APTHEKER ET AL. v. SECRETARY OF STATE
No. 461
Supreme Court of the United States
Argued April 21, 1964. - Decided June 22, 1964.
378 U.S. 500
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.
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,
“(a) When a Communist organization1 . . . is registered, or there is in effect a final order of the Board requiring such organization to register, it shall
“(1) to make application for a passport, or the renewal of a passport, to be issued or renewed by or under the authority of the United States; or
“(2) to use or attempt to use any such passport.”2
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 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
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 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.3 Both appellants appealed to the Board of Passport Appeals which recommended affirmance of the revocations. The Secretary of State subsequently approved the recommendations 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.‘”
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
The three-judge District Court, which was convened to review the constitutional question, rejected appellants’ contentions, sustained the сonstitutionality 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 regu-
latory scheme bears a reasonable relation 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 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. Altеrnatively, 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, . . . may be as close to the heart оf the
individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”5 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 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 of the Control Act. The Court, however, did not pass upon the “various consequences of the Party‘s registration for its individual members,” id., at 70, 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 procedures will be available to test the constitutionality of applications of particular sections of the Act to particular persons in
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.
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.6 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,7 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.
Although previous cases have not involved the constitutionality of statutory restrictions upon the right to travel
“[E]ven 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 рurpose underlying § 6 of the Control Act.8
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 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” organi-
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 do not subscribe unqualifiedly to all of its platforms or asserted prinсiples.” 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 “[a]ssuming that some members of the Communist Party . . . had illegal aims and engaged in illegal activities, it cannot auto-
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 other wholly innocent purpose.10 In determining whether
In determining the constitutionality of § 6, it is also important to consider that Congress has within its power “less drastic”11 means of achieving the congressional ob-
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 cоnsiderations 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.
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 appellants. The Government argues that “surely Section 6 was reasonable as applied to the top-ranking Party leaders involved here.”13 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.14
It must be remembered that “[a]lthough 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 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.
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
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:
“[I]n 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 existеnce of a penal statute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U. S. 717, 733. 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.
“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 statute covering his activities as disclosed by the charge and the evidence introduced against him.” 310 U. S., at 98.15
Similarly, since freedom of travel is a constitutional liberty closely related to rights of free speech and association, we beliеve that appellants in this case should not be required to assume the burden of demonstrating that Congress could not have written a statute constitutionally prohibiting their travel.16
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.
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
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
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 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 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 рeople 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 for job and business opportunities—for cultural,
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. Ex parte 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 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 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
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 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 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 gravеst 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, 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,
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. 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).”
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
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, 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 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 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
(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 foreign country,” whose purpose is “to establish a Com-munist 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. 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
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; 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 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
“That Congress has wide power to legislate in the field of Communist activity in this Country, and to conduct appropriate investigations in aid thereof, is hardly debatable. The existence of such power has never beеn questioned by this Court . . . . 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 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 for Soviet secret agents to use in the United States for espionage purposes.* This evidence afforded the Congress a rational
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 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; North American Co. v. Securities & Exchange Comm‘n, 327 U. S. 686, 710–711; 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 § 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
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 findings upon which the action is based. It is true that in Scales v. United States, 367 U. S. 203 (1961), the Court found that the intention of the Congress in the Smith Act was “to reach only ‘active’ members having also a guilty knowledge and intent.” At
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.
Notes
“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 employеe 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,
“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.”
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.”
“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 a felony, 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 mеmber 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.
“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.