Despite the order of the Subversive Activities Control Board
(SACB), sustained in
Communist Party of the United States v.
SACB, 367 U. S. 1, the
Party failed to register under the Subversive Activities Control
Act of 1950, and no list of members was filed. The Attorney
General, in accordance with § 13(a) and §§ 8(a) and (c) of the Act,
asked the SACB to order petitioners, as Party members, to register
and submit a registration statement. The SACB did order petitioners
to register and submit the registration statement, and the Court of
Appeals affirmed these orders, finding the Fifth Amendment
self-incrimination issue not ripe for adjudication.
Held:
1. Petitioners' claims of the privilege against
self-incrimination are ripe for adjudication. Pp.
382 U. S.
73-77.
(a) As distinguished from the
Communist Party case, the
contingencies upon which the members' duty to register arises have
matured, the petitioners have claimed the privilege, and the
Attorney General has rejected such claims. Pp.
382 U. S.
74-75.
(b) Petitioners are faced with the choice of registering without
a decision on the merits of their claims or subjecting themselves
to serious punishment. Pp.
382 U. S. 75-76.
(c) Respondent's attempt to distinguish between claims of
privilege relating to the SACB's power to compel registration and
submission of a registration statement, concerning which it
concedes that the Court of Appeals' holding of prematurity was
erroneous, and claims of privilege against "any particular inquiry"
on the registration form or registration statement, is without
merit. The statute and regulations issued thereunder require
petitioners to register and submit the forms fully executed in
accordance with present regulations. Pp.
382 U. S.
76-77.
2. The requirement of filing the registration form (IS-52a) is
incriminatory within the meaning of the Self-Incrimination Clause
because the admission of Party membership, required by the form,
might be used as an investigatory lead to or evidence in a criminal
prosecution. Pp.
382 U. S.
77-78.
Page 382 U. S. 71
3. The requirement of completing and filing the registration
statement (IS-52), considered apart from the registration form,
would also be incriminatory because the information might be used
as evidence in, or supply leads to, a criminal prosecution.
United States v. Sullivan, 274 U.
S. 259, distinguished. Pp.
382 U. S.
78-79.
4. The Act's immunity provision, § 4(f), does not save the
orders to register from petitioners' Fifth Amendment challenge. Pp.
382 U. S.
79-81.
(a) The immunity provision does not preclude the use of
information called for by the registration statement (IS-52) either
as evidence or an investigatory lead. P.
382 U. S.
80.
(b) The immunity provision does not preclude the use of an
admission of Party membership on the registration form (IS-52a) as
an investigatory lead, a use barred by the self-incrimination
privilege. P.
382 U. S.
80.
(c) Respondent's argument that, since an order to register
follows an SACB finding of Party membership, the admission of Party
membership by registering is of no investigatory value, and thus
not "incriminatory," would make the right to invoke the privilege
depend upon an assessment of information in the Government's
possession. This would negate the complete protection from all
perils that an immunity statute must provide according to
Counselman v. Hitchcock, 142 U. S. 547. P.
81.
118 U.S.App.D.C. 117, 332 F.2d 317, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The Communist Party of the United States of America failed to
register with the Attorney General as required by the order of the
Subversive Activities Control Board
Page 382 U. S. 72
sustained in
Communist Party of the United States v.
SACB, 367 U. S. 1.
[
Footnote 1] Accordingly, no
list of Party members was filed as required by § 7(d)(4) of the
Subversive Activities Control Act of 1950, 64 Stat. 993-994, 50
U.S.C. § 786(d)(4) (1964 ed.). [
Footnote 2] Sections 8(a) and (c) of the Act provide that,
in that circumstance, each member of the organization must register
and file a registration statement; in default thereof, § 13(a)
authorizes the Attorney General to petition the Board for an order
requiring the member to register. [
Footnote 3] The
Page 382 U. S. 73
Attorney General invoked § 13(a) against petitioners, and the
Board, after evidentiary hearings, determined that petitioners were
Party members and ordered each of them to register pursuant to §§
8(a) and (c). Review of the orders was sought by petitioners in the
Court of Appeals for the District of Columbia Circuit under §
14(a). [
Footnote 4] The Court
of Appeals affirmed the orders, 118 U.S.App.D.C. 117, 332 F.2d 317.
