The government's then-new subversive activities control board opens public hearings on the registration of the Communist party with Benjamin Gitlow, lower left, as the first witness, in Washington, April 23, 1951. Members of the board conducting the inquiry are, left to right: Peter Campbell Brown, former assistant attorney general; Charles M. LaFollette, former Republican congressman from Indiana; and Dr. Kathryn McHale, educator and psychologist. (AP Photo/Byron Rollins, with permission from The Associated Press.)
In American Committee for Protection of Foreign Born v. Subversive Activities Control Board, 380 U.S. 503 (1965), the Supreme Court responded to a challenge by the American Committee for Protection of Foreign Born of its classification as a communist-front organization.
The Court remanded the case to the Subversive Activities Control Board to ascertain whether the committee should continue to be classified as such and therefore required to register under the Subversive Activities Control Act of 1950, also known as the McCarran Act.
The Court’s per curiam opinion observed that the control board had based its classification in part on the membership of its leader, Abner Green, in the Communist Party, and that in light of Green’s death it should reconsider the designation.
Justice William O. Douglas dissented, objecting to what he considered to be the Court’s refusal to examine the control board’s authority to classify organizations as communist. He observed that the board had considered lots of evidence other than Green’s own affiliation in making its initial classification.
Argument that subversive activities board was unconstitutional
In a separate dissent, Justice Hugo L. Black cited his dissent in Communist Party v. Subversive Activities Control Board (1961) to argue that the Subversive Activities Control Act was unconstitutional.
He believed its actions constituted illegal bills of attainder, imposed “cruel, unusual and savage punishments for thought, speech, writing, petition and assembly, and that it stigmatizes people for their beliefs, associations and views about politics, law, and government.” He objected to the Court’s attempts to dodge such “thought-stifling” actions, which he believed denied “the constitutional heritage of every freedom-loving American.”
In a companion case, Veterans of the Abraham Lincoln Brigade v. Subversive Activities Control Board, the Court found that the determination that the brigade was a communist organization was too “stale” for review. Justice Black referred readers to his dissent in American Committee, while Justice Douglas, joined by Black and John Marshall Harlan, argued that the case was ripe for review and should be decided by the Court.
John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.Send Feedback on this article