*1
Hughes
annuity
complete
plan
Life Assurance
trust.
frustration of an
v. Sun
Canada,
Cir.,
110;
159 F.2d
and the
because of its termination
sub-
Co.
sequent
pension
Life Insurance
new
Moses v. Manufacturers
substitution of a
D.C.S.C.,
F.Supp.
plan.
Company,
February 18,
contribu-
As of
Option
Authority
$469,-
Settlement s -
tions
totalled
Life Insurance
Debts,
$287,401.-
employees
The 389.64 and those of
Trust or
42 Col.L.Rev. 32.
paid up
contract
Association
16. Benefits
to that date
between the
$3,527.47.
permitted
John
the former to amount
financial
Hancock
The
any part
employees
stake of
individual
reinsure all
through
the benefits
plan
companies
insurance
authorized
I am advised
miniscule.
to do
of New York.
counsel that
small annui-
so under the laws
settlements of
(that
is,
pay
ties
those that would
less
spe-
The
Act
Securities
per
being
year)
than
made
are
$80.00
cifically exempts annuity
contracts.
$53,945.-
paid
John
It has
out
Hancock.
77c(a) (8);
E.
U.S.C.
C. Varia-
S.
§
February
02 as of
18th.
Annuity
Company,
ble
Life Insurance
Against
background I
this
decid-
have
therefrom re surplus.
serve or The claim of the Au
thority pay the failure to a divi year
dend the final for of the contract arbitrary must be denied. MANDEL, Ernest Mermelstein, David The motions of the defendants for Wassily Birnbaum, Leontief, Norman granted summary judgment are as to Heilbroner, Robert L. Robert Paul III, II, Counts IV V each Wolff, Chomsky, Menashe, Louis Noam these Falk, Plaintiffs, Counts dismissed. Defendants’ and Richard A. summary judgment motions for I, amended, Count is overruled—at MITCHELL, Attorney John M. General being. least for the time Plaintiffs’ mo- the United Rogers, P. William judgment summary Secretary is denied. State, Defendants. No. 70 C 344. equity grant Courts of should com- plete relief in causes in Court, United States District jurisdiction. persons All at interest E. D. New York. litigation parties. plain- this are March tiff-employees, who number representative except of their class go apparently preferred three who along plan. with the 1955 Their are, course, The other inviolable. apparently
contributors to the fund money
want their back. defendants required pay ques-
are not them but accounting
tions to an related are bound despite disposition arise
controlling litigation. issues in
They inhere in a case there is a where *2 specified speak dates specified colleges or universities Alleging
three conferences. plaintiff professors and other citizens speak desire to have Mandel at universi- ties and other forums to hear his views *3 City Boudin, York B. New Leonard engage and open and “free academic (Rabinowitz, Standard and Boudin & exchange,” they end have to that City, Rosenberg, York of New David participate invited him to in a of series counsel) plaintiffs. for university public for- conferences and Baker, (Edward Lloyd Islip, N. Y. H. ums, accepted that Mandel in- has counsel) Neaher, Atty. for of U. R. S. clearing vitation and that his admissi- defendants. again bility setting up in advance a appearances necessary, Judge schedule of and FEINBERG, Before Circuit charge 212(a) plaintiffs DOOLING, that Section District and BARTELS (28) (d) (3) (A) and in- Judges. of the Act is valid under the First and Fifth Amend- imposing prior DOOLING, Judge. ments as a restraint on District constitutionally protected communica- The suit declaratory judgment a seeks tion, predicating and exclusion belief on applied on its face and as Section advocacy not allied with “unlawful 212(a) (28) (d) (3) (A) and of the Im- speech conduct,” denying equal migration Nationality and Act of protection excluding law leftists 1182(a) (28) (d) (3) (A) § U.S.C. is un- rightist extremists, failing but not constitutional. 212(a) (28) Section provide process safeguards de- due for ineligible the Act declares visas termining failing ineligibility, excludes from admission to provide standards for the exercise States aliens who are or at time were exclude, Attorney discretion to General’s members of described classes and, particular of Man- case identified with certain leftist and ex- del, Attorney Secretary General political doctrines; tremist Section 212 arbitrarily acted without evidence (d) (A) temporary authorizes the finding support in- sufficient a ineligible admission an and excluded eligibility, re- or to furnish a basis for alien in the unbounded discretion Secretary’s jecting the recommendation Attorney Attorney General after temporarily. be admitted that Mandel approves General a recommendation of preliminary in- move for Secretary Plaintiffs of State or the consular junction restraining Attorney Gen- officer that the alien be admitted tem- Secretary porarily from enforc- despite eral State ineligibility. his Plain- (A) ing (d) (3) 212(a) (28) and Mandel, tiff Section who had been admitted in against plaintiffs. Attorney of the Act Since General’s discretion exer- sought injunction restrain would 212(d) (A) cised under Section enforcement, operation execution of 1962 and was denied admission repugnance ground Act 1969 on the that the consular of- judge re- Constitution, a three court ineligible ficer had found him for a visa pass has quired motion and on the “because his affiliations,” subversive Judge designated by “flagrant the Chief been his oppor- abuse of the Circuit, 28 U.S.C. §§ Second tunities express afforded him to country” during views in his
visit made a favorable plaintiffs exercise It is concluded that en- discretion to admit him preliminary injunction unwarranted. titled to the seek. joined Plaintiff Mandel is in his suit by professors higher agree parties of institutions of rel- there no education some facts, of whom controversy had invited him evant revolutionary teachers, scien- directly tion tists, presented lead the facts technicians, It “standing” intellectuals. questions of heart of potential that revolu- is the fusion presents. validity ease large tionary consciousness Belgium, Ernest Mandel is citizen of through campaigns masses workers Belgian editor-in-chief of Left-So- demands, for transitional actions weekly GAUCHE, cialist LA and the au- pro- culminating in control of workers’ thor of a two entitled “Marx- volume text building it is the duction. And Theory” published ist Economic in 1969. revolutionary party revolu- and the appears not to be denied that Mandel tionary we better International. correctly categorized can “an or- combining ele- all these succeed Trotskyist school,” thodox and, Marxist of ments, so- shall be the closer we speech, given in a said to have been emancipation world and to cialist recording tape a conference in ” *4 all mankind! of labor and of New on York November Mandel ais Mandel It that is claimed exponent” described himself as “an Party or its of the Communist member the doctrine Karl text Marx. The on affiliates, asserted has and Mandel resolutely speech the in its is Marxist applications he not. his that g., referring visa (e. claims to the trend of working-class initiatives in Western Eu- had been admitted Mandel rope indicating revolutionary poten- as working (as in a United States tial, why the text “And continues again 1968, on journalist) in both and revolutionary strategy a in the Marxist although Department of occasions— possible sense of the and word both that fact was State concedes indispensable, upsurge if the new finding of brought a him—after home working militancy class nowis ineligibility an exercise and swing Europe full de- not to end in Attorney dis- General’s his favor previous feat it did in the main three temporarily under him to admit cretion periods upsurge: at end of recom- 212(d) Act on Section I; during mid-thir- World War Department of State. mendation ; ties and at the War end World accepted During Mandel his 1968 visit II”). speech concludes, passage in a engagements than 30 speaking at more exemplifies that at aca- once Mandel’s colleges in or universities advocacy revolutionary demic doctrine Harvard, (including and Canada States Swarthmore, and marks its difference from incite- Michigan, Antioch, Notre ment to subversive action: Berkeley); Colum- at he was Dame and University of times, at three bia brings conclusion back to “This us twice, spoke the So- Pennsylvania at and starting point. What are Rutgers. Conference change cialist Scholars agencies of social in the West early apparently extended visit His today? It is the basic thrust of September until November. productive themselves, under- forces
