Stanley Forman Reed

“ If legally permissible, as carried out by the Attorney General, there is no question but that a single investigation as to the character of an organization is preferable to one by each of the more than a hundred agencies of government that are catalogued in the United States Government Organization Manual. To require a determination as to each organization for the administrative hearing of each employee investigated for disloyalty would be impossible. ”

“ Communism is well understood to mean a group seeking to overthrow by force and violence governments such as ours and to establish a new government based on public ownership and direction of productive property. Undoubtedly, there are reasonable grounds to conclude that accepted history teaches that revolution by force and violence to accomplish this end is a tenet of communists. [9] No more is necessary to justify an organization's designation as communist.
As a basis for petitioners' attack on the list, the Refugee Committee set forth facts in its complaint to show its charitable character. ”

“ What petitioners seek is a ruling that the Government cannot designate organizations as communist for the purpose of furthering investigations into employees' loyalty by the employing agencies without giving those organizations an opportunity to examine and meet the information on which the list is based. One can understand that position. There is a natural hesitation against any action that may damage any person or organization through an error that notice and hearing might correct. ”

“ Power lies in the executive to guard the Nation from espionage, subversion and sedition by examining into the loyalty of employees, and due process in such investigation depends upon the particular exercise of that power in particular conditions. [34] In investigations to determine the purposes of suspected organizations, the Government should be free to proceed without notice or hearing. Petitioners will have protection when steps are taken to punish or enjoin their activities. ”

“ The absence of any provision in the Order or rules for notice to suspected organizations, for hearings with privilege to the organizations to confront witnesses, cross-examine, produce evidence and have representation of counsel or judicial review of the conclusion reached by the Attorney General is urged by the petitioners, as a procedure so fundamentally unfair and restrictive of personal freedoms as to violate the Federal Constitution, specifically the Due Process Clause and the First Amendment. ”

“ Without accepting the logic of the concurrences, and waiving inquiry as to the standing of a corporation or unincorporated association to defend the rights of a member to employment, we think the suggestions as to lack of due process are based on an erroneous premise. Employees generally, under executive departments and agencies, whether or not members of listed organizations, without special statutory protection such as permanent employees under the competitive and classified civil service laws and regulations or preference eligibles under the Veterans' Preference Act of 1944, 58 Stat. ”

“ Property may be taken for government use without notice or hearing by a mere declaration of taking by the authorized official. No court has doubted the constitutionality of such summary action under the due process clause when just compensation must be paid ultimately. [19] Persons may be barred from certain positions merely because of their associations. [20]
To allow petitioners entry into the investigation would amount to interference with the Executive's discretion, contrary to the ordinary operations of Government. ”

“ Not to move would brand a government with a dangerous weakness of will. The determination of the time for action rests with the executive and legislature arms. An objection to consideration of an employee's sympathetic association with an admitted totalitarian, fascist, communist or subversive group, as bearing upon the propriety of his retention or employment as a government employee would have no better standing. ”

“ The employee does have every opportunity to explain his association with that organization. The Constitution requires for the employee no more than this fair opportunity to explain his questioned activities. Such procedure is quite similar to that followed in Great Britain in the removal or transfer of civil servants from positions 'vital to the security of the State.' The Prime Minister assumed the authority to designate membership in the Communist Party or 'other forms of continuing association' therewith as sufficient to bar employment in sensitive areas. ”

“ To assure uniformity and fairness throughout the Government in the investigation of employees, a Loyalty Review Board was created to review loyalty cases from any department or agency, disseminate information pertinent to employee loyalty programs, and advise the heads thereof. Standards were provided for employment and discharge. So far as pertinent to the objections of petitioner to inclusion on the list of subversive and communist organizations, they appear in note 3 and in the note below. ”

“ So long as petitioners are permitted to voice their political ideas, free from suggestions for the opportune use of force to accomplish their social and economic aims, it is hard to understand how any advocate of freedom of expression can assert that their right has been unconstitutionally abridged. As nothing in the orders or regulations concerning this list limits the teachings or support of these organizations, we do not believe that any right of theirs under the First Amendment is abridged by publication of the list. ”

“ That mere membership in listed organizations does not normally bring about findings of disloyalty is graphically shown by a report of proceedings under the loyalty program. [26] The procedure for removal of employees suspected of disloyalty follows the routine prescribed for the removal of employees on other grounds for dismissal. Employees under investigation have never had the right to confrontation, cross-examination and quasi-judicial hearing. ”

“ Does due process require notice and hearing for the Department of Justice investigation under Executive Order No. 9835, Part III, § 3, note 3, supra, preliminary to listing? As a standard for due process one cannot do better than to accept as a measure that no one may be deprived of liberty or property without such reasonable notice and hearing as fairness requires. ”

“ Information that an employee associates with or belongs to organizations considered communistic may be deemed by the Executive a sound reason for making inquiries into the desirability of the employment of that employee. That is not 'guilt by association.' It is a warning to investigate the conduct of the employee and his opportunity for harm.
While we must be on guard against being moved to conclusions on the constitutionality of action, legislative or executive, by the circumstances of the moment, undoubtedly varying conditions call for differences in procedure. ”

“ Recognizing that the designation, rightly or wrongly, of petitioner organizations as communist impairs their ability to carry forward successfully whatever legitimate objects they seek to accomplish, we do not accept their argument that such interference is an abridgment of First Amendment guarantees. [14] They are in the position of every proponent of unpopular views. Heresy induces strong expressions of opposition. ”

“ These are the standards that define the type of organization subject to designation. [7] Of course, the Order means that a communist or subversive organization is of the same general character as one that seeks to alter our form of government by unconstitutional means, 13 Fed.Reg. 6137, to wit by force and violence.
Procedure under the Executive Order does not require 'proof' in the sense of a court proceeding that these communist organizations teach or incite to force and violence to obtain their objectives. ”

“ Where the issue is the permissibility of designation without notice or hearing, a motion to strike does not admit an allegation of 'arbitrary' action or that 'all its activities (are) * * * constitutional.' These complaints may not be decided upon any such posture in pleading. Petitioners' charge, that their 'designation' violates due process and the First Amendment, remains the issue. ”

“ These petitioners are not ordered to do anything and are not punished for anything. Their position may be analogized to that of persons under grand jury investigation. Such persons have no right to notice by and hearing before a grand jury; only a right to defend the charge at trial. ”

“ Following them in Part III, § 3, 12 Fed.Reg. 1938, are the words, 'or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.' Bracketed with membership in listed organizations (Exec.Order No. 9835, Part V) as activities for consideration in determining an employee's loyalty are those listed below. ”

“ The International Workers Order sets forth facts to show that it was a duly organized fraternal benefit society under New York law, furnishing sickness and death benefits as well as life insurance protection to its members. ”