Earl Warren: Number 65, Veterans of the Abraham Lincoln Brigade, Petitioner, versus Subversive Activities Control Board.
Leonard B. Boudin: Mr. Chief Justice --
Earl Warren: Mr. Boudin.
Leonard B. Boudin: -- members of the Court. This case too as Your Honor know -- as Your Honors know, is a proceeding to review a judgment of the Court of Appeals for District of Columbia by a two to one vote. Judge Bazelon dissenting upholding an order of the Subversive Activities Control Board that the petitioner, the Veterans of the Abraham Lincoln Brigade registers as a Communist-front organization. The petitioner consists of surviving members of the Abraham Lincoln Brigade, Americans who went to Spain in 1936 to fight on the Republican's side in the civil war. And while the court below makes some reference to the fact that it thought from historical analysis that this was a war between Communism and Fascism, I don't think that view can fairly be attributed though the court intend to attribute it to the people who went, whether those who lived or those who didn't live. And I think if history is to be the test of this case, we trust it is not because we don't believe that the Veterans of the Abraham Lincoln Brigade where the Spanish Civil War is on trial, but the post-1950 organization is on trial here, then I think we prefer to refer to the history which is set forth in the works of Harold Ickes, and Samuel Wells, and Jonathan Daniels and the others who evaluated the Spanish Civil War as a war of democracy against fascism. Thus, I say, I haven't argue this although the Board and its report devotes most of its time to the Spanish Civil War and to its significance, and the Government also played great reliance about what happened in 1936, 1938 and most important to the Government, what happened in 1939 at the time of the Soviet-Nazi Pact when the petitioner was only in the process of formation and certainly many, many years before the statutory period is relevant here, 1950 to 1955 went into effect. I may say that the court below is very critical of the Board and Your Honors will read with great interest the elaborate discussion by Judge Prettyman saying that we are not concerned about the past, we are concerned about the period 1950 to 1955. And Your Honorable -- Honors will say that Judge Prettyman was also very critical of the Board because his view of the meaning of the control concept which I'll discuss in a moment was radically different from of the Board. The fact that he came to a conclusion after much worrying about it, conclusion on the side of the Government does not diminish the fact that he disagreed radically with the Board's views. Now, the issue in this case as we see it is whether or not bearing in mind the very strict preponderance of evidence rule laid down by this statute in contradistinction to this substantial evident rule and other administrative agency cases. Bearing that rule in mind has the Government made out either he deny that, the control component or the aid or objective component as it is shown. And in considering whether the Government has made out those two elements I will say elements of the crime, we must bear in mind that in the construction of the statute, the constitutional consideration, the impact upon the admittedly First Amendment rights of the petitioner and its members will have to be evaluated. If you have an ambiguous statute in any respect, that are on the many of decisions of the Court, most familiar to me of course Kent against Dulles decision, then the Court will construe the statute in such away as to give a minimum power to the Government rather than a maximum one. Now, I'd like to say I think our case is a very clear one on the facts because as Judge Prettyman said almost startling with his words is the fact that so little of the evidence relate to 1950 or a year thereafter. And it is upon so little of the evidence that the Board's order was predicated and Judge Prettyman's opinion was written. Now, what is the evidence would respect to control and how did the Board and the Court identified it, how do they come to the same conclusion. The Court held in contradistinction to everything said by the Board that in order for the petitioner to be controlled within the meaning of the statute, it must not merely have members of the Communist Party in its leadership, fact which as I've indicated in a moment, not have members but have functionaries or representatives of the Communist Party. This is I say was in clear contradistinction with the whole pattern of the Board's decision which makes no different distinctions between representatives, functionaries, or members. So we have the basic principle laid down by the Court in elaborate language not in the passing sentence. Then we have the agreement of the Board, the Court and the record, all three, that from 1950 on when Mr. Fishman, Moe Fishman became executive secretary of the organization, he was the dominant manager of the petitioning organization, and we have -- secondly, the fact that he was assisted, assisted by a man named Milton Wolff who had been connected with the organization as supervisory capacity earlier and Milton Wolff likewise according to the Court of Appeals, as to him, there was no evidence they hint there was no evidence, no direct evidence, I'll read the words in a few minutes as to his being a functionary or even member after 1950 of the Communist Party. I may say that even as the membership, the only evidence in this elaborate record and I do think that the Court may want to look at the record because of the difference we have with Government, is that there is testimony by Mr. Boudin's, it might be familiar to this Court, that in 1940, Mr. Wollf made an admission to him that he Mr. Wolff was a member of the Communist Party and there was testimony in 1941 or its equivalent. There is a testimony in 1941 by a Mr. Yuba with respect to an admission made by Mr. Fishman, 1940 and 1941, and we are today in 1964 to determine how an ct should apply to an organization based on evidence.
Speaker: Who is Mr. Wolff?
Leonard B. Boudin: Mr. Wolff was the second man in charge of the organization. As a matter fact I was even wrong, at one testimony, he was a member. There was a statement made that he made a report to a meeting of the Communist Party in 1940. In other words Your Honors not even as to membership is there are anything more recent than 1940 and 1941. Now, we are accustomed and of course there's nothing as to being a functionary representative, we're accustomed when we receive briefs from the Government to accept virtually anything as a availed implementer the Solicitor General of whom we have the highest regard necessarily, and I do not attribute to him, misstatements that have made in this brief as it were in the preceding brief, with respect to the alleged membership of the Communist Party of Mr. Wolff and of Mr. Fishman, Your Honors will see at page 63 of the Government's brief. Pardon me, at 64 in talking about Mr. Fishman, the Government says there is however evidence or begins by saying the evidence of Mr. Fishman is not as complete by the understatement. There is however evidence of his party membership during the periods from 1941 -- from 1940 to 1941 and 1947, and then there are transcript references there. And to possibly 1946, I'm reading the Government's brief at Page 64. Now, I took precaution yesterday of going over the transcript of the record which I have here and let us see how the Government fixes membership. We're only talking about membership now from 1940 to 1947. A witness said that he knew Mr. Fishman at some point in the past and he was then asked, “And did you know him? When did you know him?” And he says, “Oh, I don't remember?” “Well, what decade?” “I don't remember.” “Well, could it have been between 1940 and 1947?” As I regret to say was asked by the counsel for the petitioning organization here, whether between 1940 and 1947, and he said, “Yes, it could have been,” and so based upon this statement that he might have known Mr. Fishman from 1940 to 1947 the Government has fixed the period, the relevant date, at the latest date, 1947 instead of saying that there really is no evidence as to precise time and it could have been 40 or 41. And when I -- and as I say, Your Honors will want to read the pages that the Government cites here because we are not accustomed to get that. And this I regret to say is a cotangent which you get from being too close to the disease, the disease of the Board proceedings. And on page 64, when I notice a reference here as a in Walsh case, Fishman is also an activist in support of a party program. I looked at the reference to that, I said, “What party programs was Mr. Fishman supporting before or after?” Well, there is McCarran Act analysis by the National Lawyers Guild that's one page reference, is an opposition to the arrival in the United States of falangist or fascist Mayor of Madrid. This is what the Board has given to the Court as Fishman is also been active in support of party programs. Now, I mentioned that because we are dealing here with a very delicate issue, virtually the life and death of an organization. We're dealing with fundamental issues and this is not the way for the Government to treat fundamental issues by not giving Your Honors correct references to the record. I don't want to spend too much time on that. I think I already had too much except to ask Your Honors to look at some of these references.
Hugo L. Black: But what difference would that make to your legal argument?
Leonard B. Boudin: My legal augment stands anyhow, Your Honor. I don't even care of everything the Government said in their briefs were true. Your Honor is quite right because basically the court below has found that these then were not functionary or a representative of the Communist Party, none of that the data relates to post-1950 and therefore there is no control in the Communist Party of this organization. Now, there are two things, however, that the court below does say, after stating that they were not key representatives. One statement by the court below is that the representative capacity if any, remember this is a preponderance of evidence case if any of these two must be inferred from the fact that they made reports to the Politburo concerning the Brigade. It happens that the court below was wrong, the only reference to report is the one I mentioned before by Mr. Boudin with respect to 1940 and with respect to Mr. Wolff, hardly, I think proof of representative capacity in 1950 of Mr. Fishman or Mr. Wolff, and then the Court makes reference to a letter, a letter that was showing by some people of the Court thought might be an Executive Board even though there was testimony of the Executive Board didn't operate from 1949 on and Mr. Fishman was running this little organization, and after that Judge Bazelon is adequately dispose of it and I don't want to repeat it. I do want to come down for the second element and that is the aid component because here we have a very adequate description or adoption by the Court of our description of what the organization did since 1950. This is what the court below says about the Veterans. The Brigade says in its brief to us that since the latter date, its activities have consisted --
William O. Douglas: What page?