mining, eroding, shaking periodic- par- and In 1969 Mandel invited to ally way private property, ticipate “Technology in a violent in a conference on nation-state, generalized and mar- and the Third at Stanford World” Uni- pe- economy. speak- versity It ket inevitable on October 17 and 18 aas explosions speech panelist riodic against labor’s discontent er to discuss given producer, alienation as John Gal- Professor K. pro- capitalist Harvard; recip- relations of braith of he was the regional- level, locally, faculty speak plant requests duction ly, ient also nationally. during reemer- is the univer- lecture his visit at several Princeton, genee including revolutionary colleges consciousness sities or youth through Amherst, School, the transmission the New Columbia revolution, request student-group Vassar, the stu- belts the colonial of a genera- revolt, participate dent of a on social rise new in a conference Immigration of a to the demands economic conversion for Mr. Mandel. The society peace-oriented (acting at Massachusetts Naturalization for the Service Technology, Attorney General) responded he was by Institute arranged speak at a conference waiver was not warranted.” Bertrand Peace Foundation Russell By February letter the De- on Scholars Conference Socialist partment (Immigration of Justice Change,” “Agencies individ- of Social Service) plain- Naturalization advised “Revolutionary subject Strate- ual gy to be counsel, explaining tiffs’ after the ear- Imperialist Countries.” lier determination that Mandel “was in- * ** applied eligible Mandel for a visa because his sub- Brussels September 8,1969, affiliations,” to attend the versive Stan- conference, ford to leave for the United “On his last visit Man- Mr. days. stay on October 14 and six entry for a del’s was authorized series orally He was told on October 23 and engagements in of academic the Unit- letter of October that a visa here, activities, ed States. His while refused; waiver had been letter reported press much were explained ineligi- that he had been ruled beyond purposes far stated went ble for 212(a) admission under Section trip, basis of which his of his on the that in 1962 and in 1968 authorized and admission had been upon Embassy recommendation the De- flagrant represented a abuse of *5 partment of State had exercised dis- express opportunities him to afforded grant temporary cretion to admission un- country. his views this 212(d) der Section that but “Accordingly, rec- recent when requested Washington waiver Sep- per- made that he be ommendation was tember had been denied. The Consul time, it third was mitted to enter for a advised request that a second for waiver favorable exercise that the concluded being was forwarded in connection authority provided discretionary application Mandel’s new-filed of Octo- Immigration and National- under the ity ber 22 for a visa to and attend lecture and his Act was not warranted conferences at various institutions. A not author- temporary admission was Department 6, State letter of November changing for is no basis There ized. 1969, plaintiffs’ explained counsel determination.” the earlier “waivers” were conditioned plaintiffs other than Mandel are conformity on itinerary, activities citizens of the States who is- United had purposes and tion, applica- stated the visa e., (i. sued invitations to Mandel 1969 engaged that in 1968 Mandel had plaintiffs Birnbaum, Heilbroner), or beyond purposes activities the stated participate programs were in which trip, ground his that on that a waiver participate Mandel was also invited to sought September had not been on the (i. e., Chomsky), to have Mandel or wish application visa but that Mandel since speak at forums. may universities not have known the conditions on alleged plaintiffs are unable issued, which the earlier visas had been program appearances set engaged dates and had now to his conform eligibility because Mandel’s make status itinerary purposes, stated partment the De- appearance. impossible his assure reconsidering case and his joined have on Man- discussing Plaintiffs that basis Department present enjoin del in the enforce- suit January 27, 1970, Justice. On De- provi- him exclusion partment ment of State advised the Bertrand grounds. sion constitutional Russell Peace Foundation the De- partment of State opposes The Government the motion on “ * * * ground, challenged, in the ex- interest of free that Mandel not pression opinion exchange “economic, interna- is an advocate of the ideas, governmental waiver [had] recommended a tional and doctrines of law, ineligi- all or of forms and therefore United States world communism” killing (ii) assaulting or the unlawful under Section receive visa ble (either specific (D) officer or officers and also an alien advocating generally), publishes or of officers individuals matter writes damage, injury, (iii) teaching or de- com- the unlawful the doctrines of world sabotage, (iv) ineligible property, re- struction of munism and therefore 212(a) (28) (v) United the establishment ceive visa Section dictatorship. (v). position is (G) States of a totalitarian The Government’s power Attorney required existence of valid Governmental General justify prevent by anticipation translation support for or to to have factual grant discretionary proscribed into the for- doctrines decision not to may temporary to bidden be con- subversive activities admission since exclu- at least at ex- exclude is absolute and waiver of sidered established grace. purely likely produc- a matter of treme of incitement to sion action, of subversive To the ultimate issue determine point pure in- communication is dependent “stand- issue of case and the steps volved, set but the at- verbal ing” analysis requires of the sub- first an being tack in v. train are taken. Dennis 212(a) Section stantive content of 508, States, 494, 1951, 341 U.S. Amendment, First in its relation to the 510-512, 545, 857, L.Ed. S.Ct. effect and then a consideration (concurring opinion); v. United Yates operating define oc- the statute’s 298, 324-325, 340, 1957, States, 354 U.S. discretionary exercise of for a casions J., (Black, 1064, plainly sweeping exclude concurring dissenting); Branden- Immigration (Boutilier Nat-& burg Ohio, 395 U.S. Service, uralization 430; Scales L.Ed.2d cf. L.Ed.2d United 229, 228- Shaugh- ex rel. Knauff v. United States 1469, L.Ed.2d Sub- *6 537, 542-544, nessy, 1950, 338 U.S. however, (a) explicit (28), section 212(a) 309, 94 L.Ed. Section S.Ct. its that which selective direction (28) lengthy part of a set ex- is one specifically not active subversion but all Act clusions definitions preachment. operates belief and It inter- on the which bear to some extent pretation only against present to dis- adherence 212(a) The of Section political doctrines, favored