Lead Opinion
delivered the opinion of the Court.
This appeal draws into question the constitutionality of §5 (a)(1)(D) of the Subversive Activities Control Act of 1950, 64 Stat. 992, 50 U. S. C. § 784 (a)(1)(D),
In Aptheker, we held § 6 unconstitutional because it too broadly and indiscriminately infringed upon constitutionally protected rights. The Government has argued that,, despite the overbreadth which is obvious on the face of §5 (a)(1)(D), Aptheker is not controlling in
The Government seeks to defend the statute on the ground that it was passed pursuant to Congress’ war power. The Government argues that this Court has given broad deference to the exercise of that constitutional power by the national legislature. That argument finds support in a number of decisions of this Court.
When Congress’ exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our “delicate and difficult task” to determine whether the resulting restriction on freedom can be tolerated. See Schneider v. State,
It has become axiomatic that “[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button,
We are not unmindful of the congressional concern over the danger of sabotage and espionage in national defense industries, and nothing we hold today should be read to deny Congress the power under narrowly drawn legislation to keep from sensitive positions in defense
Affirmed.
Notes
The Act was passed over the veto of President Truman. In his veto message, President Truman told Congress, “The Department of Justice, the Department of Defense, the Central Intelligence Agency, and the Department of State have all advised me that the bill would seriously damage the security and the intelligence operations for which they are responsible. They have strongly expressed
President Truman also observed that “the language of the bill is so broad and vague that it might well result in penalizing the legitimate activities of people who are not Communists at all, but loyal citizens.” Id., at 3.
Section 3 (3) (a) of the Act, 50 U. S. C. §782 (3) (a), defines a “Communist-action organization” as:
“any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement . . . and (ii) operates primarily to advance the objectives of such world Communist movement . . . .”
The Government has persisted in this view in its arguments to this Court. Brief for the Government 48-56.
We initially heard oral argument in this case on November 14, 1966. On June 5, 1967, we entered the following order:
“Case is restored to the calendar for reargument and counsel are directed to brief and argue, in addition to the questions presented, the question whether the delegation of authority to the Secretary of Defense to designate 'defense facilities’ satisfies pertinent constitutional standards.”387 U. S. 939 .
We heard additional arguments on October 9, 1967.
In addition to arguing that §5 (a)(1)(D) is invаlid under the First Amendment, appellee asserted the statute was also unconstitutional because (1) it offended substantive and procedural due process under the Fifth Amendment; (2) it contained an unconstitutional delegation of legislative power to the Secretary of Defense; and (3) it is a bill of attainder. Because we agree that the statute is contrary to the First Amendment, we find it unnecessary to consider the other constitutional arguments.
18 U. S. C. § 2385.
Our decisions leave little doubt that the right of association is specifically protected by the First Amendment. E. g., Aptheker v. Secretary of State, supra, at 507; Gibson v. Florida Legislative Investigation Committee,
See, e. g., Lichter v. United States,
Brief for the Government 15.
The appellee has worked at the shipyard, apparently without incident and apparently without concealing his Communist Party membership, for more than 10 years. And we are told that, following appellee’s indictment and arrest, “he was released on his own recognizance, and immediately returned to his job as a machinist at the Todd Shipyards, where he has worked ever since.” Brief for Ap-pellee 6, n. 8. As far as we can detеrmine, appellee is the only individual the Government has attempted to prosecute under §5 (a)(1)(D).
We recognized in Greene v. McElroy,
50 U. S. C. § 794 (c).
The Government has insisted that Congress, in enacting §5 (a)(1)(D), has not sought “to punish membership in ‘Communist-action’ . . . organizations.” Brief for the Government 53. Rather, the Government asserts, Congress has simply sought to regulate access to employment in defense facilities. But it is clear the employment disability is imposed only because of such membership.
