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HEARINGS ON LEGISLATION TO OUTLAW CERTAIN UN-AMERICAN AND SUBVERSIVE ACTIVITIES

TUESDAY, MARCH 28, 1950

UNITED STATES HOUSE OF REPRESENTATIVES, SUBCOMMITTEE OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES, Washington, D. C.

PUBLIC HEARING

The subcommittee met, pursuant to adjournment, at 10:30 a. m. in room 226, Old House Office Building, Washington, D. C., Hon. John S. Wood (chairman) presiding.

Committee members present: Representative John S. Wood, Francis E. Walter, Burr P. Harrison, and Morgan M. Moulder (arriving after beginning of proceedings, as indicated).

Staff members present: Louis J. Russell, senior investigator; Donald T. Appell and William Jackson Jones, investigators; John W. Carrington, clerk; Benjamin Mandel, director of research; and A. S. Poore, editor.

Mr. WOOD. The committee will be in order. The record will show that there are present Messrs. Walter, Harrison, and Wood. Are you ready to proceed?

Mr. RUSSELL. Yes, sir. Mr. Sigal.

Mr. WOOD. Mr. Sigal, will you please hold up your right hand and be sworn. Do you solemnly swear the evidence you give this subcommittee shall be the truth, the whole truth, and nothing but the truth, so help you God?

Mr. SIGAL. I do.

Mr. WOOD. Have a seat, sir.

TESTIMONY OF BENJAMIN C. SIGAL

Mr. RUSSELL. Will you state your full name?
Mr. SIGAL. My name is Benjamin C. Sigal.
(Representative Moulder enters hearing room.)
Mr. RUSSELL. What is your present address?

Mr. SIGAL. Washington, D. C. Do you want my home address?
Mr. RUSSELL. Yes, please.

Mr. SIGAL. 6301 Sixteenth Street NW.

Mr. RUSSELL. What is your present occupation?

Mr. SIGAL. I am an attorney. I am appearing here in behalf of the Americans for Democratic Action. I am chairman of the Washington Chapter of the Americans for Democratic Action.

Mr. RUSSELL. Mr. Sigal, it has been a policy of this committee to ask witnesses testifying concerning proposed legislation whether or not they have ever been members of the Communist Party or are

members of the Communist Party at the present time. Will you answer that question?

Mr. SIGAL. Yes, I will. I am not a member of the Communist Party and I have never been a member of the Communist Party. Mr. RUSSELL. Do you have a prepared statement?

Mr. SIGAL. I do.

Mr. RUSSELL. Mr. Chairman, I suggest that Mr. Sigal be permitted to read his statement into the record at the present time.

Mr. WOOD. Very well, Mr. Sigal. We will be glad to have you do that.

Mr. SIGAL. Thank you, Mr. Chairman.

As I stated, I am speaking here in behalf of the Americans for Democratic Action, popularly known as ADA.

The ADA is unalterably opposed to communism, but we are equally opposed to any denial of the basic civil rights and liberties. It is our conviction that the measure pending before this committee is unconstitutional; that it seriously curtails rights of free speech and thought; that it will in effect materially aid the Communists; drive them underground and greatly enhance their chances for success.

While we are strenuously opposed to the views of those who would be immediately affected by H. R. 7595, we must recognize the perils to which legislation of this type would expose the whole Nation.

Today, Communists are condemned as un-American because their motives are suspected; and so, if H. R. 7595 were to become law, those who furthered the Communists' program would be penalized. What of tomorrow? May the Congress of some future day conclude that other political faiths are equally un-American and subversive and must, therefore, be subjected to restraints and penalties? Can we safely accept the proposition that the advocacy of ideas may be forbidden, without reference to specific acts of a criminal nature? We think that our whole constitutional development shows that actions, not beliefs or ultimate goals, must be the sole tests of legality. Mr. WALTER. In that connection, don't you feel it would be advisable to spell out the type of action which would be made illegal?

