E. B. DuBOIS CLUBS OF AMERICA ET AL. v. CLARK, ATTORNEY GENERAL, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. No. 515.
Decided December 11, 1967.
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.
William M. Kunstler, Arthur Kinoy, Melvin L. Wulf, David Rein, Monroe H. Freedman and Floyd McKissick for appellants.
Acting Solicitor General Spritzer, Assistant Attorney General Yeagley, Kevin T. Maroney, George B. Searls and Lee B. Anderson for appellees.
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. 1 On April 26, 1966, [389 U.S. 309, 310] before hearings were held, appellants attempted to bypass the Board by suing in the District Court. 2 Appellants' complaint in the District Court alleged that the Communist-front registration provisions of the Act were unconstitutional. 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 [389 U.S. 309, 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. 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. 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." 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. 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 [389 U.S. 309, 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. 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 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, [389 U.S. 309, 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." 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.
[ 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. 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 9 ] See, e. g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 -51 (1938); Macauley v. Waterman S. S. Corp., 327 U.S. 540, 543 -545 (1946); Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 771 -774 (1947); Allen v. Grand Cent. Aircraft Co., 347 U.S. 535, 553 (1954); Boire v. Greyhound Corp., 376 U.S. 473, 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 [389 U.S. 309, 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. 1
Jefferson expressed the American constitutional theory:
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 [389 U.S. 309, 316] are eminently respectable in American history. 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 acts - 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 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. [389 U.S. 309, 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:
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 [389 U.S. 309, 318] First Amendment rights 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. 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. [389 U.S. 309, 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, 137 , 169; Aptheker v. Secretary of State, 378 U.S. 500, 517 , 519; American Committee v. SACB, 380 U.S. 503, 506 , 511; Brigade Veterans v. SACB, 380 U.S. 513, 514 ) and would reverse the judgment below.
[ Footnote 1 ] Hannah Arendt writes:
[ Footnote 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 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 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). [389 U.S. 309, 320]