Earl Warren: Number 3, William Albertson, et al., Petitioners versus Subversive Activities Control Board. Mr. Abt.
John J. Abt: Thank you, Mr. Chief Justice. May it please the Court. This case brings to the Court for review the judgment of the Court of Appeals for the District of Columbia, affirming two orders of the Subversive Activities Control Board, each order is addressed to one of the petitioners and requires him to register with the Attorney General under Sections 8 (a) and (c) of the Subversive Activities Control Act and I quote, “As a member of the Communist Party of the United States of America, a Communist-action organization.” The Court has so -- the Board rather has so far issued similar orders against 40 other -- 41 other persons which it has been stipulated are to abide the result in this case. The case is one of the sequels to the Court's 1961 decision in Communist Party versus Subversive Activities Control Board. There, as you will recall, the Court affirmed the Board's 1953 finding that the Communist Party is a Communist-action organization and the order that it register as such under Section 7 of the Act. The Court held, however, that it was premature to decide whether enforcement of this order was constitutionally permissible. Under the Act's definitions, a Communist-action organization is a domestic agent of the World Communist Movement which Section 2 describes as a worldwide seditious conspiracy under the domination and control of the Soviet Union. Section 8 (a) of the Act provides upon the failure of an organization to register as a Communist-action organization in obedience to a final registration order and to furnish the Attorney General with a list of its members. It becomes the duty of each member to register himself. Failure to register is not punishable at this point. However, Section 13 provides for Board proceedings on petition of the Attorney General for a finding that an accused individual is a member of a Communist-action organization and for an order that he register as such. One such a board order becomes final, failure to register is punishable by imprisonment for five years and a fine of $10,000 both penalties cumulative for each day that the failure to register continues.
Speaker: Is there a hearing provided that the Attorney General makes such an application to find the mem -- an alleged member -- a member?
John J. Abt: Oh yes, Justice Harlan.
Speaker: There was in this case.
John J. Abt: There was in this case and I'll come to a description of that here momentarily. Section 8 (c) provides that the registration of an individual shall be accompanied by a registration statement containing such information as the Attorney General may by regulation prescribe. Failure to file a statement is punishable by a -- by imprisonment for five years and a $10,000 fine but noncumulative. Under regulations of the Attorney General, registration under Section 8 (a) is accomplished by filing a form, IS-52a which appears at page 65 of our brief, signed by the registrant and stating, and again I quote, “that he hereby registers as a member of blank,” naming the organization, “a Communist-action organization”. The registration statement under 8 (c) consists of a separate form, Form IS-52, which is reproduced at page 66 of our brief which calls for the registrant's name and address, his aliases, the date and place of his birth, the name of the Communist-action organization of which he is a member, and the offices and the organization held by him during the preceding year. Now, the Communist Party did not register subsequent to this Court's decision of 1961, instead, it has resisted enforcement of the Board's order that it do so in criminal proceedings in which it has reasserted all the constitutional objections to enforcement which this Court held premature in the '61 decision. Its conviction in 1962 for failure to register was reversed by the Court of Appeals on the grounds that the Government had not met its burden of proving the existence of some person who is willing to incriminate himself by signing and submitting to the Attorney General of the required registration documents on behalf of the organization. After the denial of certiorari, the Government moved for a retrial of this criminal case which is now scheduled to begin in the District Court on November first.
Speaker: Was there a new indictment with that?
John J. Abt: There was also a new indictment and the Government is retrying the old indictment pursuant to the option that the Court of Appeals gave and the Government secured a new indictment charging a subsequent failure to register on the part of the organization. The District Court consolidated the two indictments and the consolidated case is going to trial, as I say, in November. Meantime, in 1962, the Attorney General instituted the present proceedings before the Board, alleging that the Communist Party had not complied with the order that it register, petitioners who are members of the party and that they had not registered. In their answers to the Attorney General's petition, petitioners claim their Fifth Amendment privilege against being required to register and file a registration statement. And on the same ground, decline to answer the allegations of the petition with respect to their membership in the Communist Party. They also in their answers denied the allegation of the petition that the party is a Communist-action organization. The Attorney General's evidence consisted of the testimony of informer witnesses that the petitioners had attended party meetings and had been elected to party officers. Petitioners offered no evidence. In a report accompanying its order in the case of petitioner Albertson, the Board held that petitioners were bound by and could not relitigate the 1953 determination that the Communist Party is a Communist-action organization. The Act neither requires nor was there any evidence or finding in the Board proceedings that petitioners had engaged in any unlawful conduct or advocacy, had knowledge of such conduct or advocacy on the part of the Communist Party or knew believed that it had the characteristics ascribed by the Act to Communist-action organizations. Petitioner's challenge of the Act and the orders is confined to constitutional grounds. We raise no evidentiary and no procedural issues. The court below held that adjudication of the privilege issue which is in this case is premature and could be raised only in a criminal prosecution of the petitioners for failure to register. And that the remaining issues are either likewise premature or are foreclosed by year 1961 decision in the Party case. Now, before coming to petitioner's specific constitutional objections, I want first for a moment to examine the function or purpose of the member registration requirement of the Act. The purpose of registration under the Act as stated in the report of the Senate Committee was and I quote, “to effect disclosure of the identity and propaganda of individual Communists and Communist organizations.” Similarly, the Court in the Party case found constitutional justification for requiring the Party to register and disclose the names of its members in the need to strip what it called the mask of anonymity from an organization that Congress had declared to be a foreign control seditious conspiracy. Now, Mr. Forer and I, I'm sure the Court knows, disagree with the decision in the Party case for reasons that are eloquently stated in the dissenting opinion of Mr. Justice Black. But it is unnecessary to rephrase that ground here. For the requirement of self-registration by members as distinguished from the requirement of organizational registration has no conceivable justification as a disclosure measure. This is so because a person is not required to register as a member until after the Board has made the disclosure that he is a member by finding him to be a member. Self-registration as a member after the Board has found him to be one is therefore completely superfluous to any conceivable disclosure objective. And the government's fruitless effort to unearth any other legitimate function for this self -- compulsory self-registration requirement confirms a fact that indeed it hasn't. The Government says that the major, embodied at one point calls the sole function of compulsory registration as a member is to enable the Attorney General to compile a centralized public roster of registrants. But as it appears from Section 9 (a) of the Act, Congress made no provision for such a roster of individual members provided for such a roster of organi -- registered organizations but not of members. And obviously, had it desired such a roster, it could have directed the Attorney General to compile one from the orders of the Board rather than to require self-registration. Besides, it would be preposterous to suppose that Congress prescribed cumulative penalties amounting to life imprison -- imprisonment merely to -- for a refusal to cooperate with the Attorney General in this minor clerical duty. The fact is that the object of self-registration is not to get disclosure but to get Communists. The means used in the Act is to confront them with the alternatives of self-incrimination, self-defamation, and the sacrifice of privacy, conscience, and belief by registering or life imprisonment for non-registration. The Act admits of no other rational interpretation and neither the Government nor the court below could offer one. It is against this background that I turn to petitioner's specific constitutional objections. Our first objection is that the requirement of self-registration requires petitioners to incriminate themselves. They claim their privilege as I indicated in their answers to the Attorney General's petitions and began in their petitions for review of the registration orders by the court below. These claims were denied by the Attorney General in continuing to prosecute the proceedings by the Board in issuing the registration orders and by both in descending those orders in these review proceedings. Under these circumstances as the Government now acknowledge, the court below was clearly in no error in holding that adjudication of the privilege issue is premature. The Government now concedes that petitioner's claims are right for adjudication insofar as they are addressed to any form of registration and any form of registration statement that would meet the requirements of Section 8 (a) and (c) and the Board's orders.
Abe Fortas: Mr. Abt --
John J. Abt: Yes, Justice Fortas.
Abe Fortas: -- the Government as I understand it makes a distinction between their registrations which is -- as I read it, concedes his right for adjudication and the filing -- in the filing of a statement which it argues is not right for adjudication. Is that your understanding of their position?
John J. Abt: Well, my under -- no, they say the same -- they say in words -- say the same thing about the act of registration. But as I'll try to show, Justice Fortas, neither of their reservations, their reservations that I'm coming to as they make it are of no consequence as applied either to the act of registration or to the registration statement. If you could give me just a moment, I think I'll make that clear. What they urge is that the issue was premature insofar as petitioner's claims of privilege are addressed to particular items of both forms, the form of registration and the form of registration statement which are not required by the terms of the Act and the Board's orders. Now, as it will appear in just a moment, there are no such items in Form IS-52a that is the registration form, except for the bare detail of the registrant's address. And for reasons that I'll discuss later, the Government's reservation is likewise of no consequence with respect to Form IS-52 the registration statement. But I'd like first to turn to the merits of petitioner's claims of privilege with respect to the bare requirement of registration under Section 8 (a). Section 8 (a) and Section 13 (g) of the Act, the orders of the Board and Form IS-52a, all specifically require each petitioner to register and I quote, “as a member of the Communist Party of the United States of America”, and thereby to admit membership in that organization. Such an admission as this Court has frequently held is incriminating and may not be compelled. Moreover, Sections 8 (a) and 13 (g) seem to require a registrant not only to admit membership in the organization but to describe it as and thus to admit that it is a Communist-action organization. The Government has so interpreted these two sections for the Board's orders and the Attorney General's form, all require petitioners to register not only as members of the Communist Party but as members of the Communist Party, a Communist-action organization. This admission at the Communist Party has a criminal and conspiratorial character which the Act attributes to Communist-action organizations is of course also incriminating. And if you'll look at, Mr. Justice Fortas, at the registration Form IS-52a, you'll observe that it requires nothing but these two admissions, an admission of membership and admission that the organization is a Communist-action organization other than appending the address of the registrant below as signatured.