Mr. SIGAL. Unquestionably. We believe that is one of the basic defects of this bill. The bill, of course, does attempt to spell out acts, but we think the definition is so vague and indefinite that there is no adequate guide for the determination of the criminal act, and there is no adequate notice of what constitutes a criminal act. I will go into that more specifically in consideration of the specific sections where we think that that reveals itself.

Chief Justice Hughes declared a decade ago:

The greater the importance of safeguarding the country from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press, and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. De Jonge v. Oregon (299 U. S. 353, 365.)

These words have apt application to the present problem. If it be true, as H. R. 7595 seeks to declare, that our American institutions are threatened by advocacy of a totalitarianism alien to our traditions, we must meet the threat not by direct or indirect repression but by the

free political discussion which is the very cornerstone of democracy. And in this connection it is well to recall Mr. Justice Jackson's observation in the Barnette case that

freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Board of Education v. Barnette (319 U. S. 624, 642).

Going to the substance of the bill, it has two major objectives. It imposes criminal sanctions for a large number of activities; it seeks to compel the registration of certain kinds of Communist organizations. Before considering the provisions of the bill in detail, we wish to point to two underlying aspects which in our opinion render most of its provisions unconstitutional: (1) the definitions of the bill, and (2) the fact that determination of the basic issue in regard to the character of the organization is left to the Subversive Activities Commission rather than to the courts.

There are two basic terms in the bill: "Communist political organization" (sec. 3 (3)) and "Communist-front organization" (sec. 3 (4)). Neither is defined with sufficient precision. It would appear also that a finding could be based on any one of the criteria set forth in section 14. That, of course, is the section that sets up the criteria for the Attorney General. In the case of "political" organizations, the criterion is control by a foreign government or political organization, plus operation "primarily to advance the objectives of the world Communist movement." Either criterion can be determined on the basis of a series of considerations set forth in section 14, many of them wholly unrelated and entirely lawful. Among those mentioned are the extent of nondeviation of its views and policies from those of foreign Communist governments and organizations and the extent to which the organization resists the efforts to obtain information with regard to its membership. Included are also matters more directly connected with control by a foreign government. I will go into a little more detail on that.

Mr. RUSSELL. In the last paragraph which you read, the ninth line, you used the word "lawful." Did you mean lawful or unlawful? Mr. SIGAL. I mean lawful. That is a typographical error.

In the case of "front" organizations, the criterion is either control by a Communist political organization or a finding that the suspected "front" is primarily operated to give aid to a Communist political organization, a Communist foreign government, or the world Communist movement. Either of these criteria can be established on the basis of the identity of persons active in management, the sources or use of funds, and the positions taken by the organization on matters of policy.

We submit that such catch-all definitions transgress the requirements of certainty imposed by the due process clause and operate as a serious impairment of freedom of speech and association. (See Winters v. New York, 68 Sup. Ct. 665.) The case cited there is one of the latest cases on the subject, which held unconstitutional the criminal statute of New York.

Mr. WALTER. Is that New York or New Jersey?

Mr. SIGAL. I think it was New York. It is Winters v. New York. I am pretty sure it was New York.

The foregoing is rendered even more objectionable by the fact that the Government may be able to avoid offering proof before a judge and jury that the suspected organization comes within the category of the law. For the bill in its registration provisions (sec. 7) compels action by an organization designated as coming within the scope of the law by the Subversive Activities Commission under the administration provisions of section 14. Moreover, failure to register is then a crime (sec. 16). It is not clear whether it is criminal to fail to register before a formal designation is made. Membership in an organization that has not registered is then a crime (sec. 10). Use of the mails or instrumentalities of interstate commerce or of the radio is a crime unless accompanied by a statement that a Communist organization is responsible for the utterance (secs. 11 and 16 (c)).

Since it is contemplated that the Subversive Activities Commission will determine which organizations are within the scope of the law, the Government may contend in a prosecution under the law that it need only show failure to register, failure to label speeches or printed matter or continuance of membership, and that the order of the Subversive Activities Commission if upheld on appeal is conclusive. That is, the basic determination of fact as to whether the organization is one of the proscribed organizations is made administratively, without trial by jury, and all that is left to the jury for determination is whether or not there was failure to register. That, we submit, is in violation of the provisions of the sixth amendment, which guarantees trial by jury and a right of confrontation of witnesses. Kirby v. United States (174 U. S. 47).

