Today in 1965: The Supreme Court strikes down “Communist organization” individual registration requirement

November 15, 2013

Today in Legal HistoryA few years ago, we covered the passage of the McCarron Internal Security Act, enacted on September 23, 1950.

Passed during the heightened tensions of the Cold War, the act required “Communist organizations,” as defined by the newly-created Subversive Activities Control Board (SACB), to register with the U.S. Attorney General.  The act also authorized the Attorney General to compel members of such an organization to register – or face hefty penalties.

Being labeled as a “Communist organization” was effectively a death sentence.  Individuals forced to register as members of these organizations could be subject to a variety of denial of rights.  In addition to being denied a passport and the right to work in certain state facilities, registered members could also be investigated for engaging in “subversive activities.”

An individual found to be engaging in such activities, in violation of the McCarron Act, could face the prospect of losing his or her citizenship for up to five years.  Naturally, members of registered “Communist organizations” resisted the individual registration requirement.

The SACB was quite insistent on their registration, however, which led to legal conflict over the validity requirement – a conflict that eventually made its way before the Supreme Court.

The Court resolved this matter in favor of the individuals in Albertson v. SACB, decided on November 15, 1965.  The 48 year old ruling struck down the individual registration requirement as violating the Fifth Amendment’s privilege against self-incrimination.

Although it seems perfectly apparent that the filing of such a registration form – which required information about the individual’s past or present membership in any Communist organization (which often included labor unions) and their role in that organization – would be self-incriminating, the government argued otherwise.

To defend this claim, it specifically pointing to the so-called “immunity provision,” which stated that “[n]either the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of…any…criminal statute.”  It further prohibited the use of the registration as evidence in any criminal proceeding against the subject of the registration.

The Court was unconvinced, however, finding that:

such a[n] [immunity] statute is valid only if it supplies a complete protection from all the perils against which the constitutional prohibition was designed to guard by affording absolute immunity against future prosecution for the offence to which the question relates [internal citations omitted].

In other words, the Court found that the immunity statute was incomplete.  True, it prohibited both the admission of membership from constituting a “per se” violation of any criminal statute and the use of the admission as evidence against the registrant in a criminal proceeding, but it did not preclude the admission’s use as an investigatory lead (which is what it was primarily used for by the government).

Thus, in order for the immunity provision to save the registration requirement from invalidation under the Fifth Amendment, it must have prohibited any and all prosecutions that could potentially arise, directly or indirectly, from membership in a “Communist organization.”

Such immunity would have defeated the purpose of the registration requirement – a fact that did not escape the Court’s notice.  As such, the Court struck down the individual registration requirement under the Fifth Amendment.

In retrospect, the Court made the correct decision: the government’s requirement that a specific group of individuals disclose certain facts about themselves that may later lead to criminally prosecution flies in the face of everything that the Fifth Amendment’s self-incrimination privilege stands for.

We can only hope that, should a similar law ever emerge, that our current or future Supreme Court will issue a similarly correct ruling.