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APTHEKER ET AL. v. SECRETARY OF STATE
No. 461
SUPREME COURT OF THE UNITED STATES
378 U.S. 500; 84 S. Ct. 1659; 1964 U.S. LEXIS 2225; 12
L. Ed. 2d 992
April 21, 1964, Argued
June 22, 1964, Decided
PRIOR HISTORY: [***1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.
DISPOSITION: 219 F.Supp. 709, reversed and remanded.
SYLLABUS: Appellants, native-born citizens and residents of the
United States, are ranking officials of the Communist Party of the
United States. After hearings under State Department regulations,
appellants' passports were revoked under @ 6 of the Subversive
Activities Control Act of 1950, which provides that when a
Communist organization is registered, or under final order to
register, it shall be unlawful for any member with knowledge or
notice thereof to apply for or use a passport. Appellants filed
suit asking that @ 6 be declared unconstitutional as a violation of
the Due Process Clause of the Fifth Amendment and that the
Secretary of State be ordered to issue passports to them. A three-judge District Court denied relief. Held:
1. Section 6 is unconstitutional on its face, for it too broadly
and indiscriminately transgresses the liberty guaranteed by the
Fifth Amendment. Pp. 505-514.
(a) The right to travel at home and abroad is an important
aspect of liberty of which a citizen cannot be deprived without due
process of law. Kent v. Dulles, 357 U.S. 116, [***2] followed.
P. 505.
(b) Under existing laws, denial of a passport effectively
prohibits travel anywhere in the world outside the Western
Hemisphere. P. 507.
(c) Though the underlying purpose of @ 6 is the protection of
national security, the attainment of that end cannot be realized by
unduly infringing upon constitutional freedoms. Pp. 508-509. (d) Section 6 applies to every member of a "Communist-action" or
"Communist-front" organization whether or not he believes or knows
that he is associated with such an organization or that the
organization seeks to further the aims of world Communism. Pp.
509-510.
(e) Also irrelevant under @ 6 is the member's degree of activity
and his commitment to the organization's purposes. P. 510.
(f) Section 6 creates an irrebuttable presumption that all
members of Communist organizations will engage in activities
endangering our security if
PAGE 74 378 U.S. 500, *; 84 S. Ct.
1659, **; 1964 U.S. LEXIS
2225, ***2; 12 L. Ed. 2d 992
given passports. P. 511.
(g) The proscription of @ 6 applies regardless of the traveler's
purpose or destination. Pp. 511-512.
(h) Congress could have chosen less drastic means of achieving
the national security objective without such sweeping abridgment of
liberty. Pp. 512-514.
2. Section 6 cannot be held [***3] constitutional as applied
to these appellants, for such a "construction" would require
substantial rewriting of the statute and would inject an element of
vagueness into its scope. Since freedom of travel is closely akin
to freedom of speech and association, appellants should not be
required to demonstrate that Congress could not have written a
statute constitutionally prohibiting their travel. Pp. 515-517.
COUNSEL: John J. Abt and Joseph Forer argued the cause and filed
briefs for appellants.
Abram Chayes argued the cause for appellee. With him on the
brief were Solicitor General Cox, Assistant Attorney General
Yeagley, Bruce J. Terris, Kevin T. Maroney, Lee B. Anderson and
Thomas Ehrlich.
Osmond K. Fraenkel filed a brief for the American Civil
Liberties Union, as amicus curiae, urging reversal.
JUDGES: Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart,
White, Goldberg
OPINIONBY: GOLDBERG
OPINION: [*501] [**1661] MR. JUSTICE GOLDBERG delivered
the opinion of the Court.
This appeal involves a single question: the constitutionality of
@ 6 of the Subversive Activities Control Act of 1950, 64 Stat. 993,
50 U. S. C. @ 785. Section 6 provides in pertinent part that:
"(a) When a Communist organization [***4] n1 . . . is
registered, or there is in effect a final order of the Board
requiring such organization to register, it shall [*502] be
unlawful for any member of such organization, with knowledge or
notice that such organization is so registered or that such order
has become final --
"(1) to make application for a passport, or the renewal of a
passport, to be issued or renewed by or under the authority of theUnited States; or
"(2) to use or attempt to use any such passport." n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Paragraph 5 of @ 3 of the Act provides that: "For the
purposes of this subchapter . . . the term 'Communist organization'
means any Communist-action organization, Communist-front
organization, or Communist-infiltrated organization." 64 Stat. 990,
as amended, 68 Stat. 777, 50 U. S. C. @ 782.
PAGE 75 378 U.S. 500, *502; 84 S. Ct. 1659,
**1661;
1964 U.S. LEXIS 2225, ***4; 12 L. Ed. 2d 992
n2 Section 6 (b) provides that:
"When an organization is registered, or there is in effect a
final order of the Board requiring an organization to register, as
a Communist-action organization, it shall be unlawful for any
officer or employee of the United States to issue a passport to, or
renew the passport of, any individual knowing or having reason to
believe that such individual is a member of such organization."
The criminal penalties for violations of @ 6 are specified in @
15 (c) of the Act which provides in pertinent part that:
"Any individual who violates any provision of section 5, 6, or 10
of this title shall, upon conviction thereof, be punished for each
such violation by a fine of not more than $ 10,000 or by
imprisonment for not more than five years, or by both such fine and
imprisonment." 64 Stat. 1003, 50 U. S. C. @ 794 (c).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***5]
Section 6 became effective, with respect to appellants, on
October 20, 1961, when a final order of the Subversive Activities
Control Board issued directing the Communist Party of the United
[**1662] States to register under @ 7 of the Subversive
Activities Control Act. The registration order had been upheld
earlier in 1961 by this Court's decision in Communist Party of the
United States v. Subversive Activities Control Board, 367 U.S. 1.
Prior to issuance of the final registration order both appellants,
who are native-born citizens and residents of the United States,
had held valid passports. Subsequently, on January 22, 1962, the
Acting Director of the Passport Office notified appellants that
their passports were revoked because the Department of State
believed that their use of the passports would violate @ 6.
Appellants were also [*503] notified of their right to seek
administrative review of the revocations under Department of State
regulations.
Appellants requested and received hearings to review the
revocations of their passports. The respective hearing examiners
concluded that "the Department of State had reason to believe that
[appellants [***6] are] within the purview of Section 6 (a)(2)
of the Subversive Activities Control Act . . . and as a result
thereof . . . use of a passport would be in violation of the law."
