Socialist Workers Party v. Attorney General of U. S., 387 F.Supp. 747 (D.C.N.Y. 1974)

United States District Court, S.D. New York.

SOCIALIST WORKERS PARTY and Young Socialist Alliance, et al., Plaintiffs,

v.

ATTORNEY GENERAL OF the UNITED STATES et al., Defendant.

No. 73 Civ. 3160.

Dec. 13, 1974.

Order vacated in part, 510 F.2d 253.

Application for stay denied, 95 S.Ct. 425.

*748

Leonard B. Boudin, Herbert Jordan, and K. Randlett Walster, Rabinowitz,

Boudin & Standard, New York City, for plaintiffs.

Paul J. Curran, U.S. Atty., Steven J. Glassman, and John Siffert, New York

City, Asst. U.S. Attys., for the Southern District of New York.

OPINION OF THE COURT

GRIESA, District Judge.

This is a motion brought by plaintiffs for a preliminary injunction

restraining one of the defendants, namely, the Director of the Federal

Bureau of Investigation, from having his organization conduct any

surveillance or monitoring of the 14th National Convention of the Young

Socialist Alliance, planned to be held at the Jefferson Hotel in St.

Louis, Missouri, from December 28, 1974 through January 1, 1975.

I will refer to the Young Socialist Alliance as the YSA, as we have done

in the arguments.

The YSA is one of the plaintiffs in this action, which seeks broad relief

against what the plaintiffs consider to be the illegal surveillance and

harassment carried on by the various governmental officials and agencies

against the plaintiffs.

The YSA is an unincorporated association, with headquarters in New York.

Its basic function is that it is the youth arm of another one of the

plaintiffs, namely, the Socialist Workers Party, which I will refer to as

the SWP.

Both the SWP and the YSA advocate the replacement of capitalism with

socialism in the United States. Their specific doctrines will be discussed

at greater length later in my opinion.

The motion for preliminary injunction is granted, for the following reasons.

Let me first summarize the salient facts.

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The record indicates that the YSA convention will be open to delegates and

also other young people under the age of twenty-nine, which is the cut-off

age for the YSA. The convention will be open to other young people

interested in learning about the YSA and the SWP. There will be workshops,

panel discussions and other meetings, at which both members and other

interested young people will be permitted to attend. There will apparently

be official delegates to this convention which will have certain voting

rights, and there will be at least one meeting where only the delegates

are permitted for the purposes of voting for the YSA National Committee.

One of the principal events of the convention will be the announcement by

the SWP of its candidates for president and vice president of the United

States for the 1976 election. It is planned to have a rally at the Hotel

Jefferson, at which this announcement is made. The public will be invited

to this rally.

Although the meetings contemplated have various degrees of public or

private characteristics, as I have described, basically the intention is

to have only persons coming to participate in the meetings as interested

observers or participants, and it would appear that if someone attempted

to attend any of these meetings and was considered undesirable by the YSA

or the SWP, those organizations would have the right to refuse admission

to such unwanted persons.

It appears that the FBI has for many years had an investigatory interest

in the SWP and the YSA, because it has considered that these organizations

are Marxist revolutionary orgainzations, whose purpose is the illegal

overthrow of the United States Government.

The FBI apparently has for many years carried on surveillance at the

National Conventions and other meetings of the YSA and also of the SWP.

The FBI has stated plainly in this action and has otherwise indicated that

it intends, unless barred by court order, to carry out surveillance of the

YSA convention coming up on December 28th. Indeed, in August or September

of this year, the FBI paid a call to the offices of the Hotel Jefferson to

inquire about what banquet rooms and guest rooms were being reserved for

YSA convention attendance, and the FBI told the hotel management that it

would carry out surveillance of the convention.

The FBI has filed affidavits stating that it intends to have confidential

informants attending the convention meetings to find out the identity of

persons attending and to find out the substance of the discussions held.

The FBI denies that it intends any electronic surveillance or searches or

photographing.

The YSA claims that this proposed surveillance has placed or threatens to

place a substantial inhibition on the ability of the YSA and its members

and other persons who would be interested in attending to carry out the

convention in a free and normal manner.

One of the principal reasons why it is plain that the FBI proposed

surveillance will place restrictions on the convention is related to what

the FBI intends to do with the information obtained from the surveillance.

The record demonstrates quite clearly that the FBI, despite the abolition

of the well-known Attorney General's list, still considers that the SWP

and the YSA are revolutionary organizations, dedicated to the overthrow of

the constitutional form of government of the United States by force and

violence.