Abe Fortas: I know Mr. Abt that Form IS-52a states, this form should be accompanied by a registration statement, Form IS-52 --
John J. Abt: Right, right.
Abe Fortas: Now, what is -- is it -- what is your position with respect to the meaning and the effect of that statement? In other words, could these individuals register or accomplish what the Government refers to as a mere fact of registration without filing the registration statement?
John J. Abt: Yes, yes. And I'll -- I'll come to that again if you'll permit me. Let me just anticipate my argument. Our position is that the registration statement is dependent on and merely auxiliary to -- ancillary to the act of registration because the Act says that the registration statement shall accompany the registration. If there's no registration, then there's no requirement of registration statement. Plus the fact that the Act imposes cumulative penalties for the bare -- for failure to -- to perform the bare act of registration but only a single penalty for failing to file a registration statement which we say also shows that the principal duty here, the primary duty is the duty to register, to file, to comply with -- with what is included in Form IS-52a.
Abe Fortas: That's right. You are right. And if I follow you, you seem to agree that the two things are severable.
John J. Abt: Severable, that's correct. That's severable in the sense that there is no obligation to file a statement unless the registrant performs the act of registering.
William J. Brennan, Jr.: Well, I don't follow that, Mr. Abt.
John J. Abt: Right.
William J. Brennan, Jr.: If he must register on 52 --
John J. Abt: Right.
William J. Brennan, Jr.: Does he affect a proper registration without also filing -- I'm sorry, 52a --
John J. Abt: Yes.
William J. Brennan, Jr.: -- without also filing at 52?
John J. Abt: Yes, sir.
William J. Brennan, Jr.: He does.
John J. Abt: There are two separate requirements in the Act, one in 8 (a) and one in 8 (c). And each carries its own penalties. The failure to file IS-52a carries a daily -- daily cumulative penalty. The failure to file IS-52 under Section 8 (c) of the statement carries with it only a single penalty. There are two separate -- separate requirements, each separately punishable. And we say, and it seems clear from the Act, that there is no obligation to file a statement unless the individual registers.
Abe Fortas: But then --
John J. Abt: And that's not to say that Congress was giving a man a bonus for --for failing to register. It's just the sensible thing that a man was already accumulating a life -- a life sentence for non-registration and there's no point in imposing another additional penalty upon him for failing to file a registration statement.
Earl Warren: Suppose he just filed the registration certificate --
John J. Abt: Right, right.
Earl Warren: -- and does not file a statement, does he satisfy the registration part of the --
John J. Abt: He satisfied 8 (a), Mr. Chief Justice.
Earl Warren: And he would no longer be -- be guilty of --
John J. Abt: These cumulative penalties.
Earl Warren: Cumulative penalties.
John J. Abt: Right. He'd be stopped for a one shot offense of --
Earl Warren: Do you and the Government disagree on that?
John J. Abt: Well the Government -- it's hard to tell. The Government didn't quite -- didn't meet our argument although we made it in our brief. Although as we point out in our reply brief, there are a number of statements in the Government's brief which would seem to indicate that they probably agree with us but they'll have to ask Mr. Maroney about that one.
Abe Fortas: Well do you agree that the only thing that before this Court presently, is Form IS-52a, that is to say the failure of registration.
John J. Abt: No, Mr. Justice Fortas. Even if we're wrong in our interpretation of -- of the dependency of IS-52 on the act of registering, even if we're wrong on that, as I'm going to attempt to persuade you, no questions that whether the specific questions have now appear in IS-52 or any other questions that the Attorney General could conceivably ask within his authority under the Act could be non-incriminating. They -- they -- by the very nature of the -- of the matter and I'm – I'm coming to that, and I'm anticipating what I'm going to say. By the very nature of the case, any -- any questions that the Attorney General's got authority to ask under 8 (c) must necessarily be incriminating. It couldn't ask anything else. And petitioners have claimed their privilege against filing a statement. Now, coming back to -- to the act of registration under the Act of the Board's order and Form IS-52a, Congress itself was acutely aware of the fact that the self-registration of a person under Section 8 (a) as a member of a Communist-action organization, involves self-incrimination. This appears from the fact that it added a partial immunity provision, Section 4 (f) to the Act and it's made even clearer by the legislative history of that section which is recounted in Scales versus the United States. Now, Scales indicated, however, and as Congress was frequently warned in the course of the debate, Section 4 (f) does not displace the privilege. It provides first that membership in a Communist-action organization shall not constitute per se a violation of any criminal statute. This provision is inadequate since it does not protect against prosecutions for crimes like the membership clause of the Smith Act in which membership is only one ingre -- ingredient of the offense. The section, second sentence of 4 (f) prohibits to recede an evidence of the registration of a person as a member of a Communist-action organization in a prosecution against him for violating Section 4 (a) or (c) or any other criminal statute. This provision is indistinguishable from the statute which Counselman versus Hitchcock invalidated because it did not afford the witness absolute immunity from prosecution for any offense to which the incriminating admission related. Now, the Government acknowledges as it must under Counselman that Section 4 (f) does not supplant the privilege. Yet its argument was really its only argument that belies this acknowledgment. The argument is that in view of the evidentiary bar of Section 4 (f), the privilege does not protect the person from being compelled to register as a member of the Communist Party because this admission of membership is not required until after such membership has been proved by the Attorney General in the Board proceeding, and says the Government it therefore appears that the admission will not furnish the Attorney General with any lead he does not already have.
Hugo L. Black: What does it want with it?
John J. Abt: Pardon?
Hugo L. Black: What does it want with the thing?
John J. Abt: That's one of the questions I'd like -- that I -- that I ask also, Justice Black, because the fair majority in Brown versus Walker that -- that sustained a grant of absolute immunity as a substitute for the privilege did so on the theory that this was a necessary aid to law enforcement. But under the Government's theory, they can't compel an admission unless the admission is absolutely valueless to the prosecutor because it doesn't give him any -- any information or any leads that he can use for enforcement purposes. But the Government's proposition is, is that the statute of the Counselman type does supplant the privilege wherever the Government can show that it's already in possession of the incriminating information whose disclosure it seeks to compel. That is wherever it can show that the disclosure is valued most. Acceptance of this proposition would make deep in roads under the protection -- protection which the privilege has long been held to afford. Up to now, a claim of privilege has been honored whenever the Court was able to discern some rational connection between the disclosures which is sought and some sort of criminal conduct. No court has ever believed that it relevant to go on to inquire whether the Government already had knowledge of the facts which it seeks to elicit from the witness. And this has been so whether the inquiry arose on a proceeding to which a Counselman type of statute was applicable or not. For example, a Counselman type of statute used to be applicable to the inquiries of congressional committees. Yet the Court as in the Chief Justice's decision in the Emspack case has sustained claims of privilege to the question, are you a member of the Communist Party? In situations where it appeared that the committee had evidence that the witness was a member and indeed as in the Emspack case where they had made a finding that the witness was a member. The courts have always thought that circumstances like these showing at the body which subpoenaed the witness had incriminating evidence against him supported and bolstered his claim of privilege. Now, the Government claims that it invalidates the assertion of privilege. And as Justice Black has already pointed out, the purpose of extorting this kind of an admission or the extortion of this kind of an admission is as purposeless as it is unprecedented. Now -- now turning from the act of registration under Section 8 (a) to the registration statement required by Section 8 (c), if as I have urged, the petitioners cannot be compelled to register under Section 8 (a), it is our position that they're under no duty to comply with Section 8 (c) for the reasons that I've already indicated. Because of the text of the Act, because of the nature of the penalties, and finally because of principle of restrict construction of criminal statutes would require that kind of an interpretation. But even if our interpretation of 8 (c) as being ancillary only to registration under 8 (a) is rejected. It's perfectly obvious not only that particularly -- particular inquiries which the Attorney General has made in IS -- Form IS-52 call for incriminating answers but that any inquiries within the Attorney General's competence under Section 8 (c) would do so. If the undefined authority of the Attorney General under 8 (c) to prescribe the form of registration statements is to escape condemnation as an invalid delegation of legislative power and the violation of the Fourth Amendment seems obvious that its authority must be confined to inquiries which bare some relation to the registrants, membership and activities in the Communist Party. And since federal legislation has made the Communist Party what the Court of Appeals called virtually a conspiracy per se, any such questions within the Attorney General's competence would obviously call for incriminating answers. The situation is these all petitions were subpoenaed before a grand jury and told by the prosecutor, “See here now. We're thinking about having you indicted as a member of a criminal conspiracy headed up the Soviet Union for the destruction of our form of government. But before we go ahead with this indictment, we'd like you to answer a few questions. Although we're telling you now that we know the answers to many of them. Are you a member of this conspiracy? Is it the kind of a conspiracy I've just described? Are you also an officer of this outfit? What are your duties? Give us all your aliases. Where and when were you born?” And so on. Now, generations of lawyers have advised their clients that in situations like that, you don't have to answer such questions. And decisions, like Mr. Justice Clark's decision in Hoffman versus United States have sustained us in this advice. Now, the Government tells us we've been all wrong. And that the answers can be compelled. Its