On the basis of this conclusion the examiners recommended that the
passport revocations be sustained. n3 Both appellants appealed to
the Board of Passport Appeals which recommended affirmance of the
revocations. The Secretary of State subsequently approved therecommendations of the Board. The Secretary stated that he "relied
solely on the evidence in the record" and that, as the basis of his
decision, he:
"specifically adopted as his own the [Board's] finding of fact that
'at all material times [appellants were members] of the Communist
Party of the United States with knowledge or notice that such
organization had been required to register as a Communist
organization under the Subversive Activities Control Act.'"
PAGE 76 378 U.S. 500, *503; 84 S. Ct. 1659,
**1662; 1964 U.S. LEXIS 2225,
***6; 12 L. Ed. 2d 992
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Appellants do not question that the hearings afforded them
procedural due process of law. Cf. Greene v. McElroy, 360 U.S.
474.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***7]
Appellants thereupon filed separate complaints seeking
declaratory and
injunctive relief in the United States District Court for the
District of Columbia. The complaints, which have been considered
together, asked that judgments be entered declaring @ 6 of the
Subversive Activities Control Act unconstitutional and ordering the
Secretary of State to issue passports to appellants. Each
appellant-plaintiff alleged that @ 6 was unconstitutional as, inter
alia, "a deprivation without due process of law [*504] of
plaintiff's constitutional liberty to travel abroad, in violation
of the Fifth Amendment to the Constitution of the United States."
n4 Appellants conceded that the Secretary of State had an adequate
basis for finding that they were members of the Communist Party of
the United States and that the action revoking their passports was
proper if @ 6 was constitutional. The parties agreed that all
administrative remedies had been exhausted and that it would be
futile, and indeed a criminal offense, for either appellant to
apply for a passport [**1663] while remaining a member of the
Communist Party.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Each complaint further alleged that @ 6 was unconstitutional
as:
"(b) an abridgement of plaintiff's freedoms of speech, press and
assembly, in violation of the First Amendment, (c) a penalty
imposed on plaintiff without a judicial trial, and therefore a bill
of attainder, in violation of Article I, section 9 of the
Constitution, (d) a deprivation of plaintiff's right to trial by
jury as required by the Fifth and Sixth Amendments and Article III,
section 2, clause 3 of the Constitution, and (e) the imposition of
a cruel and unusual punishment in violation of the Eighth
Amendment."
Our disposition of this case makes it unnecessary to review these
contentions.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***8]
The three-judge District Court, which was convened to review theconstitutional question, rejected appellants' contentions,
sustained the constitutionality of @ 6 of the Control Act, and
granted the Secretary's motion for summary judgment. 219 F.Supp.
709. The court concluded that:
"the enactment by Congress of section 6, which prohibits these
plaintiffs from obtaining passports so long as they are members of
an organization -- in this case the Communist Party -- under a
final order to register with the Attorney General . . . is a valid
exercise of the power of Congress to protect and preserve our
Government against the threat posed by the world Communist movement
and that the regulatory [*505] scheme bears a reasonable
relation
PAGE 77 378 U.S. 500, *505; 84 S. Ct. 1659,
**1663; 1964 U.S. LEXIS 2225,
***8; 12 L. Ed. 2d 992
thereto." Id., at 714.
This Court noted probable jurisdiction. 375 U.S. 928.
Appellants attack @ 6, both on its face and as applied, as an
unconstitutional deprivation of the liberty guaranteed in the Bill
of Rights. The Government, while conceding that the right to travel
is protected by the Fifth Amendment, contends that the Due Process
Clause does not prevent the reasonable regulation [***9] of
liberty and that @ 6 is a reasonable regulation because of its
relation to the danger the world Communist movement presents for
our national security. Alternatively, the Government argues that
"whether or not denial of passports to some members of the
Communist Party might be deemed not reasonably related to national
security, surely Section 6 was reasonable as applied to the top-ranking Party leaders involved here."
We hold, for the reasons stated below, that @ 6 of the Control
Act too broadly and indiscriminately restricts the right to travel
and thereby abridges the liberty guaranteed by the Fifth Amendment.
I.
In 1958 in Kent v. Dulles, 357 U.S. 116, 127, this Court
declared that the right to travel abroad is "an important aspect of
the citizen's 'liberty'" guaranteed in the Due Process Clause of
the Fifth Amendment. The Court stated that:
"The right to travel is a part of the 'liberty' of which the
citizen cannot be deprived without due process of law under the
Fifth Amendment. . . . Freedom of movement across frontiers in
either direction, and inside frontiers as well, was a part of our
heritage. Travel abroad, like travel within the country, [***10]
. . . may be as close to the heart of the [*506] individual as
the choice of what he eats, or wears, or reads. Freedom of
movement is basic in our scheme of values." n5 Id., at 125-126.
In Kent, however, the Court concluded that Congress had not
conferred authority upon the Secretary of State to deny passports
because of alleged Communist beliefs and associations. Therefore,
although the decision protected the constitutional right to travel,
the Court did not examine "the extent to which it can be
curtailed." Id., at 127. The Court, referring to @ 6 of the
Subversive Activities Control [**1664] Act, noted that "the
only law which Congress has passed expressly curtailing the
movement of Communists across our borders has not yet become
effective." Id., at 130. Two years later in Communist Party of the
United States v. Subversive Activities Control Board, supra, this
Court reviewed and upheld the registration requirement of @ 7 ofthe Control Act. The Court, however, did not pass upon the
"various consequences of the Party's registration for its
individual members," id., at 70, [***11] because:
"It is wholly speculative now to foreshadow whether, or under what
conditions, a member of the Party may in the future apply for a
passport, or seek government or defense-facility or labor-union
employment, or, being an alien, become a party to a naturalization
or a denaturalization proceeding. None of these things may
happen. If they do, appropriate administrative and judicial
PAGE 78 378 U.S. 500, *506; 84 S. Ct. 1659,
**1664; 1964 U.S. LEXIS 2225,
***11; 12 L. Ed. 2d 992
procedures will be available to test the constitutionality of
applications of particular sections of the Act to particular
persons in [*507] particular situations. Nothing justifies
previsioning those issues now." Id., at 79. (Emphasis added.)