We granted certiorari, 381 U.S. 910. We reverse. [
Footnote 5]
I
Petitioners address several constitutional challenges to the
validity of the orders, but we consider only the contention
Page 382 U. S. 74
that the orders violate their Fifth Amendment privilege against
self-incrimination. [
Footnote
6]
The Court of Appeals affirmed the orders without deciding the
privilege issue, expressing the view that, under our decision in
Communist Party, 367 U.S. at
367 U. S.
105-110, the issue was not ripe for adjudication, and
would be ripe only in a prosecution for failure to register if the
petitioners did not register. 118 U.S.App.D.C. at 121-123, 332 F.2d
at 321-323. We disagree. In
Communist Party, the Party
asserted the privilege on behalf of unnamed officers -- those
obliged to register the Party and those obliged "to register for"
the Party if it failed to do so. [
Footnote 7] The self-incrimination claim asserted on
behalf of the latter officers was held premature because the Party
might choose to register, and thus the duty of those officers might
never arise. Here, in contrast, the contingencies upon which the
members' duty to register arises have already matured; the Party
did not register within 30 days after the order to register became
final, and the requisite 60 days since the order became final have
elapsed. As to the officers obliged to register the Party,
Communist Party held that the self-incrimination claim
asserted on their behalf was not ripe for adjudication because
Page 382 U. S. 75
it was not known whether they would ever claim the privilege or
whether the claim, if asserted, would be honored by the Attorney
General. But, with respect to the orders in this case, addressed to
named individuals, both these contingencies are foreclosed.
Petitioners asserted the privilege in their answers to the Attorney
General's petitions; they did not testify at the Board hearings;
they again asserted the privilege in the review proceedings in the
Court of Appeals. In each instance, the Attorney General rejected
their claims. Thus, the considerations which led the Court in
Communist Party to hold that the claims on behalf of
unnamed officers were premature are not present in this case.
There are other reasons for holding that petitioners'
self-incrimination claims are ripe for decision. Specific orders
requiring petitioners to register have been issued. The Attorney
General has promulgated regulations requiring that registration
shall be accomplished on Form IS-52a and that the accompanying
registration statement shall be a completed Form IS-52, [
Footnote 8] 28 CFR §§ 11.206, 11.207,
and petitioners risk very heavy penalties if they fail to register
by completing and filing these forms. Under § 15(a)(2) of the Act,
64 Stat. 1002, 50 U.S.C. § 794(a)(2), for example, each day of
failure to register constitutes a separate offense punishable by a
fine of up to $10,000 or imprisonment of up to five years, or both.
[
Footnote 9] Petitioners must
either register without a decision on the merits of their privilege
claims,
Page 382 U. S. 76
or fail to register and risk onerous and rapidly mounting
penalties while awaiting the Government's pleasure whether to
initiate a prosecution against them. To ask, in these
circumstances, that petitioners await such a prosecution for an
adjudication of their self-incrimination claims is, in effect, to
contend that they should be denied the protection of the Fifth
Amendment privilege intended to relieve claimants of the necessity
of making a choice between incriminating themselves and risking
serious punishments for refusing to do so.
Indeed, the Government concedes in its brief in this Court that
the Court of Appeals' holding of prematurity was erroneous insofar
as petitioners' claims of privilege relate to the Board's power to
compel the act of registration and the submission of an
accompanying registration statement. The brief candidly
acknowledges that, since § 14(b) provides for judicial review of a
Board order to register, petitioners' claims in that regard, like
any other contention that an order is invalid, may be heard and
determined by the reviewing court -- thus distinguishing orders
that are not similarly reviewable,
see Alexander v. United
States, 201 U. S. 117;
Cobbledick v. United States, 309 U.
