The Attorney General filed a petition with the Subversive
Activities Control Board for an order requiring the W.E.B. DuBois
Clubs of America to register as a Communist-front organization
pursuant to 50 U.S.C. § 786. Prior to hearing thereon, appellants
sued in the District Court to have the registration provisions
declared unconstitutional. A three-judge District Court dismissed
the complaint for failure to exhaust administrative remedies.
Held: Ordinarily where Congress has provided a civil
proceeding in which appellants can raise their constitutional
claims, this administrative procedure should be followed so that
the District Court will not have to decide the constitutional
issues devoid of factual context and before it is clear that
appellants are covered by the Act.
Dombrowski v. Pfister,
380 U. S. 479
(1965), distinguished.
277 F. Supp. 971, affirmed.
PER CURIAM.
On March 4, 1966, the Attorney General petitioned the Subversive
Activities Control Board for an order, after appropriate hearings,
requiring the W.E.B. DuBois Clubs of America to register with the
Attorney General as a Communist-front organization. [
Footnote 1] On April 26, 1966,
Page 389 U. S. 310
before hearings were held, appellants attempted to bypass the
Board by suing in the District Court. [
Footnote 2] Appellants' complaint in the District Court
alleged that the Communist-front registration provisions of the Act
were unconstitutional. [
Footnote
3] The complaint also alleged that the
"very pendency of these administrative proceedings . . . has
resulted and will continue to result . . . in immediate and
irreparable injury to fundamental constitutional rights. . . ."
Appellants asked the District
Page 389 U. S. 311
Court for an order declaring the Communist-front registration
provisions unconstitutional and also for an order enjoining the
Attorney General and the SACB from enforcing them. A three-judge
District Court, convened on appellants' motion, dismissed the
complaint because appellants had failed to exhaust their
administrative remedies. [
Footnote
4] This appeal followed.
Before there may be proceedings to punish appellants for failure
to register with the Attorney General, the SACB must first find
that the DuBois Clubs is a Communist-front organization and issue
an order to that effect. [
Footnote
5] The Act provides for a full evidentiary hearing which is to
be held in public. Appellants may be represented by counsel, offer
oral or documentary evidence, submit rebuttal evidence, and conduct
cross-examination. The SACB must make a written report and state
its finding of fact. If appellants are aggrieved by the Board's
order, they may obtain review in the United States Court of Appeals
for the District of Columbia Circuit which may set aside the order
if it is not "supported by the preponderance of the evidence."
[
Footnote 6] Upon motion of a
party, the Court of Appeals may order the Board to take additional
evidence. Of course, if the Board and the Court of Appeals find
that the Act does cover appellants, they may challenge its
constitutionality either as applied or on its face. Judgments of
the Court of Appeals are reviewable by this Court on certiorari.
[
Footnote 7]
It is evident that Congress has provided a way for appellants to
raise their constitutional claims. But appellants, denying that
they are within the coverage
Page 389 U. S. 312
of the Act, wish to litigate these claims in an injunctive
proceeding in the District Court. The effect would be that
important and difficult constitutional issues would be decided
devoid of factual context and before it was clear that appellants
were covered by the Act. [
Footnote
8] We have previously refused to decide the constitutionality
of the very provisions involved here because it was not clear that
the Act would be applied to the objecting parties.
American
Committee for Protection of Foreign Born v. SACB, 380 U.
S. 503,
Veterans of the Abraham Lincoln Brigade v.
SACB, 380 U. S. 513.
Similarly, the District Court should not be forced to decide these
constitutional questions in a vacuum.
Appellants rely on
Dombrowski v. Pfister, 380 U.
S. 479 (1965), to support their contention that the
usual rule requiring exhaustion of administrative remedies
[
Footnote 9] should not apply
in this case. In
Dombrowski, however, the constitutional
issues were presented in a factual context. Upon a record
demonstrating a history of harassment of appellants in connection
with their exercise of First Amendment rights, the Court ordered a
federal district court to issue an injunction against pending
criminal prosecutions under state statutes. This Court held the
statutes "void on their face," and it concluded that, in the
circumstances of that case, if appellants were required to submit
to a criminal prosecution, the injury to First Amendment freedoms
which had already taken place would be compounded. Accordingly,
Page 389 U. S. 313
the Court allowed appellants to assert their claims in an
equitable proceeding.