See Scales v. United, States,
See Elfbrandt v. Russell,
A number of complex motivations may impel an individual to align himself with a particular organization. See Gibson v. Florida Legislative Investigation Committee,
See Cole v. Young,
Congress has already provided stiff penalties for those who conduct espionage and sabotage against the United States. 18 U. S. C. §§792-798 (espionage); §§2151-2156 (sabotage).
The Department of Defense, pursuant to Executive Order 10865, as amended by Executive Order 10909, has established detailed procedures for screening those working in private industry who, because of their jobs, must have access to classified defense information. 32 CFB, Part 155. The provisions of those regulations are not before the Court in this case.
It has been suggested that this case should be decided by “balancing” the governmental interests expressed in §5 (a)(1)(D) against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests оf national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way “balanced” those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict. There is, of course, nothing novel in that analysis. Such a course of adjudication was enunciated by Chief Justice Marshall when he declared: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” M’Culloch v. Maryland,
Concurrence Opinion
concurring in the result.
I too agree that the judgment of the District Court should be affirmed but I reach that result for different reasons.
Like the Court, I disagree with the District Court that §5(a)(l)(D) can be read to apply only to active members who have the specific intent to further the Party’s unlawful objectives. In Aptheker v. Secretary of State,
Aptheker held § 6 of the Act overbroad in that it deprived Party members of the right to travel without regard to whether they were active members of the Party or intended to further the Party’s unlawful objectives, and therefore invalidly abridged, on the basis of political associations, the members’ constitutionally protected right to travel. Section 5 (a)(1)(D) also treats as irrelevant whether or not the members are active, or know the Party’s unlawful purposes, or intend to pursue those purposes. Compare Keyishian v. Board of Regents,
It is true, however, as the Government points out, that Congress often regulates indiscriminately, through preventive or prophylactic measures, e. g., Board of Governors v. Agnew,
However, acceptance of the validity of these distinctions and recognition of congressional power to utilize a prophylactic device such as §5 (a)(1)(D) to safeguard against espionage and sabotage at essential defense facilities, would not end inquiry in this case. Even if the statute is not overbroad on its face — because there may be “defense facilities” so essential to our national security that Congress could constitutionally exclude all Party members from employment in them — the congressional delegation of authority to the Secretary of Defense to designate “defense facilities” creates the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of protected freedoms and therefore, in my view, renders this statute invalid. Because the statute contains no meaningful standard by which the Secretary is to govern his desig
The Secretary’s role in designating “defense facilities” is fundamental to the potential breadth of the statute, since the greater the number and types of facilities designated, the greater is the indiscriminate denial of job opportunities, under threat of criminal punishment, to Party members because of their political associations. A clear, manageable standard might have bеen a significant limitation upon the Secretary’s discretion. But the standard under which Congress delegated the designating power is so indefinite as to be meaningless. The statute defines “facility” broadly enough to include virtually every place of employment in the United States; the term includes “any plant, factory or other manufacturing, producing or service establishment, airport, airport facility, vessel, pier, water-front facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division, or department of any of the foregoing.” 50 U. S. C. § 782 (7). And § 5 (b) grants the Secretary of Defense untrammelled discretion to designate as a “defense facility” any facility “with respect to the operation of which he finds and determines that the security of the United States requires . . .” that Party members should not be employed there. Congress could easily have been more specific.
Congress ordinarily may delegate power under broad standards. E. g., Dakota Central Tel. Co. v. South Dakota,
The area of permissible indefiniteness narrows, however, when the regulation invokes criminal sanctions and potentially affects fundamental rights, as does §5 (a)(1)(D). See Barenblatt v. United States,
First. The failure to provide adequate standards in §5 (a)(1)(D) reflects Congress’ failure to have made a “legislative judgment,” Cantwell v. Connecticut, 310
Congress has the resources and the power to inform itself, and is the appropriate forum where the conflicting pros and cons should have been presented and considered. But instead of a determination by Congress reflected in guiding standards of the types of facilities to which §5 (a)(1)(D) should be applied, the statute provides for a resolution by the Secretary of Defense acting on his own accord. It is true that the Secretary presumably has at his disposal the information and expertise necessary to make reasoned judgments on which facilities are important to national security. But that is not the question to be resolved under this statute. Compare Hague v. CIO,
The need for a legislative judgment is especially acute here, since it is imperative when liberty and the exercise of fundamental freedoms are involved that constitutional rights not be unduly infringed. Cantwell v. Connecticut, supra, at 304. Before we can decide whether it is an undue infringement of protected rights to send a person to prison for holding employment at a certain type of facility, it ought at least to appear that Congress authorized the proscription as warranted and necessary. Such congressional determinations will not be assumed. “They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized . . . but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for еnacting and implementing our laws.” Greene v. McElroy, supra, at 507.