contention, apart from the proposition that the privilege is inapplicable where the Government already knows the answers, is that what euphemistically calls identifying information, it's indistinguishable from fingerprinting and as outside the privilege. Now, whatever may be the case with fingerprinting or other means of physical identification, the registration statement like the questioning of a prosecutor is a demand for communication and is indisputably within the protection of privilege. We make four other constitutional objections to the member registration requirement. First, we say that since as I have shown, the requirement has no legitimate governmental purpose, the restraint which it imposes on individual liberty is a denial of substantive due process. Second, we say, that this due process defect is compounded by the fact that compulsories self-registration is a form of compelled communication and hence within the ambit of the First Amendment. The Act singles out the members of a particular group and compels them both to avow their political affiliation and to admit to the truth of the governmental finding that the party to which they belong is a seditious conspiracy under foreign control. The Act thus coerces persons to make those durations which are contrary to their conscience and belief, invasions of their privacy, and self-defamatory. Moreover, the self-registration requirement is a restraint on the individual's right of association and for that reason also, they're subject to First Amendment limitations. Decisions of this Court,Mr. Justice Harlan's in Barenblatt for example, holding that the First Amendment did not prohibit inquiry into a person's membership in the Communist Party reached that conclusion on the ground that the Government's interest in obtaining an answer outweighed the interest of the individual in privacy. And it was on similar grounds that the Court sustained the registration order in the Party case. Here, if we are once more to balance self-registration as I have shown, serves no conceivable public interest. So there is nothing to balance off against the claim of the individual to the protection of the First Amendment. Next, we argue that petitioners were denied procedural due process by the Act and the Board's ruling, both of which precluded them from challenging the 1953 determination that the Communist Party is a Communist-action organization. This due process violation results first from the fact that the petitioners were not parties to the proceeding in which the determination was made. Moreover, even if they could be held to be bound in their absence, they would still be entitled to litigate the current validity of this determination. Now, 12 years old and based primarily on what the Chief Justice characterized as stale evidence of the events that antedate 1940. The majority in the Party case held that the provisions of Section 13 of the Act, submitting a registered organization periodically to seek a redetermination of its status, saved the Act as to the organization from condemnation under the Due Process Clause and the prohibition against bills of attainder. But the Communist Party cannot ask for a redetermination under Section 13 since it is not registered and is still litigating the constitutionality of the requirement that it do so. Moreover, if it wins this litigation, establish its right not to be compelled to register, it can never apply for a redetermination under the Act. And the Act does not permit a member to seek such a redetermination whether or not, he or the organization is registered.
Abe Fortas: Mr. Abt, can you without directing your argument too much, tell me where in the record is the ruling of the Board below that they would not receive evidence as to the character of the Communist Party.
John J. Abt: Yes, just one moment, record 13, 14, Mr. Justice Fortas, 13, 14 -- pages 13 and 14.
Abe Fortas: Well, that -- did you make an offer of proof?
John J. Abt: No, we made no offer of proof. We objected --
Abe Fortas: But you're -- it was -- well then, your position rather is that the Board had the affirmative duty, then your objection as to the Board taking judicial notice of the -- of its own order previously entered in the Communist Party case.
John J. Abt: Taking judicial notice of its own order as applicable in the current proceeding, yes sir.
Abe Fortas: But there is --
John J. Abt: As establishing the fact that the Communi -- in the current proceeding that the Communist Party was a Communist-action organization.
Abe Fortas: Well, my question is really this. Is there a clear ruling by the Board that you would not be permitted to introduce evidence attacking the validity of the order entered in the Communist Party case?
John J. Abt: I so read the Board's opinion and I so read the Act, Mr. Justice Fortas.
Abe Fortas: The legitimate --
John J. Abt: I'm talking on the Act which permits to do that.
Abe Fortas: That's a different matter.
John J. Abt: Right.
Abe Fortas: Did you make an offer of proof?
John J. Abt: No, we made no offer of proof. Mr. Forer reminds me that there was a denial in our answers of the Attorney General's allegation in the petition that the organization is a Communist-action organization. And the only proof that the Attorney General offered of that allegation was his request for judicial notice of the Board's 1953 determination. The Party case also recognized that the validity of the Board's 1953 determination at any future time would depend upon the validity at that time of the Board's conclusion that the Soviet Union is the unnamed foreign power referred to in Section 2 which controls a monolithic world Communist movement described in that section. Accordingly, the Court held that as due process requires, the soundness of this conclusion in the right -- in the light of the contemporaneous political realities would be subject to review by the Board or the courts in any subsequent proceeding under the Act. Today, it is common knowledge that Communism is characterized by what the experts call polycentrism. And that the Section 2 model of a monolithic world movement under Soviet discipline and control is strictly mythological. In the fable, it was a child who announced the truth about the emperor's new clothes. Under the Party case, since the Board has not done so, it evolves upon the Court to make a similar pronouncement about Section 2 and the Board's 1953 determination which rests on Section 2. Finally, we argue that --
Speaker: (Inaudible)
John J. Abt: Not under the Act, Mr. Justice Harlan, because the Party hasn't registered. Under the Act, the right to seek a redetermination is only given to an organization which registers.
Speaker: (Inaudible)
John J. Abt: There's no provision on the Act which permits it. The Government says, well they could -- they could find some other kind of proceeding but it never -- it never indicates what kind of a proceeding it could find and -- and we don't know of any, we don't think there is any. The Act contemplated that you have to register before you could go in and then ask for an escape. And what --
Speaker: (Inaudible)
John J. Abt: That's right. They have no standing under the Act. No standing Your Honor. What I think the Court overlooked, if I may say so, with the majority in the -- in the 1961 decision was that these questions of which the Court held at that time to be premature would take an awful long time to -- to litigate and get decided and might be decided in favor of the organization. And under those circumstances, there'd be no possibility for a redetermination. And it's for that reason that we say that under the reasoning of the Party case itself, we're denied or our clients are denied due process and are subject to attainder. Our final constitutional point is that the Act deprives petitioners in criminal prosecutions for failing to register of their right to grand jury indictment, trial by judge and jury, and the requirement of proof beyond a reasonable doubt. The Act does this by making the findings of the Board that petitioners are members of the Communist Party and that latter is a Communist-action organization, and these are the two basic requisites of criminal liability conclusive upon the petitioners in the criminal proceedings. The Act excludes these issues. The vital and controversial parts of the offense of failing to register from the consideration of judge and jury and provides for their determination by an administrative agency.
Hugo L. Black: You mean it does that in case they can be prosecuted?
John J. Abt: That's correct, Mr. Justice Black.
Hugo L. Black: Is that in here?
John J. Abt: No but if you read the Act, it appears from the face of the Act.
Hugo L. Black: Would you say that the Act contemplates in which then could be tried failing to obey this order.
John J. Abt: Right.
Hugo L. Black: That the Government's address on the administrative findings on essential allegation of criminal charge –-
John J. Abt: That's correct.
Hugo L. Black: That he belongs to the Communist Party.
John J. Abt: Right.
Hugo L. Black: And that the Communist Party was a seditious organization.
John J. Abt: Right.
Hugo L. Black: Would that --
John J. Abt: The Government agrees --
Hugo L. Black: And it has not been decided by this Court not yet.
John J. Abt: Not yet. We say that one makes the Act unconstitutional, Justice Black. The Government agrees that the only issue --
Hugo L. Black: Did they insist here --
John J. Abt: They say --
Hugo L. Black: -- that they could take that essential part of the crime to with which they charge you and rest simply by saying that this administrative agency had found that to be a fact?
John J. Abt: That's exactly what they say. And I say that's -- that's the usual thing, nothing -- nothing unusual about it at all. But obviously, if Congress can circumvent jury trials and the other safeguards of the Constitution by the device of framing our criminal statute in such a way as to split off for administrative determination, the primary factual issues on which criminal liability depends, all the constitutional provisions for the protection of the accused that we have often always thought were the foundation of liberty in this country would have lost their meaning completely.
Hugo L. Black: I suppose that that is correct. The man is charged with stealing in the property of A, an administrative agency request to find that the property belongs to A that when he was charged with stealing, the Government can rest by approving that one of his administrative values had found belonging to A.
John J. Abt: Exactly so, that's their argument. They also argue that our contention is premature and must await petitioners' criminal prosecutions for failure to register. But Ex parte Young establishes that petitioners are entitled to have that issue decided in this proceeding and can't be required to risk the Act's fantastic criminal penalties as a price of securing an adjudication of their constitutional rights. In conclusion, the Act, a product of the savage anticommunist repression of the early 1950s would institutionalize McCarthyism and violate basic constitutional guarantees on which personal liberty has always been thought to rest in this country. And as the experience of those years, a decade ago, once again demonstrated these guarantees cannot be withheld from any group, Communists or otherwise, without denying them to every American. We say that the member registration requirement of the Act should be invalidated and the Board's order set aside as incompatible with these constitutional guarantees. Thank you.