Section 4 creates criminal penalties wholly independent of the two types of organizations we have been discussing. Any conspiracy or agreement to perform any act which would substantially facilitate or aid in the establishment of a "totalitarian dictatorship" is punished by a possible fine of $10,000 or imprisonment for 10 years, plus ineligibility for public office, provided the dictatorship is under the control of a foreign government or individual. Domestic efforts to produce totalitarianism are left untouched. The bill quite plainly is aimed at every effort in this direction and is not limited to acts of violence and to overt acts at all. For it expressly punishes an agreement to do any act which would substantially "facilitate or aid" the establishment of such a dictatorship. The last clause of this section contains the unusual provision that a prosecution under the act shall never be barred by limitations.

There is now a definition as such of what constitutes a "totalitarian dictatorship," lacking in last year's Mundt bill. But beyond that, it is quite clear that this provision on its face is not applicable to acts alone, but to speech and publication as well. It is hard to imagine phrases broader than those used as a method of criminal liability, except perhaps the phrase used last year, i. e., "in any manner." In Winters v. New York, the Court said:

A statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void on its face.

We think that language applies to section 4.

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Lastly, in regard to the vagueness of this whole section, it would appear to us it would outlaw a proposal to amend the Constitution

to establish a totalitarian government. Under the provisions of the bill, force and violence are not required to make the act illegal. Section 4 prohibits any act which would substantially facilitate or aid in the establishment of a totalitarian government.

Suppose the time comes when the people want a totalitarian government and vote for it; that, clearly, would be illegal under the terms of this act. Language so vague and general, we submit, is certainly unconstitutional.

Registration is required by the act not only of Communist political organizations, but of the members of the organizations. Membership is not required to be given in regard to the Communist-front organizations.

Section 9 provides that the registration data is available for public inspection and that the Attorney General should annually submit to Congress a list of organizations and of the data given, including names of members.

We are of the opinion that these registration provisions, as well as the provision of section 11, which require the labeling of all material circulated by either of these organizations, are serious impairments of speech and association, and that they fall within the ban of the principles laid down in a host of Supreme Court decisions. We wish only to call specific attention to Judge Rutledge's statement in Thomas v. Collins (323 U. S. 516), where he said:

As a matter of principle, a requirement of registration in order to make a public speech would seem generally incompatible with the exercise of free speech and free assembly.

That case, you will recall, involved the act of Texas which required labor union organizers to register before they could perform their functions.

Permeating the bill are two concepts, the unconstitutionality of which cannot be doubted.

First, the proposed bill imposes disabilities merely on the basis of organizational affiliation and not on the basis of personal illegal

acts.

In recent years, no doctrine has been more bitterly attacked than the several legislative and executive attempts to impose guilt by association. Perhaps one of the most eloquent books on freedom of speech is that of Prof. Zechariah Chafee, Jr., Free Speech in the United States (1941), which poignantly illustrates the dangers and absurdities of the doctrine (pp. 470-484).

Under section 10, a member of a "Communist political organization" may go to jail for 5 years merely for belonging to such a group if it has not registerd. The default of the organization in failing to comply with the law is imputed to each member, thereby resulting in the commission of a separate crime by each member for further adherence to the organization. As Mr. Justice Jackson stated in the Korematsu case, 66* * * If any fundamental assumption underlies our system, it is that guilt is personal *" (Korematsu v. U. S., 323 Ü. S. 214). Section 10 is therefore unconstitutional. (See Mr. Justice Murphy in Bridges v. Wixon, 326 U. S. 135).

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A bill of attainder, as this committee knows, is defined as a legislative act which inflicts punishment without a judicial trial. The present bill constitutes a congressional determination that in effect all members of a "Communist political organization" are automatically

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