The present case, therefore, is the first in which this Court has
been called upon to consider the constitutionality of the
restrictions which @ 6 imposes on the right to travel.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 In Bolling v. Shapre, 347 U.S. 497, 499-500, this Court
stated that: "Although the Court has not assumed to define
'liberty' with any great precision, that term is not confined to
mere freedom from bodily restraint. Liberty under law extends to
the full range of conduct which the individual is free to pursue,
and it cannot be restricted except for a proper governmental
objective."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***12]
The substantiality of the restrictions cannot be doubted. The
denial of a passport, given existing domestic and foreign laws, is
a severe restriction upon, and in effect a prohibition against,
world-wide foreign travel. Present laws and regulations make it a
crime for a United States citizen to travel outside the Western
Hemisphere or to Cuba without a passport. By its plain import @ 6
of the Control Act effectively prohibits travel anywhere in the
world outside the Western Hemisphere by members of any "Communist
organization" --including "Communist-action" and "Communist-front"
organizations. n6 The restrictive effect of the legislation cannot
be gainsaid by emphasizing, as the Government seems to do, that a
member of a registering organization could recapture his freedom to
travel by simply in good faith abandoning his membership in the
organization. Since freedom of association is itself guaranteed in
the First Amendment, n7 restrictions imposed upon the right to
travel cannot be dismissed by asserting that the right to travel
could be fully exercised if the individual would first yield up his
membership in a given association.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 See note 1, supra. [***13]
n7 E. g., Brotherhood of Railroad Trainmen v. Virginia State
Bar, 377 U.S. 1; Gibson v. Florida Legislative Investigation Comm.,
372 U.S. 539; NAACP v. Button, 371 U.S. 415; Louisiana ex rel.
Gremillion v. NAACP, 366 U.S. 293; Shelton v. Tucker, 364 U.S. 479;Bates v. City of Little Rock, 361 U.S. 516; NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449; Schneider v. State, 308 U.S. 147.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Although previous cases have not involved the constitutionality
of statutory restrictions upon the right to travel [*508]
abroad, there are well-established principles by which to test
whether the restrictions here
PAGE 79 378 U.S. 500, *508; 84 S. Ct. 1659,
**1664; 1964 U.S. LEXIS 2225,
***13; 12 L. Ed. 2d 992
imposed are consistent with the liberty guaranteed in the Fifth
Amendment. It is a familiar and basic principle, recently
reaffirmed in NAACP v. Alabama, 377 U.S. 288, 307, that "a
governmental purpose to control or prevent activities
constitutionally subject to state regulation [**1665] [***14]
may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." See, e. g., NAACP
v. Button, 371 U.S. 415, 438; Louisiana ex rel. Gremillion v.
NAACP, 366 U.S. 293; Shelton v. Tucker, 364 U.S. 479, 488; Schware
v. Board of Bar Examiners, 353 U.S. 232, 239; Martin v. Struthers,
319 U.S. 141, 146-149; Cantwell v. Connecticut, 310 U.S. 296,
304-307; Schneider v. State, 308 U.S. 147, 161, 165. In applying
this principle the Court in NAACP v. Alabama, supra, referred to
the criteria enunciated in Shelton v. Tucker, supra, at 488:
"Even though the governmental purpose be legitimate and
substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must be
viewed in the light of less drastic means for achieving the same
basic purpose."
This principle requires that we consider the congressional
purpose underlying [***15] @ 6 of the Control Act. n8 [*509]
The Government emphasizes that the legislation in question flows,
as the statute itself declares, from the congressional desire to
protect our national security. That Congress under the
Constitution has power to safeguard our Nation's security is
obvious and unarguable. Cf. Kennedy v. Mendoza-Martinez, 372 U.S.
144, 159-160. As we said in Mendoza-Martinez, "while the
Constitution protects against invasions of individual rights, it is
not a suicide pact." Id., at 160. At the same time the Constitution
requires that the powers of government "must be so exercised as
not, in attaining a permissible end, unduly to infringe" a
constitutionally protected freedom. Cantwell v. Connecticut,
supra, at 304.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 The purpose of the Act is stated in @ 2. 64 Stat. 987, 50 U.
S. C. @ 781. Congress found, as is generally stated in @ 2 (1),
that there "exists a world Communist movement . . . whose purpose
it is, by treachery, deceit, infiltration . . . , espionage,
sabotage, terrorism, and any other means deemed necessary, to
establish a Communist totalitarian dictatorship in the countries
throughout the world through the medium of a world-wide Communist
organization." Congress concluded, as stated in @ 2 (15), that the
"Communist organization in the United States" and the worldCommunist movement present a danger to the security of the United
States, a danger requiring legislative action. The congressional
purpose in adopting @ 6 is more specifically stated in @ 2 (8):
"Due to the nature and scope of the world Communist movement,
with the existence of affiliated constituent elements working
toward common objectives in various countries of the world, travel
of Communist members, representatives, and agents from country to
country facilitates communication and is a prerequisite for the
carrying on of activities to further the purposes of the Communist
movement."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
PAGE 80 378 U.S. 500, *509; 84 S. Ct. 1659,
**1665; 1964 U.S. LEXIS 2225,
***15; 12 L. Ed. 2d 992
- [***16]
Section 6 provides that any member of a Communist organization
which has registered or has been ordered to register commits a
crime if he attempts to use or obtain a United States passport.
The section applies to members who act "with knowledge or notice"
that the organization is under a final registration order.
"Notice" is specifically defined in @ 13 (k). That section
provides that publication in the Federal Register of the fact of
registration or of issuance of a final registration order "shall
constitute notice to all members of such organization that such
order has become final." Thus the terms of @ 6 [**1666] apply
whether or not the member actually knows or believes that he is
associated with what is deemed to be a "Communist-action" or a
"Communist-front" organization. [*510] The section also applies
whether or not one knows or believes that he is associated with an
organization operating to further aims of the world Communist
movement and "to establish a Communist totalitarian dictatorship in
the countries throughout the world . . . ." 64 Stat. 987, 50 U. S.
C. @ 781 (1). The provision therefore sweeps within its
prohibition both knowing and unknowing [***17] members. In
related contexts this Court has had occasion to consider the
substantiality of the relationship between an individual and a
group where, as here, the fact of membership in that group has been
made the sole criterion for limiting the individual's freedom. In
Wieman v. Updegraff, 344 U.S. 183, the Court held that the due
process guarantee of the Constitution was violated when a State, in
an attempt to bar disloyal individuals from its employ, excluded
persons solely on the basis of organizational memberships without
regard to their knowledge concerning the organizations to which
they had belonged. The Court concluded that: "Indiscriminate
classification of innocent with knowing activity must fall as an
assertion of arbitrary power." Id., at 191.
Section 6 also renders irrelevant the member's degree of
activity in the organization and his commitment to its purpose.