Earl Warren: Mr. Maroney.
Kevin T. Maroney: Mr. Chief Justice, may it please the Court. It seems clear that the central question in this case relates to the Fifth Amendment, although many other issues are raised both in their brief and in argument. The First Amendment questions, we submit, are -- were substantially settled by this Court's decision in the Communist Party case. They do make a -- a distinction here as to purpose -- as to governmental purpose following disclosure during the course of a Board proceeding and I intend to discuss that in a few minutes. But before discussing the Fifth Amendment question, I would like to take just a few minutes to discuss their contention that Section 4 (f) is not sufficiently sweeping to cover -- to preclude the use of the fact of registration for prosecution especially under Sections 5 and 15 of -- of the Internal Security Act. They make the claim supposedly based on the legislative history of the statute that because the House version of the bill contained a specific provision which would have precluded the fact of registration from being used in connection with proving violations of Section 5 and 6 of the Act. And since those specific provisions were later eliminated following the conference between the House and the Senate, they conclude that it was thereby the intent of Congress to not have applicable to the violations set forth in Section 5 and 6, the immunity provisions of Section 4 (f). We think that the -- the history of the bills as they progress through the Congress makes it quite clear that Section 4 (f) was intended to be and does in fact in specific words, was intended to preclude the use of the fact of registration in any criminal prosecution. Now, the -- the Wood bill which was the House -- which was the bill that pass the House had in Sections 5 -- Sections 4, 5 and 6, each of which established new offenses. Each of those provisions in the Wood bill as it came out of the Committee provided that the fact of registration cannot be used in evidence to prove the violation previously set forth in this section. So that each Section, 4, 5 and 6 had a similar provision and it related particularly to the section in which it was. Now, on the floor of the House when the question was being debated, Congressman Cellar and Mark Antonio made the objection that the provision -- that the immunity provision set forth in -- in these sections was not sufficiently broad, that it would permit for example the use of the proof of the fact of registration in a Smith Act prosecution. Since this clearly was not the intent of the sponsors of the bill, the bill was amended on the floor subsequently so that Section 4 (f) was made to read that the fact of registration shall not be received in evidence for a violation of subsection (a) and (c) of this -- this section which was the original wording and they added for in the prosecution of any other criminal case.Sections 5 and 6 were left as they were. The Senate versions did not have comparable provisions in Sections 5 and 6. That is they didn't have comparable immunity provisions. It did have a comparable Section 4 (f) without the phraseology for any other criminal prosecution. And when the bills went to Congress, the final version came out with Section 4 (f) being all inclusive or any other criminal prosecution. Nothing said in Section 5 or Section 6 obviously because they were already covered by the all inclusive wording or Section 4 (f). And the -- I think that that history coupled with the -- the very phraseology itself plus the fact -- plus the fact that it was a purpose. The clear purpose of Congress in enacting this legislation was to require disclosure and not to secure incriminating admissions from the registrants.
Abe Fortas: Well, Mr. Maroney, at page 25 in your brief, you say we do -- excuse me. We do not contend that this is an immunity provision which supplants the privilege within the meaning of Counselman versus Hitchcock --
Kevin T. Maroney: That's correct.
Abe Fortas: Now, is it or isn't -- is it or is it not the Government's position that 4 (f) as enacted is an -- is an effect of immunity provision.
Kevin T. Maroney: No, sir, not -- not in the sense of the normal immunity statute such as that involved for example in the Olman case where -- where the Congress legislates that a person cannot be prosecuted for -- or in connection with any offense concerning which he is compelled to testify. Of course that is the -- the complete immunity statute. This is not a complete immunity statute in of itself.
Abe Fortas: But what help has it here?
Kevin T. Maroney: Our position here is that Congress has provided, effectively provided, that the fact of registration cannot be used in evidence in any criminal prosecution against a registrant. Now, that in it of itself would not meet the rule of the Counselman case. But what takes this out of the rule of the Counselman case is the fact that in these cases, we have had a Board hearing at which the Attorney General at his initiative has been called upon and has produced evidence showing that these people are members of the Communist Party. That fact, the fact that the Attorney General had the lead, so to speak, that these people were members of the Communist Party, was able to produce evidence sufficient to sustain the requirement of the Act to establish that they were members of the Communist Party, taken together with the -- what I will short handedly call the immunity provisions of Section 4 (f) are sufficiently effective to remove any -- any fear of self-incrimination.
Abe Fortas: Well, as I understand it -- as I understand what you've come down to then is not an argument that there is an effect of immunity provision here with an argument to the effect that the act of registration is meaningless.
Kevin T. Maroney: Not meaningless, Your Honor, but that it -- it -- it cannot put them in any danger in view of the circumstances -- in view of Section 4 (f) and the Board proceeding, which has preceded this requirement that they're register. In view of that combination of circumstances, they cannot, in the law, be in any fear within the meaning of the Fifth Amendment that the act of registration would be an incriminatory act.
Speaker: What you're saying in effect is, this is some of the peculiar circumstances, this is not an effective claim of privilege.
Kevin T. Maroney: That's right, sir.
Hugo L. Black: Do you think (Inaudible) we should cut down Counselman versus Hitchcock?
Kevin T. Maroney: Oh no, sir.
Hugo L. Black: You are not?
Kevin T. Maroney: No, sir. We specifically recognized the rule of Counselman and we say that in this case --
Hugo L. Black: You recognize that there's such a rule exists and then you're trying to get around it.
Kevin T. Maroney: Well, we say this -- this doesn't come within the rule of Counselman because the problem in the Counselman case was that although the testimony, the compelled testimony could not be used in evidence against the person making the Fifth Amendment claim. The fact of his giving the testimony and the details of his testimony could have been used by the Government to secure a lead which could then have been used against him.
Hugo L. Black: But not -- suppose you substitute for the word lead, make it absolutely certain that what they have said is true. That's about what it is, isn't it? You say that they have looked around and found some evidence to satisfy the administrative board for you to come in therefore, thereafter that, he couldn't claim any privilege. Hence, the Government knew he told you as a Communist and therefore couldn't get any lead from his announcing to the world that he was.
Kevin T. Maroney: Well, the Government certainly had the lead to begin with. The Government had the lead that he was a member of the Party or the Attorney General would not have filed the petition for a hearing before the Board and he would not have been in a position to produce evidence sufficient for the Board's determination that he is a member of the Communist Party.
Hugo L. Black: May I ask you if the Government is there before at any case that you know of made such an argument about Counselman and Hitchcock.
Kevin T. Maroney: Well, I think that -- that our basic position concerning the --
Hugo L. Black: I'm not --
Kevin T. Maroney: -- scope of Counselman. I think it has been taken.
Hugo L. Black: Has that ever been presented to the Court as the Government's position of the Board?
Kevin T. Maroney: Not that I know of, not that I know of, Your Honor.
Hugo L. Black: Has any case ever said that the Government was insisting on that restricted meaning of Counselman and Hitchcock.
Kevin T. Maroney: That meaning of Counselman?
Hugo L. Black: Yes.
Kevin T. Maroney: I think the meaning we're putting on Counselman is -- is consistent with the meaning that has been put on Counselman.
Hugo L. Black: Are you saying it's consistent but have they ever argued that it was consistent with the Board to at least take it as a whole as having its complete immunity that Counselman and Hitchcock had indicated (Voice Overlap) certainly in any case.
Kevin T. Maroney: Well no. Of course, we're -- we say that under the rule Counselman v. Hitchcock, the Counselman court would hold that the registrant has no good Fifth Amendment claim in this case.
Hugo L. Black: But has anybody ever made an argument like that before that you know of?
Kevin T. Maroney: I think the argument has frequently been made (Voice Overlap) in Murphy v. Waterfront Commission.
Hugo L. Black: What is that?
Kevin T. Maroney: Well, that's a recent case decided by this Court relating to the --
Hugo L. Black: What's -- what's the opinion? But if you don't have it --
Kevin T. Maroney: Well, I have it.
Speaker: (Inaudible)
Kevin T. Maroney: It's the -- it's 378 U.S. 52. Now, the situation --
Earl Warren: Was that an argument sustained by the Court?
Kevin T. Maroney: Well, let me say this, Your Honor. The situation in Murphy v. Waterfront Commission was this. The question was whether a state immunity statute under which a witness was being compelled to answer was sufficient to give him immunity from federal prosecution. Now, this Court in the -- in the Murphy case laid down the ruling that if he was compelled in a state proceeding to testify in an incriminatory fashion concerning criminal offenses that the Fifth Amendment would bar the use by the federal government not only of the evidence to which he testified but of leads derived from such evidence. So that -- so that the Court was saying that although his testimony is compelled and some other jurisdiction might secure leads, the Fifth Amendment would not permit those leads to be used against him in a criminal prosecution. So that it seems to me what the Court has said in -- in the Murphy case, what it was saying in Counselman is that if the circumstances under which he is called upon to -- to testify or to make an admission or such, if the circumstances are such that his answers cannot possibly incriminate then his Fifth Amendment claim is of no avail to him. When the reason for the privilege ceases, the privilege ceases. And we think that's the situation here. And it's due to the peculiar combination of circumstances which I certainly agree is a peculiar combination of circumstances. I don't know of any other previous situation in which -- in which we've had this kind of a combination. I think the case is unique in that respect. But you have Section 4 (f) which is an absolute ban on the Government from using this in any criminal prosecution and you have the clearly demonstrated fact that the Government already has the lead. That is, that he is a member of the Communist Party.