It appears that when the FBI learns of a person's affiliation with the YSA

or the SWP or learns of a person's attendance at the meetings of those

organizations, the FBI records such information in its files. A principal

use of such information is to inform United States Government departments

and agencies of such facts in the event that an SWP or YSA member or

someone attending its functions seeks employment with such government

department or agency.

It appears that the FBI informs the government department or agency of the

*750 connection of the person with the YSA or the SWP and states to the

government department or agency that these organizations are dedicated to

violent revolution in the way that I have described. This results in

obvious problems to the persons seeking the government employment,

including being subjected to extremely searching questioning about

political beliefs.

The record does not disclose in detail what does and does not happen in

the case of such employment applications, but it appears clear to me that

the procedure does place a very substantial onus and burden upon the

persons involved.

Returning to discussion of the upcoming convention, the record shows quite

clearly that the FBI surveillance of such meetings and the FBI procedures

as far as use of information is concerned are quite well known among

persons who consider attending the YSA conventions and that they operate

as a substantial deterrent to such attendance. The record shows that

persons who have been engaged in attempting to recruit attendance for the

conventions have encountered instances of people who state that they would

be interested in attending but are afraid to attend because of this FBI

surveillance.

Beyond the specific instances which have been cited in the affidavits, it

appears to me that a natural consequence under the circumstances is that

the FBI surveillance would inevitably put a substantial inhibition and

barrier upon the normal carrying out of these meetings and the normal

ability to attract young persons to attend them.

It seems to me also clear that the fear of people with regard to attending

at the meetings is not a mere mirage but is a reasonable fear in light of

what the FBI does with the information obtained by it at these meetings.

There are other facts to be discussed at a later point, but this is

probably the appropriate juncture to discuss the first question of law.

The threshold question of law to be dealt with is whether there is a

justiciable controversy. This is the Government's formulation of the

question, and I think it is probably a satisfactory one.

The plaintiffs are relying upon a contention that their First Amendment

rights of freedom of speech and freedom of association are threatened with

substantial impairment. The defendants deny this contention and rely on

the line of authorities which hold that if there is no actual prohibition

against the exercise of First Amendment freedoms but merely a subjective,

self-induced chill on the exercise of those rights and freedoms, then

there is no cognizable right upon which a court can grant relief.

The principal reliance of the Government is upon the Supreme Court

decision in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154, a

decision in 1972. The majority opinion in that case was written by Chief

Justice Burger and joined in by Justices White, Blackmun, Powell and

Rehnquist. Justices Douglas, Marshall, Harlan and Stewart dissented.

The case dealt with intelligence gathering activities of the United States

Army which were being carried out to help meet the instances of domestic

violence and terrorism which were being carried out and threatened at that

period.

The plaintiffs in that action filed suit, claiming that their political

rights, their First Amendment rights were being inhibited and stifled by

this intelligence gathering activity of the United States Army.

The majority opinion held that there was no valid cause of action. At page

13 of the majority opinion, there is a statement of the holding that there

was no indication that the plaintiffs had sustained or were immediately in

danger of sustaining a direct injury as a result of the Army's actions.

There was merely the amorphous claim that the very existence of the Army's

data gathering system created somehow a chilling effect on *751

First Amendment rights. In other words, the specific claim of a specific

injury which is presented in this case was not presented in Laird v.

Tatum.

I do not mean to oversimplify the application of the Laird v. Tatum

opinion. The questions I raised in oral argument are difficult ones. There

is language at page 11 in the opinion which the Government with much force

argues applies directly to our present case and prevents relief here.

However, I believe that the Laird v. Tatum opinion must be applied on its

facts and that the language of the majority opinion must be read in the

context of those facts, and on this basis I am holding that the Laird v.

Tatum opinion does not preclude relief in the present case.

Another case relied on by the Government is the Second Circuit decision in

Fifth Avenue Peace Parade v. Gray, 480 F.2d 326 (2nd Cir. 1973). To me,

this case is clearly inapplicable. There, the FBI activity had an entirely

different purpose from what is contemplated here. The FBI was seeking

information about the numbers of demonstrators which would be converging

on Washington for the Vietnam Moratorium in November 1969.

The Court of Appeals, in an opinion written by Judge Mulligan, relied

specifically on that fact. He further noted that there was no attempt to

make notations about identities of persons, no attempt to use or gain

information for any other purpose than to insure the orderly handling of

crowds in connection with this moratorium. Consequently, he held that

there was no reasonable basis for finding any chill whatever upon the

First Amendment rights of the plaintiffs.