Second. We said in Watkins v. United States,
It is true that “[a] construction of the statute which would deny all opportunity for judicial determination of an asserted constitutional right is not to be favored.” Lockerty v. Phillips,
This is persuasive evidence that the matter of the designation of “defense facilities” was purposely committed by Congress entirely to the discretionary judgment of the Secretary. Unlike the opportunitiеs for hearing and judicial review afforded the Party itself, the Party member was not to be heard by the Secretary to protest the designation of his place of employment as a “defense facility,” nor was the member to have recourse to the courts. This pointed distinction, as in the case of the statute before the Court in Schilling v. Rogers,
The lеgislative history of the section confirms this conclusion. That history makes clear that Congress was concerned that neither the Secretary’s reasons for a designation nor the fact of the designation should be publicized. This emerged after President Truman vetoed the statute. In its original form the Act required the Secretary to “designate and proclaim, and from time to time revise, a list of facilities ... to be promptly published in the Federal Register . . . .” § 5 (b). The President commented in his veto message, “[s]pies and saboteurs would willingly spend years of effort seeking to find out the information that this bill would require the Government to hand them on a silver platter.” H. R. Doc. No. 708, 81st Cong., 2d Sess., 2 (1950). Shortly after this Court sustained the registration provisions of the Act in Communist Party v. Subversive Activities Control Board, supra, the Act was amended at the request of the Secretary to eliminate the requirement that the list of designated facilities be published in the Federal Register. 76 Stat. 91. Instead, the list is classified information. Whether or not such classification is practically meaningful — in light of the fact that notice of a designation must be posted in the designated facility— the history is persuasive agаinst any congressional intention to provide for hearings or judicial review that might be attended with undesired publicity. We are therefore not free to imply limitations upon the Secretary’s discretion or procedural safeguards that Congress obviously
Third. The indefiniteness of the delegation in this case also results in inadequate notice to affected persons. Although the form of notice provided for in § 5 (b) affords affected persons reasonable opportunity to conform their behavior to avoid punishment, it is not enough that persons engaged in arguably protected activity be reasonably well advised that their actions are subject to regulation. Persons so engaged must not be compelled to conform their behavior to commands, no matter how unambiguous, from delegated agents whose authority to issue the commands is unclear. Marcus v. Search Warrant, supra, at 736. The legislative directive must delineate the scope of the agent’s authority so that those affected by the agent’s commands may know that his command is within his authority and is not his own arbitrary fiat. Cramp v. Board of Public Instruction,
Section 5(a)(1)(D) denies significant employment rights under threat of criminal punishment to persons simply because of their political associations. The Government makes no claim that Robel is a security risk. He has worked as a machinist at the shipyards for many years, and we are told is working there now. We are in effect invited by the Government to assume that Robel is a law abiding citizen, earning a living at his chosen trade. The justification urged for punishing him is that
See Cole v. Young,
“[I]t is difficult to justify summary suspensions and unreviewable dismissals on loyalty grounds of employees who are not in ‘sensitive’ positions and who are thus not situated where they could bring about any discernible adverse effects on the Nation’s security.”