Earl Warren: Now, may I --
Kevin T. Maroney: Now --
Earl Warren: -- may I just interrupt just a moment. There you said that that it's clear that the Congress said they shall not use this information in any other criminal prosecution. What language you rely on there for that statement?
Kevin T. Maroney: Well, the -- the objection that was made by Congress --
Earl Warren: No, I'm -- I'm just asking what language of the Act you rely on to sustain that position. I don't want to argue with that.
Kevin T. Maroney: The language of the Act I rely on is Section 4 (f).
Earl Warren: 4 (f), what does it say in that regard?
Kevin T. Maroney: Which is set forth in our brief at page 51. The second sentence of Section 4 (f), the fact of the registration of any person under Section 7 or Section 8 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution or any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.
Earl Warren: Does that say that the fruits of this statement shall not be use by the Government?
Kevin T. Maroney: No, it doesn't say that the fruits shall not be, Your Honor.
Earl Warren: Isn't that -- isn't it customary for Congress when it wants to give immunity of the kind that you now mentioned to say that they shall not be prosecuted for any matter concerning which they have testified?
Kevin T. Maroney: I don't think Congress here intended to give that kind of immunity, Your Honor. I don't think Congress intended to immunize for past offenses. What Congress was trying to do in enacting Section 4 (f) was to eliminate the -- the -- the possible danger to the constitutionality of the registration requirements of the statute by this language which would -- would not permit a proper Fifth Amendment claim with respect to --
Earl Warren: Is it your position then that in any future prosecution that the Government may use, this registration certificate and the statement of the Attorney General in anyway that it wants to -- to -- to get information concerning the guilt of this party and use it on the trial against him.
Kevin T. Maroney: Oh no, Your Honor. Our -- position is quite to the contrary. We say that the Government cannot by virtue of Section of 4 (f) make use of the -- of this registration materials for the purpose of introducing it against the registrant in any criminal prosecution.
Earl Warren: Well, but all -- all the section says is that -- that the certificates shall not be received in evidence. Isn't there a difference between not receiving this -- the registration certificate in evidence from -- from using any information that the Government gets from that registration?
Kevin T. Maroney: Well a fruit that the Government might derive from the information on the statement?
Earl Warren: Yes.
Kevin T. Maroney: Well, I think in the first place, that since this is a -- this would be in response to a -- would be a compelled disclosure that the Fifth Amendment itself prohibits the Government from using the fruits that might be derived from the compelled disclosure.
Earl Warren: Then every man who is registered is -- has the burden of proving that the United States Government has not in any way use his -- his registration certificate in order to obtain evidence against him on his trial. Is that burden on him?
Kevin T. Maroney: No, Your Honor.
Earl Warren: Who is the burden on?
Kevin T. Maroney: Is Your Honor talking about a compelled registration or a voluntary registration?
Earl Warren: I'm talking about what he's compelled to do under this action -- under this statute --
Kevin T. Maroney: Under this order.
Earl Warren: -- that you're viewing here.
Kevin T. Maroney: Well I'm -- I just want to make the distinction, Your Honor that the statute imposes an obligation on every member of the Communist Party to register.
Earl Warren: That's right.
Kevin T. Maroney: Now, of course, he could come in and voluntarily register.
Earl Warren: Is that voluntary --
Kevin T. Maroney: Well if he came in without compulsion of a Board order, it would be voluntary.
Earl Warren: -- what is compelled under -- under penalty of going to penitentiary for five years for each day that he doesn't register?
Kevin T. Maroney: Well, he's not in any danger of going to the penitentiary unless there is an existence, an order of the Board against him requiring him to register. Now, if there is an order of the Board –-
Earl Warren: If we sustain you, isn't that automatic that the Board will make that order?
Kevin T. Maroney: Only if the Attorney General petitions in each particular case, Your Honor, and -- and then of course it depends on the Attorney General being in a position to make a satisfactory showing that the person is a member of the Communist Party, then of course, the Board would issue an order requiring the person to register. And we say that in no circumstances that the Government would then not be in a position to use the registration in any criminal offense and -- and it's perfectly clear by virtue of the fact that the Attorney General was able to ask for a petition, was able to produce evidence that the Government could not have derive a lead. Now --
Earl Warren: How would that be evident?
Kevin T. Maroney: Sir?
Earl Warren: How would that be evident? You said that it's perfectly evident.
Kevin T. Maroney: Well, it's -- it's evident because before he registered as a member of the Party, the Attorney General had to make a representation to the Board that he had the reason to believe that he was a member of the Party and had to be in a position to prove.
Earl Warren: Well, you mean that -- that no attorney general could ever be wrong about that or no attorney general could ever do it with the -- with an interest involved in it other than to seek the truth?
Kevin T. Maroney: Well, Your Honor, in the first place it depends on competent evidence being produced before the Board. But the point -- my point is that it certainly isn't a lead. The fact that he comes in following a Board order is not leading the Attorney General for the first time to the idea that this man is a member of the Communist Party. The Attorney General had that idea before he came in. Now --
Hugo L. Black: Does anything in Counselman, says anything like that, I've just read it?
Kevin T. Maroney: The Counselman says --
Hugo L. Black: That he may indicate or suggest.
Kevin T. Maroney: Sir?
Hugo L. Black: That he may indicate or suggest.
Kevin T. Maroney: Well Counselman says that the statute in Counselman was not sufficiently broad because it didn't prohibit the Government from deriving leads and using leads from the information that was required to be testified to.
Hugo L. Black: The law that was held unconstitutional there provided substantially precisely what Congress is doing here, didn't it, that they couldn't use it for the purpose of convicting him?
Kevin T. Maroney: That's right.
Hugo L. Black: That's what that law was that they held unconstitutional.
Kevin T. Maroney: That's right, Your Honor. But you didn't have the accompanying circumstance of -- of a prior petition by the Attorney General on this narrow fact now, membership in the Communist Party and a -- and proof before the Board as to membership in the Communist Party. Now, I might say we've –-
Hugo L. Black: You did have the belief of prosecuting attorney that this man was guilty. Therefore, he didn't think he needed anymore leads.
Kevin T. Maroney: But you didn't have --
Hugo L. Black: (Voice Overlap) leads.
Kevin T. Maroney: But you didn't have a record which showed as it does here.
Hugo L. Black: Certainly not conclusive, is it?
Kevin T. Maroney: I think it's conclusive that the Attorney General had the lead as to membership in the Communist Party and that the -- and that the fact of registration could not -- could not under any view of the situation provide the Attorney General with a lead, that this man is a member of the Party.
Hugo L. Black: Do you think the conclusion that the man was a Communist when the Government goes and send him to the penitentiary for being one if he does?
Kevin T. Maroney: The Government is going to --
Hugo L. Black: If the Government attempts to send him to the penitentiary for being a Communist, do you think that this finding of the Board is conclusive on the jury?
Kevin T. Maroney: Of course, that's the Sixth Amendment question, Your Honor.
Hugo L. Black: Whatever the question is.
Kevin T. Maroney: Well, I mean if that --
Hugo L. Black: Forget the question. I'm just simply asking you if you are arguing now the part of your argument that the -- the Attorney General having found this by administrative agencies, it certainly is not there for life, doesn't have an independent job for life that a judge does.
Kevin T. Maroney: Our position on that point, Your Honor is that -- that the Board having determined on the basis of competent evidence pursuant to this regulatory statute that the person is a member of the Communist Party and there being in the statute the provision for judicial review that that finding of the Board is not subject to challenge for a later prosecution for failure to obey the order to register. Now, we've cited in our brief the Cox case, the (Inaudible) case in support of that proposition. We feel that that question is clearly premature because it has not been construed by any court. There has not been a criminal prosecution under -- for failure to register as an individual member of the Communist Party. Conceivably, the trial court would require the Government to prove independent of the Board's finding that the individual was a member of the Communist Party on a particular date.
Hugo L. Black: And then may I read you just this -- what the Senate says in Counselman and see if what you are asking is not that they'd be repudiated in part. It follows speaking of the Act under considerations that any evidence which might have been obtained from Counselman by means of his examination before the grand jury would not be given evidence used against him or his property in any court of the United States. That's what this one does, isn't it?
Kevin T. Maroney: Yes sir.
Hugo L. Black: In any criminal proceeding or for the enforcement of any penalty or force that's what this man has undertaken to do it.
Kevin T. Maroney: Correct, sir.
Hugo L. Black: 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 the court of the United States. That's the ca -- case here.
Kevin T. Maroney: That's right, sir.
Hugo L. Black: But it had only that effect. That's right here, isn't it?
Kevin T. Maroney: No sir.
Hugo L. Black: That -- it hasn't. Does it have any other effect besides that?
Kevin T. Maroney: The statute only has that effect but the --
Hugo L. Black: Well, I'm talking about the statute.
Kevin T. Maroney: Well, the statute which -- the statute requires a hearing before --
Hugo L. Black: I'm not talking about that other statute. I'm talking --
Kevin T. Maroney: This statute --
Hugo L. Black: -- I'm talking about this provision of (f).