It seems to me that the line of authority which is relevant is found

in the cases which have held that First Amendment rights can be violated

by disclosure of membership in controversial organizations. I refer to

Gibson v. Florida Legislative Commission, 372 U.S. 539, 83 S.Ct. 889, 9

L.Ed.2d 929, and other, similar cases. These authorities hold that there

is a valid First Amendment claim presented when a governmental authority

seeks to obtain information about the identities of the members of

organizations such as the NAACP or the Republican Party in Southern states

et cetera, and that the organizations have standing to protect their

members from unwarranted invasions by the government of rights to

association and privacy.

One of the ideas used in the reasoning of these cases is that when the

objective of a group is unpopular at a given time, revelation of the

identities of those who have joined together may provoke reprisals from

those opposed to the group.

I believe that those cases apply here, in view of the fact that one of the

principal activities, if not the principal activity of the FBI in the

contemplated surveillance would be to record the identities of the parties

for use in the manner which I have described.

I realize that there are distinctions which can be drawn between the

present case and the membership list cases. For instance, it can be argued

that when people attend a public or semi-public meeting, they somehow

waive the right to privacy which is protected in the membership list

cases. However, on balance, I find that the distinction is not a

compelling one. I do not believe that a person who attends a meeting such

as the one we are talking about inevitably waives his right to have his

attendance a more or less private matter and not subject to Government

surveillance. If he goes beyond this and manages to get his picture and

name published in the party paper or something like that, this would be a

different matter, but we are not talking about that kind of people. We are

talking about the rank and file of the young people who apparently wish to

attend this type of meeting with something less than that much notoriety.

Finally, we are dealing with the basic problem of inhibiting the right of *752

association, and the record before me indicates convincingly that the

presence of FBI informants at the meeting will do this. In my view, this

is sufficient ground for holding that there is a justiciable controversy

about the invasion of First Amendment rights.

The case most directly on point is a case decided by the then District

Judge Swygert, who is now Chief Judge of the Seventh Circuit, and I have

reference to Local 309 v. Gates, 75 F.Supp. 620, a case decided in the

Northern District of Indiana in 1948. Judge Swygert held that a union was

entitled to injunctive relief against police surveillance at union

meetings, that there was a strike in progress, and there had been violence

in connection with the strike.

The police argued that they were entitled to monitor the meetings in

order, among other reasons, to check on possible violence. Judge Swygert

found as a fact that although there had been violence in the strike, there

was no indication that the meetings had any relationship to violence. He

further found that the inhibiting effect upon right of association was a

natural result of the surveillance. He found factual indications of such

inhibiting effect and granted the injunctive relief on the basis of First

Amendment violations.

The second branch of our problem relates to the question of whether the

Government has a valid reason for invading the First Amendment rights,

that is, whether there is a sufficiently compelling interest or a

sufficient interest of any kind on the part of the FBI which would justify

it to carry out the activity with the effects which I have just described.

This brings up the question which has occupied us at great length, that

is, whether indeed there is any indication that the upcoming meeting of

the YSA will have any relation to violence, illegal activity of any kind.

We have had extensive proof and discussion on this point, which I will not

attempt to describe in full detail now. I think it can be summarized as

follows:

The YSA and the SWP are loyal to the teachings of Marx, Lenin and Trotsky.

In 1938, the SWP subscribed or promulgated a declaration of principles

which said, as quoted in the materials before me, that at all times the

organizations would contend against the fatal illusion that the masses can

accomplish their emancipation through the ballot box.

Although this does not specifically advocate violence and illegal

activity, the Government urges with some reason that such is implicit in

the statement. However, this is a declaration made some thirty-six years

ago. The record is undisputed that the declaration was repudiated by the

SWP in 1940. The Government contends that this was merely a subterfuge to

avoid the application of certain legal strictures. The plaintiffs contend

that the repudiation of violence or the amendment of the original

declaration of principles was utterly sincere, as proven by some

thirty-four years, at least, of a record of non-violence.

In my view, the plaintiffs are completely right. I have asked the

Government to come forward with any indication whatever of violent

revolutionary activity or any other illegal activity carried out by the

YSA or the SWP, and the Government has come forward with absolutely

nothing.

I have asked the Government to provide any indication of any discussion of

violence or illegal activity or any incitement of such activity involving

any prior national convention of the YSA, this being the fourteenth such

convention. The Government has come forward with nothing.

The Government's main reliance as far as any current problem or risk is

concerned relates to a matter discussed at length this afternoon, which

again, I will not attempt to describe in detail. *753

Basically, I believe, it can be summarized thus:

There have developed in the SWP throughout the world certain factions, one

of which adheres to what they consider the traditional and standard SWP

doctrine of nonviolence. This is admitted to be the clear majority view,

at least in the United States. There is another, minority view, which

apparently managed to have passed at a meeting this year, an international

meeting, a resolution approving the use of guerrilla warfare in Latin

America. The meeting to which I refer is called the Tenth World Congress

and was held in early 1974.