associations (37), 101(a) parts relevant of Sections programs against any past but also (29), (27), (28), 212(a) (9), (10), (40), adherence to them. It not ad- embraces (3), 5), (6), (d) 235(c) U.S.C. §§ teaching vocacy well, alone but (10), (40), (9), 1101(a) (37), 1182(a) any any organization affiliation with (29), (5), (6), (27), (3), (d) that either advocates or teaches doc- given (c)) Appendix. are programs. trines or personal reaches teaching advocacy or but also (a) (28) Subsection treats as substan- writing witting- publishing either or or tively political doctrines, evil associa- ly circulating printing displaying or or (A) (B) tions and anarchy, activities (or possessing any purposes) of those opposition organized government, to all any printed or matter advocat- written (C) Party the Communist of the United ing teaching or doctrines the disfavored States, any party other totalitarian programs; beyond or that it extends to the United the Communist Po- membership any in or affiliation with Association, litical and their local coun- organization resorting printed so terparts, al, (D) economic, internation- or written word its circulation. Pres- or governmental doctrines of world party past ent or Communist member- (G), (F), communism and (i) the over- ship by force, embraced in throw or affiliation are also violence or other uncon- stitutional means of the Government of the subsection. points any The Government Subsection them not for reason related to their (G) (a) (D) (v) particular- alienage (28) solely present their or but
ly part, applicable associations, political to Mandel. The first former or doc- (a) (28) (D) trines, teachings. mem- advocacies, a class whose defines or or The anarchists, are nor advo- bers neither sole selective effect of the statute opposition operate restraining or- or all cates teachers to entry as means ganized government, doctrine, of or nor members of disfavored any organization affiliated ad- with it is a Lamont forbidden enactment. doctrine, General, 1965, vocates or nor a teaches v. Postmaster 381 U.S. any 398; Com- member of or affiliated with S.Ct. Party (or Minnesota, 1930, munist or their Totalitarian Near v. 283 U.S. Cf. predecessor organizations) 697, 713-721, or successor L.Ed. S.Ct. been, are, any State, 1357; Aptheker Secretary but time who or international, economic, 500, 510-511, advocates of the governmental of world doctrines L.Ed.2d Shuttlesworth City Birmingham, 1969, communism or of the estab- advocates country lishment in this of totalitarian L.Ed.2d dictatorship, of or or are members does not deal sub- subsection any organization affiliated that ad- (a) (27) versive activities. Subsections vocates such communism or totalitarian- (29) and (a) deal with “activities.” through ism either utterances or own (a) Subsections aliens excludes through publications or issues either who, officially believed, it is en- seek to permits or authorizes or finances. “solely, principally, incidentally” ter or part, (G) (v), second those who describes engage prejudicial to public in activities or ever have been members endanger interest or to the wel- publish, or class aliens who or write fare, security safety or knowingly (or display circulate, print, States. Subsection excludes possess any purposes) for those written who, officially believed, advocating printed or matter or teach- would, “probably entry,” after either gov- ing economic, international, (A) engage prohibited in activities ernmental doctrines of communism world country relating this laws of advocating teaching or the establish- “espionage, sabotage, public disorder, or country dic- ment of a totalitarian activity in other subversive to na- tatorship. Because the strictures of security,” (B) “engage tional up- calculatedly precisely statute thus fall activity purpose op- of which is the *7 teaching they such, advocacy on to, position or the control or overthrow are, presence unless their an alien ex- of, of the United Government result, clusion code alters the invalidated by violence, force, or other unconstitu- by Brandenburg the First Amendment. (d) (3) op- tional means.” Subsection Ohio, 1969, 444, 1827, v. 395 U.S. 89 S.Ct. eratively (a) (28) contrasts subsection 430; Robel, 23 L.Ed.2d United States v. (a) (a) (27) (29). with subsections 1967, 419, 19 U.S. 88 S.Ct. (d) (3) pointedly Subsection withholds L.Ed.2d 508. discretionary power temporary ad- Secretary mission State statutory The not strictures are Attorney in the case General impact relieved of the of their directness (a) aliens inadmissible under Subsection by on protected interests First (27) (They may pa- and (a) be Amendment because do more no country temporarily roled into the “for than add to the number of the aliens who emergent or for deemed reasons reasons may be excluded. In the context strictly public interest.” See 212(a) (28) which Section it functions (d) (5)). subsection operates only to exclude aliens every statutory other of admis (a) standard The effect Subsection sibility excludable; are not it protected by excludes Amend- interests First valid, the be found unintended and could not otherwise here an not ment governmental importance of the exercise of effect of a valid tolerable degree weighed against of First to an end power directed of Government may, been it has Amend loss First Amendment than limitation of justify thought, rights. found on balance Unit That was case ment 367, 1968, Amendment limited of the First O’Brien, sacrifice v. ed States As- 1673, Communications fair and interest. American L.Ed.2d 672: 88 S.Ct. 382, 1950, Douds, power 339 U.S. of con sociation v. exercise of effective 392-400, L.Ed. registration 70 S.Ct. scription required those California, Konigsberg Bar eligible conscription iden State their 36, 50-51, tification; power to thence flowed But United mutilation or destruction Se forbid Robel, 258, 264-268, certificates notwithstand Service lective ing (and foot- particular L.Ed.2d 508 see of destruction acts altogether reject 20), might it not note if does as dramatic communi be intended narrowly, registrants’ analysis, op confines it cations exact a demonstra- position hostilities at minimum to to the Vietnam seems 1673); no al- there was reasonable U.S. at ternative, did and that the statute has limit terms of the statute “symbolic impact on First Amend- penal cases of drastic sanction to the least speech” but, conspicuously, comprehend the circumstances ment interests (28), however, (a) draft evaders ed furtive destruction admit. Subsection Regional Teague the class of enactments or others. too in not within So “balancing” Commissioner, apply. could 2d 404 F.2d test Cir. which denied, 1969, ques- power is not cert. to exclude aliens (three jus there is not here distinct L.Ed.2d tioned: dissenting, opinion two in of Mr. of the exercise of that tices aim Black)' regula which primary the statute and to the attainment of Justice withholding in- were addressed the restraint of First tions currency secondary from areas with American terests is sacrificed had, power. mediating Here exercise Government Trading Enemy Act, suspended with the substance of the exercise substantially protected except under li on interests all trade is the restraint cense; held not control scheme was First Amendment. applied publications invalid as it question is whether further restricting it was addressed since (a) (28), al- of subsection strictures incidentally flow ideas though such strictures are forbidden flow, burdened that nor did select law, may part of nevertheless domestic
publications according to their content
classify
valid
used to
when
for restriction.