Kevin T. Maroney: That's right.
Hugo L. Black: That's all it does.
Kevin T. Maroney: That's right, sir.
Hugo L. Black: It could not and would not prevent the use of his testimony to search out other testimony to be use in evidence against him or his property in a criminal proceeding in such court.
Kevin T. Maroney: That's correct.
Hugo L. Black: Now, it could here, couldn't it? Are you saying that they don't need it but it could, couldn't it?
Kevin T. Maroney: We're saying it could not be a lead because --
Hugo L. Black: I'm not -- forget the word lead. They didn't use the word lead. What they said is this. 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, that's right here, isn't it?
Kevin T. Maroney: That's right. That's to look -- that's looking for leads. That's a lead to look for something.
Hugo L. Black: And a criminal proceeding in such court.
Kevin T. Maroney: Right.
Hugo L. Black: But you say that -- you say that because you think the Attorney General didn't need any leads to convict him of some crime, these were not limited to this particular crime charged, is to be used to search out evidence to get him for violating the law of the United States.
Kevin T. Maroney: No, sir.
Hugo L. Black: And does this Act under consideration know that far? Does it or not?
Kevin T. Maroney: I think it does because --
Hugo L. Black: You think it does.
Kevin T. Maroney: Because of the provision in the -- the other provision in the statute that the Attorney General in order to get an order to compel disclosure -- to compel registration has to demonstrate that he already have evidence (Voice Overlap)
Speaker: Well what -- what you're saying if I understand it correctly, you're not trying to get us to receive from Counselman against Hitchcock. You said that in your brief. What you're saying is that Congress rightly or wrongly, the Congress rightly or wrongly thought that it is a result of a peculiar combination of the limited exclusion, limited immunity, the use of colloquialism afforded by 4 (f) plus the requirement that there must be an administrative adjudication that the man was a Communist on hearing and judicial notice that in no circumstances the Counselman doctrine would not give the man a valid claim and privilege. That's what you're saying.
Kevin T. Maroney: That's right, Your Honor.
Speaker: Without suggesting that the argument is sound in our view. That's what you're saying. You're not trying to get this Court to overrule Counselman against Hitchcock, are you?
Kevin T. Maroney: We rely on Counselman, Your Honor.
Hugo L. Black: Do you rely for Counselman?
Kevin T. Maroney: bsolutely, Your Honor. We say this case is out of the Counselman doctrine because of the -- of the additional factor –-
Hugo L. Black: You are attacking the man -- you're attacking the principle, aren't you, that under all circumstances a man who is compelled to testify that he cannot – that that immunity is sufficient to make him do it so long even though it does not prevent the use of that testimony thereafter or whatever except in the courtroom.
Kevin T. Maroney: No sir, I'm not contending to that doctrine at all.
Speaker: I didn't understand you to be contending that.
Hugo L. Black: I certainly didn't understand you.
Kevin T. Maroney: All I'm saying (Voice Overlap). Well, let me add this, Your Honor. We make this contention with respect to the Counselman case and the added -- added factor of the hearing which demonstrates that it couldn't be a lead only in connection with the registration itself, the registration form itself.
Hugo L. Black: Why couldn't it? Why can't it be an evidence to get many things against the man --
Kevin T. Maroney: That he's a member --
Hugo L. Black: -- if he admits only that he's guilty of an offense?
Kevin T. Maroney: Before, Your Honor, he's not admitting he's guilty of any offense. He's -- at the most he's admitting is that he's a member of the Communist Party and it certainly is not crime in and of itself to be a member of the Communist Party. This Court has held at -- just a couple of years ago in the Scales case.
Speaker: Well it's a -- it's a lead, Mr. Maroney.
Kevin T. Maroney: It's' a lead and it could be a link of course.
William O. Douglas: Well, now that you wouldn't have ever had any case.
Kevin T. Maroney: In the Smith Act case, Your Honor? Well, that's true. It's part of that the Smith Act case and certainly a link, there's no question about that.
Hugo L. Black: It's a link to prove of the essential evidence of the crime.
Kevin T. Maroney: That's correct.
Hugo L. Black: That's what we said in Blau and it couldn't be done.
Kevin T. Maroney: That's right, in the circumstances of the Blau case and in normal circumstances. I quite agree.
Hugo L. Black: Normal just -- this is abnormal. This is Communist.
Kevin T. Maroney: No, sir. I think it's an unusual factual situation which prohibits a proper invocation of the Fifth Amendment because there isn't any danger to the registrant in effecting his registration. And if he's not in any danger of incriminating himself, he has no proper Fifth Amendment privilege.
Hugo L. Black: Why does the Government won't -- won't put him into danger?
Kevin T. Maroney: For disclosure.
Hugo L. Black: But is it just a futile gesture?
Kevin T. Maroney: Oh no, Congress --
Hugo L. Black: What can they use it for?
Kevin T. Maroney: The Congress required --
Hugo L. Black: Well what can they use it for?
Kevin T. Maroney: -- for a registra -- a central register of members of the Communist Party so that the public would be aware of who are the members of the Communist Party.
Hugo L. Black: Now, what can the Government use this for that it can't use in the finding of the Subversive Activities Board?
Kevin T. Maroney: Well one -- one feature of -- of that argument which -- which --
Hugo L. Black: I don't know about the argument, I'm just asking what can it use it for --
Kevin T. Maroney: Well, in the first place, this would permit the Attorney General as he is required to do by statute to establish a central register, a public register of members of the Communist Party. The Attorney General could of course --
Hugo L. Black: Did he (Voice Overlap) that it's already been conclusively determined?
Kevin T. Maroney: No sir, I don't think he can do it. There's no statutory provision for him to -- to register someone. The individual is required to register himself if the organization which has the primary duty of registering. If the organization fails to include the member's name on its registration statement, the statute contemplates that the organization will register. And it requires the organization to list its officers and its members. And it's only if the organization fails to comply with its duty in that respect that the -- that the responsibility falls on the individual member. But even then, it is not a compellable responsibility or duty on the individual member because the statute provides for this intervening Board proceeding at which the Attorney General is required if he wants to get an order against the individual to establish that the individual is a member of the party. Then the Board issues an order and the individual then is required to register himself and not just to register. He is also required under the statute to furnish the additional information which appears on the registration statement. The Congress wanted more than a bare-naked registration. It wanted information which is set forth in Section 7 which the organization is suppose to supply with respect to each member relating to aliases, it once address --
Hugo L. Black: Wanted that from -- wanted that from him?
Kevin T. Maroney: Wanted that from the organization primarily but from the individual member himself --
Hugo L. Black: What they want with that about his aliases?
Kevin T. Maroney: Identification purposes, disclosure purposes so that the public --
Hugo L. Black: That you -- you can't see where that could be used as a lead to getting things done.
Kevin T. Maroney: Oh yes, oh yes. And we of course recognized the distinction that's applicable to the information on the registration form. And it's for that reason that we – we state in our brief that we agree in this respect with the Court of Appeals that the Fifth Amendment claims as to the specific questions on the registration form as distinguished from the registration statement are premature claims.
Hugo L. Black: In what?
Kevin T. Maroney: They're premature at this stage. They have not specifically registered a Fifth Amendment claim with respect to each individual request for information.
William J. Brennan, Jr.: Would that suggest that the (Inaudible)
Kevin T. Maroney: We do not Your Honor.
William J. Brennan, Jr.: That you would recognize it if they did.
Kevin T. Maroney: I certainly think in many instances, it would be --
William J. Brennan, Jr.: What if the administration of the Act so far encouraged them to believe that?
Kevin T. Maroney: The specific request here for example with respect --
William J. Brennan, Jr.: But that is (Inaudible)
Kevin T. Maroney: I think that -- I would say that in most instances it would be acknowledged as a -- as a proper claim.
William J. Brennan, Jr.: Have you ever acknowledged any of them?
Kevin T. Maroney: There had been no claims on any of these forms, Your Honor. I have no doubt that none whatever that if there was a proper Fifth Amendment claim made with response -- made --
William J. Brennan, Jr.: What's a proper Fifth Amendment claim?
Kevin T. Maroney: Well, I mean a claim which in the circumstances makes it reasonable to conclude that there is some danger of incrimination.
William J. Brennan, Jr.: What's reasonable? I won't give you my aliases on the grounds of self-incrimination. Who decides whether that's good?
Kevin T. Maroney: I think with respect to alias, the Fifth Amendment claim would -- with respect to a member of the Communist Party would probably almost on its face would be --
William J. Brennan, Jr.: I won't give my address on the grounds of self-incrimination.
Kevin T. Maroney: Well, I wouldn't -- I wouldn't like to prejudge any address question because I think address normally is not incriminatory but it certainly can be in certain circumstances. As this Court recognized in a House Committee contempt case a few years ago in which they asked the address of -- I think it was Simpson and I think another defendant named Wahl and invoked the Fifth Amendment privilege. And the -- and they were subsequently indicted for contempt and convicted. The Solicitor General confessed there in this Court, and this Court agreed that in the circumstances of that case, the answer might be incriminatory -- incriminatory because there was an indication for example that the Committee had information that meetings, Communist Party meetings were held at his house so that for his -- him to give his address might connect him with those Communist Party meetings. So that I -- aliases with respect to a person registering as a member of the Communist Party, I think it's probably fairly clear that there would be proper Fifth Amendment claims. Address might vary from case to case, circumstances to circumstances.
