Caseflicks

Supreme Court of the United States • 1964

Aptheker v. Secretary of State

378 U.S. 500 | 84 S. Ct. 1659 | 12 L. Ed. 2d 992 | 1964 U.S. LEXIS 2225

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Takeaway

In short, this case holds that Congress may protect national security, but it may not impose a blanket passport ban on an entire political association without a sufficiently precise connection between each person's travel and the asserted security threat.

Background

Section 6 of the Subversive Activities Control Act made it a crime for a member of a Communist organization that had registered, or had been finally ordered to register, to apply for, use, or attempt to use a United States passport. The Communist Party of the United States was subject to a final registration order in 1961. Herbert Aptheker and Elizabeth Gurley Flynn, both native-born U.S. citizens and acknowledged Party leaders, had previously held passports.

In 1962, the State Department revoked their passports on the ground that their use would violate § 6. After administrative hearings and appeals, the Secretary of State sustained the revocations based on findings that each appellant was a Party member with notice of the Party's registration order. The appellants conceded that the membership findings were adequately supported and that the revocations were proper if § 6 was constitutional.

They sought declaratory and injunctive relief in a three-judge District Court, arguing principally that § 6 deprived them of the Fifth Amendment liberty to travel abroad. The District Court upheld the statute as a reasonable national-security measure. The Supreme Court reversed and remanded.

Issues

Issue #1

Whether § 6 of the Subversive Activities Control Act unconstitutionally restricted the Fifth Amendment liberty to travel abroad by denying passports to all notified members of registered Communist organizations.

Holding

Yes. Section 6 was unconstitutional on its face because it swept too broadly and indiscriminately across the constitutionally protected liberty to travel.

Reasoning

The Court began with Kent v. Dulles, which recognized foreign travel as an important aspect of the liberty protected by the Fifth Amendment. In practical operation, passport denial was a severe restraint: existing law made a passport necessary for travel outside the Western Hemisphere and for travel to Cuba. Section 6 therefore effectively barred covered persons from most foreign travel.

Congress plainly had authority to protect national security, and the Court did not treat the right to travel as absolute. But even a legitimate and substantial governmental purpose cannot be pursued through means that unnecessarily invade protected freedoms. The Court applied the principle that legislation affecting fundamental liberties must be narrowly drawn, with its breadth measured against less drastic ways to achieve the same objective.

Section 6 made bare membership in a covered organization the sole basis for the travel prohibition. It applied even to members who did not actually know that their organization was covered or that it pursued the aims attributed to the world Communist movement. By treating knowing and unknowing members alike, the statute created an arbitrary and irrebuttable presumption that every member's foreign travel would threaten national security.

The statute also ignored factors that would bear directly on the asserted security danger: the member's degree of activity, commitment to the organization's unlawful purposes, knowledge, proposed destination, and purpose for travel. Thus, a person could be denied a passport to visit a sick relative, obtain medical care, conduct research, or travel to a country posing no security concern, even though the same person could travel within the Western Hemisphere for harmful purposes.

The Government could not justify the burden by saying that members could regain their ability to travel by leaving the organization. Freedom of association is itself constitutionally protected, so the Government may not dismiss a travel restriction on the premise that a person can exercise the right only by relinquishing protected associational membership.

Less restrictive alternatives were available. The federal loyalty program, for example, treated organizational membership as relevant evidence rather than conclusive proof of disloyalty. Because § 6 rested on only a tenuous connection between membership and dangerous travel-related conduct while omitting plainly relevant individualized considerations, it was not precisely tailored to the security interest Congress invoked.

Issue #2

Whether § 6 could nevertheless be sustained as applied to Aptheker and Flynn because they were top-ranking Communist Party leaders with actual knowledge of the Party and its objectives.

Holding

No. The Court declined to salvage the statute through an as-applied limitation for Party leaders because doing so would require judicial rewriting of a plainly overbroad law that severely burdened personal liberty.

Reasoning

The Government argued that, whatever the statute's defects at the margins, it was reasonable as applied to Aptheker, the editor of the Party's theoretical journal, and Flynn, the Party's chair. The Court acknowledged their leadership positions but held that the question was whether Congress's actual statute could permissibly bear a narrowing construction, not whether Congress could have enacted a valid statute directed at leaders or persons posing demonstrated security risks.