S. 323. Nevertheless, the Government argues that
petitioners' claims are premature insofar as they relate to "any
particular inquiry" on Forms IS-52a and IS-52. Two contingencies
are hypothesized in support of this contention: (1) that the
Attorney General might alter the present forms or (2) that he might
accept less than fully completed forms.
The distinction upon which this argument is predicated is
illusory. Neither the statute nor the regulations draw any
distinction between the act of registering and the submission of a
registration statement, on the one hand, and, on the other hand,
the answering of the inquiries demanded by the forms; the statute
and regulations contemplate, rather, that the questions asked on
the forms
Page 382 U. S. 77
are to be fully and completely answered. Moreover, the
contingencies hypothesized are irrelevant. Petitioners are obliged
to register and to submit registration forms in accordance with
presently existing regulations; the mere contingency that the
Attorney General might revise the regulations at some future time
does not render premature their challenge to the existing
requirements. Nor can these requirements be viewed as requiring
that petitioners answer -- at the risk of criminal prosecution for
error -- only those items which will not incriminate petitioners;
full compliance is required. Finally, the Government's argument
would do violence to the congressional scheme. The penalties are
incurred only upon failure to register as required by final orders
and, under § 14(b), orders become final upon completion of judicial
review. In so providing, Congress plainly manifested an intention
to afford alleged members, prior to criminal prosecution for
failure to register, an adjudication of all, not just some, of the
claims addressed to the validity of the Board's registration
orders. We therefore proceed to a determination of the merits of
petitioners' self-incrimination claims.
II
The risks of incrimination which the petitioners take in
registering are obvious. Form IS-52a requires an admission of
membership in the Communist Party. Such an admission of membership
may be used to prosecute the registrant under the membership clause
of the Smith Act, 18 U.S.C. § 2385 (1964 ed.), or under § 4(a) of
the Subversive Activities Control Act, 64 Stat. 991, 50 U.S.C. §
783(a) (1964 ed.), to mention only two federal criminal statutes.
Scales v. United States, 367 U. S. 203,
367 U. S. 211.
Accordingly, we have held that mere association with the Communist
Party presents sufficient threat of prosecution to support a claim
of privilege.
Patricia Blau v. United States, 340 U.
S. 159;
Irving Blau
v.
Page 382 U. S. 78
United States, 340 U. S. 332;
Brunner v. United States, 343 U.S. 918;
Quinn v.
United States, 349 U. S. 155.
These cases involved questions to witnesses on the witness stand,
but if the admission cannot be compelled in oral testimony, we do
not see how compulsion in writing makes a difference for
constitutional purposes.
Cf. New York ex rel. Ferguson v.
Reardon, 197 N.Y. 236, 243244, 90 N.E. 829, 832. It follows
that the requirement to accomplish registration by completing and
filing Form IS-52a is inconsistent with the protection of the
Self-Incrimination Clause.
The statutory scheme, in providing that registration "shall be
accompanied" by a registration statement, clearly implies that
there is a duty to file Form IS-52, the registration statement,
only if there is an enforceable obligation to accomplish
registration by completing and filing Form IS-52a. Yet, even if the
statute and regulations required petitioners to complete and file
Form IS-52 without regard to the validity of the order to register
on Form IS-52a, the requirement to complete and file Form IS-52
would also invade the privilege. Like the admission of Party
membership demanded by Form IS-52a, the information called for by
Form IS-52 -- the organization of which the registrant is a member,
his aliases, place and date of birth, a list of offices held in the
organization and duties thereof -- might be used as evidence in, or
at least supply investigatory leads to, a criminal prosecution. The
Government, relying on
United States v. Sullivan,
274 U. S. 259,
argues that petitioners might answer some questions and
appropriately claim the privilege on the form as to others, but
cannot fail to submit a registration statement altogether. Apart
from our conclusion that nothing in the Act or regulations permits
less than literal and full compliance with the requirements of the
form, the reliance on
Sullivan
Page 382 U. S. 79
is misplaced.