conditionally;
absolutely
them
exclude
might
supposed
present
impact
if
In the
case the
of sub-
ultimate
guarded
protected
revolution
section
on interests
evil
—violent
*8
by
by revolutionary
com-
the First Amendment
is not out-
subversion
by any
peculiarly
weighed
protection
compensating
munism —were
connected
gives against
grave
likely
peculiarly
and
to be
an evil
to be
alien sources
shown
sphere
by
emissaries,
clearly
con-
to
interest
within the
activated
alien
some
abridgement
might
governmental
justify
Speiser
of
v.
siderations
concern. Cf.
513,
press
Randall, 1958,
527,
speech,
freedom of
and assem-
357 U.S.
78 S.Ct.
1332,
bly
point
could be
at
well before
believed government industry, government employment or of all of the defense absence officials, by to the assassination of of the was fatal force or Dennis limitations say organ to and the was unable to the effort exclude members Court 294, 724) operating primarily “that the S.Ct. at to advance U.S. at izations unjustifiable objectives inference either Communist was world Robel, contemplated the realization he ultimate movement. United v. su force, pra, 262-268, the use of or that of his ideal 1960, 479, speeches Tucker, were incitements to that Shelton cf. 486-487, Fuller in end.” But Mr. Chief Justice 81 S.Ct. (cannot require public the national dicated that school teach self-preservation despite the Con warranted er to disclose all recognized ties associational Amendment, gress, despite the First state concern teacher com anarchists, excluding philosophical petence fitness). inno intent, Congress if cent of evil was That the and the states have gen tendency opinion steadily been concerned with the threat exploitation of such was so eral dangerous views of international communism world public weal that with anarchistic doctrine that connotes holding advocating such views government revolution all would population. should not be added to the appear consequence to be a of the doc- put Mr. Brewer Justice his concurrence uncompromising trines’ inclusion as ground evidence on the narrow critical element—and as their distin- supported a deduction that Turner was guishing teaching element—of the that a an urges “one anarchist sense of necessary, resort revolution is by force and seeks the overthrow government existing subversion of government.” of all v. Unit Dennis Cf. necessity. force violence is a States, supra, ed U.S. teaching doctrines are viewed as and are If L.Ed. Turner they affirmatively denounced because thought imply were different that a aspire teach that it is futile alter va looser test First Amendment government plan programs or its lidity applied deportation can alien through gov- representative means cases, exclusion Harisiades gov- ernment and that the entire frame of Shaughnessy, 591- ernment, including constitution, its basic appears L.Ed. uprooted by must be the forcible seizure clearly that such must to assume cases govern. Although of the total Dennis; meet the the Court standard of explains the nature of the doctrines rely (which did not Turner degree persistence legislative con- argument it) cited nor invoke the them, cern with the First Amendment (made it) expel has been held nonetheless to exact a sovereignty aliens is an attribute of sentially relating es dichotomy protected between the freedom foreign affairs preach legislatively the doctrines thus safety therefore, and, national not re pronounced to be abhorrent to the na- impliedly provisions stricted punish- free tion’s and the institutions expressly do Constitution which re illegality significant taking able ac- clearly, Aptheker late More to it. tion to initiate subversion revolu- State, 1964, Secretary of *9 difficulty necessity tion. The the of 992, 510-512, 1659, 84 S.Ct. 12 L.Ed.2d drawing distinction fundamental cog imposed the Dennis in a standard appears no less from Dennis Yates passport nate field to invalidate control than from Communication Workers and of the self-created Amend- to include censure of the First Robel. The nature overwhelmingly (4 gov- defeated to the basis societies was in its relation ment despite argu Congress, explains p. 945) Annals the Constitution ernment under might why appear distinction, the ments that such vote the reason deny support the President and that prevail as well Amendment must imply power mere censure utterance did not exclude aliens- context of presumption power plaintiffs’ on a reality stand- or rest of the and the legislate (4 challenge ing in the such utterances. subsection Congress, pp. 899-946) West present Annals Virginia action. Board Education v. State Sullivan, Times Co. New York Barnette, 1942, 624, 641-642, 254, 710, 1964, 11 L.Ed. 1628, 87 L.Ed. had clarity emergence 686, marks the 2d ap earlier Sullivan than indicated the First Amendment of the view of Sullivan, proach similar that of principle of the form a fundamental saying gov that, up there set Court “We government; constitutional American governed, by ernment consent people, accepting premise that Rights power denies Bill those government, possess the sover not any legal opportunity to coerce that con by eignty, the First Authority sent. here to be controlled withholding emphasized the by opinion, public opinion public government power to the federal * * * authority freedom differ affecting (in Sullivan) the make laws things limited to that do not mat press, consid the Court freedom of the * * * ter The much. test its sub was denied well ered that the right things stance is the differ as Amend to the states the Fourteenth existing that touch the heart of the or incorporation of the First Amend ment’s der.” In the later case of Garrison v. turbulent found ment. The Court Louisiana, 1964, 379 U.S. history Act of 1798 the of the Sedition 125, extending prin crystallization national aware first ciple of to the Sullivan criminal libel meaning of the First of the central ness context, again the Court observed that Amendment, of free concerning “speech public more affairs is stewardship public discussion of self-expression; than essence was, public had then as Madison officials self-government” 74-75, (379 asserted, principle of the a fundamental 216). Amendment, First S.Ct. at The government (376 American form of thus, guarantees people as sov 710). 273-278, The Court ereign as the retained attribute of their comment, earlier, quoted sharp Madison’s sovereignty, right, open ultimate their that “the censorial wide-ranging debate, publication and assembly, Government, people and not over government they to review the people.” over the Government created, adequacy of func made in course of an That comment was tioning presence of a absence mo debate in the on a extended House displace need alter or Meikle it. See response in a tion to include Washington’s report to President john, The First Amendment is an Abso military steps (The Supreme Review, lute Court put had taken to so-called he “Whisky Rebellion,” down the ed.) 255-263; Kalven, Kurland “reprobation” New York Times Case: Note on the A role in “self- the rebellion of certain Meaning Amend Central of the First Congress, (4 created societies” Annals of (The Supreme Review, 1964, ment Court [1794]); pp. President Wash ed.) 191, 220-221; Kurland charged ington had “certain self-created Brennan, Supreme Court and the attempting help societies” with defeat Meiklejohn Interpretation operation “as of the First of the excise tax suming Amendment, 1965, the tone condemnation” 10- 79 Harv.L.Rev. Congress, p. Annals of The motion 18-19.
