THE LAST BEST HOPE'

...I see no possible way to escape the fateful consequences of a return to the era in which all governmental critics had to face the probability of being sent to jail except for this Court to abandon what I consider to be the dangerous constitutional doctrine of "balancing" to which the Court is at present adhering...

...In most countries such a practice once begun ends with a one-party government...

...Within recent months we have learned of such practices in other countries...

...The slightest criticism of government or policies of government officials was enough to cause biased federal prosecutors to put the machinery of government to work to crush and imprison the critic...

...The Progressive is happy to present a condensed version of Justice Black's memorable decision which received so little attention in the nation's press.—THE EDITORS...

...The very same fears are again being voiced today as a justification for curtailing the liberties of the people of America...

...Thus, the Subversive Activities Control Act under consideration says that "the Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined" only awaiting "a moment when . . . overthrow of the government of the United States by force and violence may seem possible of achievement...

...I regret, exceedingly regret, that I feel impelled to recount this history of the Federalist Sedition Act because, in all truth, it must be pointed out that this law—which has since been almost universally condemned as unconstitutional—did not go as far in suppressing the First Amendment freedoms of Americans as do the Smith Act and the Subversive Activities Control Act...

...Indeed, our own ancestors were not unfamiliar with this practice...

...The same arguments that are usejd^ to justify the outlawry of Communist ideas here could be used to justify an outlawry of the ideas of democracy in other countries...

...Only after they won the Revolutionary War did these people have an opportunity to set up a government to their liking...

...The father of the Constitution — James Madison — said, in speaking of the Sedition Act aimed at crushing the Jeffersonian Party, that had that law been in effect during the period before the Revolution, the United States might well have continued to be "miserable colonies, groaning under a foreign yoke...

...It is, in the first instance, a classical bill of attainder which our Constitution in two places prohibits, for it is a legislative act that inflicts pains, penalties, and punishments in a number of ways without a judicial trial...

...The weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears...

...The "balancing test" of First Amendment freedoms is said to justify laws aimed at the advocacy of overthrow of the government "as speedily as circumstances would permit...

...Thus, the "test" being used here is identical to the arguments used to justify the Alien and Sedition Acts of 1798 in this country and the 1799 Sedition Act in England...

...I cannot agree to decide the case on any such hypothetical basis...

...These arguments are particularly strong in countries where the existing government does not represent the will of the people because history shows that people have a way of not being willing to bear oppressive grievances without protest...

...And assuming that the Act is not wholly valid because of some limitation upon that power, it seems to me that we should say so now...

...Justice Holmes and Mr...

...The legislative fact-findings as to Communist activities, which the Court—despite the constitutional command for trial of such facts by a court and jury—accepts as facts, supply practically all of the proof needed to bring the Communist Party within the proscriptions of the Act...

...But in a democracy like ours, such laws are not only unnecessary but also constitute a baseless insult to the patriotism of our people...

...Having thus made it mandatory that Communist organizations and individual Communists make a full disclosure of their identities and activities, the Act then proceeds to heap burden after burden upon those so exposed...

...The only sense in which the Court has avoided a constitutional issue is by permitting the destruction of a group seeking to raise the issue of the constitutionality of its destruction...

...I think also that this outlawry of the Communist Party and imprisonment of its members violates the First Amendment...

...Publishers were sent to jail for writing their own views and for publishing the views of others...

...These laws, passed over vigorous Jeffersonian opposition, declared that it was necessary in order to protect the security of the nation to give the President the broadest of powers over aliens and to make substantial inroads upon the freedoms of speech, press, and assembly...

...I think we should meet and decide this whole question now in the administration of a sound judicial policy that carries out our responsibilities both to Congress and to the American people...

...The enforcement of these statutes, particularly the Sedition Act, constitutes one of the greatest blots on our country's record of freedom...

...The difference between the two parties was expressed by Jefferson in this way: "Both of our political parties, at least the honest part of them, agree conscientiously in the same object, the public good...

...In my judgment, the Act here under consideration is unconstitutional on at least three grounds in addition to its direct conflict with the self-incrimination provisions of the Fifth Amendment...

...No one need console himself, however, that the policy of using governmental force to crush dissident groups upon which they are based can or will be stopped at that point...

...The same arguments were made then about the "Jacobins," meaning the Jeffersonians, with regard to their alleged subservience to France, that are made today about the Communists with regard to their subservience to Russia . . . These charges expressed fears that were echoed time and time again during the Congressional debate on the Alien and Sedition Acts...