Sullivan upheld a conviction for failure
to file an income tax return on the theory that
"[i]f the form of return provided called for answers that the
defendant was privileged from making, he could have raised the
objection in the return, but could not, on that account, refuse to
make any return at all."
274 U.S. at
274 U. S. 263.
That declaration was based on the view, first, that a
self-incrimination claim against every question on the tax return,
or based on the mere submission of the return, would be virtually
frivolous, and, second, that to honor the claim of privilege not
asserted at the time the return was due would make the taxpayer,
rather than a tribunal, the final arbiter of the merits of the
claim. But neither reason applies here. A tribunal, the Board, had
an opportunity to pass upon the petitioners' self-incrimination
claims, and since, unlike a tax return, the pervasive effect of the
information called for by Form IS-52 is incriminatory, their claims
are substantial, and far from frivolous. In
Sullivan, the
questions in the income tax return were neutral on their face and
directed at the public at large, but here they are directed at a
highly selective group inherently suspect of criminal activities.
Petitioners' claims are not asserted in an essentially noncriminal
and regulatory area of inquiry, but against an inquiry in an area
permeated with criminal statutes, where response to any of the
form's questions, in context, might involve the petitioners in the
admission of a crucial element of a crime.
III
Section 4(f) of the Act, [
Footnote 10] the purported immunity provision, does not
save the registration orders from petitioners'
Page 382 U. S. 80
Fifth Amendment challenge. In
Counselman v. Hitchcock,
142 U. S. 547,
decided in 1892, the Court held
"that no [immunity] statute which leaves the party or witness
subject to prosecution after he answers the criminating question
put to him can have the effect of supplanting the privilege . . .
,"
and that such a statute is valid only if it supplies "a complete
protection from all the perils against which the constitutional
prohibition was designed to guard . . . " by affording "absolute
immunity against future prosecution for the offence to which the
question relates."
Id. at
142 U. S.
585-586. Measured by these standards, the immunity
granted by § 4(f) is not complete.
See Scales v. United
States, 367 U.S. at
367 U. S.
206-219. It does not preclude any use of the information
called for by Form IS-52, either as evidence or as an investigatory
lead. With regard to the act of registering on Form IS-52a, § 4(f)
provides only that the admission of Party membership thus required
shall not
per se constitute a violation of § 4(a) and (c)
or any other criminal statute, or "be received in evidence" against
a registrant in any criminal prosecution; it does not preclude the
use of the admission as an investigatory lead, a use which is
barred by the privilege.
Counselman v. Hitchcock, 142 U.S.
at
142 U. S.
564-565,
142 U. S. 585.
[
Footnote 11]
Page 382 U. S. 81
The Government does not contend that the shortcoming of § 4(f)
is remedied in regard to information called for on the registration
statement, Form IS-52. With respect to Form IS-52a, however, the
argument is made that, since an order to register is preceded by a
Board finding of Party membership, the admission of membership
required on that form would be of no investigatory value, and thus
is not "incriminatory" within the meaning of the Fifth Amendment
privilege. On this view, the incompleteness of the § 4(f) grant of
immunity would be rendered immaterial, and the admission of Party
membership could be compelled without violating the privilege. We
disagree. The judgment as to whether a disclosure would be
"incriminatory" has never been made dependent on an assessment of
the information possessed by the Government at the time of
interrogation; the protection of the privilege would be seriously
impaired if the right to invoke it was dependent on such an
assessment, with all its uncertainties. The threat to the privilege
is no less present where it is proposed that this assessment be
made in order to remedy a shortcoming in a statutory grant of
immunity. The representation that the information demanded is of no
utility is belied by the fact that the failure to make the
disclosure is so severely sanctioned, and permitting the
incompleteness of § 4(f) to be cured by such a representation would
render illusory the Counselman requirement that a statute, in order
to supplant the privilege, must provide "complete protection from
all the perils against which the constitutional prohibition was
designed to guard."