630 Congressional attaining legisla-
The exercise of
the end
for which
power
speech,
permissibly
power
affects
tive
exists and is exercised. Cf.
assembly
press
Brandenburg Ohio, supra,
can not be a direct
or
v.
395 U.S. at
power
speech, 447-448,
1827,
of a
to control
exercise
to citizens of this
brought
*12
Amendment
with
to
and debate
teachers
First
hear Mandel
safeguards vividly
operation
plaintiffs
than
other
into
be-
him. Here the
directly
involved with
cause unwarranted
of
Mandel are
inhibition
free
entry
they
spirit
because
of teachers affects not
Mandel’s
partici-
directly
him,
they expect
teachers
invited
involved but unmistaka-
pate meetings
expect
bly
play
spirit
him or
tends to chill that
of
free
ought
among
practice
his
No more is
all teachers
auditors.
standing.
produce
timidity
required
to establish their
caution and
in the
Snyder
Trustees, supra,
potential
of
associations of
v. Board
teachers. That
Cf.
931-932;
general
F.Supp.
286
at
Mandel’s
v.
visit is in
limited
Smith
University
Tennessee,
gives
community
of
E.D.Tenn.
to the
particularized
academic
1969,
777,
F.Supp.
special
300
780. The
enhancement to the values
self-governing
plaintiffs
process
relation
of
Mandel’s
that are
projected
gives
jeopardized by
specificity
visit
them a
such exclusions as this
admission,
presents.
premise
of
interest
case
reinforced
A
the First
general
public
speech
the Amendment
is that
free
prevention
any stifling
press
political
peaceable assembly
do not
utterance,
abundantly
merely
opportunity
satisfies
afford
to teach and
“standing” requirements.
political
by doing
advocate
doctrines but
so
exposure
assure that
of the vices and
primarily
partici
Mandel is invited
inadequacies
doctrines that
pate
college
university
events.
suppression, exclusion and silence can-
essentiality
freedom of debate
accomplish.
community
within the
of universities
(Sweezy
Hampshire, 1957,
v. New
354
prevention
teaching
234, 250,
1203,
262-263,
U.S.
1
77 S.Ct.
advocacy
that is not incitement or
1311)
recog
repeatedly
L.Ed.2d
has been
conspiracy
presently
pro
initiate
nized and has drawn from
Court
grammed
any degree
violence is not in
very strong expressions
heightened
legitimate legislative objective
but
importance
of First Amendment
forbidden,
forbidden one.
It
in the field of education.
v.
Shelton
analysis,
public
ultimate
because the
Tucker, supra,
487,
Zemel does not validate plaintiff that Section visitor and the United States as a plementing and Section that junction so far as travel affiliations. opinions and in an result from noted that in travel.” That sustained care heavily cause ly §§ forced to choose between Dulles, 1958, sequence reconciled existing So “sanctioned it inhibited access to tion. tional Communism”; inhibition of limitation It follows from validate L.Ed.2d 1182(a) (28) justifiable deny plaintiff much (28) preserved with plaintiffs it was otherwise and ban intercourse countervailing circumstance 212(d) organization relied; is not Latin American they Mandel ideas, which appears abundantly appellant’s passport with that undesirable part; was to a a virtual ban on 212(a) (28) any expression 212(d) have Zemel’s case because, unlike travel interchange is, correct are entitled rather, (3) but enforcing the Court *14 Secretary’s the Court appellant ineligible declaratory judgment the Zemel Mandel on which authority what been approves a (A) (d) (3) linked to Cuba and freedom political informa- national defendants’ the Court invoked to non-immigrant (3) (A)) has been say the then is invalid and (A) experiment admission distinguished Sections independent- “the refusal membership inoperative or associa- of Kent result was action be- in Zemel Zemel so not Kent, from informa- does informa- interest. Zemel’s general admis- U.S.C. Zemel being so as spite find said con- sole im- not in- sion into the United States: of a crime * * * visas and shall be excluded bility. political movement. aliens shall eligible purpose of which world mental ly a means a internationally coordinated Communist § ment constitute party with so (other ship in the establishment in the United States party, tarianism. opposition of a totalitarian unit, and refer representative dictatorship” means an (A) (a) Except as otherwise (9) (40) The term exists, 1182. General * [*] [*] the existence chapter, admission; Communist totalitarian Aliens who have been and its organized than policies through The term “totalitarian any to receive visas close (B) * * * [*] [*] revolutionary organization to such or involving moral systems The terms and totalitarianism” an purely political policies all the * [*] [*] [*] is to on a dictatorial the medium forcible waivers identity dictatorship fact, ineligible party classes an following classes of “world party. aof establish eventual- * [*] [*] [*] country indistinguishable countries of the characterized government movement, single political suppression between such of aliens of inadmissi- communism” from admis- “totalitarian provided in * [*] [*] [*] turpitude or totali- convicted advocates offense), in which excluded dictator- govern- govern- receive of an party” * [*] [*] [*] basis, mean in- 212(a) (28) (10) convicted sion under Aliens been Section who have (other deny than temporary him under or more offenses admission of two ** offenses), *. 