378 U.S. 500 (1964), 461, Aptheker v. Secretary of State

Docket Nº:No. 461
Citation:378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992
Party Name:Aptheker v. Secretary of State
Case Date:June 22, 1964
Court:United States Supreme Court
 
FREE EXCERPT

Page 500

378 U.S. 500 (1964)

84 S.Ct. 1659, 12 L.Ed.2d 992

Aptheker

v.

Secretary of State

No. 461

United States Supreme Court

June 22, 1964

Argued April 21, 1964

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Syllabus

Appellants, native-born citizens and residents of the United States, are ranking officials of the Communist Party of the United States. After hearings under State Department regulations, appellants' passports were revoked under § 6 of the Subversive Activities Control Act of 1950, which provides that, when a Communist organization is registered, or under final order to register, it shall be unlawful for any member with knowledge or notice thereof to apply for or use a passport. Appellants filed suit asking that § 6 be declared unconstitutional as a violation of the Due Process Clause of the Fifth Amendment and that the Secretary of State be ordered to issue passports to them. A three-judge District Court denied relief.

Held:

1. Section 6 is unconstitutional on its face, for it too broadly and indiscriminately transgresses the liberty guaranteed by the Fifth Amendment. Pp. 505-514.

(a) The right to travel at home and abroad is an important aspect of liberty of which a citizen cannot be deprived without due process of law. Kent v. Dulles, 357 U.S. 116, followed. P. 505.

(b) Under existing laws, denial of a passport effectively prohibits travel anywhere in the world outside the Western Hemisphere. P. 507.

(c) Though the underlying purpose of § 6 is the protection of national security, the attainment of that end cannot be realized by unduly infringing upon constitutional freedoms. Pp. 508-509.

(d) Section 6 applies to every member of a "Communist action" or "Communist front" organization whether or not he believes or knows that he is associated with such an organization or that the organization seeks to further the aims of world Communism. Pp. 509-510.

(e) Also irrelevant under § 6 is the member's degree of activity and his commitment to the organization's purposes. P. 510.

(f) Section 6 creates an irrebuttable presumption that all members of Communist organizations will engage in activities endangering our security if given passports. P. 511.

Page 501

(g) The proscription of § 6 applies regardless of the traveler's purpose or destination. Pp. 511-512.

(h) Congress could have chosen less drastic means of achieving the national security objective without such sweeping abridgment of liberty. Pp. 512-514.

2. Section 6 cannot be held constitutional as applied to these appellants, for such a "construction" would require substantial rewriting of the statute and would inject an element of vagueness into its scope. Since freedom of travel is closely akin to freedom of speech and association, appellants should not be required to demonstrate that Congress could not have written a statute constitutionally prohibiting their travel. Pp. 515-517.

219 F.Supp. 709, reversed and remanded.

GOLDBERG, J., lead opinion

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

Page 502

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 [84 S.Ct. 1662] States to register under § 7 of the Subversive Activities Control Act. The registration order had been upheld earlier in 1961 by this Court's decision in Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1. Prior to issuance of the final registration order, both appellants, who are native-born citizens and residents of the United States, had held valid passports. Subsequently, on January 22, 1962, the Acting Director of the Passport Office notified appellants that their passports were revoked because the Department of State believed that their use of the passports would violate § 6. Appellants were also

Page 503

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 on the evidence in the record," and that, as the basis of his decision, he:

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

Appellants thereupon filed separate complaints seeking declaratory and injunctive relief in the United States District Court for the District of Columbia. The complaints, which have been considered together, asked that judgments be entered declaring § 6 of the Subversive Activities Control Act unconstitutional and ordering the Secretary of State to issue passports to appellants. Each appellant-plaintiff alleged that § 6 was unconstitutional as, inter alia, "a deprivation without due process of law

Page 504

of plaintiff's constitutional liberty to travel abroad, 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 [84 S.Ct. 1663] 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 regulatory

Page 505

scheme bears a reasonable relation thereto.

Id. at 714. This Court noted probable jurisdiction. 375 U.S. 928.

Appellants attack § 6, both on its face and as applied, as an unconstitutional deprivation of the liberty guaranteed in the Bill of Rights. The Government, while conceding that the right to travel is protected by the Fifth Amendment, contends that the Due Process Clause does not prevent the reasonable regulation of liberty, and that § 6 is a reasonable regulation because of its relation to the danger the world Communist movement presents for our national security. 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, this Court declared that the right to travel abroad is "an important aspect of the citizen's `liberty'" guaranteed in the Due Process Clause of the Fifth Amendment. The Court stated that:

The right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the

Page 506

individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.5

Id. at 125-126. In Kent, however, the Court concluded that Congress had not conferred authority upon the Secretary of State to deny passports because of alleged Communist beliefs and associations. Therefore, although the decision protected the...

To continue reading

FREE SIGN UP