Simon Boorda, Petitioner, v. Subversive Activities Control Board, Respondent.robert Archuleta and Wayne Dallas Holley, Petitioners, v. Subversive Activities Control Board, Respondent, 421 F.2d 1142 (D.C. Cir. 1970)

These are petitions under § 14(a) of the Subversive Activities Control Act¹  to set aside orders of the Subversive Activities Control Board determining that each of the several petitioners is "a member of the Communist Party of the United States of America, a Communist-action organization." The fact of membership is not at issue.²  Instead, petitioners attack the Board's construction, and the constitutionality, of the Act. The Board erred, they argue, in taking official notice of its prior determination that the Communist Party is a Communist-action organization, and in not allowing petitioners to demand a redetermination of the status of the Party in the proceedings against them. Additionally, they claim that the Act is constitutionally defective in allowing public disclosure of an individual's membership to be made without a finding that the individual concerned shares in any illegal purposes of the organization to which he belongs. We find this second argument persuasive.³ 

Under the Act, when the Attorney General has "reason to believe * * * that any individual is a member of an organization which has been determined by final order of the Board to be a Communist-action organization," he is to file a petition with the Board seeking a determination "that such individual is a member of such Communist-action organization." § 13(a). After hearing, the Board is to make a written report including its findings of fact. If it determines that the "individual is a member of a Communist-action organization," it shall issue and serve him with an order "determining such individual to be a member of a Communist-action organization." § 13(g) (2).⁴  Petitioners argue that the difference in language between the two subsections is critical: that is, they would read § 13(a) as instructing the Attorney General to institute proceedings before the Board whenever it comes to his attention that an individual belongs to any organization "which has been determined by final order of the Board to be a Communist-action organization." But § 13(g) (2) requires the Board to determine that the "individual is a member of a Communist-action organization," and this language is said to imply that, during the course of the hearings on a petition to determine an individual's membership, the Board must not only find that the individual is a member of a named organization, but must also redetermine that the organization is in fact a Communist-action organization.⁵  Support for this construction is sought in § 13(b) and (i), which provide for redetermination, not more than once each calendar year, of the status of individuals and organizations against which Board orders are outstanding. Petitioners would read these subsections to allow an individual to reopen the status of an organization of which he is a member in a § 13(b) petition for redetermination. Therefore, they argue, § 13(g) should be read in the same way, and an individual should be allowed to litigate the status of an organization of which he is alleged to be a member during the course of the initial proceedings against him.

On its face, § 13(b) does not compel the construction sought by petitioners. It provides, in pertinent part:

Any organization as to which there is in effect a final order of the Board determining it to be a Communist-action or Communist-front organization, and any individual as to whom there is in effect a final order of the Board determining such individual to be a member of a Communist-action organization may, not more often than once in each calendar year, file with the Board and serve upon the Attorney General a petition for a determination that such organization no longer is a Communist-action or Communist-front organization, or that such individual no longer is a member of a Communist-action organization, as the case may be.

(emphasis added). This language is not entirely free from ambiguity, but it seems to imply that an individual, in a § 13(b) proceeding, may contest only the fact of his membership in a named organization against which an order is already outstanding.⁶  The limitation of petitions to one per calendar year is at least an indication that Congress intended that no particular issue should be relitigated more than once each year.⁷  Allowing individual members of an organization to reopen the complex question whether the organization to which they belong is a Communist-action organization would be to open the door to substantial delaying tactics without providing a corresponding benefit to anyone.⁸  Absent any support in the legislative history for petitioners' construction of § 13(b),⁹  we cannot conclude that it was intended to allow individuals to contest the status of the organizations to which they belong.

Deprived of any support from § 13(b), petitioners' construction of § 13(g) must likewise fail. That construction would require us to read identical statutory language¹⁰  in substantially different ways without any apparent support for such a different construction in the legislative history.¹¹  It would raise a serious risk of inconsistent adjudications; that is, of opposite determinations of the same question (whether a given organization is a Communist-action organization) in proceedings against different individuals.¹²  That § 13(a) allows individual proceedings to be consolidated is no assurance that they would be. The Board did not err in holding that petitioners may not challenge the status of the Communist Party in the instant proceeding.

We must therefore face the constitutional question. Petitioners argue that § 13(g) (2) of the Act¹³  is invalid because it provides for public disclosure of the fact of their membership in the Communist Party whether or not they intend to further any of the Party's illegal, as well as its legal and constitutionally protected aims.¹⁴  The Board's primary response to this argument is that it is foreclosed by the Supreme Court's decision in Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625 (1961).¹⁵ 

The Supreme Court in the Communist Party case was presented with the question whether the First Amendment prohibited the requirement, set forth in § 7 of the original Act,¹⁶  that organizations found to be dominated by a foreign power and intending the illegal overthrow of existing government could be required to file registration statements including the names and addresses of their members.¹⁷  Individual members of the Communist Party were not parties to the action, but the Court allowed the Party standing to

assert those rights of its members, such as anonymity, which are allegedly infringed by the very act of its filing a registration statement, and which could not be otherwise asserted than by raising them here.

367 U.S. at 81, 81 S. Ct. at 1402.

The Court examined the structure of the Act, and found that the registration and disclosure requirements of § 7 did not attach "to the incident of speech, but to the incidents of foreign domination and of operation to advance the objectives of the world Communist movement." Id. at 90, 81 S. Ct. at 1407. Since regulation was premised on constitutionally unprotected conduct, the Court was required to balance "the value to the public of the ends which the regulation may achieve" against "the impediments which particular governmental regulation causes to entire freedom of individual action." Id. at 91, 81 S. Ct. at 1407; see United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). Although the Court did not consider the incidental infringement of First Amendment rights to be insubstantial, see 367 U.S. at 102, 81 S. Ct. 1357, it concluded that the importance of the government's interest in disclosing the names of those who desired to further the illegal aims of Communist-action organizations justified the requirement that such organizations make public their membership lists. Id. at 102-103, 81 S. Ct. 1357.