...The creation of public opinion by groups, organizations, societies, clubs, and parties, has been and is a necessary part of our democratic society...

...Referring to that Act, I said in Viereck v. United States: "Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source...

...At the same time, these legislative fact-findings fall little short of being adequate in themselves to justify a finding of guilt against any persons who can be identified, however faintly, by any informer, as having been a member of the Communist Party...

...They gave the government the fullest power to prosecute overt actions in violation of valid laws but withheld any power to punish people for nothing more than advocacy of their views...

...The plan of the Act is to make it impossible for an organization to continue to function once a registration order is issued against it...

...T h e Act thus makes it extremely difficult for a member of the Communist Party to live in this country and, at the same time, makes it a crime for him to try to get a passport to get out...

...The Founders drew a distinction in our Constitution which we would be wise to follow...

...This conclusion is not affected by the fact that those advocating a policy of revolution are in sympathy with a foreign government...

...If that remedy is not sufficient, the only meaning of free speech must be that the revolutionary ideas will be allowed to prevail...

...Such groups, like the Sons of Liberty and the American Corresponding Societies, played a large part in creating sentiment in this country that led the people of the Colonies to want a nation of their own...

...I am compelled to say in closing that I fear that all the arguments and urgings the Communists and their sympathizers can use in trying to convert Americans to an ideology wholly foreign to our habits and our instincts are far less dangerous to the security of this nation than laws which embark us upon a policy of repression by the outlawry of minority parties because they advocate radical changes in the structure of government...

...In addition to these burdens imposed directly by the Act itself, the registration requirement must also be considered in the context of the other laws now existing which affect the Communist Party...

...That is the true American way of securing this nation against dangerous ideas...

...Such protests, when bottomed upon facts, lead almost inevitably to an irresistible popular demand for either a redress of those grievances or a change in the government...

...And the destruction of such groups is now and always has been one of the first steps totalitarian governments take...

...Talk about the desirability of revolution has a long and honorable history, not only in other parts of the world, but in our own country...

...Today, it upholds statutes which I think totally outlaw that Party, claiming nonetheless that "nothing, which we decide here remotely carries . . . [the] implication . . . [that] Congress may impose similar requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology...

...The Communist Party has never been more than a small group in this country...

...To this end, the Act first provides crushing penalties to insure complete compliance with the disclosure requirements of registration...

...The Jeffersonians quite naturally opposed such outlawry and in fact opposed any measure which would restrict the freedoms of speech, press, petition and assembly...

...The Act thus not only is a legislative bill of attainder but also violates due process by short-cutting practically all of the Bill of Rights, leaving no hope for anyone entangled in this legislative-administrative web except what has proved in this case to be one of the most truncated judicial reviews that the history of this Court can afford...

...Members cannot use or attempt to use a passport and cannot even make application for a passport without being subject to a penalty of five years in the penitentiary...

...Members of the Jeffersonian Party were picked out as special targets so that they could be illustrious examples of what could happen to people who failed to i sing paeans of praise for current federal officials and their policies...

...The other view is that governmental power should be very strictly limited...

...In the context of this case, I can find no justification for the Court's refusal to pass upon the serious constitutional questions raised...

...Only a few weeks ago an executive edict outlawing all parties, groups and associations all the way down through Rotary Clubs was issued in a country where the government is largely in the hands of a single man...

...When the practice of outlawing parties and various public groups begins, no one can say where it will end...

...In my judgment, this country's internal security can better be served by depending upon the affection of the people than by attempting to instill them with fear and dread of the power of government...

...In my judgment, neither of these factors justifies an invasion of rights protected by the First Amendment...

...This whole Act, with its pains and penalties, embarks this country, for the first time, on the dangerous adventure of outlawing groups that preach doctrines nearly all Americans detest...

...The truth is that this statutory outlawry of the Communist Party is not at all novel when considered in the perspective of history...

...Men and women belonging to dissenting religious, political or social groups in England before the colonization of this country were sometmes imprisoned, mutilated, degraded by humiliating pillories, exiled and even killed for their views...

...Many of them were descended from families that had left England and had come to this country in order to escape laws that could send them to jail or penalize them in various ways for criticizing laws and policies which they thought bore too heavily and unfairly upon them...

...That Act requires the registration of any "person"—including an individual, partnership, association, corporation, organization, or other combination of individuals—" who acts or agrees to act, within the United States, as . . . a public-relations counsel, publicity agent, information-service employee, servant, agent, representative, or attorney for a foreign principal...