The judgment of the Court of Appeals is reversed, and the
Board's orders are set aside.
It is so ordered.
Page 382 U. S. 82
MR. JUSTICE BLACK concurs in the reversal for all the reasons
set out in the Court's opinion as well as those set out in his
dissent in
Communist Party of the United States v. SACB,
367 U. S. 1,
367 U. S.
137.
MR. JUSTICE WHITE took no part in the consideration or decision
of this case.
[
Footnote 1]
The judgment of conviction of the Party for failure to register
was reversed by the Court of Appeals for the District of Columbia
Circuit, and the case remanded for a new trial.
Communist Party
of the United States v. United States, 118 U.S.App.D.C. 61,
331 F.2d 807.
[
Footnote 2]
Under this section, the registration statement which accompanies
the registration of a Communist action organization is required to
include
"the name and last-known address of each individual who was a
member of the organization at any time during the period of twelve
full calendar months preceding the filing of such statement."
[
Footnote 3]
Sections 8(a) and (c), 64 Stat. 995, 50 U.S.C. §§ 787(a) and (c)
(1964 ed.), provide:
"(a) Any individual who is or becomes a member of any
organization concerning which (1) there is in effect a final order
of the Board requiring such organization to register under section
786(a) of this title as a Communist action organization, (2) more
than thirty days have elapsed since such order has become final,
and (3) such organization is not registered under section 786 of
this title as a Communist action organization, shall within sixty
days after said order has become final, or within thirty days after
becoming a member of such organization, whichever is later,
register with the Attorney General as a member of such
organization."
"
* * * *"
"(c) The registration made by any individual under subsection
(a) or (b) of this section shall be accompanied by a registration
statement to be prepared and filed in such manner and form, and
containing such information, as the Attorney General shall by
regulations prescribe."
Section 13(a), 64 Stat. 998, 50 U.S.C. § 792(a) (1964 ed.),
provides:
"Whenever the Attorney General shall have reason to believe that
. . . any individual who has not registered under section 787 of
this title is, in fact, required to register under such section, he
shall file with the Board and serve upon such . . . individual a
petition for an order requiring such . . . individual to register
pursuant to such subsection or section, as the case may be. Each
such petition shall be verified under oath, and shall contain a
statement of the facts upon which the Attorney General relies in
support of his prayer for the issuance of such order."
[
Footnote 4]
Section 14(a), 64 Stat. 1001, 50 U.S.C. § 793(a) (1964 ed.),
provides:
"The party aggrieved by any order entered by the Board . . . may
obtain a review of such order by filing in the United States Court
of Appeals for the District of Columbia, within sixty days from the
date of service upon it of such order, a written petition praying
that the order of the Board be set aside. . . . Upon the filing of
such petition the court shall have jurisdiction of the proceeding
and shall have power to affirm or set aside the order of the Board.
. . . The findings of the Board as to the facts, if supported by
the preponderance of the evidence, shall be conclusive. . . . The
judgment and decree of the court shall be final, except that the
same shall be subject to review by the Supreme Court upon
certiorari. . . ."
[
Footnote 5]
The Government's opposition to the petition for certiorari
suggested that the case is moot as to petitioner Albertson by
reason of his alleged expulsion from the Party. Albertson, however,
challenges the suggestion of mootness. There is no occasion to
decide the question, since, in any event, we must reach the merits
of the issues in respect of an identical order issued against
petitioner Proctor.
[
Footnote 6]
Petitioners' other challenges assailed the Act and registration
orders as denying substantive due process (because they allegedly
serve no governmental purpose), as abridging First Amendment
freedoms, as violating procedural due process and constituting
bills of attainder (because they made the Board's 1953
determination that the Communist Party was a Communist action
organization conclusive upon petitioners), and, finally, as denying
petitioners the safeguards of grand jury indictment, judicial trial
and trial by jury.