In this case, the complaint and the affidavits constitute no
more than conclusory allegations that the purpose of the threatened
enforcement of the Act was to "harass" appellants and that
harassment was the intended result of the Attorney General's
announcement that he had filed a petition with the SACB. Further,
appellants are not being forced to assert their claims in a
criminal prosecution. As the court below made clear,
"Congress has made careful provision that no tangible sanctions
can come into play until the facts have been explored in open
hearing [before the Board] and the courts have scrutinized what
they show, both in their adequacy to support a registration order
and in their constitutional impact upon the statute itself.
[
Footnote 10]"
In the context of this case, we decline to require the court
below to permit substitution of an injunctive proceeding for the
civil proceeding which Congress has specifically provided.
The motion to affirm is granted and the judgment is
affirmed.
Affirmed.
[
Footnote 1]
The term "Communist-front organization" is defined in § 3(4) of
the Internal Security Act of 1950, 64 Stat. 989, 50 U.S.C. §
782(4). Communist-front organizations are required to register with
the Attorney General. 50 U.S.C. § 786. When a Communist-front
organization does not register, the Attorney General may petition
the SACB for an order requiring registration. 50 U.S.C. § 792.
[
Footnote 2]
On April 27, 1966, appellants also filed with the Board a motion
to dismiss the Attorney General's petition. The Board denied this
motion and, subsequently, on August 18, 1966, appellants filed an
answer to the Attorney General's petition. According to the
District Court, the DuBois Clubs
"(1) denied generally that it was a Communist-front organization
within the meaning of the Act, and (2) denied various allegations
of fact made by the Attorney General in the petition."
[
Footnote 3]
Appellants attacked the provisions, 50 U.S.C. §§ 786(b), (c),
and (d), "on their face and as applied" as violations of Art. I, §
9, cl. 3, Art. III, and the First, Fifth, Eighth, Ninth, Tenth,
Thirteenth, Fourteenth, and Fifteenth Amendments of the
Constitution. Although the Communist-front provisions have been
upheld by the District of Columbia Circuit,
American Committee
for Protection of Foreign Born v. SACB, 117 U.S.App.D.C. 393,
401, 331 F.2d 53, 61 (1963),
reversed on other grounds,
380 U. S. 503
(1965);
Veterans of the Abraham Lincoln Brigade v. SACB,
117 U.S.App.D.C. 404, 413, 331 F.2d 64, 73 (1963),
reversed on
other grounds, 380 U. S. 380
U.S. 513 (1965);
Weinstock v. SACB, 118 U.S.App.D.C. 1,
331 F.2d 75 (1963);
Jefferson School of Social Science v.
SACB, 118 U.S.App.D.C. 2, 331 F.2d 76 (1963), their
constitutionality has not been specifically determined by this
Court.
American Committee for Protection of Foreign Born v.
SACB, 380 U. S. 503
(1965);
Veterans of the Abraham Lincoln Brigade v. SACB,
380 U. S. 513
(1965).
Cf. Aptheker v. Secretary of State, 378 U.
S. 500 (1964).
[
Footnote 4]
However, the District Court did stay further Board proceedings
pending this Court's disposition of the case.
[
Footnote 5]
50 U.S.C. § 794(a).
[
Footnote 6]
See National Council of American-Soviet Friendship v.
SACB, 116 U.S.App.D.C. 162, 322 F.2d 375 (1963).
[
Footnote 7]
See 50 U.S.C. §§ 792(d), (g), 793(a).
[
Footnote 8]
Cf. Rescue Army v. Municipal Court, 331 U.
S. 549,
331 U. S.
568-585 (1947).
[
Footnote 9]
See, e.g., Myers v. Bethlehem Shipbuilding Corp.,
303 U. S. 41,
303 U. S. 551
(1938);
Macauley v. Waterman S.S. Corp., 327 U.
S. 540,
327 U. S.
543-545 (1946);
Aircraft & Diesel Corp. v.
Hirsch, 331 U. S. 752,
331 U. S.
771-774 (1947);
Allen v. Grand Cent. Aircraft
Co., 347 U. S. 535,
347 U. S. 553
(1954);
Boire v. Greyhound Corp., 376 U.
S. 473,
376 U. S.
481-482 (1964).
[
Footnote 10]
See 50 U.S.C. §§ 793(b) 794.
MR. JUSTICE DOUGLAS, with whom MR JUSTICE BLACK concurs,
dissenting.
I believe that the provisions of the Act now challenged are void
on their face, that there are no factual issues to be resolved
which should condition the outcome of the litigation, and that,
therefore, there is no reason for the lower court to abstain from
exercising its jurisdiction.