Leonard B. Boudin: Pardon me, page 18 of my brief quotes the records, “have consisted of social affairs, statements in opposition to the Franco regime, the rehabilitation of Brigade members in need of aid, support of its members indicted under the Smith Act, particularly Nelson and Weissman, and defense of itself in the instant proceeding. The report of the Board does not materially contradict this factual position,” I won't -- need not read the rest. Now, I submit to the Court that this is not the kind of aid to the Communist Party's objectives and purposes that were intended by Congress. And in addition to what has been said by Mr. Forer and some of the suggestions that have been made by the Court, I would like to add the following. I call the Court's attention to the principle of free speech laid down in Section 1 (b) of the statute that nothing in this statute be construed to impair freedom of speech. I call the Court's attention to the discussion of Communist Party objectives set forth in Section 2 of the Act. And finally to Section 13 (f) (3) of the Act where it is said that the criterion is the extent to which is funds, resources, or personnel are used, further or promote the objectives of any Communist-action organization. Now, I do not think and I don't want to repeat the discussion that we had here but I will add something a little different. Do not say how any of the activities that have been described here including opposition to the Internal Security Act which is the case before us including the defense in one zone members, unjustly as the decision of this Court have held prosecuted under the Smith Act or under the Pennsylvania Sedition Act and certainly the basic functions of this organization, the rehabilitation of the men who came from Spain and were sick and were ill and were homeless, those functions which were the principal functions of the organization and which constituted the principle part of its budget can hardly be said to be of aid to the Communist Party's objectives. Now, I've heard the discussion that we've here of course and I want to call the Court's attention to what we have said or rather what Congress has said in what we reported at page 31 of our brief. There, the proponents of this legislation Congressman Walter, Senator McCarran and others emphasized exactly the opposite arguments that that made by Mr. Terris and in a quotation, it does not appear in my brief but appears on page 3724 of the Congressional Record of August 29, 1950, paging 750, Congressman Walter pointed out that the basic objection of this statute was I'm quoting, “That its purpose was to police and to regulate not actions or conduct but thought and expression. I say to you--” said Congressman Walter, “-- there is nothing in the bill that in any wise attempts to regulate thought or expression”. Of course if you take this one section and read the paragraph out it without regard for the other paragraphs of this section, it will indicate that this is objective. Now, the Government has come in with a test of subjectivity as it is described here or a motivation. Again even if the Government will write in its construction of the statute or adopt Mr. Forer's use of the word ulterior or whether we take a different conception of fraud in, it would make no difference. The fact is that there is no evidence in this record that the petitioning union was doing -- petitioner's organization was doing anything to aid the Communist Party, that that was its purpose.
Potter Stewart: I understand the Government's position at least in the argument in the last case, it was -- it wasn't anything subtle, subtle as fraud, isn't it, and that was simply the purpose, what's the purpose of the organization.
Leonard B. Boudin: Accepting that there is no evidence for any purpose at all. There isn't even any evidence, any indirect evidence that could be suggested by saying that the Veterans was giving -- were giving money to Communist Party, they have no money. They have no resources.
Hugo L. Black: How many of them are there now?
Leonard B. Boudin: Just a few hundreds are left.
Hugo L. Black: That's the number of members of this organization?
Leonard B. Boudin: Yes, exactly, Your Honor. Half of the members -- more than half, as the record shows or the Government have some reservations, more than half died in Spain. And of course many have died since then or I may say that many of them were recognized by the United States Government as heroes of World War II. But there are only a few hundred that constitute this threat now, to the Government of the United States.
William J. Brennan, Jr.: This man is a member of this organization?
Leonard B. Boudin: It is Your Honor.
William J. Brennan, Jr.: With dues paid?
Leonard B. Boudin: Some dues occasionally. There isn't much money of any kind here.
William J. Brennan, Jr.: An eligibility of a membership?
Leonard B. Boudin: Yes.
William J. Brennan, Jr.: He must be in the service and he --
Leonard B. Boudin: Precisely.
Speaker: (Inaudible)
Leonard B. Boudin: Well, the year --
Speaker: (Inaudible)
Leonard B. Boudin: Of course, the organization began and I should have indicated more fully with one principle purpose -- rehabilitation. Your Honor knows how men who come back from the army particularly after the Spanish Civil War would have meant. But they went through -- they needed rehabilitation of all kinds -- that has remained the principle function of the organization. And there's a footnote referenced to the budget and with somewhere out of $13,000 or $11,000 is used for rehabilitation. Actually what has happened is that the organization like many other organizations in this last decade, dwindles so that it was not a very important organization although what it did was to basically continue in its functions of opposing Franco. If this organization could be set to be distinguished from all other organizations in the country, it would be that its position of being anti-Franco stems from 1936, it never changed before the pact or after the pact, this was its central, its raised on that draft, Your Honors can understand how that would be and view of this -- what demand had gone through. Then of course, after the organization moved, after the organization moved to the more recent period, it found itself as a defense organization defending itself. And right now its principal activity I regret to say is defending itself in this very proceeding. Now, the Government's argument that aid and support mean, aid and support, because there's an ultimate plan to help the Communist Party without any indication of a causal relationship. It seems to me it create a vagueness problem with respect to the terms aid and support, as used in Section 4 and with respect to the terms objective as used in Section 2. And that we do not have in this case Mr. Justice Harlan the precision of standards which it then pointed out at -- pointed out at page 135 to 139 of its brief on the Communist Party case. And in the Communist Party case, the Government made it perfectly clear that the objectives of the Communist Party that it was concerned with was very different from what we are dealing with here today. I just want to read one line from the -- from the Communist Party case. “We submit --”, said the Government at page 104 of its brief there “that Congress have the constitutional power to require disclosure from such organizations which are actively working to overthrow the government, and which together with the world Communist movement as a whole produce a grave danger that their purpose will be achieved”. And it is very helpful to read what the Government said in the case where it was attempting to have the Court uphold the constitutionality of this very grave statute to find that after its exceeded, in indicating the nature of the danger which deserve a decision of constitutionality that it then moved to the lesser thing which can hardly be called a threat to security of the country. And if one examines the four activities which were described in our brief, defense under the Smith -- of two people under the Smith Act, defense in this proceeding opposition to Franco, Spain and even opposition to the Internal Security Act. I suggest that none of them can be said within -- within the contemplation of Congress, and as opposing the Internal Security Act, there's no law that says, “You have to like your hangman”. Now, the Government would make a radical extension and this I think is critical here and that's why I referred Your Honors to the Government's brief in the Communist Party case which is more important I think than this brief for this case. I think we can agree that the worst fears of the opponents of the Internal Security Act of 1950 have been realized, and I referred to President Truman in his veto message to Zechariah Chafee, to Senator Frank Graham and then of course Senator Lehman, that whole group, people who stood up and were afraid of exactly this. And then the late Senator Lehman and Senator Kilgore who propose a bill that are in some respect was almost worst and then it was adopted and it become a part of the statute. We refer to the consultation and provisions. But they were very worried and the way in which the Board has preceded or the Government has proceeded here has indicated what exactly what they are afraid has just come to pass. But I think the Court here has another test as to what is the right way to construe this statute and that is what were the views or responses of legislation. What does Congressman Walter say? What does Senator McCarran say? And if the Board adopt there -- if the Court adopt their views, then the Court will agree that this proceeding should never been started. This Court has carefully distinguished the Communist Party from all other organizations in America. Now, I agree completely with the dissenting views stated by Mr. Justice Black in the Communist Party case and there is no suggestion in my position here that I agree that that decision was correct or that I believe that the selectivity of that organization would justify, but I am here addressing the Court which has rendered a decision, now I should be very happy to reargue, or let Mr. Forer reargue the Communist Party case if the Court are willing. My point is somewhat different, this Court has made the Communist Party sui generis, just as the legislature has done so, and having going to the point of distinguishing the Communist Party from all organizations as Mr. Justice Jackson did in Doud although not for the reasons suggested my friend Mr. Terris. And as Mr. Justice Jackson did in detail and almost legislative detail in Dennis, as Judge Learned Hand did in Dennis. And as indeed if we compare the opinion in Barenblatt by Mr. Justice Harlan with the opinion Mr. Justice Frankfurter, concurred by Mr. Justice Harlan in Sweezy and even if we go to the internal operation of Communist Party and we compare Yates and Noto with Dennis and Scales, this Court has made a very definite judgment over down in history, legal history I don't know, a judgment that the Communist Party represents a special danger which every agency of the Government has a right to protect the people against. And the findings and the Subversive Activities Control Act, that's the act of terrorism, of a desire to have a totalitarian government in the United States although not by totalitarian means of course.