Earl Warren: I suppose the government of the State concerning that -- we knew what his aliases were just as we knew he was a Communist. We got no lead from that.
Kevin T. Maroney: Well --
Earl Warren: We knew that before.
Kevin T. Maroney: We're not -- we're not contending, Your Honor, in this case for the -- for the general proposition that the Government can with -- or can deprive someone of a Fifth Amendment claim by making some kind of showing -- ex parte showing that it already has a lead. We're saying that in view of the peculiar circumstances that are built into this statute and in view of the fact that there has to be this preliminary proceeding before the Board relating to membership in the Communist Party. And since the registration, the registration itself as distinguished from the registration statement, since that is confined to a registration as a member of the Communist Party, a Communist-action organization that in those special peculiar circumstances, he is not in any danger of incrimination and the -- the -- and for that reason, he has no proper Fifth Amendment claim.
Earl Warren: I'm just wondering what will happen if -- if a man does register and list some aliases that he used and the Government comes into Court when they prosecute him to show that -- that he did used those aliases and what he did under those aliases. And it says, “Oh we knew all about this beforehand, before he registered. We knew what his aliases were. And we knew that he had been engaged in this activity. We didn't learn anything from -- from his statement or his registration certificate.” Now, how is a man -- how is a man to defend against that kind of a situation? How does --
Kevin T. Maroney: In the first place, Your Honor --
Earl Warren: -- how can he prove that -- that the Government did get those leads from -- from what he said and did -- did obtain all their evidence to that effect from what -- what he said in his statement and registration certificate.
Kevin T. Maroney: Well, on first place, Your Honor, we of course concede that the individual at the time of filling out the registration statement can, if he is fearful, invoke the Fifth Amendment with respect to any question. We're not --
Hugo L. Black: From that it'd be recognized?
Kevin T. Maroney: Well, as I've just indicated a few minutes ago, I -- I think that it would be and I -- I can -- I can do no more than to say that it would -- it would be in proper circumstances, I'm confident it would be. And --
Hugo L. Black: Proper circumstances that were determined by the Attorney General?
Kevin T. Maroney: Well no, I think ultimately they're determined by the courts. If he invoked the claim of Fifth Amendment which --
Hugo L. Black: If they'd have to come to Court that would be the Court deciding.
Kevin T. Maroney: Well, that's right. In other words, it's possible that he would make a Fifth Amendment claim that the Attorney General would not recognize it and that the Attorney General would institute a proceeding to test the validity of the Fifth Amendment claim. Then the Court would have to decide as it always does.
William J. Brennan, Jr.: Well that proceeding tend to (Inaudible)
Kevin T. Maroney: That's right. I don't know of any other, Your Honor.
William J. Brennan, Jr.: So what -- the risk he takes is -- what is it -- will this affects 10 years or something?
Kevin T. Maroney: Well I think its five years for the registration statement.
Byron R. White: Now I -- what --
Earl Warren: But for each additional day, it's five years, isn't it?
Kevin T. Maroney: Well, for the registration itself --
Earl Warren: Yes.
Kevin T. Maroney: -- it's five years for each everyday. Everyday is a separate test.
Byron R. White: Yes, but the other one?
Kevin T. Maroney: The other one is only one offense, it's a five-year offense.
Byron R. White: Five years.
Kevin T. Maroney: So that the cumulative penalty that they contend threatens them, we say is -- is something that the -- the Court properly should decide now with respect to the Fifth Amendment claim. We say that the -- the Fifth Amendment is not properly invoked in the circumstances of the registration statement. And of course, it's our position that the Court should sustain the order with respect to the filing of the registration itself and of course also as to the registration form and leave for later determination any claims of Fifth Amendment which may be made by a particular registrant in connection with particular questions set forth on the registration form.
Hugo L. Black: May I ask you just one other question because I have been surprised, I must confess somewhat this considered by the claims of the Government made here. This Counselman versus Hitchcock was decided six to seven years ago, would you mind if you can find any case by the majority of opinion of this Court since that time as indicated that there were any circumstances under which the principle it announced namely that the statute of this kind that did know more than this is unconstitutional as ever been questioned by this Court. If you can find it, would you give them to us?
Kevin T. Maroney: I will -- we will submit a supplemental memorandum on the point, Your Honor. I think Murphy v. Waterfront Commission is -- is --
Hugo L. Black: I don't think so. I just read that but I didn't think so.
Earl Warren: You didn't look into that matter in appraising the effect of Counselman versus Hitchcock in this case. The question was the fact of it.
Kevin T. Maroney: Oh yes, yes sir we -- we consider --
Earl Warren: Did you cover it in your brief?
Kevin T. Maroney: Oh yes, sir.
Earl Warren: The question that he just asked.
Kevin T. Maroney: Not the precise question as to any -- any situation in which the Government made the contention that the situation was brought out of a rule of Counselman because there couldn't be a lead. We -- that is a contention made because of a noble circumstances created by the statute. We say -- we say this is a noble situation. But at the same time --
Hugo L. Black: Just a little more than that. I don't -- I want you to understand it. What I want to know is, what Counselman versus Hitchcock said without any “ifs”, or “ands”, or “buts” as I read it, that where a statute did no more into that immunity, the prosecution to what was compelled to be given, it was not enough to meet the constitutional test.
Kevin T. Maroney: I thoroughly agree with that, Your Honor.
Hugo L. Black: You did, alright. Now, have you found any case or I'd like you if you can find any case indicates that there are any circumstances of any kind decided by this Court, circumstances of any kind that can impinge on that broad doctrine (Voice Overlap, would you cite it to us?
Kevin T. Maroney: That's right. I don't think there are any. I think Counselman is still a good law. I think this Court is --
Hugo L. Black: I'm not talking about whether you think it's a good law. I want to know if there's been any case which indicates that the doctrine -- that the statute is not enough to meet the con -- the limits of statute meet the constitutional test when the only immunity it grants is the immunity from having particular evidence compelled, used against it. That's the general principle that's announced. And I want to know if you can find any case --
Kevin T. Maroney: Can I --
Hugo L. Black: -- that indicates that that can be impend on by reason of any particular circumstances. Well, this Court have indicated that it might. As I've read the cases, they've actually broadened it.
Kevin T. Maroney: Well I think -- I think Murphy indicates --
Abe Fortas: I'm a little troubled with the result that you gave. I'm a little troubled with the Counselman but you don't claim that Murphy overruled the Counselman.
Kevin T. Maroney: No sir, no sir. I think Murphy implemented Counselman and we say Counselman can be implemented in these circumstances. If all we had was Section 4 (f), we would agree. Counselman would preclude on making this argument. But in view of the statutory requirement of a board proceeding which demonstrates or in this record, in this case, on the basis of evidence produced before the administrative tribunal that there could not be provided to the Attorney General a lead. And I think that's a very unusual factual situation but I think that in the unique circumstances of this case, the Court should so hold.
Hugo L. Black: Suppose there had been a statute providing precisely what Counselman and Hitchcock did about the Constitution. The statute said it shall not be enough to justify interrogating a man, getting him to make himself a witness against himself to -- he cannot do that under any circumstances, cannot do that if all what the immunity statute says is, that just what said here. And it was a statute and the Court -- and there had been no reasons given by Congress for passing the statute, what would you say?
Kevin T. Maroney: You mean just Section 4 (f) and nothing else?
Hugo L. Black: Many statutes are passed to the effect that testimony, a man who is compelled to give testimony against himself cannot be compelled to give testimony against himself unless some more immunity is made in a mere provision that he shall not be prosecuted until his testimony is compelled. Suppose the statute said that and no more, what would you say?
Kevin T. Maroney: Well as I -- as I understand the question, I gather that's pretty much the Counselman situation.
Hugo L. Black: It is except you say that Counselman gave some reasons which thereby make you want to find a way that makes the Government feel that it can offer new situation and not follow what was said.
Kevin T. Maroney: The Counselman said that the statute --
Hugo L. Black: The reasons -- the reasons.
Kevin T. Maroney: That's right.
Hugo L. Black: You're basing -- you're basing it on -- you say the reasons or such.
Kevin T. Maroney: And what were the reasons?
Hugo L. Black: I suppose the statute just -- just provided what Counselman did without giving any reason. What would you say then?
Kevin T. Maroney: Well, Counselman was based on the fact that the immunity --
Hugo L. Black: I'm talking about the statute and under the statute, not Counselman.
Kevin T. Maroney: That the statute was --
Hugo L. Black: Didn't state its reasons.
Kevin T. Maroney: Well, of course the Counselman statute didn't state any reasons either. It just said --
Hugo L. Black: Well, I gather you to say that it said it did it because there was a lead.
Kevin T. Maroney: No, we're saying the Court said, now the Court in Counselman said that the statute there was not sufficiently broad because although it prohibited use of the evidence in a criminal case against the person, it did not foreclose the -- the prosecutor from securing from that evidence leads to other evidence which he might then be able to use. And we say that --
Hugo L. Black: You get down here then from your argument or statement, there could be no possible lead provided to the Attorney General --
Kevin T. Maroney: Not as far as --
Hugo L. Black: -- by having this man registered --
Kevin T. Maroney: That's -- absolutely!