The Government also points out that § 5 (a) (1) (D) applies only to members of “Communist-action” organizations, while § 6 applied also to members of “Communist-front” organizations, groups which the Government contends are less dangerous to the national security under Congress’ definitions, and whose members are therefore presumably less dangerous. This distinction is, however, open to some doubt. Even if a “front” organization, which is defined as an organization either dominated by or primarily operated for the purpose of aiding and supporting “action” organizations, could in some fashion be regarded as less dangerous, Aptheker held § 6 invalid because it failed to discriminate among affected persons on the bases of their activity and commitment to unlawful purposes, and nothing in the opinion indicates the result would have been different if Congress had been indiscriminate in these respects with regard only to “Communist-action” group members.
The choice of a prophylactic measure “must be viewed in the light of less drastic means for achieving the same basic purpose.” Shelton v. Tucker,
Congress rejected suggestions of the President and the Department of Justice that existing security programs were adequate with only slight modifications. See H. R. Doc. No. 679, 81st Cong., 2d Sess., 5 (1950); Hearings on Legislation to Outlaw Certain Un-American and Subversive Activities before the House Un-American Activities Committee, 81st Cong., 2d Sess., 2122-2125 (1950). Those programs cover most of the facilities within the reach of § 5 (a)(1)(D) and make Party membership an important factor governing access. 32 CFR § 155.5. They provide measures to prevent and punish subversive acts. The Department of Defense, moreover, had screened some 3,000,000 defense contractor employees under these procedures by 1956, Brown, Loyalty and Security 179-180 (1958), thereby providing at least some evidence of its capacity to handle this problem in a more discriminating manner.
Congress, in fact, originally proposed to limit the Secretary’s discretion in designating “defense facilities.” H. R. 9490, passed by both the House and Senate, provided that the Secretary should determine and designate each “defense plant” as defined in § 3 (7) of the Act. The difference between that version and § 5 (a) (1) (D)
“Under section 3 (7) a defense plant was defined as any plant, factory, or other manufacturing or service establishment, or any part thereof, engaged in the production or furnishing, for the use оf the Government of any commodity or service determined and designated by the Secretary of Defense to be of such character as to affect the military security of the United States.
“Section 3 (7), and the provisions of section 5 relating to the designation of defense plants by the Secretary of Defense, have been modified in the conference substitute so as to broaden the concept of defense plants to cover any appropriately designated plant, factory or other manufacturing, producing, or service establishment, airport, airport facility, vessel, pier, water-front facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division, or department of any of the foregoing. Because of this broader coverage, section 3 (7) has been changed so as to define the two terms 'facility’ and ‘defense facility.’ ”
The Secretary has published criteria which guide him in applying the statute:
“The list of ‘defense facilities’ is comprised of (1) facilities engaged in important classified militаry projects; (2) facilities producing important weapons systems, subassemblies and their components; (3) facilities producing essential common components, intermediates, basic materials and raw materials; (4) important utility and service facilities; and (5) research laboratories whose contributions are important to the national defense. The list, which will be amended from time to time as necessary, has been classified for reasons of security.”
Department of Defense Release No. 1363-62, Aug. 20, 1962. These broad standards, which might easily justify applying the statute to most of our major industries, cannot be read into the statute to limit the Secretary’s discretion, since they are subject to unreviewable amendment.
The statute contemplates only four significant findings before criminal liability attaches: (1) that the Communist Party is a “Communist-action organization”; (2) that defendant is a member of the Communist Party; (3) that defendant is engaged in employment at a “defense facility”; and (4) that he had notice that his place of employment was a “defense facility.” The first finding was made by the Subversive Activities Control Board. The third finding — that the shipyard is a “defense facility” — was made by the Secretary of Defense. The fourth finding refers to the notice requirement which is no more than a presumption from the posting required of the employer by §5 (b). Thus the only issue which a defendant can effectively contest is whether he is a Communist Party member. In view of the result which I would reach, however, I need not consider appellee’s argument that this affords defendants only the shadow of a trial, and violates due process.
Dissenting Opinion
dissenting.