Speaker: (Inaudible)
Leonard B. Boudin: Right.
Speaker: (Inaudible)
Leonard B. Boudin: Well, I think --
Speaker: Is that it?
Leonard B. Boudin: I don't want to argue with you Mr. Justice Harlan about the inclusion. I really think --
Speaker: (Inaudible)
Leonard B. Boudin: Yes.
Speaker: (Inaudible)
Leonard B. Boudin: I think what Your Honor is saying is Your Honor -- that the Court has never said, “We take the Communist Party. We are upholding a judgment of the legislature with respect to the special quality of the Communist Party”. For my purposes, I think that is technically correct although some --
Speaker: Practically correct --
Leonard B. Boudin: -- some justices would believe that there was an actual attainment.
Speaker: Yes, it's not passed judgments on (Inaudible) --
Leonard B. Boudin: Yes.
Speaker: (Inaudible)
Leonard B. Boudin: I had not --
Speaker: (Inaudible)
Leonard B. Boudin: I accept Your Honor's statement -- and that for my purposes is sufficient here because in the end that comes down to a recognition by the legislature, upheld by the Court, as to the special quality of Communist Party. And it is a quality which is distinct from all other organizations that have been said to have been influenced, controlled, dominated, whether it's a progressive party in one case or whether was a two organizations that Your Honor and didn't have to consider in Barenblatt, I can't remember what they were at the moment or whether it is so-called Communist-front. Now, the Government had made reference to Mr. Justice Jackson's views in Doud or Dennis as I recall. Dennis it must have been as to the dangers of overthrow in Hungary and Czechoslovakia, which justifies in the Government's view the current actions against so-called Communist-front organizations. When Your Honors look at what Mr. Justice Jackson said, Your Honors will see that he was referring to a paramilitary organization as he described it at Czechoslovakia and Hungary. And he was concerned about the Communist Party and not about an organization which is engaged in opposing the Internal Security Act or an organization which is opposing the arrival of the mayor of Madrid -- City of Madrid to New York. We're dealing here with two completely different things and it's conceivable to me that the author of those telling phrases in West Virginia against Barnett would have come to the conclusions of the Government does, that an organization of this type engaged not only on the surface but so far as the Government is concerned had proven under the service as well, in perfectly legitimate activities that this kind of an organization should now be required to register and should suffer the various penalties that had been indicated. I do not -- I will reserve a few minutes that I think I have left for any response to the Government and I don't think it's necessary for me to go into the detailed analysis of the four criteria that have ben mentioned in our brief under Section 13, in each case of which I think no proof has been made out to support the application of the criteria. Thank you.
Earl Warren: Mr. Maroney?
Kevin T. Maroney: Mr. Chief Justice, may it please the Court. I intend first to outline very generally the findings of the Board and then to discuss the sufficiency and the other evidentiary questions raised. Mr. Terris will then conclude the Government's argument on the constitutional question. Now, the evidence before the Board in this case consists of 4500 pages of typewritten transcript of testimony. There are also over 300 exhibits. The Board on the basis of this extensive evidence has written a report summarizing a good benefit, making its findings and conclusions which takes over more than, takes up more than 200 pages of the printed transcript or the printed record in this Court. The Court of Appeals in accordance with its responsibility, primary responsibility under Section 14 (a) of the statute has carefully reviewed the testimony and on the basis of that review has affirmed the findings of the Board, the essential findings of the Board. And in -- in that connection, I would like also to emphasize that the essential test has been explored yesterday and today. The essential test to be applied by the Court to reviewing the Board's order is as set forth in Section 3 (4) of the statute and that is whether or not the evidence shows preponderantly that the organization is dominated and controlled and operates primarily to give aid and support to the Communist Party. The four types of evidence which Section 13 (f) of the statute specifies, wants to be taken into consideration by the Board are simply that. They are statutory requirement that in arriving at the ultimate determination, the Board shall consider those types of evidence. Now, I intend to take up at a few minutes the specific or a couple of these specific contentions made in the brief and in an argument this morning as to the claimed differences and approach by the Court of the Appeals and the Board, and especially with the argument relating to the insufficiency of the post-1950 evidence and the Court of Appeals finding concerning Wolff and Fishman and whether or not the Board's conclusion, their functionaries is warranted. But before getting into those specific questions of sufficiency, I think that it's relevant to place those arguments in proper context and that is in light of all the evidence that was received and considered by the Board and by the Court of Appeals. Now, the International Brigades which became a part of the Spanish Republican Army in 1936 were setup in that year and the evidence in the case shows that the International Brigades were headed and controlled by the Communist Party, by the Communist International actually. The leader of the Brigades was Andre Martin who was a leader of the French Communist Party and a member of the Executive Committee of the Communist International. The second in command of the International Brigades was Luigi Gallo, now known I believe is Luigi Longo, and a leader of the Communist Party in Italy. The evidence, and rather extensive evidence I think, clearly showed that the Brigade had political commissars operated under Communist Party discipline. Its literature was censored and its members were politically indoctrinated and many of them urged to join the Communist Party. As matter of fact, some of the members of the Brigade joined the Communist Party of Spain while they were in Spain. One such member according to the testimony was Milton Wolff who was in Spain as the commander of the Abraham Lincoln Brigade. Before he went to Spain, he had been a member of the Young Communist League. While he was in Spain, according to the testimony of the witness, Hecht, he joined the Communist Party of Spain.
Hugo L. Black: Witness who?
Kevin T. Maroney: Sir?
Hugo L. Black: You said according to the testimony of a witness who?
Kevin T. Maroney: Hecht, H-E-C-H-T, Hecht who was -- who was an American member of the Communist Party who had gone to Spain to join the Abraham Lincoln Brigade. And he of course also went under the officers of the Communist Party. I think in that connection it's, it's worthy of note that of six Government witnesses who had been in Spain, five of them had been members of the party at the time they went and of course and all six of them went under the officers of the Communist Party. Now, further showing the domination by the Communist Party and of course the crucial interest --
Tom C. Clark: This group is managed by a committee or a board of 11?
Kevin T. Maroney: It had -- the principle executive officers.
Tom C. Clark: At the present time it's managed by --
Kevin T. Maroney: That's right, a nine-man executive board and Wolff who is a national commander and Fishman who was the executive secretary.
Tom C. Clark: Now, are all of those members of the Communist Party?
Kevin T. Maroney: Not all.
Tom C. Clark: A majority of it?
Kevin T. Maroney: Eight of 11 of the Board and the Court of Appeals held were members of the party.
Tom C. Clark: Present members or past or had been members or (Voice Overlap) --
Kevin T. Maroney: Well, on the basis of the evidence that was --
Tom C. Clark: -- (Voice Overlap) the Board, Prettyman and Bazelon, I came out utterly confused as to what the --
Kevin T. Maroney: Well, I think the holding is that based on the evidence which --
Tom C. Clark: Do you have an evidence of one man back at 1950 or 1939 or when it was he was thought to be a member of the party?
Kevin T. Maroney: Well, I think the holding of the Board and the Court.
Tom C. Clark: As of -- we have to decide as of 1964.
Kevin T. Maroney: That's right. I think that's what they both did, the Board and the Court that as of the time that we're speaking of, that is 1952 when they had this evidence of the nine-man executive committee and the two other officers, that as of that time, the inference was and is and they so held that they were members -- eight of the 11 were members of the Communist Party.