Section 6 was clear and categorical: it covered every notified member of a registered organization, not merely active leaders, knowledgeable members, or persons whose planned travel created a security danger. Reading those limitations into the provision would substantially rewrite its scope and would replace a clear statutory rule with uncertain, case-by-case judicial judgments.

Because freedom of travel is a constitutional liberty closely related to speech and association, the Court applied the facial-review approach used for laws that threaten First Amendment freedoms. Persons subject to such a sweeping penal restriction need not prove that Congress could not constitutionally have drafted a narrower statute covering their particular conduct. The statute's susceptibility to broad improper application itself justified invalidating it.

Concurrences

Justice Black

Reasoning

Justice Black agreed that § 6 was unconstitutional but rejected the majority's view that the Fifth Amendment Due Process Clause, standing alone, protects a general constitutional liberty to travel abroad at will. In his view, Congress ordinarily has broad power to regulate passports under its power to regulate foreign commerce, while due process requires only that restraints on liberty rest on valid law.

He concluded that § 6 failed because the Subversive Activities Control Act as a whole was invalid. Reiterating views from his earlier dissent in Communist Party v. Subversive Activities Control Board, he regarded the Act as a prohibited bill of attainder, a scheme imposing punishment based on legislative and administrative determinations rather than criminal trials with constitutional safeguards, and an infringement of First Amendment speech, press, and association rights.

For Justice Black, internal security is best preserved not by suppressing unpopular groups but by safeguarding the freedoms guaranteed by the First Amendment. Removing liberty from those whose views are currently despised, he warned, endangers the liberty of everyone else.

Justice Douglas

Reasoning

Justice Douglas joined the Court's opinion but emphasized that freedom of movement, both within the United States and abroad, is fundamental to a free society. He viewed domestic interstate movement as a privilege of national citizenship and rejected the premise that Communist affiliation could itself justify denying anyone that freedom.

In his view, being a Communist was not a crime, and the possibility that travel might facilitate later unlawful conduct did not justify restricting travel in advance. The Government may punish actual illegal conduct, but it may not make the exercise of free movement itself criminal merely because it suspects the traveler of dangerous views or associations.

Justice Douglas connected the right to travel with the rights of assembly and association. Movement makes other freedoms meaningful by enabling citizens to learn, observe, converse, organize, and participate in cultural, political, and economic life. Absent extraordinary circumstances that would justify detention, such as a criminal conviction or probable cause for arrest, he saw no constitutional basis for preventing a citizen from traveling abroad.

Dissents

Justice Clark

Reasoning

Justice Clark, joined by Justice Harlan, and joined by Justice White as to the dissent's first part, argued that the Court improperly invalidated § 6 on its face instead of deciding the case as applied to these appellants. Ordinarily, federal courts should decide no broader constitutional question than the facts require, and a person whose own conduct may constitutionally be regulated generally may not attack a statute based on hypothetical unconstitutional applications to others.

That ordinary rule should control here, Justice Clark maintained, because the majority rested on Fifth Amendment travel liberty rather than directly on the First Amendment. Unlike the First Amendment cases on which the majority relied, this case involved two highly placed Party officials, not unknowing or passive members asserting innocent reasons for travel.

The administrative findings established, and the appellants did not dispute, that Flynn and Aptheker were active, continuous members and principal officials of the Communist Party. Both had participated in the Party's registration proceeding, and Aptheker had openly stated his commitment to advancing the Party's goals. Thus, Justice Clark argued, their actual knowledge of the Party and its status eliminated the majority's concern about application to unwitting members.

Justice Clark also would have upheld the statute on its face. Although travel abroad is protected liberty, it may be reasonably regulated. Congress had made extensive findings that international travel by members of the world Communist movement facilitated communications, training, espionage, and centralized foreign control. Those findings supplied a rational basis for the passport restriction as a national-security measure.

The dissent rejected the majority's conclusion that Congress had impermissibly presumed individual guilt from membership alone. Congress did not outlaw Party membership; it restricted members' use of passports in a field where it had found a distinctive danger. Congress could reasonably conclude that, given the Party's secretive and disciplined character, the security risk of foreign travel by its members warranted a categorical rule even if not every member would misuse a passport. Justice Clark therefore would have affirmed the District Court.