These factors, like knowledge, would bear on the likelihood that
travel by such a person would be attended by the type of activity
which Congress sought to control. As the Court has elsewhere
noted, "men in adhering to a political party or other organization
notoriously [***18] do not subscribe unqualifiedly to all of its
platforms or asserted principles." Cf. Schneiderman v. United
States, 320 U.S. 118, 136. It was in this vein that the Court in
Schware v. Board of Bar Examiners, 353 U.S., at 246, stated that
even "assuming that some members of the Communist Party . . . had
illegal aims and engaged in illegal activities, it cannot
automatically [*511] be inferred that all members shared their
evil purposes or participated in their illegal conduct." Section 6,
however, establishes an irrebuttable presumption that individualswho are members of the specified organizations will, if given
passports, engage in activities inimical to the security of the
United States. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 The provision in question cannot, as the Government admits,
be limited by adopting an interpretation analogous to this Court's
interpretation of the so-called "membership clause" in the Smith
Act. In Scales v. United States, 367 U.S. 203, the Smith Act,
which imposes criminal penalties for membership, was interpreted to
include only "'active' members having also a guilty knowledge and
intent." Id., at 228. The membership clause in that case, however,
explicitly required "that a defendant must have knowledge of the
organization's illegal
PAGE 81 378 U.S. 500, *511; 84 S. Ct. 1659,
**1666; 1964 U.S. LEXIS 2225,
***18; 12 L. Ed. 2d 992
advocacy." Id., at 221. That requirement was intimately connected
with the construction limiting membership to "active" members.
With regard to the Control Act, however, as the Government
concedes, "neither the words nor history of Section 6 suggests
limiting its application to 'active' members."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***19]
In addition to the absence of criteria linking the bare fact of
membership to the individual's knowledge, activity or commitment,
@ 6 also excludes other considerations which might more closely
relate the denial of passports to the stated purpose of the
legislation. The prohibition of @ 6 applies regardless of the
purposes for which an individual wishes to travel. Under the
statute it is a crime for a notified member of a registered
organization to apply for a passport to travel abroad to visit a
sick relative, to receive medical treatment, or for any [**1667]
other wholly innocent purpose. n10 In determining whether [*512]
there has been an abridgment of the Fifth Amendment's guarantee
of liberty, this Court must recognize the danger of punishing a
member of a Communist organization "for his adherence to lawful and
constitutionally protected purposes, because of other and
unprotected purposes which he does not necessarily share." Noto v.
United States, 367 U.S. 290, 299-300; Scales v. United States, 367
U.S. 203, 229-230. In addition it must be noted that @ 6 applies to
a member regardless of the security-sensitivity [***20] of the
areas in which he wishes to travel. As a result, if a notified
member of a registered organization were to apply for a passport to
visit a relative in Ireland, or to read rare manuscripts in the
Bodleian Library of Oxford University, the applicant would be
guilty of a crime; whereas, if he were to travel to Canada or Latin
America to carry on criminal activities directed against the United
States, he could do so free from the prohibitive reach of @ 6.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 In denying appellants passports the Secretary of State made
no finding as to their purposes in traveling abroad. The statute,
as noted, supports the Secretary's implicit conclusion that such a
finding was irrelevant. Appellants, however, in their respective
complaints stated their purposes. Appellant Aptheker alleged that:
"He desires to travel to countries of Europe and elsewhere for
study and recreation, to observe social, political and economic
conditions abroad, and thereafter to write, publish, teach and
lecture in this country about his observations. He also desires to
travel abroad in order to attend meetings of learned societies and
to fulfill invitations to lecture abroad."
Appellant Flynn alleged that:
"[She] desires to travel to countries of Europe and elsewhere for
recreation and study, to observe social, political and economic
conditions abroad, and thereafter to write, publish and lecture
about her observations."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***21]
PAGE 82 378 U.S. 500, *512; 84 S. Ct. 1659,
**1667; 1964 U.S. LEXIS 2225,
***21; 12 L. Ed. 2d 992
In determining the constitutionality of @ 6, it is also
important to consider that Congress has within its power "less
drastic" n11 means of achieving the congressional objective
[*513] of safeguarding our national security. Shelton v. Tucker,
364 U.S., at 488. The Federal Employee Loyalty Program, which was
before this Court in Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U.S. 123, provides an example. Under Executive Order No. 9835,
membership in a Communist organization is not considered conclusive
but only as one factor to be weighed in determining the loyalty of
an applicant or employee. n12 [*514] It is relevant to [**1668]
note that less than a month after the decision in Kent v. Dulles,
supra, President Eisenhower sent a message to Congress stating
that: "Any limitations on the right to travel can only be tolerated
in terms of overriding requirements of our national security, and
must be subject to substantive and procedural guaranties." Message
from the President --Issuance of Passports, H. Doc. No. 417, 85th
Cong., 2d Sess.; 104 Cong. Rec. 13046. The legislation which the
[***22] President proposed did not make membership in a Communist
organization, without more, a disqualification for obtaining a
passport. S. 4110, H. R. 13318, 85th Cong., 2d Sess. Irrespective
of views as to the validity of this or other such proposals, they
demonstrate the conviction of the Executive Branch that our
national security can be adequately protected by means which, when
compared with @ 6, are more discriminately tailored to the
constitutional liberties of individuals.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 The abridgment of liberty involved in this case is more
"drastic" than, and distinguishable from, that involved in American
Communications Assn. v. Douds, 339 U.S. 382. In Douds the Court
upheld @ 9 (h) of the National Labor Relations Act as amended by
the Taft-Hartley Act, 61 Stat. 136, 146, 29 U. S. C. @ 159 (h),
which conditions trade-union access to the facilities of the
National Labor Relations Board upon the submission of non-Communist
affidavits by officers of the union. Although the requirement
undoubtedly discouraged unions from choosing officers with
Communist affiliations, it did not prohibit their election and did
not affect basic individual rights to work and to union membership.
[***23]
n12 In 1950 the Assistant to the Attorney General of the United
States, Peyton Ford, expressed to Congress the views of the
Department of Justice with regard to a proposed government loyalty
bill which predicated a conclusive presumption of disloyalty on the
fact of organizational membership. Mr. Ford said:
"A world of difference exists, from the standpoint of sound policy
and constitutional validity, between making, as the bill would,
membership in an organization designated by the Attorney General afelony, and recognizing such membership, as does the employee
loyalty program under Executive Order 9835, as merely one piece of
evidence pointing to possible disloyalty. The bill would brand the
member of a listed organization a felon, no matter how innocent his
membership; the loyalty program enables the member to respond to
charges against him and to show, in a manner consistent with
American concepts of justice and fairness, that his membership is
innocent and does not reflect upon his loyalty.
". . . It does not appear, therefore, necessary, even if
constitutionally possible, to add to existing law and regulations
at the present time a penal statute such as proposed in the bill.