Earl Warren: What was inference based on -- on those things that happened back in 1936 and 1940 and up to 1950 or was it based on the inference -- the inference based on testimony concerning their actions after the Act came into effect.
Kevin T. Maroney: Well no. It was primarily based on evidence which covered the entire period from 1936, from 1938 to 1939 up to 1950. And then, in addition, there was the evidence which directly related to activities of this organization in the 1950 to 1954 period. But --
Earl Warren: Would the appellant --
Kevin T. Maroney: -- I think we get a better picture of the reasonableness of that inference if I could just carry through for four or five minutes and give some of the additional extensive evidence that this Court -- that the Board did rely on in making its ultimate determination.
Earl Warren: Well will you -- will you differentiate between that evidence that you rely on before 1950 and that between 1950 and 1954?
Kevin T. Maroney: Yes sir.
Earl Warren: So we'll -- so we'll have that in mind.
Kevin T. Maroney: That's right sir. Everything that I'm talking about at the moment will be pre-1950.
Earl Warren: Yes.
Kevin T. Maroney: Now, when I get to 1950 I'll carry it over specifically.
Earl Warren: Thank you.
Kevin T. Maroney: Now, as I indicated, there is also extensive evidence here that Earl Browder constantly reiterated that the Abraham Lincoln Brigade was a party responsibility. There is also evidence that the membership, the Communist Party membership in the Abraham Lincoln Brigade constituted 50% or 60% of the Brigade. Of course there were members of the Brigade who were not members of the Communist Party. But the point is that the Communist Party was the motivating factor in the formation of the Brigades and of course they were interested in bringing in people who were sympathetic to the cause of the Brigades and the Communist International United Front effort in Spain and of course many of the persons who were in the Brigade were not members of the party. Now, on the basis of this extensive background information, the Board concluded that the Abraham Lincoln Brigade was dominated and controlled by the Communist Party and that its members were subject to Communist discipline. And I would just like to point to one additional piece of evidence that relates to the period of the Spanish War and is primarily of significance I think in light of the argument with respect to the present officers and particularly Mr. Wolff, the National Commander. On page 71 --
Hugo L. Black: Of the record?
Kevin T. Maroney: Of the record. The Board narrates evidence relating to a meeting in Spain in October 1938, which followed the withdrawal of the Brigades from the war. In which there is evidence of a meeting and dinner in Marces, Spain where Milton Wolff was also present and Minor, Robert Minor who is a member of the Politburo of the American Communist Party at that time. Minor recounted with the minute going through stating that it was their duty to bring forward in the United States what they had learned in Spain to advance the CP-USA and to raise the political education of the American people who are lagging behind the struggle, that they were now firmed Communist prepared by their experiences to do outstanding work for the party and mass organizations in the United States. Now --
Earl Warren: Who made that speech?
Kevin T. Maroney: Mr. Robert Minor who at that time was a member of the Politburo, the central committee of the Communist Party of United States.
Speaker: Not the former governor here?
Kevin T. Maroney: Yes.
Earl Warren: And what is -- what is his connection with the organization now, with this organization?
Kevin T. Maroney: With this organization?
Earl Warren: Yes.
Kevin T. Maroney: Well, he was a Communist Party functionary, Your Honor. He was -- I'm not sure that he was a member -- I think he was, has always been a member of the Veterans of the Abraham Lincoln Brigade. The significance of this I think is that here is a leading Communist official telling the members of the Abraham Lincoln Brigade that now that they have learned their Communist -- have had their Communist training that they should come back to the United States now and further put it into operation.
Earl Warren: Was the Brigade in the existence at that time in 1937?
Kevin T. Maroney: Well, this was 1938. This was right at the point where the Brigade was being withdrawn from the Spanish Republican Army and was preparing to return to the United States.
Earl Warren: But was -- was the Brigade -- was this -- was this organization in existence at that time?
Kevin T. Maroney: Oh no. Well, the Veterans of the Abraham Lincoln Brigade?
Earl Warren: Yes.
Kevin T. Maroney: Yes.
Earl Warren: When did it come in to existence?
Kevin T. Maroney: It began to come into existence in the period of about 1937 and 1938. The witnesses Lautner and Budenz testify as to attend, their attendance at Politburo meetings in those years at which there were discussions of setting up this organization. And Budenz testifies that members and officers of the Communist Party and a Comintern representative were detailed as liaison with the proposed new organization. Budenz also testified that the Politburo approved the constitution, post-constitution of the Veterans of the Abraham Lincoln Brigade and that Paul Burns, a Communist Party functionary was appointed by the Politburo as the first National Commander of the Veterans of the Abraham Lincoln Brigade. He also testified that as to the Communist Party furnishing funds to the Veterans of the Abraham Lincoln Brigade to assist it in getting itself established. Now, this is the period of 1937 and 1938 when most of the members of the Brigade were still in Spain. In the latter part of 1938, most of these people returned to the United States and in 1939, there was a formalizing convention of the Veterans of Abraham Lincoln Brigade. And it is -- at that convention that the -- that Mr. Wolff was named National Commander of the VALB and he has served in that capacity up to the present time. The Board think the evidence is perfectly clear that that convention was staffed by members of the -- by officers and members of the Communist Party and that many of the principal officers who were elected at that convention including of course the National Commander, Mr. Wolff were members and officers of the Communist Party and the Board so found.
Speaker: How many besides Mr. Wolff, if any, have continued as officers of the Brigade?
Kevin T. Maroney: Well, for example, for example -- for example Steve Nelson who -- because of his activities in Spain in behalf of the Brigade was co-opted that is just appointed rather than being elected to the National Committee of the Politburo of the Communist Party, Steve Nelson in about 1938 replaced a Comintern representative as the liaison with the Veterans of the Abraham Lincoln Brigade, Steve Nelson is one of the 11 present members of this -- of the National Executive Committee. I think as far as the membership or the officership of this organization, the Board has made extensive findings and as a matter fact concluded that without exception, every principal officer of this organization has been a Communist Party functionary and representative.
Arthur J. Goldberg: (Inaudible)
Kevin T. Maroney: Well, they do more than that. They do more than that. I mean the problem is that the Board in making that overall conclusion is of course dealing with different periods of time. But in developing that to the present finding, the Board of course does recognize the requirement that the officer of the VALB must be concurrently a member or officer or a functionary of the Communist Party.
Arthur J. Goldberg: (Inaudible)
Kevin T. Maroney: Now, I'd have to concede Your Honor that with respect to Smith and Smith alone and because of the peculiar circumstance in his case and the information in the record that he remained loyal to Earl Browder -- that we find it difficult to defend the inference that he continued to be a functionary into 1950.
William O. Douglas: But --
Kevin T. Maroney: But with respect to the outcome -- I'm sorry.
Arthur J. Goldberg: (Inaudible)
Kevin T. Maroney: I think that's the Government's burden. I think the Government carry that.
William O. Douglas: -- (Voice Overlap) weren't you said 11, I said how many are members, you said 11, now you concede that --
Kevin T. Maroney: Oh no.
William O. Douglas: -- there are only 10?
Kevin T. Maroney: Your Honor I say that the Board and the Court of Appeals both of them that eight of the 11 were -- are members of the Communist Party now.
William O. Douglas: You concede now that there are only 10?
Kevin T. Maroney: Well, as far as I'm concern (Voice Overlap) I find it difficult to defend to the inference that --
William O. Douglas: What you doing --
Kevin T. Maroney: -- to that one of the eight, that he continued to be a member.
William O. Douglas: We respect an honest answer.
Kevin T. Maroney: Sir?
William O. Douglas: We respect an honest answer.
Kevin T. Maroney: Thank you. I --
William O. Douglas: That leaves 10?
Kevin T. Maroney: That leaves, well no -- you see they were 11 --
William O. Douglas: Yes.
Kevin T. Maroney: -- eight of whom, the Board and the Court of Appeals found to be members of the party including Smith. Now, I mean even if we take away Smith by concession --
William O. Douglas: Right.