Hugo L. Black: -- to bring about a conviction of him for anything in any court.
Kevin T. Maroney: As far as the registration statement itself is concerned, we say that is correct because the Attorney General on this record demonstrated that he knew that the person was a member of the party and he had evidence to show that he was a member of the party.
Hugo L. Black: That arises to any mind, I should think that he did. How far can the Government go in asking questions that are wholly irrelevant and wholly futile to any governmental purpose?
Kevin T. Maroney: Of course it isn't wholly irrelevant. As this Court held just four years ago in the Communist Party case that when you're dealing with this kind of an organization, that when you're considering the magnitude of the governmental interest and the desirability to the -- the public benefit of removing the mask of anonymity as far as members of the Communist Party is concerned, that the First Amendment does not prohibit the registration that is required under the statute and the information which is required to be furnished in connection with that registration. The Court could in the Communist Party case distinguished Bryant v. Zimmerman which was a statute aimed at the Ku Klux Klan and it held that because of the nature of the organization and the danger to society that it represented, that the Klan and organizations of -- of that character could be regulated by registration statutes. And so I -- I don't think that the registration that it was required here by Congress that the disclosure that was contemplated by Congress serves no useful purpose and serves a very definite purpose of disclosing the identities of members of an organization which is far and directed and controlled, and which --
Hugo L. Black: Is that an advantage or disadvantage?
Kevin T. Maroney: An advantage.
Hugo L. Black: Is there advantage of that or there is a disadvantage?
Kevin T. Maroney: Well it may -- it may be somewhat to their disadvantage but in the -- in the balancing test which the Court applies in the first case, the -- the disadvantage to the individual were (Voice Overlap) by the governmental (Voice Overlap)
Hugo L. Black: I don't think it's been found that yet to restore the Fifth Amendment.
Earl Warren: We'll recess now. Mr. Maroney, you may continue your argument.
Kevin T. Maroney: Mr. Chief Justice, may it please the Court. I just wanted to take a minute or two to indicate to the Court an alternative argument under the Fifth Amendment question which we advanced in our brief. That is that when an individual comes in and responds to an order of the Board requiring him to register as a member of the Communist Party. And he submits the registration -- registration itself as distinguished again from the form that he's really not making any admission at all, let alone an incriminatory admission. He -- he's in a similar position to one who is under subpoena required to come in and to testify. The fact that he might be in a position to invoke the Fifth Amendment on individual questions which would be asked during the course of this testimony, does not permit him to make the threshold argument that the Fifth Amendment protects him from coming in at all.
Earl Warren: But you don't make him -- you don't make the person under subpoena give the answers to the questions that the Government wants before he gets in the Court. Here, you do.
Kevin T. Maroney: Well, of course sometimes that's true with respect to other forms that are required to be filed, for example, income tax forms. And as this Court held in the Sullivan case that the fact of certain information required should be stated on your income tax form might be incriminatory and concerning which you might be able to invoke the proper Fifth Amendment claim then it did not permit you to take the position that you would file no return at all. And as I think it was Justice Holmes' decision in Sullivan held that he had to file a form. When he does file it, maybe he can invoke the Fifth Amendment with respect to particular inquiries and of course, that's just the situation here. And also because of the existence of the Board proceeding, the fact that he has been singled out by the Attorney General as a member of the Communist Party, takes the case out of what, I believe Justice Black referred to in the Kahriger case as a squeezing device. We don't have a situation such as we had in the gambling tax statute where the individual, on his own initiative, is required under criminal penalty to come forward and identify himself as one engaged in a particular activity which might be criminal. Here, he's already been singled out as a member of a class. The -- additionally, the form, the registration statement or registration form rather, as it presently is made by order or by a regulation of the Attorney General require simply that the person state his name and that he is registering as a member of a -- of blank, the Communist Party in this instance, a Communist-action organization. There's nothing on the form to preclude his making a statement that he's doing so only because of the existence of a Board order against him or that he disagrees thoroughly with the conclusions of the Board order. Certainly, he can indicate on the form, “I, hereby, register as a member of the Communist Party though I disagree with all the factual conclusions of the Board.” He's not precluded from doing that. And we think in no circumstances that insofar as a registration itself, the bare act of registration, the Fifth Amendment does not protect him from complying with the Board order. Thank you, Your Honor.
Earl Warren: Mr. Abt.
Kevin T. Maroney: Mr. Chief Justice, and may it please the Court. First, I'd like to address myself for just a moment to a question that Justice Fortas asked me earlier in the argument with respect to an offer of proof on our part before the Board as to a change in the character of a Communist Party. As I've said before, we made no such offer. And as a matter of fact, Justice Fortas, under the Court's decision in the Party case, at least insofar as the existence of a world Communist movement under the domination and control of the Soviet Union is concerned, that is not a matter of evidence. The Court in the Party case held that that was a matter of statutory construction which would be resolved on -- on a matter of judicial notice. And as I said in my argument, the Board not having taken judicial notice of these -- but everybody knows of the -- of the new circumstances, the absence of any kind of a -- of monolithic world Communist movement, the obvious absence of Soviet domination and the control of -- of such a movement. Since the Board refuse to take judicial notice of those -- of that change in circumstances, it's our position and we rely on the Party case itself in which Mr. Justice Frankfurter said that question is always open to review. It's our position that the Court must take judicial notice. This Court must take judicial notice of that change. And we cite some of the authorities which such judicial notice could be based in our brief.
Earl Warren: Well, you're not arguing then that there was an erroneous exclusion of the line of proof. What you're saying is that judicial notice ought to be taken in something that you'd say is a fact.
Kevin T. Maroney: He said both things. He say that there was no -- there was no erroneous exclusion of an offered line of proof but there was a ruling by the Board that we were precluded by -- by 1953 finding. And that preclusion operates in two respects. First, we were precluded from offering evidence to show that the Communist Party was not dominated and controlled by the Soviet Union. Second, we were precluded from asking the Court or the Board to take judicial notice of the fact that there was -- there is no longer a world Communist or is in Mr. Justice Frankfurter's words that the world Communist movement as defined in Section 2 no longer exists. Now, on the -- on the privilege question, Mr. Maroney has argued that -- that these are very noble and the peculiar circumstances that were confronted with here under the statute because of the requirement of a Board of evidence and the Board finding before the admission is compelled, the circumstances are neither so noble nor so peculiar as Mr. Maroney would have it appear. For example, in every proceeding now before the House Committee on Un-American Activities, in order to satisfy this Court's decision on requiring and showing of pertinency, the Committee first calls a whole series of so-called friendly witnesses who would testify that X, as a member of the Communist Party. And then they call X and they say, “We have evidence before us and we found that you're a member of the Communist Party. Now, Mr. X, tell us, are you or were you ever or are you now a member of the Communist Party?” Under Mr. Maroney's argument, this claim of privilege wouldn't all -- would be overruled. Similarly, before a grand jury, if a statute of the Counselman type or applicable to some kind of a proceeding before the grand jury, prosecutor is accustomed at first call, all of the prosecuting witnesses who would identify the accused as a person who commits a -- has committed a crime. The grand jury transcript which show all these evidence, then they'd call the accused and say, “Are you -- are you the fellow that -- that did this thing?” And if the man has searched his privilege, they take him before the judge and they say, “Here judge, here's the transcript of his -- of our grand jury proceeding. Look at this mountain of evidence we have that the man is guilty. Obviously, he has no privilege under those circumstances.” That's Mr. Maroney's argument. Beyond that, I think, it should be bore in mind that -- that this isn't a taste like Counselman that concerned some commercial transaction, a grain merchant who was receiving illegal railroad rebates. This is a case in which the claim of the Fifth Amendment is raised in the context of a prosecution for political affiliation and belief. The case in which the Fifth Amendment has its historic and traditional relationship to -- to First Amendment rights and it's in that context that the claim of privilege has been made. Now, Mr. Maroney, as in the Government's brief, keeps on repeating the fact that the decision in the Party case is controlling here on the issue of the First Amendment because in the Party case, it was held that Congress has the -- the right to require disclosure and stripped the mask of anonymity from the Communist Party. But the Government ignores and continues to ignore and will never recognize is that whatever justification this removal of the so-called mask of anonymity might give to the provisions for a registration by the organization, it can't excuse the requirement of self-registration because the mask of anonymity has been stripped; disclosure has been made by the finding of the Board itself. And in First Amendment terms, this case is just like the Barnette case, the Flag Salute case. The question here is whether the Government has got the right to compel a man to come forward and avow, not only to avow his political association but against his conscience and belief to declare that the organization of which he is associated is a criminal conspiracy. In Mr. Justice Jackson in the Barnette case said that you couldn't compel a person by sign or symbols to indicate his acquiescence in the political ideas that flag salute speaks. So we say here, the First Amendment again stands as a bar to compelling persons by registration, by the sign and symbol of registration to indicate their acquiescence in the political beliefs that the McCarran Act speaks, this Internal Security Act. And the best evidence of the fact that -- that this is a requirement -- much as requirement and the requirement that invades a conscience and belief of the person who's compelled to make such a sign and symbol is a fact that in all these years and under the threat of all these penalties, not a single person has yet registered as a member of the Communist Party with the Attorney General under this Act. Thank you very much.