Blows Against Communism

There is at least one thing that U.S. Communists like about the U.S.: they can enjoy the protection of U.S. institutions --free speech, free assembly, etc.--while working to destroy those same institutions. But last week the U.S. Supreme Court set some limits on the extent to which the Communists may go in using the U.S. system to bring down the U.S. In two cases involving the constitutional balance between individual liberty and national security, the court stood for security. But on each case the vote was 5 to 4, and the issue was sharply fought.

The Higher Right. In the first case, the court upheld the disclosure provision of the Subversive Activities Control Act of 1950, which requires that Communist "action" and "front" groups must register with the Attorney General as subversive and foreign-dominated organizations. Registration means quite a lot. It obliges the party and its fronts to list the names, aliases and addresses of their officers, members and contributors, compels those organizations to identify all broadcasts and publications as Communist in origin, removes the organizations' tax exemptions, and forbids members to hold passports, Government jobs, defense-plant employment or labor union offices.

For eleven years the Communists have dodged those penalties. In court after court they have argued that registration deprives them of their rights of free speech, press and association. But Justice Felix Frankfurter, speaking for the majority, held that there is a higher right--the right of Congress "to bring foreign-dominated organizations out into the open where the public can evaluate their activities informedly against the revealed background of their character, nature and connections." Added Frankfurter: "Where the mask of anonymity which an organization's members wear serves the double purpose of protecting them from popular prejudice and of enabling them to cover over a foreign-directed conspiracy, infiltrate into other groups and enlist the support of persons who would not, if the truth were revealed, lend their support, it would be a distortion of the First Amendment to hold that it prohibits Congress from removing the mask."

The dissents were strong. Chief Justice Earl Warren, Justice William Brennan and Justice William O. Douglas held that forced registration means forced self-incrimination--in violation of the Fifth Amendment. Justice Hugo Black argued that the First Amendment freedoms "must be accorded to the ideas we hate, or sooner or later they will be denied to the ideas we cherish."

Predictably, Communist General Secretary Gus Hall announced that the party will refuse to obey the order to register. In Washington, Attorney General Robert Kennedy said that the deadline is Aug. 9, and that the party will be fined $10,000 for every day thereafter that it fails to comply with the order. Communist leaders may also be fined and sentenced to five years in prison.

The Lower Level. In the second case, the court upheld the long disputed "membership clause" of the Alien Registration (Smith) Act of 1940. Ten years ago, in the Dennis case, the court had sustained the convictions of top Communist Party organizers under the Smith Act. Now it ruled that lower-level members may also be prosecuted.

But not all of them. Last week the court let stand the 1955 conviction of Junius Irving Scales, onetime Communist chief in the Carolinas, who had been sentenced to six years in prison. It also set aside the five-year sentence of John Francis Noto, chairman of the western New York subdistrict of the party. There was a fine distinction. Scales had been convicted of actively intending to bring off a revolution; but the Government had not proved that Noto was actually inciting anyone to violent action.

Justice John Marshall Harlan, writing for the majority in the Scales case, stated that a Communist may indeed be convicted--but only if he is an "active and purposive" party member. Thus the Justice Department must prove that the individual Communist has demonstrated "specific intent to accomplish overthrow." The job will not always be easy or even possible. But where it is, the U.S. will be able to throw U.S. Communists, of all degree and pecking order, into jail.

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