Kevin T. Maroney: -- and of course, I don't think that it's our prerogative to substitute our judgment for the Court of Appeals or the Board but I just --
William J. Brennan, Jr.: Are you saying the evidence --
Kevin T. Maroney: The evidence, and I find --
William J. Brennan, Jr.: (Voice Overlap)
Kevin T. Maroney: That's right, that's right.
Byron R. White: Or as to, as to -- as to membership.
Kevin T. Maroney: As to?
Byron R. White: Not only, not just to --
Kevin T. Maroney: As to membership (Voice Overlap) as to membership because of the peculiar piece of evidence that he remain loyal to Browder and I mean it would be inconsistent of course that he could remain loyal to Browder and still remain loyal to the Party.
Byron R. White: It would still be --
Kevin T. Maroney: In my mind the --
Byron R. White: And still be a member?
Kevin T. Maroney: That's true.
William O. Douglas: How about the others mentioned by Judge Bazelon? Would you make same concession --
Kevin T. Maroney: Oh no, no.
William O. Douglas: -- with respect to him?
Kevin T. Maroney: On the others and I think especially in light of the overall evidence in this case. I think the inference is most strong and especially in view of the very substantial evidence of the firm control by the Communist Party over a 15-year period of this organization. I think it's a compelling inference that these other seven or the eight if you will were in 1952, representatives of the Communist Party in their capacity as members of national executive committee of this organization, and I think that that is is -- buttressed by what went before. What happened from ‘39 when this organization was setup until 1950 when we do get into the period where an inference has to be drawn as to continued relationship between this organization and the Communist Party? The relationship between the activities of this organization and the officership of this organization and the Communist Party are so close that the Board was impelled to call it a hand and glove relationship and you couldn't possibly describe it in any other way. The publicity for example that was afforded to the Veterans of the Abraham Lincoln Brigade. There's a -- on page 125.
Earl Warren: What page?
Kevin T. Maroney: On page 125 of the record. There's a quotation in the middle of the page, from Daily Worker article in 1945. And in that article it said, “There is one group of American citizens that has a special right to be heard on the subject of our relations with Spain. We refer of course to the Veterans of the Abraham Lincoln Brigade”. This is the Communist Party of course talking through its official lawyer and Daily Worker.
Potter Stewart: Well, isn't that the rational rather than true, I think I would agree with that.
Kevin T. Maroney: Well, I'm not disputing the truth or the accuracy of it. I'm speaking of the support. I'm not challenging the -- whether the statement has merit or not. I am trying to show that this is just one of many, many examples of the Communist Party's --
Potter Stewart: Of what?
Kevin T. Maroney: -- treatment and high regard for this organization. And of course there's much more background to this and that of course is our problem with -- with the record of this size. The Communist Party regarded the members of the Abraham Lincoln Brigade as being the flower of the party. These were the people who had gone to Spain and who had fought in Spain in the antifascist program of the Communist Party and they had demonstrated their loyalty to the Party.
William O. Douglas: Yes, but most of them were not members I understand it.
Kevin T. Maroney: Oh no, not most Your Honor. I think the record shows that more than 50% of the members of the Abraham Lincoln Brigade in Spain were not members of the Party. But the record also shows of course that there was political indoctrination in Spain, some of the people who had gone there not as members later did become members, not all of course.
William O. Douglas: But we don't have any evidence as to the political complexion of the 200 living members of the Brigade, do we?
Kevin T. Maroney: Oh no, no. I -- other than as discussed in this record as to 75 or 80 --
William O. Douglas: I know, but when you say --
Kevin T. Maroney: -- members.
William O. Douglas: -- indoctrination, you can assume that indoctrination was successful but --
Kevin T. Maroney: Well it was in some instance (Voice Overlap) --
William O. Douglas: -- (Voice Overlap) the Communist Party in this country showed very little success in the indoctrination.
Kevin T. Maroney: Well, that's true but the people who did go into -- well, some of the people anyway became the members of petitioner and certainly the leadership, the important leadership of the petitioner organization, we think very clearly were dedicated as representatives of the Communist Party. I just don't think you can read this report without -- without coming to that conclusion. The only reason I refer to that Daily Worker article, I think it points out, what I've just been trying to say with respect to the parties regard for the Veterans of the Abraham Lincoln Brigade and of course Lautner says that the party regarded the Brigade as being -- let's just say were trained and they had demonstrated their loyalty and so forth, that the party regarded the Brigade as a source for promising leaders in the party. And of course the evidence here demonstrates very clearly that many, many members of the petitioned organization to later on received very high positions in the Communist Party.
Earl Warren: This editorial doesn't make any mention at all of any connection between the Communist Party and the organization does it? The Abraham Lincoln Brigade, it merely speaks favorably and I supposed it does the same when there are a lot of issues in the Congress that takes -- takes one side of the other but that certainly wouldn't take -- take the Congressman whom they -- whom they --
Kevin T. Maroney: Well, of course --
Earl Warren: -- quoted favorably with it, would it?
Kevin T. Maroney: No, no but of course the problem is -- this is just one of thousands of pieces of evidence. This, the only reason I point to -- this is that it demonstrate the -- fondness certainly and the hand-in-hand working relationship between the party and this organization. Here the party of course is praising the Brigade as being the expert and the forefront on the -- on the antifascism theme.
Earl Warren: But this has been said --
Kevin T. Maroney: Their party is also urging its members to buy tickets to support this organization, to attend this affair.
Earl Warren: But this is a -- this is five years before the Act went into effect and --
Kevin T. Maroney: That's right.
Earl Warren: You tell us the thousands of bits of evidence along these lines, but you haven't told us yet one thing in the record after 1950. Not one thing and your time is going pretty fast --
Kevin T. Maroney: Alright now --
Earl Warren: You only have another 15 minutes to -- to finish.
Kevin T. Maroney: Now, Your Honor, I would have to start to summarize that between the period of 1939 or 1938 when this organization was established and 1950 that the evidence I think is just completely clear that the organization was dominated and controlled by the Communist Party. Now, in -- during the period from 1950 to 1954, the evidence is principally documented. And we have evidence in the record principally through the Volunteer for Liberty which is the official publication of this organization, that during that period they engaged as the Court of Appeals summarized primarily in campaigns, propaganda, campaigns through the Volunteer for Liberty in defense of certain members of the party who have been indicted under the Smith Act. Some of whom of course were members of this organization --
Earl Warren: Now wait a minute, does that -- does that in itself constitute any evidence of control? The fact that they --
Kevin T. Maroney: In on of itself? No Sir.
Earl Warren: That they favored defendants who are charged under the Smith Act?
Kevin T. Maroney: Well, in and of itself it certainly doesn't establish it. We don't suggest that if -- if all we had was the evidence from 1950 to 1954, we would concede of course with -- that our evidence was insufficient. Our basic position is this, that from 1938 to 1950 the evidence is just overwhelming and I think a reading of this record would demonstrate it that this organization was founded by the Communist Party, aided by it, it aided the Party. During those fifteen to sixteen years it aided it in its propaganda efforts in paying, furnishing salaries, and so forth to people who are officers of the Communist Party. It aided it in many ways like that such as the establishment of the Browder Brigades in the early 1940's for the purpose of -- of selling subscriptions to the Daily Worker.
William O. Douglas: As I read your brief -- what you're -- tell me, I think I may have missed your point, is that having showing so much part of 1950, that the mere absence of any evidence with substantive period is enough to break the inference of the previous conditions to attain, was sort of a --
Kevin T. Maroney: I think that -- it is our essential position but of course here you do have this -- this propaganda activity that was carried on and of course which in phraseology, in purpose, and in precise areas of agreement with the Communist Party in the case, I think affirmatively a continuation of the same organization, under the same leadership for the same purposes as had always existed back to 1939.
Potter Stewart: Primarily this, the Volunteer for Liberty --
Kevin T. Maroney: Primarily --
Potter Stewart: -- propaganda.
Kevin T. Maroney: -- the Volunteer for Liberty, that's right.
Potter Stewart: Part of the 13 --
Kevin T. Maroney: 13 issues.
Potter Stewart: Between -- published between September 1951 and June 1954?
Kevin T. Maroney: That's right sir.
Potter Stewart: Alright.
Kevin T. Maroney: And they're discussed in the Court of Appeals opinion and the -- the treatment that the Court of Appeals accords to those certain issues and our theory of they are being sufficient to carry forward the influence of continued nature of the organization is exactly the theory that we rely in.
