Aptheker v. Secretary of State

• Decision Date: 22 June 1964
• Docket Number: No. 461,461
• Citation: 12 L.Ed.2d 992,378 U.S. 500,84 S.Ct. 1659
• Parties: Herbert APTHEKER et al., Appellants, v. The SECRETARY OF STATE
• Court: U.S. Supreme Court

378 U.S. 500

84 S.Ct. 1659

12 L.Ed.2d 992

Herbert APTHEKER et al., Appellants,

v The SECRETARY OF STATE.

No. 461.

Argued April 21, 1964.

Decided June 22, 1964.

John J. Abt, New York City, and Joseph Forer, Washington, D.C., for appellants.

Abram Chayes, Washington, D.C., for appellee.

Mr. Justice GOLDBERG delivered the opinion of the Court.

This appeal involves a single question: the constitutionality of § 6 of the Subversive Activities Control Act of 1950, 64 Stat. 993, 50 U.S.C. § 785. Section 6 provides in pertinent part that:

'(a) When a Communist organization¹ * * * is registered, or there is in effect a final order of the Board requiring such organization to register, it shall be unlawful for any member of such organization, with knowledge or notice that such organization is so registered or that such order has become final—

'(1) to make application for a passport, or the renewal of a passport, to be issued or renewed by or under the authority of the United States; or

'(2) to use or attempt to use any such passport.'²

Section 6 became effective, with respect to appellants, on October 20, 1961, when a final order of the Subversive Activities Control Board issued directing the Communist Party of the United States to register under § 7 of the Subversive Activities Control Act. The registration order had been upheld earlier in 1961 by this Court's decision in Communist Party of the UnitedStates v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625. Prior to issuance of the final registration order both appellants, who are nativeborn citizens and residents of the United States, had held valid passports. Subsequently, on January 22, 1962, the Acting Director of the Passport Office notified appellants that their passports were revoked because the Department of State believed that their use of the passports would violate § 6. Appellants were also notified of their right to seek administrative review of the revocations under Department of State regulations.

Appellants requested and received hearings to review the revocations of their passports. The respective hearing examiners concluded that 'the Department of State had reason to believe that (appellants are) within the purview of Section 6(a)(2) of the Subversive Activities Control Act * * * and as a result thereof * * * use of a passport would be in violation of the law.' On the basis of this conclusion the examiners recommended that the passport revocations be sustained.³ Both appellants appealed to the Board of Passport Appeals which recommended affirmance of the revocations. The Secretary of State subsequently approved the recommendations of the Board. The Secretary stated that he 'relied solely in the evidence in the record' and that, as the basis of his decision, he:

'specifically adopted as his own the (Board's) finding of fact that 'at all material times (appellants were members) of the Communist Party of the United States with knowledge or notice that such organization had been required to register as a Communist organization under the Subversive Activities Control Act."

Appellants thereupon filed separate complaints seeking declaratory and injunctive relief in the United States District Court for the District of Columbia. The complaints, which have been considered together, asked that judgments be entered declaring § 6 of the Subversive Activities Control Act unconstitutional and ordering the Secretary of State to issue passports to appellants. Each appellant-plaintiff alleged that § 6 was unconstitutional as inter alia, 'a deprivation without due process of law of plaintiff's constitutional liberty to travel a road, in violation of the Fifth Amendment to the Constitution of the United States.'⁴ Appellants conceded that the Secretary of State had an adequate basis for finding that they were members of the Communist Party of the United States and that the action revoking their passports was proper if § 6 was constitutional. The parties agreed that all administrative remedies had been exhausted and that it would be futile, and indeed a criminal offense, for either appellant to apply for a passport while remaining a member of the Communist Party.

The three-judge District Court, which was convened to review the constitutional question, rejected appellants' contentions, sustained the constitutionality of § 6 of the Control Act, and granted the Secretary's motion for summary judgment. 219 F.Supp. 709. The court concluded that:

'the enactment by Congress of section 6, which prohibits these plaintiffs from obtaining passports so long as they are members of an organization—in this case the Communist Party under a final order to register with the Attorney General * * * is a valid exercise of the power of Congress to protect and preserve our Government against the threat posed by the world Communist movement and that the regu- latory scheme bears a reasonable relation thereto.' Id., at 714.