...Yet, after this agency has made its findings and its conclusions, neither its findings of fact nor the findings of fact of the legislative body can subsequently be challenged in court by any individual who may later be brought up on a charge that he failed to register as required by the Act and the Board...

...But that is precisely the effect of the present Act...

...The government has not asked that the Court refrain from giving a full decision on these important matters...

...It is plain that there are governments in the world today that desperately need to suppress such protests for they probably could not survive a week or even a day if they were deprived of the power to use their informers to intimidate, their jails to imprison, and their firing squads to shoot their critics...

...Of course that is not the way to protect the Nation against actions of violence and treason...

...All the fervor and all the eloquence and all the emotionalism and all the prejudice and all the parades of horrors about letting the people hear arguments for themselves were not sufficient in 1798 to persuade the members of Congress to pass a law which would directly and unequivocally outlaw the party of Jefferson, at which the law was undoubtedly aimed...

...By refusing to do so, the Court in effect allows this serious question to be decided by default...

...The question under that Amendment is whether Congress has power to outlaw an association, group or party either on the ground that it advocates a policy of violent overthrow of the existing government at some time in the distant future or on the ground that it is ideologically subservient to some foreign country...

...But I think the interrelationship between the present Act and these other laws goes deeper than that, for I think that interrelationship establishes all but conclusively that the present Act cannot be upheld as a mere registration statute...

...Thus, if the Party or its members fail to register within the time required by the Act, or if they fail to make annual reports as required, or to keep records as required, each individual guilty of such failure can be punished by a fine of $10,000, by imprisonment for five years, or both, for each offense— and each offense means "each day of failure to register" or "each listing of the name or address of any one individual" either by the organization or by an individual...

...Instead, the present Act, like many other pieces of current legislation, is based on the precisely contrary principle that "our people [even when] adequately informed may [not] be trusted to distinguish between the true and the false...

...In countries of that kind, repressive measures like the Smith Act and the Subversive Activities Control Act are absolutely necessary to protect the ruling, tyrants from the spread of information about their misdeeds...

...Quite the contrary, it represents nothing more than the adoption by this country, in part at least, of one of the two conflicting views that have emerged from a longstanding and widespread dispute among political philosophers as to what kind of government will best serve the welfare of the people...

...Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment...

...Most of whatever is lacking in the legislative fact-findings is later supplied by administrative fact-findings of an agency which is not a court, which is not manned by independent judges, and which does not have to observe the Constitutional right to trial by jury and other trial safeguards unequivocally commanded by the Bill of Rights...

...The Court of Appeals met its responsibility by deciding the questions...

...And the members of such an organization are declared by the Act to have "repudiated their allegiance to the United States, and in effect transferred their allegiance to the foreign country in which is vested the direction and control of the world Communist movement...

...The Act before us now, however, unlike the Foreign Agents Registration Act involved in the Viereck case, is not based on the principle that "our people, adequately informed, may be trusted to distinguish between the true and the false...

...Registration as a "Communist action organization" under the Subversive Activities Control Act means, according to the express provisions of the Act, that the Party and its members who register are under the control of a foreign dictatorship, that they devised "clever and ruthless espionage and sabotage tactics," and that they are a part of a "world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration , . . terrorism and any other means deemed necessary to establish a Communist totalitarian dictatorship in the countries throughout the world...

...But this difference does not stand alone in the case of the Subversive Activities Control Act—indeed, there are so many other differences of so much greater magnitude that the recitals of the Act branding those who register under it pale almost into insignificance...

...It is my belief that our Constitution with its Bill of Rights was expressly intended to make our Government one of strictly limited powers...

...This was because a vast majority of the American people were against the Party's policies and overwhelmingly rejected its candidates year after year...

...This kind of talk, like any other, can be used at the wrong time and for the wrong purpose...

...I DO NOT BELIEVE that it can be too often repeated that the freedoms of speech, press, petition, and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish...

...Mail matter must be stamped before the organization sends it out to show that it was disseminated by a "Communist action" organization, with all the treasonable connotations given that term by the recitals of "fact" in the Act...

...Thus, for a delay of thirty days in filing required reports, a fine of $300,000 and imprisonment for 150 years could be imposed by a trial judge...

...I am very much afraid that we will see the day when the very implication which the Court now denies is found...

...That view is that governments should have almost unlimited powers...

...I would reverse this case and leave the Communists free to advocate their beliefs in proletarian dictatorship publicly and openly among the people of this country with full confidence that the people will remain loyal to any democratic government truly dedicated to freedom and justice—the kind of government which some of us still think of as being "the last best hope of earth...