Earl Warren: Is that the only evidence?
Kevin T. Maroney: That is the only evidence during the period from 1950 to 1954, yes. And I think, since we only have about ten minutes left, I'll -- Mr. Terris will continue with the constitution language --
William J. Brennan, Jr.: Are you going to argue the aid components or the -- as understand you, you're going to argue on control.
Kevin T. Maroney: The evidence?
William J. Brennan, Jr.: What about the aid component of the statute, aid to the Communist Party, are you going to argue that?
Kevin T. Maroney: Well I thought I had alluded to it, for example, I had showed that --
William J. Brennan, Jr.: What this organization do to the Communist Party, I haven't heard it yet.
Kevin T. Maroney: Well it principally -- the principal purpose of this organization of course was to urge the antifascist program of the -- of the Communist Party. The Communist Party and the Communist International, since the middle or late 1930's has had a United Front Program, an effort to seize upon a certain area, a political area or a propaganda area and through a front organization, try to bring along with it for the purpose of antifascist let's say, as great spectrum of the population as possible not because it supporting the Communist Party but because it's against fascism.
William O. Douglas: That's been largely the American Policy, wasn't it?
Arthur J. Goldberg: As I understand it --
Kevin T. Maroney: Well, I suppose that's a policy of anybody. But --
William O. Douglas: No, I mean in terms of World War II certainly, I thought that's what this is all about.
Kevin T. Maroney: Well Your Honor, antifascism isn't the issue in this case, the point is.
William O. Douglas: Well, I thought you made it the issue.
Kevin T. Maroney: Oh no, oh no. I was trying to explain that that the Communist Party used this organization in its -- in its United Front against fascism and in an effort to bring in people who although they wouldn't have anything to do with Communist, certainly as most people are, are against fascism.
Hugo L. Black: I suppose the United Front against fascism include practice, isn't it?
Kevin T. Maroney: Well, I think we went along with the Communist Party here.
Hugo L. Black: -- (Voice Overlap) entirely, it's a from what you had in United Front against fascism.
Kevin T. Maroney: Well, I just I said I assume most people are against fascism --
Hugo L. Black: But weren't this (Voice Overlap) --
Kevin T. Maroney: -- I think that's true.
Hugo L. Black: -- engaged in one of those whoever it was, engaged in United Front against fascism, in the World War II?
Kevin T. Maroney: Certainly.
Earl Warren: We'll recess now.
Bruce J. Terris: Mr. Chief Justice, may it please the Court. I'd like to answer a couple of questions that came up at the end of the morning's argument. Mr. Justice Brennan's to aid and support evidence, that's detailed at some length at pages 40 to 46 of our brief. Now -- and then in addition it refers back to some more material a few pages earlier. Let me just summarize it, it is not that petitioner was antifascist. It's the petitioner who followed the program of the Communist Party which the Communist Party labels as its antifascist program. In fact, it's very instructive to look a petitioner's policies during the period first before the Soviet-Hitler Pact, then after the pact and then after the invasion of the Soviet Union by Hitler. They switched, the petitioner switched exactly at the same and in the same way that the Communist Party switched, the same kind of evidence that was in the Communist Party case. In other words, there are --
Potter Stewart: What pages of your brief did you just say? 46 to 46?
Bruce J. Terris: 46, and then it refers back to this kind of material few pages earlier but it gives a --
Potter Stewart: 40 to 46?
Bruce J. Terris: 40 to 46, that's right. Also the petitioner oppose things like the Marshall plan, the Truman doctrine, they're not exactly things that -- it would be hard, you have to press pretty hard to consider them as just normal antifascism. Although they are part of the antifascism doctrine, the way the Communist Party interprets it. Now other things that petitioner did and the evidence shows that it was recruiting ground for Party members that supported all kinds of Party activities, rallies, picketing, subscription drives for the Daily Worker, things of that kind. It did it -- and this is all described and summarized on pages 40 to 46. Now, as to the pre-1950 evidence and the post-1950 evidence, the Government's basic theory -- I am not going to go into the -- the exact specification of what was pre and what was post. Mr. Chief Justice we describe that post-1950 evidence starting at the bottom of page 59 and to the top of page 60 there is not a great deal of it. There is we think enough to do one thing, it's our view that we -- that the Government established that the Communist Party controlled petitioner and the petitioner operated for the purpose of aiding and supporting for the primary purpose of aiding and supporting the Communist Party by overwhelming evidence in the period up to 1950. We do not say the evidence after 1950 would come close to establishing either with those facts alone. What we say is the evidence is sufficient to show that the character of petitioner did not change. Now, let me compare that -- let me compare this case to the Communist Party case on the same point. In the Communist Party case, there was extremely little Government evidence after 1950, very little. In fact, there was not much Government evidence after 1940. There was enough to establish that character of the Communist Party continued as prior to 1940. The large majority that Government evidence was before 1940. This Court specifically considered the same proposition the petitioner now advances. It rejected it. We think that the same result follows in this case. I may say that we don't look to 1964 back to 1950. We looked from 1954 back, because it was in 1954 the hearing took place and the fact that these proceedings seemed to stretch on interminably as it was also true of course in the Communist Party case, going to hardly mean that Government has got to have shown evidence more recent than it would at the first time, otherwise we never stop the case. We have to have another hearing and by the time that got up to this Court, we probably -- that would be staled too. So that we have to look at it from 1954 and evidence in the late 40's for example certainly isn't very stale looking from 1954. Now, it looks like it's another era. I'd also like to point out that in the Communist Party case the Government did not prove that the Communist Party have done anything illegal. The Government did show that in Dennis and as to -- as to an individual, in Scales. We did not show it in the Communist Party case, we did show that the Communist Party advocated overthrow of the Government. We did not show enough to meet the aid standard, that proposition was specifically argued to this Court that we have not met the aid standard. It was rejected by this Court.
Speaker: (Inaudible)
Bruce J. Terris: Pardon me.
Speaker: (Inaudible)
Bruce J. Terris: That's quite right, that's exactly -- that is of course exactly what we argued to this Court and this Court accepted, that Yates and Scales and Dennis that those cases do not set the standard. We're not -- the point I'm trying to make is we need not show criminal illegality in order to require an organization to register. The Communist Party case establishes that. We don't have to show the petitioners engaged in illegal activity we say in order that it register. Now I'd like to divide up the constitutional question into two parts, we think there are two issues before the Court. The first issue is whether petitioner, whether the Board has the power to make a finding whether petitioner is a Communist-front within the meeting of the statute, thing else of finding and determination. And the second and we think separate proposition is whether Congress upon a finding of the Board can require registration and the limited disclosure which the Act requires. Now as -- and we think these are two separate propositions, I won't go into detail, but the Congress intended them to be separate. It considered the mere finding the publicity of what these organizations were like to be extremely important. In fact one of the main themes in Congress was that was unfair to organizations, to have the Attorney General as he was then doing, labeling an organization as a Communist-front, putting on a list without giving full procedures, this was one of the crucial arguments for the Act as far as it applied to Communist-fronts. And therefore the Act provided full hearings, full procedural administrative guarantees, coupled with judicial review.
Speaker: (Inaudible)
Bruce J. Terris: Department of Justice.
Speaker: Department of Justice.
Bruce J. Terris: That's right Your Honor, and then of course, as a broad Severability Clause and other indications such as to the fact that for Communist -- Communist-infiltrated organizations, which is not before the Court here. All that Congress required, al that it required was a finding by the Board. No registrations, no disclosure. Now some of the disabilities did apply but as far as the issue now before the Court, it doesn't -- it did not require registration to disclosure. A pure finding was all that Congress provided for and so we think it's clear that Congress considered the findings alone important. And therefore we think the constitutional issue have to be considered separately. Now, of course as to the findings, there is no Fifth Amendment question whatsoever, did not even asked to do anything. It's a pure governmental finding based on what we believe to be fair procedures. Now, as to the constitutionality of the findings, we think that this Court has never held or even suggested that the Government cannot make a determination about an organization on the basis of fair procedures. And we think it certainly can do so about an organization concerning which the evidence shows is controlled by an organization, it works for an organization, which in turn is controlled by and works for an organization controlled by a foreign government.
