical here-took place in Conferences. No contemporary statement of the intended sweep of the revised § 4(f) is in the legislative record. But I have set out enough history to indicate that the motivation was clearly the fear that the immunity granted under the earlier versions of the bill was not constitutionally sufficient to compel registration, since it did not extend to prosecutions under the membership clause of the Smith Act.
When the bill came back from the Conference Committee Congressman Multer referred to § 4(f) in its new form and predicted it would 'vitiate one of the most important parts of the Smith law.' No reply was made to his comments. And only brief reference was made to § 4(f) in the Senate. Senator Kefauver said, 'There is nothing in the bill which provides that when a person registers that fact shall not be used in evidence against him in connection with the Smith Act.' But that statement is irrelevant to our problem because the Senator apparently did not realize that the bill had been amended in Conference to include the words 'or any other criminal statute.' Senator Kilgore stated that the Conference bill differed from the one approved by the Judiciary Committee over his dissent, since it nullified the Smith Act. No one challenged the statement.
From this legislative history it seems tolerably clear that one purpose of § 4(f) was to protect registrants from prosecution under the membership clause of the Smith Act.
The Court holds, however, that the first sentence of § 4(f) is simply 'a mandate to the courts charged with the construction of subsections (a) and (c) 'or * * * any other criminal statute' that neither those two named criminal provisions nor any other shall be construed so as to make 'membership * * * per se a violation." If the phraseology were that immunity is extended only to 'membership per se,' there might be support for the argument that the immunity granted by § 4(f) extends only to nominal membership, excluding the type of active membership which we have here. But the statute does not say 'membership per se.' It provides that '(n)either the holding of office nor membership in any Communist organization shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.' The kind of membership given immunity is not restricted. It may be nominal, short-term, long-term, dues-paying, non-dues-paying, inactive, or active membership. Every type of membership is included. What the Congress is saying is that no type of membership shall violate alone or by itself (that is to say, per se) any criminal statute. When Congress said that membership 'shall not constitute per se' a violation of any criminal statute, it meant that additional conduct besides membership, whatever its nature, is necessary to constitute a violation. Only by transposing per se in § 4(f) and making it modify 'membership' can the Court's argument be made plausible. That entails a substantial revision of the Act and a drastic dilution of rights of immunity which have been granted by it.
If the Court is correct in its view, the constitutionality of registration provisions of the 1950 Act are called into question. True, today's decision in Communist Party of America v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, puts off to another day the constitutionality of the registration provisions in their conflict with the Fifth Amendment; I have noted my dissent as to the provision of the registration requirements that designated officials of the Party must complete, sign, and file the Party's registration statement. But if 'active membership' remains a crime under the Smith Act, there would be a serious question whether any Communist-active or nominal-could constitutionally be compelled to register under the 1950 Act. For it could be urged that the act of registering would supply one link that might complete the chain of evidence against him under the Smith Act. It is no answer to that contention that mere membership would not support a conviction. As we said in Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170:
'Whether such admissions by themselves would support a conviction under a criminal statute is immaterial. Answers to the questions asked by the grand jury would have furnished a link in the chain of evidence needed in a prosecution of petitioner for violation of (or conspiracy to violate) the Smith Act. Prior decisions of this Court have clearly established that under such circumstances, the Constitution gives a witness the privilege of remaining silent. The attempt by the courts below to compel petitioner to testify runs counter to the Fifth Amendment as it has been interpreted from the beginning.'
This principle had been an established one ever since Counselman v. Hitchcock, supra, was decided.
The registration provisions of the 1950 Act were the very heart of that law. Disclosure of who the Communists were was the provision from which all other controls stemmed. As the Senate Report stated, the registration requirement is the 'central provision' of the Act, the purpose being '(a) to expose the Communist movement and protect the public against innocent and unwitting collaboration with it; (b) to expose, and protect the public against, certain acts which are declared unlawful.'
A fair and literal reading of § 4(f) can save the 1950 Act against this Fifth Amendment objection. By reading § 4(f) to provide that being a member of the Communist Party shall not 'constitute per se' a crime, immunity from prosecution under the membership clause of the Smith Act is effected. And that is in full harmony with the purpose to make something more than 'membership' necessary for conviction. That something more can be some kind of unlawful activity. After the 1950 Act was passed, membership without other activity was no longer sufficient for Smith Act prosecutions. That seems to me to be the only fair way to read § 4(f). That conclusion necessarily requires a dismissal of ths indictment.

## Notes

* ↑ Senator McCarran, the floor manager of the bill in the Senate, spoke of the exposure of Communists as one of the 'principal objectives' of the bill. 96 Cong.Rec. 14174.
* ↑ S. 2311, 81st Cong., 2d Sess.; H.R. 9490, 81st Cong., 2d Sess.
* ↑ H.R. 9490, 81st Cong., 2d Sess.; see H.R.Rep. No. 2980, 81st Cong., 2d Sess., p. 8.
* ↑ 96 Cong.Rec. 13739.
* ↑ Id., 13740.
* ↑ Id., 13761.
* ↑ S. 4037, 81st Cong., 2d Sess.
* ↑ S.Rep. No. 1358, 81st Cong., 1st Sess., pp. 43-44.
* ↑ S.Rep. No. 2369, Pt. 2, 81st Cong., 2d Sess., pp. 12-13.
* ↑ 96 Cong.Rec. 14421.
* ↑ Id., 14190.
* ↑ Id., 14500.
* ↑ This reference apparently was to Charles Evans Hughes, Jr. and John W. Davis. Id., 14500. The statement of Mr. Davis is referred to in note 8, supra. That of Mr. Hughes can be found in Hearings on H.R. 5852, Senate Committee on the Judiciary, 80th Cong., 2d Sess. 415-420.
* ↑ 'In the opinion of the chairman of the Committee on the Judiciary, this provision leans over backward to protect Communists against self-incrimination; but it is one of the many safeguards written into the bill by the Judiciary Committee to assure the complete constitutionality of the measure.' Id., 14175. See also id., 14443.
* ↑ 'Mr. Long. I was under the impression, from hearing the Senator from New York (Sen. Lehman) yesterday, that he said that under a previous statute it was unlawful to belong to an organization that advocated the overthrow of the United States Government by force * * *
* ↑ H.R.Conf.Rep. No. 3112, 81st Cong., 2d Sess., p. 49.
* ↑ 96 Cong.Rec. 15289.
* ↑ Id., 15198.
* ↑ Ibid.
* ↑ Id., 15192.
* ↑ S.Rep. No. 2369, 81st Cong., 2d Sess., p. 4.
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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