...For the Party can no more continue to function with all of these tremendous burdens of undetermined constitutional validity overhanging it and its members than it could if the burdens were considered and upheld...

...The contrary view, which Congress necessarily rejected in passing these laws, is that current public officials should never be granted power to use governmental force to keep people from hearing, speaking, or publishing such criticisms of government or from assembling together to petition their government to make changes in governmental policies, however basic the majority may deem these policies to be...

...Even then the people of this country were not completely satisfied...

...The Court's [majority] opinion is devoted chiefly to the task of explaining why it will not decide any of the substantial issues raised by this attack upon the constitutionality of the Act as it is actually written and will actually operate and why it must decide the case just as though none of these other burdens existed and we were dealing with an Act that required nothing more than the registration of an organization...

...Typical of the magnificent if losing battles he has been waging was his dissenting opinion in the recent case, Communist Party of the United States of America v. Subversive Activities Control Board...

...Which is right, time and experience will prove...

...Such enforced conformity of thought would tend only to deprive our people of the bold spirit of adventure and progress which has brought this nation to its present greatness...

...the other, the selfishness of rulers independent of them...

...Certain tax deductions allowed to others are denied to a registered organization...

...Rumors which filled the air pointed the finger of suspicion at good men and bad men alike, sometimes causing the social ostracism of people who loved their free country with a deathless devotion...

...Yet it must also be admitted that when abused, the most fatal consequences have ever resulted from it...

...This conflict of ideals and policies was temporarily resolved in favor of the Federalists and the result was the infamous era of the Alien and Sedition Acts...

...Justice Brandeis which would bar prosecution for speech or writings in all cases except those in which the words used "so imminently threaten immediate interference with the lawful and press* ing purposes of the law that an immediate check is required to save the country...

...The existence of such groups is now, and for centuries has been, a necessary part of any effective promulgation of beliefs about governmental policies...

...And there certainly was no shortage of "balancers" in our own Congress when the Alien and Sedition Acts of 1798 were passed...

...One of those parties, the Federalists, wanted to outlaw the party of Jefferson on the ground that they too were "Jacobins" and therefore a threat to our security...

...One fears most the ignorance of the people...

...The Act points unerringly to the members of that Party as guilty people who must be penalized as the Act provides...

...A registrant organization is declared, by a finding of Congress, to be "an organization numbering thousands of adherents, rigidly and ruthlessly disciplined," merely awaiting a chance to overthrow this government by force...

...T o that end they finally settled upon the Constitution, which very clearly adopted the policy of limiting the powers of the Federal government...

...The Act requires that the information obtained upon registration be given wide publicity, thus insuring that those identified as members of the Party will be subjected to all the civil disabilities, criminal prosecutions, and public harassments that have become common in recent years...

...I believe with the framers of the First Amendment that' the internal security of a nation like ours does not and cannot be made to depend upon the use of force by government to make all the beliefs and opinions of the people fit into a common mold on any single subject...

...This, to me, marks a major break in the wall designed by the First Amendment to keep this country free by leaving the people free to talk about any kind of change in basic governmental policies they desire to talk about...

...This widespread program for punishing ideas on the ground that they might impair the internal security of the nation not only sadly fails to protect that security but also diverts our energies and thoughts from the many far more important problems that face us as a nation in this troubled world...

...Pitt proved, in 1799, that he was a master of the concept and language of "balancing" in his speech urging the passage of laws to muzzle the press of England in order to prevent the dissemination of the "revolutionary" ideas that England should have parliamentary reform: "We cannot too highly prize, that sacred liberty [of the press]' when we consider that it has been instrumental in bringing our Constitution to that envied perfection which it possesses...

...At the very time England was going through its era of terror about the "Jacobins," a heated political struggle involving many of the same issues was going on in this country between the two chief political parties...

...The unprecedented incorporation into our constitutional law of this timeworn justification for tyranny has been used to break down even the minimal protections of the First Amendment forged by Mr...

...The contention is that this Act, considered as a whole and in its relation to existing laws which affect members of the Party, imposes such overhanging threats of disgrace, humiliation, fines, forfeitures, and lengthy imprisonments upon registered organizations and their members, most of which burdens become effective automatically upon registration, that it will be impossible for the Party to continue to function if the registration order is upheld...

...The difference between the Subversive Activities Control Act and the Foreign Agents Registration Act is strikingly illustrated by the reasons Congress has itself given for the enactment of the statute now before us...

