Judgment of the Court of Appeals affirming respondent's order that petitioner register as a Communist-front organization is vacated, in view of the staleness of the record in this case.
117 U.S. App. D.C. 404, 331 F.2d 64, judgment vacated and cause remanded.
Leonard B. Boudin argued the cause for petitioner. With him on the briefs were Victor Rabinowitz and David Rein.
Kevin T. Maroney and Bruce J. Terris argued the cause for respondent. With them on the brief were Solicitor General Cox, Assistant Attorney General Yeagley and Robert L. Keuch.
Melvin L. Wulf and Marvin M. Karpatkin filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Petitioner was ordered by the Subversive Activities Control Board to register as a Communist-front organization under 7 of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 993, 50 U.S.C. 786 (1958 ed.), and the Court of Appeals for the District of Columbia Circuit affirmed. 117 U.S. App. D.C. 404, 331 F.2d 64. We granted certiorari, 377 U.S. 989 . In this case, the order to register was based almost exclusively on events before 1950, and very largely on events before 1940. The hearings themselves were concluded in November 1954, more than 10 years ago. On so stale [380 U.S. 513, 514] a record we do not think it is either necessary or appropriate that we decide the serious constitutional questions raised by the order. See American Committee for Protection of Foreign Born v. Subversive Activities Control Board, ante, p. 503. The judgment is vacated and the cause remanded for proceedings consistent with this opinion.
[For dissenting opinion of MR. JUSTICE BLACK, see ante, p. 511.]
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE HARLAN concur, dissenting.
I think this case is ripe for decision. The controversy is real, not feigned. All of the relevant facts one needs to know to resolve the constitutional question are exposed in the present record.
This is the famous brigade of Americans who fought in the Spanish Civil War against Franco. Approximately 3,000 American youths were members; and of these only about 1,800 survived. Petitioner was formed in 1939 as an unincorporated association and was incorporated in 1940 under the laws of New York, its charter being forfeited in 1952 for failure to file required reports.
The record is detailed. The Court of Appeals, which sustained the Subversive Activities Control Board in finding that petitioner is a "Communist-front organization" within the meaning of 3 (4) of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 989, 50 U.S.C. 782 (4) (117 U.S. App. D.C. 404, 331 F.2d 64), spoke of "the tremendous volume of the record" and the "almost numberless facets of fact involved." Id., at 413, 331 F.2d, at 73. The history of the formation of the [380 U.S. 513, 515] Brigade, its relationship with the Communist Party and with Communists, the manner in which international brigades of this kind were employed by Communists, the role of Communists in forming this Brigade, the affiliations of officers of the Brigade, the ideas and program promoted by the Brigade's official organ, Volunteer for Liberty, the efforts of the Brigade to get its members employed in unions, offices, or factories where a Communist unit or functionary was located, the extent to which the Brigade responded to Party discipline, and the extent to which the Brigade aided and supported the Party - all were fully explored.
Since 1950 the Brigade's affairs have been run almost entirely by an Executive Secretary and a National Commander. Since 1950 its activities have consisted principally of social affairs, rehabilitating and resettling veterans and getting them employment, making statements in opposition to the Franco regime, supporting its members who were indicted under the Smith Act, and defending itself in this proceeding.
This proceeding started in 1953, when the Attorney General petitioned the Board for an order requiring the Brigade to register as a Communist-front organization. Hearings before the Board commenced May 3, 1954, and ended November 16, 1954. Over a year later the Board issued a registration order against the Brigade, and its report in the case. The final order of the Board is dated December 21, 1955. The opinion of the Court of Appeals comes eight years later * and is dated December 17, 1963.
But no one suggests that there have been any basic changes in the pattern of the Brigade's activities either [380 U.S. 513, 516] since the Board's order or the Court's judgment. The Court of Appeals found no difficulty in concluding that as of the date of the record the Brigade continued to be what it had been in the past:
There is one way and one way only in which this case is getting stale with the passage of time. And that is that the Brigade's membership is not being renewed but depleted. Its membership, as noted, is made up of Americans who fought in the Spanish War against Franco. The mortality table has caused that list to shrink and it [380 U.S. 513, 517] will continue to shrink. In 1955 there were only 600 survivors of the Brigade, not all of whom were members of petitioner. Hence in some months or years the case will return to us more stale than it is at the present time.
With all due respect. I think it is indefensible not to decide the important constitutional questions tendered here and now.
[ Footnote * ] The finding of the Board that the Communist Party was a Communist-action organization was a product of the litigation which terminated on June 5, 1961, with this Court's decision in Communist Party v. Control Board, 367 U.S. 1 . That litigation was in progress in the years between 1950 and 1961; and since the finding that the [380 U.S. 513, 516] Party was a Communist-action organization was necessary to the Board's result in this case, the present case was held by the Court of Appeals pending the outcome of the Communist Party litigation. See 117 U.S. App. D.C. 404, at 406, 331 F.2d 64, at 66. The present case was then argued before the Court of Appeals in October of 1962, and decision was rendered on December 17, 1963. [380 U.S. 513, 518]