The Supreme Court of the United States
In Re: Communist Control Act of 1954 (Oct. 20, 2018).
Case №18–11, 101 M.S. Ct. 108
The Chief Justice delivered the opinion of the Court in which Bsddc, Notevenalongname, Wildorca, and WaywardWit, JJ., joined. Justice RestrepoMU concurs in the judgment only.*
Before us is a challenge to the Communist Control Act of 1954 (50 U.S.C. §§841–844, hereinafter “the Act”). Despite the Act’s age and broad scope, it has not been challenged before now, at least directly. The Communist Party USA remains active, even if its current membership is far below its peak. It continues to print both a policy journal (Political Affairs) and more general newspaper (The People’s World), and had its 30th Convention in Chicago in 2014.
Our rules, endorsed by the Model Constitution, allow challenges to a law by any citizen. Moreover, we have only found such a challenge to be moot where the underlying law or action is actively removed, not where the federal Government, at least, has chosen not to enforce it (yet). We therefore have jurisdiction to rule on the merits of this challenge, and find the Act to be void.
I
The history of the Act is a fraught one, coming as it did during the Second Red Scare (1946–1954). Its legislative pedigree is, at best, unusual. Beginning life in the Senate, it was never put before a committee, instead making its way directly to the floor (with additional sections proposed by the Conference Committee with the House). See 100 Congr. Rec. 13549, 13557, 13985, 14090, 14332, and 14390–91. Speaking on the floor of the House of Representatives during debate, Representative Emanuel Celler of New York remarked:
What does this bill really entail? Nobody really knows.
100 Congr. Rec. 13836 (daily ed. Aug. 16, 1954). While there were at least hearings on the Act in the Senate, see generally S. Rep. №1709 (1954), there were none in the House. H.R. Rep. №2651 (1954) (minority report).
Looking to the text itself shows at least the gist of what was intended. The Act provides that:
The Communist Party of the United States, or any successors of such party regardless of the assumed name, whose object or purpose is to overthrow the Government of the United States, or the government of any State, Territory, District, or possession thereof, or the government of any political subdivision therein by force and violence, are not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof…
50 U.S.C. §842. The Act leaves many questions unanswered, however. What, exactly, are the “rights, privileges, and immunities” that may be stripped? A note in the Yale Law Journal, which sought to aid later interpretation and support the Act’s enforcement, largely failed at this task by damning with faint praise. In discussing this section, the note refers to its “cryptic language”, saying that it is “of little help in determining all the rights, privileges, and immunities which [the Act] might possibly include.” The Communist Control Act of 1954. Yale Law Journal vol. 64:5 (1955) (hereinafter “Yale”) at 717. It goes on to acknowledge that it is not even clear whether the Act intended to abrogate rights, privileges, and immunities granted by state law in addition to federal.
This very broad scope of the Act, to put it in the most charitable terms possible, may explain why the Act has not ever been applied at the federal level.
II
A
Although the broad reach and undefined terms in the Act are troublesome, they only contribute to the Act’s demise rather than cause it directly.
“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). “The practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process[,]” and it is difficult to over-emphasize “the importance of freedom of association in gathering the right of people to make their voices heard on public issues.” Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 294–95 (1981).
The Act seeks to discard this principle, and to criminalize an association of individuals who have grouped themselves for the purposes of political advocacy. Our cases have generally dealt with less heavy-handed measures by the Government, but the severity involved in the instant case only makes the Act’s constitutional repugnance all the clearer.
For example, we have held that denial of some form of official recognition necessary to operate can itself be sufficient to violate the right of association. In NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964), we held that Alabama’s disproportionate punishment (an injunction barring all operations) for the NAACP’s failure to register as a foreign corporation was a violation of its members’ right to associate. See also Healey v. James, 408 U.S. 169 (1972) (public university’s denial of recognition based on fears of disruption).
Given the far more severe sanctions imposed by the Act, the Government’s burden is that much greater. That individuals have a right to group themselves based on political affiliation is undisputed in this case, and so the burden falls on the Government to show why the encroachment by the Act is permissible here.
It has failed to do so.
B
The Government’s sole argument in defense of the Act is that the Communist Party calls for the overthrow of the United States. This is not supported by the Communist Party’s actual bylaws, to wit:
Subject to the provision of this Article, a member who is a strikebreaker, a provocateur, engaged in espionage, or who advocates violence or terrorism, or who participates in the activities of any group that acts to undermine any democratic institution through which the majority of the American people can express their democratic rights forfeits membership in the Communist Party.
CPUSA Constitution, Art. VIII, sec. 2 (available online, last accessed September 14, 2018).
However, even assuming that the Government’s depiction is accurate, it is still insufficient under the facts of the present case.
“This Court has repeatedly held that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. [T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” Flowers, supra at 307 (alteration in original, internal citations and quotation marks omitted). In other words, the means of attaining a permissible end cannot include infringement beyond what is absolutely necessary and unavoidable.
In the instant case, the Government cannot even say what the scope of the Act actually is. Nor, it seems, can anyone else, given the Yale Law Journal’s 54-page attempt to justify it when even Congress was unable to at the time (see part I, supra). Meanwhile, the Government has not shown why more targeted means cannot be employed. That it has not sought enforcement of the Act in the 64 years since its passage certainly suggests that the Act is hardly an indispensable part of national defense and governmental continuity.
Meanwhile, any theoretical actions of the Communist Party’s membership do not condemn the entire group. “The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982).
The Government has argued instead that the Communist Party is a “clear and present danger,” and that it runs afoul of the “imminent violence” test as set out in Brandenburg v. Ohio, 395 U.S. 444 (1969). But it has not shown why any platform, even assuming it calls for some kind of revolution, qualifies as a call for “imminent violence.” Given that the Communist Party has been operating more-or-less continuously in the United States since 1919 (with precursor organizations going back a good 50 years before that), surely any such imminent violence would have manifested by now. Yet the Government has shown no ongoing violence related to the Communist Party’s activities, nor has it shown that any such threat could not be addressed by other legislation.
“If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937).
The Government has not shown why it cannot pursue and prosecute any individuals who happen to be Communist Party members for whatever crimes they should commit, nor why this should then justify the violation of constitutionally-assured protections. Prosecuting individuals or even groups for their actions is generally within the Governmental purview and even its responsibility. But preemptively labeling a group as guilty by association is a bridge too far. Besides, the Government clearly does not take any purported desire for revolution on the part of the Communist Party seriously, given more than 60 years’ inaction. Why then should we?
The Act violates the right of all citizens to associate together to advocate their political beliefs. The Government, meanwhile, has failed to show any threat that the Act seeks to address or why any such danger cannot be addressed by other means. The Act cannot survive such an environment, and must be stricken.
It is so ordered.
*Justice RestrepoMU declined to issue a concurring opinion.