PAGE 83 378 U.S. 500, *514; 84 S. Ct. 1659,
**1668; 1964 U.S. LEXIS 2225,
***23; 12 L. Ed. 2d 992
"The foregoing comments represent the considered views of this
Department, having in mind that it is the duty of the Attorney
General to protect the rights of individuals guaranteed by the
Constitution, as well as to protect the Government from
subversion." Hearings on H. R. 3903 and H. R. 7595 before the House
Committee on Un-American Activities, 81st Cong., 2d Sess., 2125.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***24]
In our view the foregoing considerations compel the conclusion
that @ 6 of the Control Act is unconstitutional on its face. The
section, judged by its plain import and by the substantive evil
which Congress sought to control, sweeps too widely and too
indiscriminately across the liberty guaranteed in the Fifth
Amendment. The prohibition against travel is supported only by a
tenuous relationship between the bare fact of organizational
membership and the activity Congress sought to proscribe. The
broad and enveloping prohibition indiscriminately excludes plainly
relevant considerations such as the individual's knowledge,
activity, commitment, and purposes in and places for travel. The
section therefore is patently not a regulation "narrowly drawn to
prevent the supposed evil," cf. Cantwell v. Connecticut, 310 U.S.,
at 307, yet here, as elsewhere, precision must be the touchstone of
legislation so affecting basic freedoms, NAACP v. Button, 371 U.S.,
at 438.
[*515] II.
The Government alternatively urges that, if @ 6 cannot be
sustained on its face, the prohibition should nevertheless be held
constitutional as applied to these particular [***25]
appellants. The Government argues that "surely Section 6 was
reasonable as applied to the top-ranking Party leaders involved
here." n13 It is not disputed that appellants are top-ranking
leaders: Appellant Aptheker is editor of Political Affairs, the
"theoretical organ" of the Party in this country and appellant
Flynn is chairman of the Party. n14
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 The Government recognizes, however, that: "Membership, or
even leadership, in the Communist Party is not automatically a
crime." Brief for Petitioner on Petition for a Writ of Certiorari,
p. 11, United States v. Communist Party of the United States, No.
1027, O. T. 1963, cert. denied, 377 U.S. 968.
n14 For appellants' alleged purposes in traveling, see note 10,
supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It must be remembered that "although this Court will often
strain to construe legislation so as to save it against
constitutional attack, it must not and will not carry this to the
point of perverting the purpose of a statute . . ." or judicially
rewriting [***26] it. Scales v. United States, supra, at 211.
To put the matter another way, this Court will not consider the
abstract question of whether Congress might have enacted a valid
statute but instead must ask whether the statute that Congress did
enact will permissibly bear a construction rendering it free from
constitutional defects.
PAGE 84 378 U.S. 500, *515; 84 S. Ct. 1659,
**1668; 1964 U.S. LEXIS 2225,
***26; 12 L. Ed. 2d 992
The clarity and preciseness of the provision in question make it
impossible to narrow its indiscriminately cast and overly broad
scope without substantial rewriting. The situation here is
different from that in cases such as United States v. National
Dairy Products Corp., 372 U.S. 29, where the Court is called upon
to consider the content [*516] of allegedly vague statutory
language. Here, in contrast, an attempt to "construe" the statute
and to probe its recesses for some core of constitutionality would
inject an element of vagueness into the statute's scope and
application; the plain words would thus become uncertain in meaning
only if courts proceeded on a case-by-case basis to separate out
constitutional from unconstitutional areas of coverage. This
course would not be proper, or desirable, in dealing [***27]
with a section which so severely curtails personal liberty.
Since this case involves a personal liberty protected by the
Bill of Rights, we believe that the proper approach to legislation
curtailing that liberty must be that adopted by this Court in NAACP
v. Button, 371 U.S. 415, and Thornhill v. Alabama, 310 U.S. 88. In
NAACP v. Button the Court stated that:
"In appraising a statute's inhibitory effect upon such rights, this
Court has not hesitated to take into account possible applications
of the statute in other factual contexts besides that at bar.
Thornhill v. Alabama, 310 U.S. 88, 97-98; Winters v. New York, [333
U.S. 507], 518-520. Cf. Staub v. City of Baxley, 355 U.S. 313. .
. . The objectionable quality of vagueness and overbreadth does
not depend upon absence of fair notice to a criminally accused or
upon unchanneled delegation of legislative powers, but upon the
danger of tolerating, in the area of First Amendment freedoms, the
existence of a penal statute susceptible of sweeping and improper
application. Cf. Marcus v. Search Warrant, 367 U.S. 717, 733.
[***28] These freedoms are delicate and vulnerable, as well as
supremely precious in our society. The threat of sanctions may
deter their exercise almost as potently as the actual application
of sanctions." 371 U.S., at 432-433.
[*517] For essentially the same reasons this Court had concluded
that the constitutionality of the statute in Thornhill v. Alabama
should be judged on its face:
"An accused, after arrest and conviction under such a statute [on
its face unconstitutionally abridging freedom of speech], does not
have to sustain the burden of demonstrating that the State could
not constitutionally have written a different and specific statutecovering his activities as disclosed by the charge and the evidence
introduced against him." 310 U.S., at 98. n15
Similarly, since freedom of travel is a constitutional liberty
closely related to rights of free speech and association, we
believe that appellants in this case should not be required to
assume the burden of demonstrating that Congress could not
[**1670] have written a statute constitutionally prohibiting
their travel. n16
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
PAGE 85 378 U.S. 500, *517; 84 S. Ct. 1659,
**1670; 1964 U.S. LEXIS 2225,
***28; 12 L. Ed. 2d 992
n15 See Freund, The Supreme Court of the United States (1961),
pp. 67-69; Note, 61 Harv. L. Rev. 1208 (1948); Note, 109 U. Pa. L.
Rev. 67, 75-85 (1960). [***29]
n16 Nor in our opinion should the Secretary of State or other
government officers be exposed to the risk of criminal penalties
for violating @ 6 (b) by issuing a passport to a member of a
registered Communist-action organization who is subsequently found
by a court to be a person whose travel, contrary to the belief of
the government officer, could constitutionally be prohibited.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Accordingly the judgment of the three-judge District Court is
reversed and the cause remanded for proceedings in conformity with
this opinion.
Reversed and remanded.
CONCURBY: BLACK; DOUGLAS
CONCUR: MR. JUSTICE BLACK, concurring.