The representative of the majority of the United States party was opposed

to the resolution backing that use of guerrilla force in Latin America and

said that in his opinion it foreshadowed a more basic break, with more

widespread geographical implications as far as the basic question of

non-violence versus violence was concerned. However, the minority faction

in the U.S. party, according to the representations made to me which I

credit, which was in favor of the resolution about guerrilla warfare in

Latin America, has been ousted from the SWP party in America as of July

1974.

There was never anything, in my view, beyond the most tenuous suggestion

of a possible implication of violence in the United States.

In view of the ouster of the minority faction, I believe that tenuous

suggestion has been basically eliminated.

It should be remembered that the SWP is a party with a membership of one

thousand or two thousand and that in the last general election it obtained

votes of about one hundred thousand.

The SWP and the YSA have come forward with materials which I find

convincing regarding their current non-violent beliefs and their current

disavowal of violence.

At the time of the assassination of President Kennedy, the national

secretary of the SWP issued a press release condemning the assassination,

condemning political terrorism and stating that political differences

within our society must be settled in an orderly manner by majority

decision after free and open public debate in which all points of view are

heard.

The constitution of the SWP has nothing advocating violent, illegal

activity. There is in the record a pamphlet written by one George Novack,

entitled 'Marxism versus Neo-Anarchistic Terrorism,' which, despite what

one may think of many of the beliefs stated therein, is nevertheless a

most eloquent and intelligent statement of reasons against what is called

individual terrorist activity.

I have questioned, on the basis of that pamphlet, what ultimate form of

activity is contemplated and advocated by the SWP and the YSA, and I think

it can be summed up as follows:

There is, indeed, in the pamphlet I have referred to and in other pieces

of literature much of the rhetoric of revolution, that is, use of the term

'revolution'. There is talk about action of the masses and so forth, and

it is clear that the ultimate, long-range goal of the SWP would be and it

is stated to be the expropriation of the financial resources of this

country from their present owners and the placing of such resources in the

hands of the working class.

Why is not this the advocacy of revolution which would justify FBI

surveillance at the meetings of this group? I do not believe there is such

justification, and I believe that the revolutionary rhetoric must be taken

in context in order to avoid a departure from reality.

The talk about the expropriation of power is right now a discussion of

theory. There is not the slightest indication of any mass action or any

other action to now or in the near future expropriate property by this

party. The party obviously realizes that its small size now would make

such a program ridiculous. They have expressed this in their own words,

and what they are doing right now is to have discussions of socialism.

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They are sponsoring and supporting causes which they believe in, such as

the farm workers' activity in California, women's lib and so forth. The

discussion of ultimate action by the masses is a theoretical discussion.

I have reviewed a recent issue of their publication called The Militant,

which is quite a lengthy newspaper, and it is filled with the discussion

of all manner of public issues, and there is in my view not the slightest

hint of any present violent threat or any such threat for the near future.

The newspaper is filled with discussions of candidates supported by the

SWP for various offices throughout the country, discussions of school

board problems in New York City and so forth and so on.

As a matter of policy, it seems to me, finally, that the healthy thing for

our society to do is to permit this group to freely have their discussions

of the issues which concern them and of their theories. It seems to me

inevitable that as a result of those discussions at such conventions as

are coming up, the theories will evolve and that it would be absurd to

place any restrictions upon their exercise of First Amendment rights

because of some theoretical goal long in the future, if ever, of the

consummation of their avowed socialist program.

[4]  For these reasons I find and conclude that the proposed FBI

surveillance threatens a substantial impairment of the First Amendment

rights of plaintiffs SWP and YSA and that the Government has shown no

compelling interest and no other necessity of any other degree which would

justify the impairment which I have described.

[5]  Since this is a preliminary injunction motion, the standard which I

am to apply is an alternative standard, that is, a preliminary injunction

is justified if the plaintiffs have shown a probability of success on the

ultimate merits and a threat of irreparable injury; or a preliminary

injunction is justified if there are serious and substantial questions

regarding the merits of the action, and the hardships to the plaintiffs

from not granting the injunction outweigh the hardships to the defendants

in granting the injunction. I think the second of the alternative tests is

the appropriate one.

It surely seems to me clear that the plaintiffs have raised serious

questions and substantial questions about their right to First Amendment

relief. Further, it seems to me that there is a showing of substantial

harm to the upcoming convention and to the participants if the injunctive

relief is not granted.

Finally, it seems to me clear that the Government has shown nothing in the

way of a loss to its interests if the injunction is granted.

The plaintiffs should settle an order at the earliest opportunity.