The statute defines "Communist-front organization" as one which
is substantially directed, dominated, or controlled by a
Communist-action organization and which is primarily operated for
the purpose of giving
Page 389 U. S. 314
aid and support to a Communist-action organization, a Communist
foreign government, or the world Communist movement. 50 U.S.C. §
782(4). A Communist-front organization, as defined, is not a group
engaged in action, but in advocacy; or if action is included, so is
advocacy, for § 781(15) in describing the growth of the Communist
movement speaks of those who seek "converts far and wide by an
extensive system of schooling and indoctrination."
Legislation curbing or penalizing advocacy even of ideas we
despise is, I submit, at war with the First Amendment. Under our
Constitution, one's belief or ideology is of no concern to
government. One can think as he likes, embrace any philosophy he
chooses, and select the politics that best fits his ideals or
needs. That is all implicit in the First Amendment rights of
assembly, petition, and expression. Those rights merely enforce,
protect, or sanction the beliefs or ideology to which one is
committed. So does the right of association which we have said over
and again to be part and parcel of those First Amendment rights.
Basic in this scheme of values is the immunity of beliefs, ideas,
and ideology from government inquiry, probing, or surveillance.
[
Footnote 2/1]
Jefferson expressed the American constitutional theory:
"[T]he opinions of men are not the object of civil government,
nor under its jurisdiction. . . . [I]t
Page 389 U. S. 315
is time enough for the rightful purposes of civil government for
its officers to interfere when principles break out into overt acts
against peace and good order. . . ."
Jefferson, A Bill For Establishing Religious Freedom, in The
Jeffersonian Cyclopedia 976 (1900).
That is my reading of the First Amendment. Those who can be
officially pilloried or punished for having a particular
philosophic or political creed are effectively deterred from
exercising First Amendment rights.
I see no constitutional method whereby the Government can punish
or penalize one for "being a Communist" or "supporting Communists"
or "promoting communism." Communism, as an ideology, embraces a
broad array of ideas. To some, it has appeal because the state owns
the main means of production, with the result that all phases of
national life are in the public sector, guaranteeing full
employment. To some communism means a medical care program that
reaches to the lowest levels of society. To others, the communal
way of life, even in agriculture, means a fuller life for the
average person. To some, the flowering of the dance, music,
painting, sculpture, and even athletics is possible only when those
arts and activities move from the private to the public sector. To
some there can be no equivalent of the unemployment insurance, old
age insurance, and social security that obtain in a socialized
state. To others communism is a commitment to the atheistic
philosophy and way of life. To still others, adherence to communism
means a commitment to use force and violence, if necessary, to
achieve that kind of socialist state. And to some, of course, it
means all of the projects I have enumerated plus perhaps others as
well.
The word "revolution" has, of course, acquired a subversive
connotation in modern times. But it has roots that
Page 389 U. S. 316
are eminently respectable in American history. [
Footnote 2/2] This country is the product of
revolution. Our very being emphasizes that, when grievances pile
high and there are no political remedies, the exercise of sovereign
powers reverts to the people. Teaching and espousing revolution --
as distinguished from indulging in overt act are therefore
obviously within the range of the First Amendment.
Dennis v. United States, 341 U.
S. 494, decided in 1951 at the peak of the notorious
"witch hunt" in this Nation, is to the contrary. My Brother BLACK
and I, the only remaining members of the Court who sat in that
case, dissented. The crime charged and sustained was a conspiracy
to teach and advocate the Marxist creed, including the overthrow of
the Government by force or violence.
Id. at
341 U. S. 497.
No overt acts designed to overthrow the Government were charged; no
attempt to overthrow was charged. The crime was an agreement to
teach, advocate, and espouse a creed that was and is noxious to
most Americans.
I cannot believe that Dennis has any continuing vitality. It is
out of line with
Terminiello v. Chicago, 337 U. S.
1, where a fascist was held to be protected by the First
Amendment for espousing his creed, which most Americans find as
obnoxious as communism.
Page 389 U. S. 317
It is not conceivable that the Court that decided
Dombrowski
v. Pfister, 380 U. S. 479,
would approve
Dennis. In
Dombrowski, a state
prosecution for subversion was enjoined. The people prosecuted were
fostering civil rights for Negroes in the South. While it would
have been possible to win the state case on constitutional grounds,
the Court held that the trial itself would result in irreparable
injury. We said:
"Because of the sensitive nature of constitutionally protected
expression, we have not required that all of those subject to
overbroad regulations risk prosecution to test their rights. For
free expression -- of transcendent value to all society, and not
merely to those exercising their rights -- might be the loser."
Id. at
380 U. S.
486.