Section 6 of the Subversive Activities Control Act makes it a
felony for a member of a "Communist," "Communist-action," or
"Communist-front" organization to apply for, use, or attempt to use
a passport for travel [*518] abroad. I concur in the Court's
holding that this section of the Act is unconstitutional, but not
on the ground that the Due Process Clause of the Fifth Amendment,
standing alone, confers on all our people a constitutional liberty
to travel abroad at will. Without reference to other
constitutional [***30] provisions, Congress has, in my judgment,
broad powers to regulate the issuance of passports under its
specific power to regulate commerce with foreign nations. The Due
Process Clauses of the Fifth and Fourteenth Amendments do mean to
me, however, that neither the Secretary of State nor any other
government agent can deny people in this country their liberty to
travel or their liberty to do anything else except in accordance
with the "law of the land" as declared by the Constitution or by
valid laws made pursuant to it. For reasons stated in my
dissenting opinion in Communist Party v. Subversive Activities
Control Board, 367 U.S. 1, 137, I think the whole Act, including @
6, is not a valid law, that it sets up a comprehensive statutory
plan which violates the Federal Constitution because (1) it
constitutes a "Bill of Attainder," which Art. I, @ 9, of the
Constitution forbids Congress to pass; (2) it penalizes and
punishes appellants and restricts their liberty on legislative and
administrative fact-findings that they are subversives, and in
effect traitors to their country, without giving them the benefit
of a trial according to due process, which requires [***31] atrial by jury before an independent judge, after an indictment,
and in accordance with all the other procedural protections of the
Fourth, Fifth, and Sixth Amendments; and (3) it denies appellants
the freedom of speech, press, and association which the First
Amendment guarantees.
The Subversive Activities Control Act is supposed to be designed
to protect this Nation's "internal security." This case offers
another appropriate occasion to point out that the Framers thought
(and I agree) that the best way [*519] to promote the internal
security of our people is to protect their First Amendment freedoms
of speech, press, religion and assembly, and that we cannot take
away the liberty of groups whose views most people detest without
PAGE 86 378 U.S. 500, *519; 84 S. Ct. 1659,
**1670; 1964 U.S. LEXIS 2225,
***31; 12 L. Ed. 2d 992
jeopardizing the liberty of all others whose views, though popular
today, may themselves be detested tomorrow.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I add only a few words to
indicate what I think is the basic reach of the problem before us.
We noted in Kent v. Dulles, 357 U.S. 116, 126, that "freedom of
movement," both internally and abroad, is "deeply engrained" in our
history. I [***32] would not suppose that a Communist, any more
than an indigent, could be barred from traveling interstate. I
think that a Communist, the same as anyone else, has this right.
Being a Communist certainly is not a crime; and while traveling may
increase [**1671] the likelihood of illegal events happening,
so does being alive. If, as I think, the right to move freely from
State to State is a privilege and immunity of national citizenship
(see Edwards v. California, 314 U.S. 160, 178), none can be barred
from exercising it, though anyone who uses it as an occasion to
commit a crime can of course be punished. But the right remains
sacrosanct, only illegal conduct being punishable.
Free movement by the citizen is of course as dangerous to a
tyrant as free expression of ideas or the right of assembly and it
is therefore controlled in most countries in the interests of
security. That is why riding boxcars carries extreme penalties in
Communist lands. That is why the ticketing of people and the use
of identification papers are routine matters under totalitarian
regimes, yet abhorrent in the United States.
Freedom of movement, at home and abroad, is important [***33]
for job and business opportunities -- for cultural, [*520]
political, and social activities -- for all the commingling which
gregarious man enjoys. Those with the right of free movement use
it at times for mischievous purposes. But that is true of many
liberties we enjoy. We nevertheless place our faith in them, and
against restraint, knowing that the risk of abusing liberty so as
to give rise to punishable conduct is part of the price we pay for
this free society.
Freedom of movement is kin to the right of assembly and to the
right of association. These rights may not be abridged, De Jonge
v. Oregon, 299 U.S. 353; NAACP v. Alabama, 357 U.S. 449, 460-462,
only illegal conduct being within the purview of crime in the
constitutional sense.
War may be the occasion for serious curtailment of liberty.
Absent war, I see no way to keep a citizen from traveling within or
without the country, unless there is power to detain him. Exparte Endo, 323 U.S. 283. And no authority to detain exists except
under extreme conditions, e. g., unless he has been convicted of a
crime or unless there is probable [***34] cause for issuing a
warrant of arrest by standards of the Fourth Amendment. This
freedom of movement is the very essence of our free society,
setting us apart. Like the right of assembly and the right of
association, it often makes all other rights meaningful -- knowing,
studying, arguing, exploring, conversing, observing and even
thinking. Once the right to travel is curtailed, all other rights
suffer, just as when curfew or home detention is placed on a
person.
America is of course sovereign; but her sovereignty is woven in
an international web that makes her one of the family of nations.
The ties with
PAGE 87 378 U.S. 500, *520; 84 S. Ct. 1659,
**1671; 1964 U.S. LEXIS 2225,
***34; 12 L. Ed. 2d 992
all the continents are close -- commercially as well as culturally.
Our concerns are planetary, beyond sunrises and sunsets.
Citizenship implicates us in those problems and perplexities, as
[*521] well as in domestic ones. We cannot exercise and enjoy
citizenship in world perspective without the right to travel
abroad; and I see no constitutional way to curb it unless, as I
said, there is the power to detain.
DISSENTBY: CLARK
DISSENT: MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN joins and whom
MR. JUSTICE WHITE joins in part, dissenting.
I.
The Court refuses to consider the constitutionality [***35]
of @ 6 of the Subversive Activities Control Act as applied to the
appellants in this case, Elizabeth Gurley Flynn, the Chairman of
the Communist Party of the United States, and Herbert Aptheker, the
editor of the Party's "theoretical organ," Political Affairs.
Instead, the Court declares the section invalid on its face under
the Fifth Amendment. This is contrary to the long-prevailing
practice of this Court. As we said in United States [**1672] v.
Raines, 362 U.S. 17, 20-21 (1960):
"The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power and
duty of those courts to decide cases and controversies properly
before them. This was made patent in the first case here
exercising that power -- 'the gravest and most delicate duty that
this Court is called on to perform.' [Holmes, J., in Blodgett v.
Holden, 275 U.S. 142, 148.] Marbury v. Madison, 1 Cranch 137,
177-180. This Court, as is the case with all federal courts, 'has
no jurisdiction to pronounce any statute, either of a State or of
the United States, void, because irreconcilable with the
Constitution, [***36] except as it is called upon to adjudge
the legal rights of litigants in actual controversies. In the
exercise of that jurisdiction, it is bound by two rules, to which
it has rigidly adhered, [*522] one, never to anticipate a
question of constitutional law in advance of the necessity of
deciding it; the other never to formulate a rule of constitutional
law broader than is required by the precise facts to which it is to
be applied.' Liverpool, New York & Philadelphia S. S. Co. v.
