Albertson v. Subversive Activities Control Board

Writing for a unanimous Court, Justice Brennan argued that while the registration requirement itself might not amount to mandatory self-incrimination, being listed as a member of a subversive organization might be used as the basis for some future criminal prosecution. In the superheated atmosphere of paranoia that gave rise to the SACB and which was furthered by it, mere association with such an organization as the Communist Party was damning in and of itself. If nothing else, it cast suspicion over the registered person, who was required to supply information such as date and place of birth, which could provide leads for investigators trying to collect evidence for a criminal action. The immunity clause attached to the McCarran Act, which purportedly protected against prosecution based on the act of registering was, therefore, no protection:

The judgment as to whether a disclosure would be "incriminatory" has never been made dependent on an assessment of the information possessed by the Government at the time of interrogation; the protection of the privilege [against self-incrimination] would be seriously impaired if the right to invoke it was dependent on such an assessment, with all its uncertainties. The threat to the privilege is no less present where it is proposed that this assessment be made in order to remedy a shortcoming in the grant of immunity. The representation that the information demanded is of no utility is belied by the fact that the failure to make the disclosure is so severely sanctioned . . .

Although the Court had upheld the registration requirement per se in Communist Party of the United States v. Subversive Activities Control Board (1961), it postponed a decision on the sanctions attached to the requirement until they were at issue. After Albertson did away with registration under the McCarran Act, subsequent cases, such as United States v. Robel (1967), which threw out the ban on defense department employment, succeeded in gutting the act. In 1973, it was allowed to expire altogether for lack of appropriation.