This Court noted probable jurisdiction. 375 U.S. 928, 84 S.Ct. 332, 11 L.Ed.2d 262.

Appellants attack § 6, both on its face and as applied, as an unconstitutional deprivation of the liberty guaranteed in the Bill of Rights. The Government, while conceding that the right to travel is protected by the Fifth Amendment, contends that the Due Process Clause does not prevent the reasonable regulation of liberty and that § 6 is a reasonable regulation because of its relation to the danger the world Communist movement presents for our national security. Alternatively, the Government argues that 'whether or not denial of passports to some members of the Communist Party might be deemed not reasonably related to national security, surely Section 6 was reasonable as applied to the top-ranking Party leaders involved here.'

We hold, for the reasons stated below, that § 6 of the Control Act too broadly and indiscriminately restricts the right to travel and thereby abridges the liberty guaranteed by the Fifth Amendment.

I.

In 1958 in Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1119, 2 L.Ed.2d 1204, this Court declared that the right to travel abroad is 'an important aspect of the citizen's 'liberty" guaranteed in the Due Process Clause of the Fifth Amendment. The Court stated that:

'The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. * * * Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country * * * may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.'⁵ Id., 357 U.S., at 125—126, 78 S.Ct., at 1118.

In Kent, however, the Court concluded that Congress had not conferred authority upon the Secretary of State to deny passports because of alleged Communist beliefs and associations. Therefore, although the decision protected the constitutional right to travel, the Court did not examine 'the extent to which it can be curtailed.' Id., 357 U.S., at 127, 78 S.Ct., at 1119. The Court, referring to § 6 of the Subversive Activities Control Act, noted that 'the only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective.' Id., 357 U.S., at 130, 78 S.Ct., at 1120. Two years later in Communist Party of the United States v. Subversive Activities Control Board, supra, this Court reviewed and upheld the registration requirement of § 7 of the Control Act. The Court, however, did not pass upon the 'various consequences of the Party's registration for its individual members,' id., 367 U.S., at 70, 81 S.Ct., at 1397, because:

'It is wholly speculative now to foreshadow whether, or under what conditions, a member of the Party may in the future apply for a passport, or seek government or defense-facility or labor-union employment, or, being an alien, become a party to a naturalization or a denaturalization proceeding. None of these things may happen. If they do, appropriate administrative and judicial procedures will be available to test the constitutionality of applications of particular sections of the Act to particular persons in particular situations. Nothing justifies previsioning those issues now.' Id., 367 U.S., at 79, 81 S.Ct., at 1401. (Emphasis added.)

The present case, therefore, is the first in which this Court has been called upon to consider the constitutionality of the restrictions which § 6 imposes on the right to travel.

The substantiality of the restrictions cannot be doubted. The denial of a passport, given existing domestic and foreign laws, is a severe restriction upon, and in effect a prohibition against, world-wide foreign travel. Present laws and regulations make it a crime for a United States citizen to travel outside the Western Hemisphere or to Cuba without a passport. By its plain import § 6 of the Control Act effectively prohibits travel anywhere in the world outside the Western Hemisphere by members of any 'Communist organization'—including 'Communist-action' and 'Communist-front' organizations.⁶ The restrictive effect of the legislation cannot be gainsaid by emphasizing, as the Government seems to do, that a member of a registering organization could recapture his freedom to travel by simply in good faith abandoning his membership in the organization. Since freedom of association is itself guaranteed in the First Amendment,⁷ restrictions imposed upon the right to travel cannot be dismissed by asserting that the right to travel could be fully exercised if the individual would first yield up his membership in a given association.

Although previous cases have not involved the constitutionality of statutory restrictions upon the right to travel abroad, there are well-established principles by which to test whethe the restrictions here imposed are consistent with...