Commissioners of Emigration, 113 U.S. 33, 39. Kindred to these
rules is the rule that one to whom application of a statute is
constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be
unconstitutional. United States v. Wurzbach, 280 U.S. 396; Heald v.District of Columbia, 259 U.S. 114, 123; Yazoo & Mississippi Valley
R. Co. v. Jackson Vinegar Co., 226 U.S. 217; Collins v. Texas, 223
U.S. 288, 295-296; New York ex rel. Hatch v. Reardon, 204 U.S. 152,
160-161. [***37] Cf. Voeller v. Neilston Warehouse Co., 311 U.S.
531, 537; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495,
513; Virginian R. Co. v. System Federation, 300 U.S. 515, 558;
Blackmer v. United States, 284 U.S. 421, 442; Roberts & Schaefer
Co. v. Emmerson, 271 U.S. 50, 54-55; Jeffrey Mfg. Co. v. Blagg, 235
U.S. 571, 576; Tyler v. Judges of the Court of Registration, 179
U.S. 405; Ashwander v. TVA, 297 U.S. 288, 347-348 (concurring
opinion)."
PAGE 88 378 U.S. 500, *522; 84 S. Ct. 1659,
**1672; 1964 U.S. LEXIS 2225,
***37; 12 L. Ed. 2d 992
Indeed, only last Term we specifically held in United States v.
National Dairy Products Corp., 372 U.S. 29, 36 (1963):
"In this connection we also note that the approach to
'vagueness' governing a case like this is different from that
followed in cases arising under the First Amendment. There we are
concerned with the vagueness of the statute 'on its face'. . . .
[In [*523] other cases we also consider the statute] in the
light of the conduct to which it is applied."
The Court says that National Dairy is not apposite, [***38]
citing Thornhill v. Alabama, 310 U.S. 88, and NAACP v. Button, 371
U.S. 415. But Thornhill and Button are First Amendment cases, while
the holding of this case is based [**1673] on the Fifth
Amendment's guarantee of the right to travel abroad. Kent v.
Dulles, 357 U.S. 116, 127 (1958). Consequently they are not
apposite here.
As applied to the prosecution of the Communist Party's top
dignitaries, the section is clearly constitutional. The only
objections the Court finds to the language of Congress are that it
makes the section applicable: (1) "whether or not the member [of
the Party] actually knows or believes that he is associated with
what is deemed to be a 'Communist-action' or a 'Communist-front'
organization"; (2) "whether or not one knows or believes that he is
associated with an organization operating to further aims of the
world Communist movement and 'to establish a Communist totalitarian
dictatorship in the countries throughout the world . . . .'" Let us
discuss these objections seriatim:
(1) There is a finding here -- not under attack -- that Mrs.
Flynn "was an active, participating and [***39] continuous
member of the Communist Party of the United States; was active in
the Party's affairs and its organization; and indeed was and still
is one of its principal officials." Likewise there is a finding --
not under attack -- as to Aptheker that he "[Aptheker] makes it
quite clear in his own words that he has been a member of the
Communist Party since 1939 and that he is very proud of this
association and will do whatever he can to further the aims and
goals of the Party." The record shows that both Flynn and Aptheker
were witnesses in behalf of the Party in the registration
proceeding which resulted in [*524] the Party's being ordered
to register as a Communist-action organization. Communist Party v.
Subversive Activities Control Board, 367 U.S. 1 (1961). In
addition, Mrs. Flynn was convicted under the Smith Act. See United
States v. Flynn, 216 F.2d 354 (1954). In view of these
circumstances, no one could say with truth that the appellants did
not know that they were associated with a Communist-action
organization. In fact, neither appellant claims lack of notice orknowledge of the requirements of the section. [***40]
(2) As to knowledge that the Communist Party is involved in a
world Communist movement aimed at establishing a totalitarian
Communist dictatorship in countries throughout the world, Congress
made specific findings in the Subversive Activities Control Act of
1950 (the very statute under which the hearing was held at which
petitioners testified for the Party) and in the Communist Control
Act of 1954 that: "the Communist Party of the United States . . .
is in fact an instrumentality of a conspiracy to overthrow the
Government of the United States," 68 Stat. 775; "the policies and
programs of the Communist Party are secretly prescribed for it by
the foreign leaders of the world Communist movement," ibid.; this
control is in a "Communist dictatorship of a
PAGE 89 378 U.S. 500, *524; 84 S. Ct. 1659,
**1673; 1964 U.S. LEXIS 2225,
***40; 12 L. Ed. 2d 992
foreign country," whose purpose is "to establish a Communist
totalitarian dictatorship in the countries throughout the world,"
64 Stat. 987; and this is to be accomplished by "action
organizations" in various countries which seek "the overthrow of
existing governments by any available means," id., at 988. These
findings of the Congress, like those of the Examiner which are not
under attack here, are binding on this Court. [***41]
Communist Party v. Control Board, supra. There we said:
"It is not for the courts to re-examine the validity of these
legislative findings and reject them. See [*525] Harisiades v.
Shaughnessy, 342 U.S. 580, 590. They are the product of extensive
investigation by Committees of Congress over more than a decade and
a half. Cf. Nebbia v. New York, 291 U.S. 502, 516, 530. We
certainly cannot dismiss them as unfounded or irrational
imaginings. See Galvan v. Press, 347 U.S. 522, 529; [**1674]
American Communications Assn. v. Douds, 339 U.S. 382, 388-389." At
94-95.
It is, therefore, difficult for me to see how it can be said
rationally that these appellants -- top Party functionaries who
testified on behalf of the Party in the registration proceeding
involved in Communist Party v. Control Board, supra -- did not know
that they were "associated with an organization operating to
further aims of the world Communist movement and 'to establish a
Communist totalitarian dictatorship in the countries throughout the
world . . . .'"
How does [***42] the Court escape? It says that the section
"sweeps within its prohibition both knowing and unknowing members."
But we have no "unknowing members" before us. Neither appellant
contests these findings. All we have are irrational imaginings: a
member of the Party might wish "to visit a relative in Ireland, or
to read rare manuscripts in the Bodleian Library of Oxford
University . . . ." But no such party is here and no such claim is
asserted. It will be soon enough to test this situation when it
comes here.
II.
Nor do I believe the section invalid "on its face." While the
right to travel abroad is a part of the liberty protected by the
Fifth Amendment, the Due Process Clause does not prohibit
reasonable regulation of life, liberty or property. Here the
restriction is reasonably [*526] related to the national
security. As we said in Barenblatt v. United States, 360 U.S. 109,
127-128 (1959):
"That Congress has wide power to legislate in the field of
Communist activity in this Country, and to conduct appropriateinvestigations in aid thereof, is hardly debatable. The existence
of such power has never been questioned by this Court . . . .