212(d) (A). purely Section * * * * * * Settle order on notice. dictatorship, either officer of a totalitarian (27) Aliens, who consular through through utterances or Attorney or has its own knows General or the any publications printed or the United written seek enter to believe reason incidentally published or with the solely, principally, issued or or permission or or consent of engage would be activities interest, organization paid authority public or such or prejudicial welfare, security of, endanger safety, or for by, the funds or funds furnished organization; States; such of the United any (E) Aliens within are, any time or at Aliens who paragraph, provisions of this any been, members any are members or affiliated following classes: organization during the time it anarchists; (A) are Aliens who registered registered required or to be teach, (B) or Aliens who advocate such under section 786 Title unless or affiliated who members or they did not have establish that organization any advocates or knowledge or reason to believe at organized teaches, opposition to all time af- became members or government; organization (and filiated with such an (C) or are members of Aliens who prior did not thereafter date (i) Communist affiliated with organization upon which such so (ii) any Party of the United registered required registered or so to be party of the United other totalitarian States, knowledge believe) reason to have such (iii) Political the Communist organization was a Com- Association, (iv) the Communist organization; munist *15 any party other State of totalitarian of repealed by 786 was U.S.C. Sec- [50 § foreign state, any of United 5q tion of Public Law 90-237] any geographical of or or sub- (F) or foreign state, (v) any or teach any Aliens who advocate division of or section, subsidiary, branch, affiliate, who members of affiliated or any organization or advocates any or subdivision of such association by force, (i) party, (vi) teaches violence, the overthrow predecessors or the direct or means any other unconstitutional or successors association or of such regardless the United party, of of States Government of name such what (ii) duty, law; organization used, or of of or group may all forms or necessity, propriety unlawful may may adopt; or bear, now or hereafter any assaulting killing or Provided, officer nothing para- or of in this That (either specific or graph, of individuals any officers provision or of in other this generally) declaring of chapter, of officers Govern- construed as shall be any or of Party ment the United States of does Communist government, organized of other because advocate the overthrow of Govern- character; (iii) his or or by force, official ment of their the United States damage, injury, means; or destruc- or unlawful violence other unconstitutional sabotage; property; (iv) tion of or (D) any Aliens not within publish, (G) provisions or paragraph other who write or who Aliens international, published, or who economic, advocate cause written or to be distribute, print, governmental circulate, or knowingly of World doctrines knowingly display, be communism cause to or the or establishment pub- distributed, printed, circulated, United States of a totalitarian dictator- knowingly ship, lished, displayed, or who who are members of or or or affiliated any organization possession purpose for the that advocates have in their economic, distribution, govern- circulation, international, publication, matter, any printed display, mental or doctrines of world communism written or teaching opposition advocating or the to all establishment the United or States advocating organized (3) Except provided government, or in this or sub- force, by section, (A) applying teaching (i) who is the overthrow alien nonimmigrant violence, means visa and is known for a or other unconstitutional by or consular officer to be of the United States believed Government ineligible (ii) duty, law; or or for such visa one or forms of of all paragraphs necessity, propriety unlawful more of the enumerated or (other assaulting killing any (a) or section officer subsection of this or may, (27) (29)), specific paragraphs (either than individuals officers Attorney generally) approval after General or of officers the Govern- Secretary of a or of recommendation ment the United States government, organized or the consular officer because State character, (iii) temporarily despite or or the alien admitted his their official granted inadmissibility, damage, injury, or destruc- the unlawful visa, (iv) sabotage; may property; into or be admitted the United or (v) nonimmigrant economic, international, temporarily States governmental General, Attorney doctrines of world com- discretion of the (B) or under one munism who is inadmissible or establishment paragraphs or dictator- more of the enumerated totalitarian States (other ship; of this subsection section play, any publishes, writes, published, written, circulated, distributed, printed, possession distribution, publication, affiliated with (G) (H) Aliens who are members character described in of this circulates, distributes, written or for the or paragraph; displayed, displays, any organization purpose printed or that or causes to be * * issue, or dis- subparagraph circulation, matter of has in *. prints, or may rarily tion of the temporarily discretion than admitted into the United States of and is documents or is [*] prescribe paragraphs as a [*] parole Attorney Attorney nonimmigrant seeking admission, may under such conditions as possession [*] granted into the United emergent General General. [*] a waiver there- appropriate [*] may the discre- reasons 29)), tempo- in his [*] but he *16 strictly deemed reasons (29) respect whom the Aliens with public any applying for alien Attorney General consular officer or the States, but such admission to the United ground to or has reasonable knows regarded parole be of such alien shall not (A) would, entry, probably after believe as an of the alien and when admission engage would be in which activities shall, purposes parole in of such prohibited by United the laws of the Attorney General, opinion of the sabotage, relating espionage, forthwith been served the alien shall activity public disorder, or other custody return or be returned to the security, (B) national subversive to the paroled from there- which he was and engage activity purpose any dealt after his case continue to be shall to, opposition or the control which is any with in the manner as that of same of, or overthrow the Government applicant other to the for admission force, violence, States, by or United United States. means, (C) or other unconstitutional (6) pre- Attorney join, with, participate shall or General affiliate conditions, including organization scribe any exaction of which the activities of may necessary, registered registered bonds as required to be is or * * regulate control and *. the admission Title under section (d) (1) [*] (2) [*] * * * * * [*] * [*] [*] [*] section. The make a temporary return of detailed excludable aliens admission under Attorney report to the