Potter Stewart: But the Government you said -- it's never been held that the Government cannot make a determination about an organization?
Bruce J. Terris: That's right.
Potter Stewart: And maybe in the abstract that's true, maybe it isn't. But there has to be some governmental purpose behind it I assume.
Bruce J. Terris: Well, I do assume that Your Honor that it isn't -- I don't think there be any doubt that there was a governmental purpose here. The purpose of the Government was to show that some organizations which reported to be non-Communist were in fact subsidiaries of the Communist Party.
Potter Stewart: And just to pin that label on, that (Voice Overlap) --
Bruce J. Terris: Well, Your Honor --
Potter Stewart: That's really what's the issue here.
Bruce J. Terris: We were talking -- let's assume that -- let's assume that there was a problem in a certain area about charities. Many people who gave money to charities didn't realize the charity used for different purposes, not fraud, but just used it for different purposes that people that ran it, weren't the people that they thought. And in the state legislature or the Congress said, “Let's have disclosure, what the activities are? We're going to make a determination of the activities. We'll make a determination, the basis of fair procedures of the activities and who runs these organizations?” I don't think there can be much doubt that Congress would have that power.
Potter Stewart: Seems to me that there would be a good deal unless the charity were operating interstate. Well --
Bruce J. Terris: Well, that's what I'm going to tell. Let's talk about the District of Columbia --
Potter Stewart: Alright.
Bruce J. Terris: -- then Your Honor, so we don't have that problem, more state legislature. I don't think there'd be much doubt of a power to disclose to people enough information because they're aren't deceived. This is the liberate deception. That's what Congress found. It's not only the Congress founded I may point out. This Court approved these specific findings in the Communist Party case.
Arthur J. Goldberg: I was (Inaudible)
Bruce J. Terris: Yes.
Arthur J. Goldberg: (Inaudible)
Bruce J. Terris: Essentially, that's right Your Honor. Our point is if petitioner makes much of the fact that all the doctrine in this Court about regulation of the Communist Party is for the Communist Party alone, our point is that this in effect is the Communist Party.
Arthur J. Goldberg: (Inaudible)
Bruce J. Terris: The self-crimination point that was not decided? Or what was decided -- and we think its controlling as the issue is premature. They're just as premature here.
Arthur J. Goldberg: (Inaudible)
Bruce J. Terris: Our answer is that -- first of all, the organization doesn't have a privilege that the -- therefore in order to have any of its officers have a privilege for the organization's records and that we think alone is sufficient because what in essence is asked for is the organization's records. I think that's probably the --
William J. Brennan, Jr.: It comes down to who's going to sign the papers?
Bruce J. Terris: Any --
William J. Brennan, Jr.: And the person who signs --
Bruce J. Terris: Mr. Boudin can sign the paper.
William J. Brennan, Jr.: I beg your pardon?
Bruce J. Terris: He's not going incriminate himself. Mr. Boudin can sign the paper. Just to this he can get up in this Court and represent the Veterans without.
Arthur J. Goldberg: Did I understand and you read that line yesterday and that (Inaudible) the attorney can sign the papers, he's not authorized?
Bruce J. Terris: Well Your Honor, that if -- if the Government is successful in this case the petitioner is required to register. Then its officers do not incriminate themselves by authorizing, the Government is not asking for who did the authorization but authorizing --
Arthur J. Goldberg: That is --
Bruce J. Terris: -- Mr. Boudin to sign the paper.
Arthur J. Goldberg: That is not the question, do think (Inaudible)
Bruce J. Terris: Yes.
Arthur J. Goldberg: The question I'm putting to you is, do without authorization from the appellant signed?
Bruce J. Terris: Oh no.
Arthur J. Goldberg: That was the heart of the matter?
Bruce J. Terris: Well Your Honors, the Communist Party could not and petitioner could not in this case refuse to authorize somebody to obey the statute because it just doesn't want to and -- I don't really equate answer if you don't understand the difficulty.
Arthur J. Goldberg: All I am really saying is that there's no privilege or any authority --
Bruce J. Terris: No.
Arthur J. Goldberg: -- the appellant may be compelled of.
Bruce J. Terris: If the organization has the privilege, if the organization has the privilege, then of course -- the quick answer is that they can just say no. That's --
William J. Brennan, Jr.: Then we get back to (Inaudible)
Bruce J. Terris: Yes.
William J. Brennan, Jr.: As I understand it (Inaudible).
Bruce J. Terris: Yes, yes.
William J. Brennan, Jr.: (Inaudible)
Bruce J. Terris: I hope I -- let me go back to what I said -- there are two parts of that. The first thing is I -- I agree that if a person admits that he his an officer of a Communist-front although that doesn't get him get anywhere near close to prosecution under the Smith Act, under this --
William J. Brennan, Jr.: That it will be (Inaudible), that's what I said.
Bruce J. Terris: No, no, no. I mean --
William J. Brennan, Jr.: That is what (Inaudible)
Bruce J. Terris: That's right. That's what I'm going to --
William J. Brennan, Jr.: And really, this is (Voice Overlap) --
Bruce J. Terris: It could be a lead, it could be a lead. And -- but my, but the point is, it may be that they can't find an agent, they can't find an attorney, how was this Court at this point can determine whether petitioner can find an attorney or find an agent. Now what, I think instructive to look at the Communist Party case, not in this Court but in the Court of Appeals when the Communist Party was prosecuted, the Court of Appeals reversed the conviction of the Communist Party. It allows the Government to retry the Communist Party. This has not yet occurred. It said contrary the Government's position, if the burden was on the Government to show that there was a volunteer, an agent or an attorney, ready to register the Communist Party. But it said that that was a possibility, a matter of proof. If the Government could show it, then the Communist Party had violated the statute and the criminal penalties apply to it. In other words, I don't see how it can possibly be litigated at this point whether Mr. Boudin would say no or any -- and every other attorney that they contacted. It seems to me that we are in a situation that we don't have the full amount of facts. In the Communist Party case I think shows the prematurity, especially -- and I don't think Your Honor's opinion about the Fifth Amendment point consider the possibility of the agent or the attorney. If an officer had to invoke his own privilege, there was the possibility that Your Honor suggested. But in fact the regulations -- I'm not sure whether they were different then Your Honor.
William O. Douglas: They were different.
Speaker: (Inaudible)
Bruce J. Terris: Well, at the moment they are absolutely clear -- that they're absolutely clear. I looked at them just a couple of days ago.
Speaker: Can you file them?
Bruce J. Terris: We can file them with the -- with the court and we'd be happy to. Now, I will make with just one more point.
Speaker: Is it your -- what you're asking here is whether the Government is (Inaudible)
Bruce J. Terris: My understanding is this. I am going to attempt to prove --
Speaker: To prove what --
Bruce J. Terris: -- what, what the Court of Appeals said it could prove. The one point I wanted to make was the -- is just how controlling the Communist Party case is -- is here.
William J. Brennan, Jr.: Is that the case on certiorari?
Bruce J. Terris: That's right Your Honor. I'm talking -- when I say controlling, I mean the Supreme Court's determination. On pages 109 to 111 of the Government's brief, we set out at some length quotations from the Communist Party decision. Now, I'd like to just read one sentence that's on page 111, the Court said, “Where the mask of anonymity which an organization's members wear serves the double purpose of protecting them from popular prejudice, have enabling them to cover over a foreign-directed conspiracy, infiltrate into other groups and enlist the support of persons who would not, if the truth were revealed, lend their support --”, then it cite Section 2 in this specific subsection relating to Communist-fronts, “-- it would be a distortion of the First Amendment to hold that it prohibits Congress from removing the mask." Now we think that comes quite close to deciding this case. Thank you, Your Honors.
Earl Warren: Mr. Boudin.
Leonard B. Boudin: We also think it comes quite close to deciding the case for different reasons. It is true that you are attempting to remove the mask but there must be something underneath the mask. And that's the reason for the reference of Section 2 (7) to the objectives which you refer to in Section 2 (6). Unless an organization is engaging in activities which bear a relationship -- a relationship to the objective of the statute, how can it be said that the statutes are directed against them. And what the counsel here is suggesting that an organization or an individual that engages in good works will under some theory of employed purpose be found to be covered by the statute because the good works here are particularly obvious when the description of the activities with which the court below did not disagree.