The present case, however, stands on an entirely different footing. Of course, in both cases the class of persons upon whom disclosure ultimately operates is the same — all members of the organization, whether innocent or guilty. But § 7 of the original Act on its face dealt directly with organizations at least some of whose members shared in the illicit, constitutionally unprotected aims of the organization. See id. at 23-27, 42-55. Of course it would hardly have been practicable to require the organizations themselves to distinguish in their membership lists between innocent and guilty members. Therefore, the disclosure provisions were viewed as attaching to the incidents of foreign domination and illicit purpose, characteristics of the organization and of some but not all of its members. Innocent members were unavoidably caught up in a net designed to disclose the guilty. But § 13(g) (2) operates directly on individuals; consequently, the "operative fact [s] upon which [the statute] depends," United States v. Robel, 389 U.S. 258, 263, 88 S. Ct. 419, 423, 19 L. Ed. 2d 508 (1967), must be facts characteristic of the individual upon whom the statute operates. Under § 13(g) (2), disclosure attaches to mere membership in a Communist-action organization, whether or not the member whose affiliation is to be publicized has engaged in, or has any intent to further, the illicit ends of the organization. If mere membership, to which disclosure attaches, is constitutionally protected, the balancing test is inapplicable. Communist Party, supra, 367 U.S. at 90, 81 S. Ct. 1357.¹⁸  Consequently, the question for decision is simply whether the statute infringes protected rights. De Jonge v. Oregon, 299 U.S. 353, 364-365, 57 S. Ct. 255, 81 L. Ed. 278 (1937).

It seems clear to us that mere membership in the Communist Party is protected by the First Amendment. For it is "now beyond dispute," Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1961), that "an individual's right of association * * * is protected by the provisions of the First Amendment." United States v. Robel, 389 U.S. 258, 263, 88 S. Ct. 419, 423 (1967). When a "quasi-political part [y] or other group * * * may embrace both legal and illegal aims," Scales v. United States, 367 U.S. 203, 229, 81 S. Ct. 1469, 1486, 6 L. Ed. 2d 782 (1961), affiliation with and membership in that group are constitutionally protected except for those who join "with the `specific intent' to further illegal action." Elfbrandt v. Russell, 384 U.S. 11, 17, 86 S. Ct. 1238, 1241, 16 L. Ed. 2d 321; see Noto v. United States, 367 U.S. 290, 299-300, 81 S. Ct. 1517, 6 L. Ed. 2d 836 (1961). "Assuming that some members of the Communist Party * * * had illegal aims and engaged in illegal activities, it cannot automatically be inferred that all members shared their evil purposes or participated in their illegal conduct." Schware v. Board of Bar Examiners, 353 U.S. 232, 246, 77 S. Ct. 752, 760, 1 L. Ed. 2d 796, 64 A.L.R. 2d 288 (1957). For "men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles." Schneiderman v. United States, 320 U.S. 118, 136, 63 S. Ct. 1333, 1342, 87 L. Ed. 1796 (1943).¹⁹  Therefore the fact that some members of the Communist Party may be engaged in activity not protected by the First Amendment does not mean that the protected activity of other members may be infringed. If rights are abused, "legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed." De Jonge v. Oregon, supra, 299 U.S. at 364-365, 57 S. Ct. at 260.

Since the disclosure provisions of § 13(g) (2) attach solely to constitutionally protected rights, the only remaining question is whether they operate to discourage or penalize the exercise of those rights. We believe that they do. "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S. Ct. 1163, 1172, 2 L. Ed. 2d 1488 (1958). In the present situation, we cannot assume that disclosure of an individual's membership in the Communist Party will not operate as a substantial burden upon the exercise of his right of free association.²⁰  Therefore, the disclosure provisions of § 13(g) (2) must fall as contrary to the First Amendment. United States v. Robel, supra; De Jonge v. Oregon, supra.

We would be led to the same conclusion under the balancing test as enunciated in the Communist Party case.²¹  The Court in that case sustained the disclosure provisions of § 7 of the original Act, which like the present statute made no distinction between innocent and guilty members. But disclosure in that case was sought from the Party, not from individuals,²²  and consequently there was available no practicable, less intrusive alternative to disclosure of the names of all members: to ask the Party itself to distinguish between those of its members who did and who did not share its illegal aims would be to ask the impossible. But proceedings under § 13(g) (2) are on a case-by-case basis, rendering it feasible to distinguish in each case between protected and unprotected membership. Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961). Therefore, in weighing the public interest in disclosure, we must weigh a different quantity: since innocent members may easily be separated from guilty ones, the public interest in exposure of the guilty cannot be used to justify exposure of the innocent. See Keyishian v. Board of Regents, 385 U.S. 589, 606-607, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). Since the First Amendment precludes the government from claiming an interest in public disclosure of the associations of innocent members of Communist-action organizations,²³  Elfbrandt v. Russell, 384 U.S. 11, 17, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966), the governmental interest to be weighed in this case is nil.²⁴ 

Since § 13(g) (2) of the Subversive Activities Control Act is contrary to the First Amendment, the orders issued in these cases cannot stand. The cases must be remanded to the Subversive Activities Control Board with instructions to dismiss the petitions.

It is so ordered.