General applying this shall sub- tion. authority under excludable subsection exclusion ficers. man) § immigration Any (c) Temporary any [******] [******] (28) alien case Inspection by Attorney of subsection may appear to the under on behalf in which officer (including paragraph paragraphs exclusion; permanent or to General. Immigration he exercises (a) (3) alien crew- any examining (9), this sec- special (10), alien this Of- to hear under U.S.C. § claratory relief is whether the sovereign power entry interference with try are unconstitutional because gration operate * ereign power to exclude is irrelevant [popularly (a) (28) ** majority selective of disfavored into as a ” 1182(a) this known as means of Nationality effect of holds (d) (3) (A) country further, that subsections exclude aliens the McCarran First right of Americans restraining must bow the Statute Act of (d) Amendment. the “sole (3) inherent doctrine the en- Immi- Act], is to sov- (A) any during inquiry examination inquiry officer the constitutional be- this case to to be officers any either of such before distinct aim cause is here “there (27), (28), paragraphs under excludable of the exercise of 1182(a) (29) title of this of section primary and to which the attainment excluded, no temporarily shall be inter- of First Amendment the restraint inquiry special of- inquiry secondary further or medi- ests sacrificed until after ficer shall conducted ating power.” in an- exercise Stated Attorney reported case General way, majority holds that together any state- (a) such written directed accused subsection information, if accompanying ment and limitation of to no end other than the any, representative reaching rights. alien or his as the In First Amendment may there- applied desire to connection majority submit in conclusion inquiry or further with and such an Act subsection the McCarran Attorney inquiry is directed the test in Dennis v. enunciated Attorney If General. General alien is excludable (1951), proscribing satisfied that L.Ed. 1137 strictures paragraphs of such upon speech merely advocates (basis of a “economic, international, of information confidential teaches the nature, governmental the At- the disclosure of which com- doctrines of World General, torney of his the exercise munism” incitement to the use without discretion, accomplish end; and after consultation in other force to agencies appropriate security danger” of the words, present “clear Government, preju- would concludes test. *17 interest, safety, public or dicial the Reaching they hold, this conclusion security, may in discretion order he effect, ap that there is no room for the deported such alien be excluded plication “balancing (cf. test” any inquiry inquiry further without or Speiser Randall, 513, v. 357 U.S. 78 S.Ct. Nothing special inquiry a officer. 1332, (1958)) that 1460 regarded as this subsection shall be there exists a “reasonable alternative” requiring special inquiry before (cf. Robel, 258, United States v. 389 U.S. inquiry an alien officer in the case 419, (1967)). 88 S.Ct. 19 L.Ed.2d 508 crewman. respect, all accept With due I cannot the majority’s predicated upon conclusion (dissent Judge BARTELS, District analysis. this ing) : substance, posed majority question My In stems the difference the recognizing application injunctive the for de- this from the fact while 638 though There
sovereign
inter-
exclude
the
innocent
evil intent.
self-preservation,
the court said:
subordinate
est
in-
First Amendment
this
in-
should
“If the word ‘anarchists’
ex-
by applying standards invoked
terest
including
terpreted
aliens whose an-
as
speech
clusively
upon
to strictures
professed
those
views are
archistic
upon
American citizens
strictures
political
philosophers,
innocent
hear
of American citizens to
intent,
Con-
evil
follow
would
proceeding
In
other American citizens.
gress
opinion that
tend-
was
it seems to me that
in this manner
ency
general exploitation of
ignored
majority
fact
the crucial
has
dangerous
pub-
such views is so
im-
serves the
subsection
ad-
hold
lic weal that aliens who
portant objectives of
national securi-
ad-
vocate them
undesirable
would be
(2) foreign
ty
policy, and that
per-
population,
to our
whether
ditions
political doc-
exclusion of
disfavored
manently
temporarily,
whether
person by
expounded in
trine as
an alien
few;
light
pre-
many
and,
only by-product.
its aim but
decisions,
act,
this
vious
even
unconstitutional,
aspect, would not be
discussing
objectives,
Before
these two
any
op-
applicable
alien who
appropriate
it is
to note that the consti
organized
posed
government.”
to all
tutionality. of this statute could authori
(p. 294,
p. 724).
24 S.Ct.
tatively
long-established
rest
principle
Congressional power
majority
claims that Harisiades
580,
Shaughnessy,
exclude aliens
absolute.1 From v.
342 U.S.
early
Supreme
512,
(1952),
times the
re
Court has
teristics
forbid-
has
words:
den.”
endanger
“The circumstances
infinite,
safety
and for
Immigration
See
of nations
also
Nat
Hitai v.
(2d
shackles
Service,
uralization
this reason no constitutional
F.2d 466
1965),
wisely
imposed
Cir.
denied,
can
cert.
is committed.
(1965);
care
Gor-
which the
“We must
right
carry
does
it
hear
passports
refusal to validate
for Cuba
right
foreign
unrestrained
citi-
wholly
renders less than
free the flow
zens orate those
ideas
of
try.
concerning
information
that coun-
States.
agree
While we further
that this
is a factor
degrees
respect
be considered in deter- With
to the relative
mining
appellant
flow,
whether
has been de- decreased data
must admit
one
process
law,
nied due
presents
sympathetic
we
Zemel
a
cannot ae-
more
First
right
groups.
[Footnote omitted.] While the
See Brooks
v. Auburn Uni
deep
history
versity,
(5th
1969) ;
association has
roots
412 F.2d
Cir.
1171
supported by
inescapable necessity
Stacy
Williams,
F.Supp.
v.
306
group
republic
large
(N.D.Miss.1969);
University
action
as
Smith
complex
ours,
Tennessee,
F.Supp.
(E.D.
as
it
has
recent-
ly
Snyder
controlling
Tenn.1969) ;
blossomed as the
factor
v. Board of Trus
University
Illinois,
litigation;
constitutional
yet
tees of the
contours as
286 F.
Supp.
Although
(N.D.Ill.1968)
;
lack delineation.
official
Dickson v.
Sitterson,
F.Supp.