Arthur J. Goldberg: Mr. Boudin, isn't that the argument that you gave, did the Government shows in pertinent evidence that the Communist Party set out (Inaudible) for these specific purposes of carrying out their activities through defending their members and others.
Leonard B. Boudin: That would present a completely different problem Mr. Justice Goldberg.
Arthur J. Goldberg: Well, at least that's the case --
Leonard B. Boudin: Well, at least that will --
Arthur J. Goldberg: (Inaudible)
Leonard B. Boudin: At least that might be the kind of thing that might be intended to covered, the constitutionality would be a different problem. Now, I want to emphasize to the Court that we have been discussing something almost on theoretical level. There is no evidence at all in this record, none at all to show that the activities that we're engaged in, certainly those beginning with the passing of the statute in 1950 had any relationship not only to the bad objectives attributed to the Communist Party but even to good ones. There is no indication that we were even interested in helping the Communist Party and things with which we will be in general approval. There is no connection with the Communist Party. The Smith Act thing stands on its own. Members of the petitioning union were being prosecuted. And something act of -- of camaraderie to help them obviously, particularly against the statute that many people thought was oppressive. This organization was under attack. This doesn't require wanting to help the Communist Party in order for this organization itself to survive. In short, each one of the activities attributed to the petitioner, if analyzed objectively, are activities that would be rational for it to engage in, indeed, irrational for it not to engage in without any possible reference to what may help the Communist Party either in illegal objectives or in building up an image if we take that argument made by the Government. Now, I want to come down to the factual evidence which is completely on our favor on the subject of control. There has been a discussion here -- well, there are two aspects, first I trust the Court has not been confused by all the reference have been made, to what happened in Spain in 1936, with respect to a different organization, the members of the Abraham Lincoln Brigade, the similarity in part and the names should not make us forget that we are dealing with an organization created here in 1939, of the survivors of the old group. Secondly and more to the point on control, there is no evidence in this record Your Honors that the executive boards which has been referred to by counsel in his oral argument and which is described in the brief even as something having an important part in running petitioner, this is what the Government says in its brief, an important part in running petitioner. That executive board and its important part in running petitioner is segment of imagination. Let me indicate Your Honors how that is. The testimony and the record is that this organization was run by two people really by one, by Mr. Fishman who did not function in the organization as an operating head until 1950 and by Mr. Wolff as a consultant. Your Honors will turn to the record at page 106, it says, not that there was an executive board running the organization, the other principle office of the VALB, middle of the page, is the finding of the Board Your Honor, not just a discussion, is the executive secretary who was formally has provided the constitution, designated secretary treasurer, Your Honors will then see a footnote to the Board's own finding in which its says, the evidence shows and will so testify, that the executive secretary is now and for the past few years has been the principal operating officer, handling finances as well as most of other organizational business. And on the next page on 107, again the Board repeats, respondent has been operated -- operated for the past five years into the present but through two principal active officers, naming them Wolff and Fishman. And whatever reference there is to the executive board is a statement made somewhere in this record that it has that function since 1949. Now, where have we suddenly built up an executive board that exercises so important a function in the operations? Your Honors will recall a reference made to a letter, very ambiguous, hardly to propound on evidence rule or the clear rule of evidence required, a letter signed by a number of people which contains the word executive board is by no means clear that the word for the 40 executive boards were not signed by Mr. Fishman and Mr. Wolff, instead of by the other signatories as Your Honors will say. But let me assume -- let me assume everything the Government says that there was an executive board, the Board hasn't found that it was running -- the Board below running this organization and let me assume even further that I'm wrong this and that the Board where to -- where to have made a finding that he executive order instead of the two individuals I've mentioned was running the VALB. What are the facts with respect to these individuals? I regret to say that Mr. Maroney was not quite accurate in his general statement that there was an executive board of 11, that there were Communist Party functionaries and they were running the Board. The evidence shows as follows, first, two persons on the executive board were forced Fishman and Wolff who as we say were running the organization. The evidence says to them if it is believed that it's quite fragmentary, if Your Honors will see from the record, we've cited it, is 1940 and 1941. And we're dealing with the period, I won't say 1964, 1950 to 1955, as to them only 1940 and 1941. Then you take four persons of this eleven-man executive board, part of the court below rely as being connected with the Communist Party. Wiessman, Nelson, Smith, and Love, only four out of the eleven answered the question by one member of the Court. And out of those four, how did Judge Bazelon dispose them. He said, as to Wiessman the latest evidence with respect to 1949, that's the most recent. Nelson 1946, Smith 1938, Love -- we've been disposed of Love I think to today in that sense.
Speaker: Did Wolff testify (Inaudible)?
Leonard B. Boudin: Wolff and Fishman testified before the Board that they were running the organization, yes Your Honor. And their testimony as far -- on this point is credited.
Speaker: (Inaudible)
Leonard B. Boudin: I think Wolff cited the Fifth Amendment with respect to membership with Communist Party. I don't have to tell or mention to the Court the absence of inference is to be drawn from testimony of that kind of course. There is, I beg you pardon.
Speaker: (Inaudible)
Leonard B. Boudin: Sorry, I'm told that Mr. Fishman did not testify to the Court.
Speaker: (Inaudible)
Leonard B. Boudin: Well, there was a -- Your Honor --
Speaker: With respect to the Fifth Amendment.
Leonard B. Boudin: With respect to that -- well, there was no evidence with respect to Fishman but Your Honor will recall that the one reference that Fishman, the one reference to Fishman is the statement made by a witness that in 1940, some 13 years before the Board was taking testimony, there had been an admission concerning membership. I suggest, Your Honor that the presumption must wear out after a few years. Certainly, it should not last 13 years when based upon the fragmentary testimony of one witness. Now, I have been discussing up to now and I think I have indicated to Your Honors that at the most, there were four people on this executive board of eleven assuming the executive board was in existence, assuming that its function -- assuming that its function contrary to the findings made by the board below that organization was run by these two men. And remember that the court below with respect to Fishman and Wolff found that they were not functionaries of the Communist Party or representative of the Communist Party. So that we have nothing to show control by the Communist Party, either by its -- through the officers or through the members after 1950. Now as to the activities, there's no point in view of the time, I'm going into them. I merely say that I have look to the Government's brief to which my friend just referred in which he described that on certain pages, the activities if the organizations are set forth. He said pages 40 to 46, all of those activities seemed to me to be pre-statutory. And then when I looked at pages 59 to 60 which he says a post-statutory, I can find nothing in those pages which reflects any activities to have any bearing at all upon the subject of this case. Now, maybe he can -- he can broaden them out and summarize, but there is nothing on those pages that supports the statement that this organization engaged in anything after 1950 except the things found by the court below, anti-Franco to the subject that mixed point of view here by the two gentlemen opposing us -- anti-Franco, antifascism, rehabilitation the principal function, defensive members in Smith Act proceedings, and the defense in this case. And a lot of answers are placed by the other side upon our defense of ourselves in this case. I think this will be the first case in which the defense of an organization has been held to prove that it was intended to be covered by the statute as therefore criminal.
William J. Brennan, Jr.: Mr. Boudin, you -- you have -- you made a Fifth Amendment privilege argument?
Leonard B. Boudin: Yes, we have made the Fifth Amendment privilege Your Honor, we think that this is an issue that ought to be to reconsider by the Court. We don't think that the Court is correct in its position to the Communist Party case.
William J. Brennan, Jr.: Have you anything to say that -- Mr. Terris suggests that the regulations which we've dealt in the Communist Party decision had been changed in particulars which will now permit an agent rather than require an officer to file for him.
Leonard B. Boudin: Well, I'll -- we'll accept the statement with respect to the change of the regulations, it only indicate that I'll be most surprised that any attorney or any individual not an attorney were willing to come forward and after they volunteer under these circumstances for any organizations rendered as a Communist-front organization under statute, particularly -- particularly in the light of the observations made by counsel earlier as to the fact that some attorneys engaged in representing Communist interest might very well be considered covered by the statute or by similar statutes. I see no reason for anyone to take the chance and I will suggest and I think it's little presumptuous to suggest that I will take the chance what any other lawyer will do so. Thank you Your Honor.