[
Footnote 7]
The regulations governing Party registration pursuant to § 7(d),
50 U.S.C. § 786(d), are 28 CFR §§ 11.200 and 11.201, and the forms
are IS-51a and IS-51. The regulation governing officers obliged by
§ 7(h), 50 U.S.C. § 786(h) "to register for" the Party if it failed
to register is 28 CFR § 11.205.
See Communist Party, 367
U.S. at
367 U. S.
105-110.
[
Footnote 8]
Copies of Form IS-52a and Form IS-52 are reproduced in the
382 U.S.
70app|>Appendix to this opinion.
[
Footnote 9]
The case was argued orally by both sides on the premise that the
penalty for failure to complete and file Form IS-52 constituted a
separate offense punishable by fine of up to $10,000 or
imprisonment of up to five years, or both, but that each day of
failure to file the form did not constitute a separate offense. We
have no occasion, however, to decide the question, and intimate no
view upon it.
See § 15(b), 50 U.S.C. § 794(b).
[
Footnote 10]
Section 4(f), 64 Stat. 992, 50 U.S.C. § 783(f) provides:
"Neither the holding of office nor membership in any Communist
organization by any person shall constitute per se a violation of
subsection (a) or subsection (c) of this section or of any other
criminal statute. The fact of the registration of any person under
section 787 or section 788 of this title as an officer or member of
any Communist organization shall not be received in evidence
against such person in any prosecution for any alleged violation of
subsection (a) or subsection (c) of this section or for any alleged
violation of any other criminal statute."
[
Footnote 11]
The legislative history includes several expressions of doubt
that the immunity granted was coextensive with the privilege.
See S.Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp.
12-13 (Sen. Kilgore) (Minority Report); 96 Cong.Rec. 14479 (Sen.
Humphrey); 96 Cong.Rec. 15199 and 15554 (Sen. Kefauver);
see
also 96 Cong.Rec. 13739-13740 (Rep. Celler), dealing with a
more modified immunity grant in H.R. 9490.
See generally Scales
v. United States, 367 U.S. at
367 U. S.
212-219 (Court opinion),
367 U. S.
282-287 (dissenting opinion).
|
382 U.S.
70app|
APPENDIX TO OPINION OF THE COURT
Form IS-52a is as follows:
Form No. IS-52a
(Ed. 9-6-61)
Budget Bureau No. 43-R414
Approval expires July 31, 1966
UNITED STATES DEPARTMENT OF JUSTICE
WASHINGTON, D.C.
REGISTRATION FORM FOR INDIVIDUALS
Pursuant to Section 8(a) or (b) of
the Internal Security Act of 1950
(NOTE: This form should be accompanied by a
Registration Statement, Form IS-52)
_____________________________________ hereby
(Name of individual -- Print or type)
registers as a member of ___________________
a Communist action organization.
/s/ ______________________________
(Signature) (Date)
______________________________
(Typed or printed name) (Date)
______________________________
(Address -- type or print)
Page 382 U. S. 83
Form IS-52 is as follows:
Budget Bureau No. 43-R301.2
Approval expires July 31, 1966
"
UNITED STATES DEPARTMENT OF JUSTICE"
"
WASHINGTON, D.C. FORM IS-52"
"
for"
"
REGISTRATION STATEMENTS OF INDIVIDUALS"
"
Pursuant to section 8 of the Internal"
"
Security Act of 1950"
"
I
NSTRUCTION SHEET -- READ CAREFULLY "
" 1. All individuals required to register under section 8 of the
Internal Security Act of 1950 shall use this form for their
registration statements."
" 2. Two copies of the statement are to be filed. An additional
copy of the statement should be prepared and retained by the
Registrant for future references."
" 3. The statement is to be filed with the Internal Security
Division, Department of Justice, Washington, D.C."