A Communist-front organization under the present Act is a group
promoting the world Communist movement.
See 50 U.S.C. §
782(4). If it were defined as a group which, for example, collected
arms for the violent overthrow of government, the case would be
free of First Amendment problems. But here, as in
Dombrowski, the statute is overbroad, bringing within its
scope advocacy, espousal, and teaching of a creed or of causes for
which the Communist movement stands.
If an organization is classified a Communist front, serious
consequences follow: employment of its members is restricted, §
784; application for or use of passports is made illegal, § 785;
registration is required, § 786; use of the mails and of the radio
and TV is curtailed, § 789; tax exemptions are denied, § 790. At
least some of these provisions are unconstitutional under our
decisions as bills of attainder or as a denial of First and Fifth
Amendment rights. Yet vindication would come only after long and
protracted hearings and appeals. Meanwhile, there would be a
profound "chilling" effect on the exercise of
Page 389 U. S. 318
First Amendment rights [
Footnote
2/3] within the principle of
Dombrowski v.
Pfister.
The members of the DuBois Clubs may or may not be Communists.
But, as I said, I see no possibility under our Constitution of
penalizing one for holding or expressing that or any other belief.
The DuBois Clubs may advocate causes that parallel Communist
thought or Communist policies. [
Footnote 2/4] They appear, for example, to advocate the
termination of the hostilities in Vietnam. But so far as advocacy
is concerned, I see no constitutional way of putting restraints on
them so long as we have the First Amendment.
Harassing them by public hearings and by probing into their
beliefs and attitudes, pillorying them for their minority views by
exposing them to the hearings under the Act -- these actions will
have the same "chilling" effect as the Court held the trial in
Dombrowski would have had.
First Amendment values ride on what we do today. If government
can investigate ideas, beliefs, and advocacy at the left end of the
spectrum, I see no reason why it may not investigate at any other
part of the spectrum. Yet, as I read the Constitution, one of its
essential purposes was to take government off the backs of people
and keep it off. There is the line between action, on the one hand,
and ideas, beliefs, and advocacy, on the other. The former is a
legitimate sphere for legislation.
Page 389 U. S. 319
Ideas, beliefs, and advocacy are beyond the reach of committees,
agencies, Congress, and the courts.
MR. JUSTICE BLACK and I adhere to the views we expressed in the
other cases we have had under this Act (
see, e.g., Communist
Party v. SACB, 367 U. S. 1,
367 U. S. 137,
169;
Aptheker v. Secretary of State, 378 U.
S. 500,
378 U. S. 517,
378 U. S. 519;
American Committee v. SACB, 380 U.
S. 503,
380 U. S. 506,
380 U. S. 511;
Brigade Veterans v. SACB, 380 U.
S. 513,
380 U. S. 514)
and would reverse the judgment below.
[
Footnote 2/1]
Hannah Arendt writes:
"The word 'people' retained for them [the Founding Fathers] the
meaning of manyness, of the endless variety of a multitude whose
majesty resided in its very plurality. Opposition to public
opinion, namely to the potential unanimity of all, was therefore
one of the many things upon which the men of the American
Revolution were in complete agreement; they knew that the public
realm in a republic was constituted by an exchange of opinion
between equals, and that this realm would simply disappear the very
moment an exchange became superfluous because all equals happened
to be of the same opinion."
On Revolution 88-89 (1963).
[
Footnote 2/2]
"America had become the symbol of a society without poverty long
before the modern age in its unique technological development had
actually discovered the means to abolish that abject misery of
sheer want which had always been held to be eternal. And only after
this had happened and had become known to European mankind could
the social question and the rebellion of the poor come to play a
truly revolutionary role. The ancient cycle of sempiternal
recurrences had been based upon an assumedly 'natural' distinction
of rich and poor; the factual existence of American society prior
to the outbreak of the Revolution had broken this cycle once and
for all."
H. Arendt, On Revolution 15-16 (1963).
[
Footnote 2/3]
No such question was presented in
American Committee for
Protection of Foreign Born v. SACB, 380 U.
S. 503, and
Veterans of the Abraham Lincoln Brigade
v. SACB, 380 U. S. 513.
Those cases were reviews of the actions of the Board and did not
involve the present question, whether it is necessary to exhaust
administrative remedies as a prerequisite to challenging the Act as
being invalid on its face.
[
Footnote 2/4]
On the vices of parallelism,
see United States v.
Lattimore, 127 F.
Supp. 405 (D.C. D.C.),
aff'd by equally divided court,
98 U.S.App.D.C. 77, 232 F.2d 334 (en banc).