[***43] In the last analysis this power rests on the right of
self-preservation, 'the ultimate value of any society,' Dennis v.
United States, 341 U.S. 494, 509."
The right to travel is not absolute. Congress had ample evidence
that use of passports by Americans belonging to the world Communist
movement is a threat to our national security. Passports were
denied to Communists from the time of the Soviet Revolution until
the early 30's and then again later in the 40's. In 1950 Congress
determined, in the Subversive Activities Control Act, that foreign
travel "is a prerequisite for the carrying on of activities to
further the purposes of the Communist movement." 64 Stat. 988. The
Congress had before it
PAGE 90 378 U.S. 500, *526; 84 S. Ct. 1659,
**1674; 1964 U.S. LEXIS 2225,
***43; 12 L. Ed. 2d 992
evidence that such use of passports by Communist Party members:
enabled the leaders of the world Communist movement in the Soviet
Union to give orders to their comrades in the United States and to
exchange vital secrets as well; facilitated the training of
American Communist leaders by experts in sabotage and the like in
Moscow; gave closer central control to the world Communist
movement; and, of utmost importance, provided world Communist
leaders with passports [***44] for Soviet secret agents to use
in the United States for espionage purposes. * This evidence
afforded the Congress [**1675] a rational [*527] basis upon
which to place the denial of passports to members of the Communist
Party in the United States. The denial is reasonably related to
the national security. The degree of restraint upon travel is
outweighed by the dangers to our very existence.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
* In the proceeding which led to the order of the Subversive
Activities Control Board directing the Communist Party to register,
the Board heard evidence that the present leaders of the Communist
Party in the United States have traveled to the Soviet Union on
Party business, have been indoctrinated and trained in Communist
strategy and policies and have acted as couriers between the
Communist Parties of the two countries.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The remedy adopted by the Congress is reasonably tailored to
accomplish the purpose. It may be true that not every member of
the Party would endanger our national security by traveling abroad,
but which [***45] Communist Party member is worthy of trust?
Since the Party is a secret, conspiratorial organization subject to
rigid discipline by Moscow, the Congress merely determined that it
was not wise to take the risk which foreign travel by Communists
entailed. The fact that all persons in a class may not engage in
harmful conduct does not of itself make the classification invalid.
Westfall v. United States, 274 U.S. 256, 259 (1927); North American
Co. v. Securities & Exchange Comm'n, 327 U.S. 686, 710-711 (1946);
American Communications Assn. v. Douds, 339 U.S. 382, 406 (1950).
In Schneiderman v. United States, 320 U.S. 118, 132, 163, 172
(1943), this Court indicated that Congress might exclude all
Communists from entering this country. And in Hawker v. New York,
170 U.S. 189 (1898), the Court upheld a state statute preventing
all felons from practicing medicine; similarly, all aliens may be
barred from operating pool halls, Clarke v. Deckebach, 274 U.S.
392, 396-397 (1927). More onerous burdens than those found in @
[***46] 6 were placed on all union officers (whose organization
was enjoying privileges under the National Labor Relations Act),
who were barred from their offices (and livelihood in that regard)if they were Communist Party members. American Communications
Assn. v. Douds, supra. Likewise, this [*528] Court approved the
action of the Congress in authorizing deportation of all aliens who
had been members of the Party. Harisiades v. Shaughnessy, 342 U.S.
580, 590 (1952); Galvan v. Press, 347 U.S. 522 (1954). We also
upheld the vesting of power in the Attorney General to hold all
Communist Party members without bail pending determination as to
their deportability. Carlson v. Landon, 342 U.S. 524 (1952). In
the realm of state power, Maryland was permitted to require all
candidates to take an oath that they were not engaged in any
attempt to overthrow the Government by force and violence, Gerende
v. Board of Supervisors, 341 U.S. 56 (1951); Los Angeles was
allowed to require all employees to take a non-Communist oath on
penalty of discharge, Garner v.
PAGE 91 378 U.S. 500, *528; 84 S. Ct. 1659,
**1675; 1964 U.S. LEXIS 2225,
***46; 12 L. Ed. 2d 992
Board of Public Works, 341 U.S. 716 (1951); [***47] New York
exercised similar powers over public school employees with our
approval, Adler v. Board of Education, 342 U.S. 485 (1952); the
States were permitted to discharge all teachers and "security
agency" employees who refused to answer questions concerning their
Communist affiliations, Beilan v. Board of Public Education, 357
U.S. 399 (1958); Lerner v. Casey, 357 U.S. 468 (1958); and
California and Illinois were permitted to deny admission to the
practice of law of all applicants who refused to answer questions
as to their Communist affiliations, Konigsberg v. State Bar, 366
U.S. 36 (1961), and In re Anastaplo, 366 U.S. 82 (1961).
Nor do I subscribe to the loose generalization that individual
guilt may be conclusively presumed from membership in the Party.
One cannot consider the matter in isolation but must relate it to
the subject matter involved and the legislative [**1676]
findings upon which the action is based. It is true that in
[**1669] Scales v. United States, 367 U.S. 203 (1961), the Court
found that the intention [***48] of the Congress in the Smith
Act was "to reach only 'active' members having also a guilty
knowledge and intent." At 228. [*529] But that was a criminal
prosecution under the Smith Act which, of course, carried stricter
standards. And, in addition, this requirement, as laid down in
Scales, was not held to be a constitutional mandate. The Court was
merely interpreting a criminal statute which directly prohibits
membership in organizations that come within its terms. The Act
here does not prohibit membership, but merely restricts members in
a field in which the Congress has found danger to our security.
Nor is Wieman v. Updegraff, 344 U.S. 183 (1952), cited by the
majority, apposite here. That case dealt with an oath based on
membership in organizations on the Attorney General's list of
subversive groups. The Act condemned the employee who was a member
of any listed organization regardless of whether he actually knew
the organization was so listed; furthermore, the statute proscribed
past membership in the listed organizations. Here proof of actual
membership is necessary and notice of registration or entry of a
final order directing registration [***49] under the Act is
required. Finally, the member of the Party here can avoid the Act's
sanctions by terminating his membership, which was not possible in
Wieman. Appellants also depend on Adler v. Board of Education, 342
U.S. 485 (1952), which upheld a statute with a rebuttable
presumption that members of the Party supported Communist
objectives. The Court did not hold that the opportunity to rebut
was constitutionally required in the circumstances of that case,
but even if it had, Adler would not control here. The evidence
before Congress as to the danger to national security was of such
strength that it warranted the denial of passports, a much less
onerous disability than loss of employment.
For these reasons, I would affirm.
MR. JUSTICE WHITE joins in Section I of this dissent and for the
reasons stated therein would affirm the judgment.