...If there is one thing certain about the First Amendment it is that this Amendment was designed to guarantee the freest interchange of ideas about all public matters and that, of course, means the interchange of all ideas, however such ideas may be viewed in other countries and whatever change in the existing structure of government it may be hoped that these ideas will bring about...

...In the very face of the provisions of the First Amendment, however, the Court today upholds laws which ignore the wisdom of the Founders' decision to set up a limited government and adopt the policy of force to crush views about public matters entertained by a small minority in this country...

...In fact, history shows that it has been the excuse for practically every repressive measure that Government has ever seen fit to adopt...

...That moment seems to have arrived for this country...

...They demanded more precise and unequivocal limitations upon the powers of government and obtained the Bill of Rights, the central provisions of which were the First Amendment guarantees of complete religious and political freedom...

...Assuming that the Act is wholly valid aside from registration and that Congress does have power to outlaw groups advocating dangerous ideas, it seems to me unfair to Congress for this Court to refuse to decide whether its Act can be fully enforced...

...Now, when this country is trying to spread the high ideals of democracy all over the world—ideals that are revolutionary in many countries—seems to be a particularly inappropriate time to stifle First Amendment freedoms in this country...

...The Subversive Activities Control Act of 1950 here involved defines "Communist action" organizations and requires them to register with the Attorney General giving much information of every kind with regard to their property, income, activities, and members...

...The first banning of an association because it advocates hated ideas— whether that association be called a political party or not—marks a fateful moment in the history of a free country...

...Members of a registered organization cannot hold certain jobs with the government, or any jobs with private businesses engaged in doing certain work for the government...

...The information elicited by the Act must be considered, not, as in the Viereck case, an aid to the exercise of individual judgment by the people, but rather a part of a pattern of suppression by the government, for that is certainly the inevitable effect of any system that requires registration on the one hand and imposes pains and penalties upon those registering on the other...

...For the need of government to provide means by which the people can obtain useful information— the basis of every genuine registration statute —can certainly be accomplished without resort to official legislative pronouncements as to the treasonable nature of those compelled to register...

...Others had personally felt the brunt of such repressive measures...

...But, under our system of government, the remedy for this danger must be the same remedy that is applied to the danger that comes from any other erroneous talk—education and contrary argument...

...Both the Smith Act and the Subversive Activities Control Act are based upon the view that officials of the government should have power to suppress and crush by force critics and criticisms of governmental officials and their policies...

...And its numbers had been dwindling even before the government began its campaign to destroy the Party by force of law...

...The Communist Party has been ordered to register under that Act by the Subversive Activities Control Board and has challenged the validity of that order on the ground, among others, that the Act is unconstitutional in that it amounts to a complete outlawry of the Communist Party...

...This difference standing alone would be sufficient to establish the essential dissimilarity of the Subversive Activities Control Act from genuine registration statutes such as the Foreign Agents Registration Act...

...It has been the great principle of the Constitution that the liberty of the press should flourish, but it is also clear from the nature of the principle itself, and for the security of the press, that the author or publisher of every work should be amenable to the laws of his country...

...I realize that these laws are aimed only at the Communist Party...

...Justice Douglas that this aspect of the Act is alone sufficient to establish its invalidity under the self-incrimination provision of the Fifth Amendment...

...I am ready to admit that strong arguments can be made for saying that governments in general should have power to suppress speech and press...

...The Founders were intimately familiar with the restrictions upon liberty which inevitably flow from a government of unlimited powers...

...Justice Hugo L. Black...

...I agree with Mr...

...There is something of tragic irony in the fact that this Act, expressly designed to protect this nation from becoming a "totalitarian dictatorship" with "a single political party," has adopted to achieve its laudable purpose the policy of outlawing a party—a policy indispensable to totalitarian dictatorships...

...The freedom to advocate ideas about public matters through associations of the nature of political parties and societies was contemplated and protected by the First Amendment...

...Only eleven years ago, this Court upheld a governmental penalty directed at Communists on the ground that "only a relative handful" would be affected by the penalty involved in that case...

...If registration were the only issue in the case, I would agree at once that Congress has power to require every "person" acting as an agent of a foreign principal to file registration statements comprehensively showing his agency activities as is required, for example, by the Foreign Agents Registration Act...

...That doctrine is not a new one...

...When Viereck registered under the earlier and genuine registration statute, he was not thereby branded as being engaged in an evil, despicable undertaking bent on destroying this nation...

...By and large, they had found this experience a painful one...