The Court holds that because of the First Amendment a member of the Communist Party who knows that the Party has been held to be a Communist-action organization may not be barred from employment in defense establishments important to the security of the Nation. It therefore refuses to enforce the contrary judgments of the Legislative and Executive Branches of the Government. Respectfully disagreeing with this view, I dissent.
The constitutional right found to override the public interest in national security defined by Congress is the right of association, here the right of appellee Robel to remain a member of the Communist Party after being notified of its adjudication as a Communist-action organization. Nothing in the Constitution requires this result. The right of association is not mentioned in the Constitution. It is a judicial construct appended to the First Amendment rights to speak freely, to assemble, and
The relevant cases uniformly reveal the necessity for accommodating the right of association and the public interest. NAACP v. Alabama,
Nor does the Court mandate a different course in this case. Apparently “active” members of the Communist Party who have demonstrated their commitment to the illegal aims of the Party may be barred from defense facilitiеs. This exclusion would have the same deterrent effect upon associational rights as the statute before us, but the governmental interest in security would override that effect. Also, the Court would seem to permit barring appellee, although not an “active” member of the
The national interest asserted by the Congress is real and substantial. After years of study, Congress prefaced the Subversive Activities Control Act of 1950, 64 Stat. 987, 50 U. S. C. §§ 781-798, with its findings that there exists an international Communist movement which by treachery, deceit, espionage, and sabotage seeks to overthrow existing governments; that the movement operates in this country through Communist-action organizations which are under foreign domination and control and which seek to overthrow the Government by any necessary means, including force and violence; that the Communist movement in the United States is made up of thousands of adherents, rigidly disciplined, operating in secrecy, and employing espionage and sabotage tactics
Against this background protective measures were clearly appropriate. One of them, contained in 50 U. S. C. § 784 (a) (1) (D), which became activated with the affirmance of the Party’s designation as a Communist-action organization, makes it unlawful “[f]or any member of such organization, with knowledge or notice . . . that such order has become final... to engage in any employment in any defense facility . . . .” A defense facility is any of the specified types of establishment “with respect to
Congress should be entitled to take suitable precautionary measures. Some Party members may be no threat at all, but many of them undoubtedly are, and- it is exceedingly difficult to identify those in advance of the very events which Congress seeks to avoid. If Party members such as Robel may be barred from “sensitive positions,” it is because they are potential threats to security. For the same reason they should be excludable from employment in defense plants which Congress and the Secretary of Defense consider of critical importance to the security of the country.
The statute does not prohibit membership in the Communist Party. Nor are appellee and other Communists excluded from all employment in the United States, or even from all defense plants. The touchstones for exclusion are the requirements of national security, and the facilities designated under this standard amount to only about one percent of all the industrial establishments in the United States.
It is this impact on associational rights, although specific and minimal, which the Court finds impermissible. But as the statute’s dampening effect on associational rights is to be weighed against thе asserted and obvious government interest in keeping members of Communist-action groups from defense facilities, it would seem important to identify what interest Robel has in
The Court says that mere membership in an association with knowledge that the association pursues unlawful aims cannot be the basis for criminal prosecution, Scales v. United States,
“Security against foreign danger is one of the primitive objects of civil society. . . .
“. . . The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is а germ of Unnecessary and multiplied repetitions.”3
If men may speak as individuals, they may speak in groups as well. If they may assemble and petition, they must have the right to associate to some extent. In this sense the right of association simply extends constitutional protection to First Amendment rights when exercised with others rather than by an individual alone. In NAACP v. Alabama, the Court said that the freedom to associate for the advancement of beliefs and ideas is constitutionally protected and that it is “immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters
1 cannot agree with my Brother BrenNAN that Congress delegated improperly when it authorized the Secretary of Defense to determine “with respect to the operation of which [defense facilities] . . . the security of the United States requires the application of the provisions of subsection (a) of this section.” Rather I think this is precisely the sort of application of a legislative determination to specific facts within the administrator’s expertise that today’s complex governmental structure requires and that this Court has
The Federalist No. 41, pp. 269-270 (Cooke ed. 1961).