William O. Douglas

“ The privilege is often criticized as a shield for wrongdoing. But not every hostile silence which greets official interrogation has its beginning in wrongdoing. In a Nation such as ours the Government must often meet with hostility; we are not constrained to admire its activities; we are free to detest them. ”

“ The power of the Government is limited, so that it cannot punish either the silence or the passive hostility of one who claims the privilege, whether he be a criminal or a prophet or merely a bewildered citizen suddenly caught in the sinister web of suspicion. ”

“ But the Fifth Amendment bars Congress from requiring full disclosure by one Act and by another Act making the facts admitted or disclosed under compulsion the ingredients of a crime.
There is a giving of evidence by the filing of a registration. Its filing is the equivalent of officials testifying in investigations conducted by the Executive or Legislative Branch. It is compulsory disclosure of evidence which links officers, directors, and members of the group with a crime. Force and compulsion are outlawed techniques for federal law enforcement. ”

“ We are in a field where Congress has found and declared that the Communist Party is 'in fact an instrumentality of a conspiracy to overthrow the Government of the United States,' that its 'policies and programs' are 'secretly prescribed for it by the foreign leaders of the world Communist movement,' that it is 'the agency of a hostile foreign power.' 68 Stat. ”

“ The disclosure requirements are clear and specific. Now is the time to raise Fifth Amendment questions. To relegate the parties to another time and place in order to raise those constitutional objections is to fashion an extremely harsh rule to fit the Communist Party but no one else. Default means the risk of criminal prosecution. No person, I think, should be forced to wait until his default to raise his constitutional objection. ”

“ In my view Congress can require full disclosure of all the paraphernalia through which a foreign dominated and controlled organization spreads propaganda, engages in agitation, or promotes politics in this country. ”

“ United States, supra, might mean that the question had been waived.
My conclusion is that while the Communist Party can be compelled to register, no one acting for it can be compelled to sign a statement that he is an officer or director nor to disclose the names of its officers, directors, or members-unless the required immunity is granted. Why then, one may ask, do we have a registration law? Congress (past or present) is attempting to have its cake and eat it too. ”

“ The clause of the Fifth Amendment with which we are here concerned provides that 'No person * * * shall be compelled in any criminal case to be a witness against himself.' The clause has been hospitably construed. ”

“ Coerced confessions are taboo because of the long bitter experience of minorities in trying to maintain their freedom under hostile regimes. Our Constitution protects all minorities, no matter how despised they are. ”

“ The Bill of Rights was designed to give fullest play to the exchange and dissemination of ideas that touch the politics, culture, and other aspects of our life. When an organization is used by a foreign power to make advances here, questions of security are raised beyond the ken of disputation and debate between the people resident here. ”

“ If lobbyists can be required to register, if political parties can be required to make disclosure of the sources of their funds, if the owners of newspapers and periodicals must disclose their affiliates, so may a group operating under the control of a foreign power. ”

“ Licensing, like a tax payable on the exercise of a First Amendment right (Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292) , is therefore unconstitutional. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. Yet registration, like licensing, may have aspects of harassment and burden. ”

“ We made clear in Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225, that the ruling in the White case was restricted to the production of books and records. We there upheld the custodian's privilege against testifying as to the 'whereabouts of books and records' where that testimony might incriminate him. We said '* * * he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.' Id., 354 U.S. 124, 77 S.Ct. 1149. ”

“ The Party is the proper party to raise the objection, because no one else can ras e it effectively. The community of interest between the Party and its members is indeed closely analogous to the community of interest between a corporation and its stockholders. See Stevens, Corporations (1949) , pp. 788-789. Since the command to register cannot be separated from the means of registration, an attack is properly made on the incriminating features of the statute by petitioner who is commanded to register. ”

“ The compulsory disclosure of those who have been officers, directors, or members of the Party during the last 12 months is equally objectionable under the Fifth Amendment. Membership in the Party is, by virtue of federal statutes, the start [4] of every prosecution whether it be for active 'membership,' as in Scales v. United States, supra, or for conspiracy to teach the doctrine, as in Dennis v. ”

“ One who files is immune from prosecution by the United States for anything reported in the registration statement. See United States v. Mack, 2 Cir., 112 F.2d 290, 292. But this provision was held in violation of the Fifth Amendment in United States v. ”