Clubs of America v. Clark/Dissent Douglas

by William O. Douglas

United States Supreme Court

389 U.S. 309

Clubs of America  v.  Clark

 Argued: Dec. 11, 1967. --- Decided: Jan 22, 1968

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 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:

'(T)he opinions of men are not the object of civil government, nor under its jurisdiction * * *. (I)t 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 philosphic 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 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, 71 S.Ct. 857, 95 L.Ed. 1137, 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, 71 S.Ct. at 861. 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. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, where a fascist was held to be protected by the First Amendment for espousing his creed, which most Americans find as obnoxious as communism.

It is not conceivable that the Court that decided Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 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 486, 85 S.Ct. at 1121.

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 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 though 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. 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, 81 S.Ct. 1357, 1431, 1448, 6 L.Ed.2d 625; Aptheker v. Secretary of State, 378 U.S. 500, 517, 519, 84 S.Ct. 1659, 1670, 12 L.Ed.2d 992; American Committee v. SACB, 380 U.S. 503, 506, 511, 85 S.Ct. 1148, 1150, 1155, 14 L.Ed.2d 39, 41; Brigade Veterans v. SACB, 380 U.S. 513, 514, 85 S.Ct. 1153, 14 L.Ed.2d 46) and would reverse the judgment below.

Notes

1. Hannah Arendt writs:
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).
3. No such question was presented in American Committee for Protection of Foreign Born v. SACB, 380 U.S. 503, 85 S.Ct. 1148, 14 L.Ed.2d 39 and Veterans of the Abraham Lincoln Brigade v. SACB, 380 U.S. 513, 85 S.Ct. 1153, 14 L.Ed.2d 46. 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.
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).