(M.D.N.C.
interference with
First Amendment
scrutiny,
Similarly,
ap-
holding
has
close
drawn
it
is now
that a state
parent
person
right
possessing
cannot convict a
of association
ob
subject
significant
privacy
not absolute
scene material
of his own
regulation
any gov
the State.”
home does not
389 U.S. at
interfere with
282-283, 88 S.Ct. at
ernmental
of national moment
attempting
clearly
Without
as much
delineate
con-
founded
right
privacy
tours of the derivative
the First
contitutional
was on
information,
Stanley
Georgia,
to receive
Amendment.
is to
noted
applying
recent
cases
L.Ed.2d
principle
important
Teague
Regional
have not
involved
As in
countervailing
governmental
Region
Customs,
II,
Commissioner
interests.
governmental
supra,
compelling
Thus it is difficult
interest herein
find
important
vesting
enormously
arbitrary
state interest
involved is
more
author-
ity
college
in state
than
the interests
at stake
the other
administrators
to de-
may
may
accept
termine who
in-
cases.
speak
faculty
vitations
and student
register
Party
instant one.
a “Com-
Communist
case than
organization”
deal
we are
Sec-
at bar
munist-action
case
Whereas
ex
Con-
ing
7 of the
Activities
limited obstruction
Subversive
awith
doing,
ideas,
sanc
In
court
change
court
trol Act of 1950.
in Zemel the
so
registration
recognized
in
expressly
informational
ban on
tioned virtual
existing may
expres-
sole
then
entail
burdens on free
some
tercourse with
experiment
public obloquy
in Commu
sion
associated
due to the
American
Latin
membership.
Justice Gold
dissent of
with such
It nevertheless
nism. See
Mr.
*22
registration
citing
berg,
Chaffee, Three Human
all mem-
concluded that
1787,
regard
Party
195-
Rights
bers of the
in the Constitution
without
Court,
quantum
participation
Supreme
(1956);
1964
The
of individual
123,
(1965);
constitutionally justified
Term,
of the
in view
79 Harv.L.Rev.
danger presented by
Resolving
Com-
Note,
Between
substantial
Conflict
by
Implementing
Party itself,
Right
For
as
and
to Travel
munist
legislative findings
evidenced
eign
in
Policy,
L.J. 233.
Section
1966 Duke
fact
reaching
determina-
of the
In
this
Act.
of,
barring
holding
Ameri
Zemel
aptly
tion
remarked:
the court
witnessing at firsthand
can citizens from
operation
problems
“But
accommo-
practical
of Communism
where
exigencies
self-preserva-
dispose
dating
to
of the
Cuba would seem
liberty
argument
majority’s
the First
are
tion
the values of
as
and
complex
requires
the citizens as
and intricate
as
Amendment
sovereign
every
findings
person
to
situation described in the
have
access
teaching
advocacy
sources.
Activities Con-
from all
2 of
Subversive
§
and
government
hardly
existing
trol
be
that the
Act—when
can
said
integrated
by
hear,
all First Amend
menaced
a
as is the case with
world-wide
may
employs every
rights,
and that it
combi-
ment
movement which
absolute
means,
by
gov
peaceful
regulated
possible
limited
nation of
foreign,
violent,
ernment
in certain circumstances.
domestic and
overt
Cf.
States,
destroy
govern-
supra;
clandestine, to
Poulos
Dennis v.
legislative
395,
judgment
Hampshire,
ment
New
itself—the
may
(1953);
as
that threat
be met
97 L.Ed.
how
best
Kovacs
Cooper,
consistently
safeguarding
with the
L.
U.S.
personal
(1949).
rejection
is not
Ed. 513
freedom
to be set aside
Zemel’s
judgment
argument
merely
judges
“access”
because
nice
without
calcula
instance,
would,
support
first
cho-
tions
in the
whether
as
ing
prohibition
(367
sen
methods.”
at 96-
could have been ef
U.S.
sug
1410-1411).
fected
more limited manner
S.Ct.
gests that not all
inhibitions
the free
majority
nation-
contends
exchange of information and ideas are
security
al
concern manifested
adequately
applied
be held to the exact standard
protected
statute can
Aptheker.
in Robel and
direct-,
(a)
(a)
subsections
illegal
ly focusing
potential
the Robel
held
classi-
While
court
acts.
on the
by membership
legislative
in the Commu- Obviously,
fication
in its
broad,
Party
(a)
it
judgment,
enacting
too
nist
America was
subsection
per
(28),
that such
se
insuf-
clear
classification
to be
believed these sections
though
imposes
unique
sub-
invalid even
some ficient
because
speech.
security
na-
burden
In
freedom of
Com-
stantial threat to the
Party
presented the Com-
munist
United States
members
entry
Board,
into
367 munist
who seek
Subversive Activities Control
movement
country.
625 this
cases
U.S.
Even in domestic
organizations
Supreme
danger presented by
an
Court affirmed
the
engaged
illegal advocacy
held
order of
Subversive
Con-
has been
Activities
impose
requiring
trol Board
criminal sanctions
the United
sufficient
States
Shaughnessy,
knowing
supra,
respect
mem-
“it often is diffi-
active
ambiguous
Party
a
cult
without
determine whether
of the Communist
bers
speech
advocacy
requirement
be actual-
member
methods
that such
advocacy.
illegal
subtly
engaged
ly
shades into methodical but
in such
prudent
incitement to
violence”
v. United
Scales
(1961).
From
A different
pelled only
procedural
process,
nied,
after
due
ex
Ulrich
United States
rel.
v.
entry
Stimson,
868,
482,
an alien on
the threshold
initial
49
73
279 U.S.
S.Ct.
entirely
footing.
(1929);
on an
stands
different
L.Ed. 1005
Pil
Licea-Gomez v.
liod,
577,
(N.D.Ill.1960) ;
F.Supp.
As said in United States ex rel. Knauff
193
582
Shaughnessy, supra,,
“Whatever
United
ex rel. Santarelli
procedure
Congress is,
Hughes,
613,
(3d
it
authorized
is
Cir.
116 F.2d
615
process
690,
1940);
Ahrens,
due
as far
alien denied en
as an
F.2d
Estrada v.
296
try
544,
692,
(5th
1961);
is concerned.”
70
n.
Lem Moon
2
Cir.
cf.
Sing
States,
Nishimura Ekiu v. United
S.Ct.
v. United
158 U.S.
651,
(1895);
336,
967,
L. 15
142 U.S.
12 S.Ct.
35
For above and con- valid
the above subsections stitutional, complaint herein
should dismissed. MARTINI, Petitioner,
Lawrence D.
SHERIFF, COUNTY LOS ANGELES al., Respondent. et
Civ. No. 70-1676. Court,
United States District D. California.
C.
March Martini, per. pro. D.
Lawrence Lynch, Atty. Gen., C. William Thomas James, Atty. Gen., M. E. Asst. Laurence Ange- Sarnoff, Atty. Gen., Deputy Los Cal., les, respondent.