" 4. All items of the form are to be answered. Where the answer
to an item is 'None' or 'inapplicable,' it should be so
stated."
" 5. Both copies of the statement are to be signed. The making
of any willful false statement or the omission of any material fact
is punishable under 18 U.S.Code, 1001."
" 6. If the space provided on the form for the answer to any
given item is insufficient, reference shall be made
Page 382 U. S. 84
in such space to a full insert page or pages on which the item
number and item shall be restated and the answer given."
"
FOR AN INDIVIDUAL"
" a. Who is a member of any Communist action organization which
has failed to file a registration statement as required by Section
7(a) of the Internal Security Act of 1950."
"
OR"
" b. Who is a member of any organization which has registered as
a Communist action organization under Section 7(a) of the Internal
Security Act of 1950 but which has failed to include the
individual's name upon the list of members filed with the Attorney
General."
"
--------"
" 1. Name of the Communist action organization of which
Registrant was a member within the preceding twelve months."
" 2.(a) Name of Registrant."
" (b) All other names used by Registrant during the past ten
years and dates when used."
" (c) Date of birth."
" (d) Place of birth."
" 3.(a) Present business address."
" (b) Present residence address."
" 4. If the Registrant is now or has within the past twelve
months been an officer of the Communist action organization listed
in response to question number 1: "
" (a) List all offices so held and the date when held."
" (b) Give a description of the duties or functions performed
during tenure of office."
" The undersigned certifies that he has read the information set
forth in this statement, that he is familiar with the contents
thereof, and that such contents are in their
Page 382 U. S. 85
entirety true and accurate to the best of his knowledge and
belief. The undersigned further represents that he is familiar with
the provisions of Section 1001, Title 18, U.S.Code (printed at the
bottom of this form).
*"
"/s/ ______________________________"
"(Signature) (Date)"
"/t/ ______________________________"
"(Name) (date)"
"(Print or type)"
*18 U.S.C. Section 1001, provides:
"Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious or fraudulent
statements or representations, or makes or uses any false writing
or document knowing the same to contain any false, fictitious or
fraudulent statement or entry, shall be fined not more than $10,000
or imprisoned not more than five years, or both."
MR. JUSTICE CLARK, concurring.
I join in the opinion of the Court. The conclusion it reaches
today was forecast in 1948. In response to the request of the
Chairman of the Senate Judiciary Committee for an expression of the
views of the Department of Justice on H.R. 5852, a precursor of the
Act here under attack, it was then pointed out that the "measure
might be held . . . even to compel self-incrimination."*
This view was expressed in a letter over my signature as
Attorney General which noted that the proposed legislation
"would require every Communist political organization and every
Communist-front organization to register. . . . In addition to
information which would be required of both organizations in
common, a Communist political organization would be obliged to
disclose
Page 382 U. S. 86
the names and addresses of its members in its registration
statement. . . . In case of the failure of any organization to
register in accordance with the measure, it would be the duty of
the executive officer and the secretary of such organization to
register in behalf of the organization. . . . A failure to register
. . . subjects the organization and certain of its agents to severe
penalties."
After consideration of other provisions of the bill, the letter
advised that the Department of Justice had concluded that
"the measure might be held (notwithstanding the legislative
finding of clear and present danger) to deny freedom of speech, of
the press, and of assembly, and even to compel
self-incrimination."
It also expressed the belief of the Department that
"there would not be any voluntary registrations under the
measure. Should a Communist organization fail to register, the
burden to proceed would shift to the Attorney General . . . to
prove that the organization is required to register."
As finally passed, the Act imposed a duty to register upon
individual members after the refusal of the Communist Party to
register and disclose its membership. Though not in H.R. 5852,
about which the Department of Justice expressed constitutional
doubts, this more pervasive registration requirement directly
abridges the privilege of members against self-incrimination. I
therefore join in this reversal.
Hearings on H.R. 5852 before the Senate Committee on the
Judiciary, 80th Cong., 2d Sess., 422 (1948).