389 U.S. 258 (1967), 8, United States v. Robel

Docket NºNo. 8
Citation389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508
Party NameUnited States v. Robel
Case DateDecember 11, 1967
CourtUnited States Supreme Court

Page 258

389 U.S. 258 (1967)

88 S.Ct. 419, 19 L.Ed.2d 508

United States



No. 8

United States Supreme Court

Dec. 11, 1967

Argued November 14, 1966

Reargued October 9, 1967




Appellee, a member of the Communist Party (which had been ordered to register as a Communist-action organization under the Subversive Activities Control Act) remained an employee at a shipyard after the Secretary of Defense had designated it a "defense facility" under the Act. Petitioner was thereafter indicted under § 5(a)(1)(D) of the Act for having "unlawfully and willfully engage[d]" in employment at the shipyard with knowledge of the outstanding order against the Party and of the notice of the Secretary's designation. The District Court, relying on Scales v. United States, 367 U.S. 203, dismissed the indictment for failure to allege that appellee was an active Party member with knowledge of and a specific intent to advance its unlawful purposes. The case was appealed to the Court of Appeals and then certified to this Court as a direct appeal.

Held: Section 5(a)(1)(D) is invalid since, by its overbreadth, it unconstitutionally abridges the right of association protected by the First Amendment. Pp. 262-268.

(a) The indiscriminate application of § 5(a)(1)(D) to all types of association with Communist-action groups, regardless of the quality and degree of membership, makes it impossible by limiting construction to save the provision from constitutional infirmity. Cf. Aptheker v. Secretary of State, 378 U.S. 500. P. 262.

(b) An individual's associational rights under the First Amendment are no less basic than the right to travel involved in Aptheker. Pp. 262-263.

(c) The fact that the Act was passed pursuant to Congress' "war power" to further the "national defense" cannot "remove constitutional limitations safeguarding essential liberties," Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426. Pp. 263-264.

(d) The statute literally establishes guilt by association alone, without any need to show that an individual's association poses the threat of sabotage and espionage in defense plants at which the legislation is directed. P. 265.

Page 259

(e) Section 5(a)(1)(D) includes within its coverage not only association which may be proscribed consistently with the First Amendment, but also association (such as that of passive members of a designated organization, those unaware of or disagreeing with its unlawful aims, and those in nonsensitive jobs at defense facilities) which cannot be so proscribed. Pp. 265-266.

(f) Congress, in exercising its ample power to safeguard the national defense, cannot exceed constitutional bounds, particularly where First Amendment rights are at stake. Pp. 266-268.


WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN 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),1

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which provides that, when a Communist-action organization2 is under a final order to register, it shall be unlawful for any member of the organization "to engage in any employment in any defense facility." In Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961) , this Court sustained an order of the SACB requiring the Communist Party of the United States to register as a Communist-action [88 S.Ct. 422] organization under the Act. The Board's order became final on October 20, 1961. At that time appellee, a member of the Communist Party, was employed as a machinist at the Seattle, Washington, shipyard of Todd Shipyards Corporation. On August 20, 1962, the Secretary of Defense, acting under authority delegated by § 5(b) of the Act, designated that shipyard a "defense facility." Appellee's continued employment at the shipyard after that date subjected him to prosecution under § 5(a)(1)(D), and on May 21, 1963, an indictment was filed charging him with a violation of that section. The indictment alleged in substance that appellee had "unlawfully and willfully engage[d] in employment" at the shipyard with knowledge of the outstanding order against the Party and with knowledge and notice of the shipyard's designation as

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a defense facility by the Secretary of Defense. The United States District Court for the Western District of Washington granted appellee's motion to dismiss the indictment on October 4, 1965. To overcome what it viewed as a "likely constitutional infirmity" in § 5(a)(1)(D), the District Court read into that section "the requirements of active membership and specific intent." Because the indictment failed to allege that appellee's Communist Party membership was of that quality, the indictment was dismissed. The Government, unwilling to accept that narrow construction of § 5(a)(1)(D) and insisting on the broadest possible application of the statute,3 initially took its appeal to the Court of Appeals for the Ninth Circuit. On the Government's motion, the case was certified here as properly a direct appeal to this Court under 18 U.S.C. § 3731. We noted probable jurisdiction. 384 U.S. 937.4 We affirm the judgment of the District Court, but on the ground that § 5(a)(1)(D) is an unconstitutional abridgment of the right of association protected by the First Amendment.5

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We cannot agree with the District Court that § 5(a)(1)(D) can be saved from constitutional infirmity by limiting its application to active members of Communist-action organizations who have the specific intent of furthering the unlawful goals of such organizations. The District Court relied on Scales v. United States, 367 U.S. 203 (1961), in placing its limiting construction on § 5(a)(1)(D). It is true that, in Scales, we read the elements of active membership and specific intent into the membership clause of the Smith Act.6 However, in Aptheker v. Secretary of State, 378 U.S. 500 (1964), we noted that the Smith Act's membership clause required a defendant to have knowledge of the organization's illegal advocacy, a requirement [88 S.Ct. 423] that "was intimately connected with the construction limiting membership to 'active' members." Id. at 511, n. 9. Aptheker involved a challenge to § 6 of the Subversive Activities Control Act, 50 U.S.C. § 785, which provides that, when a Communist organization is registered or under a final order to register, it shall be unlawful for any member thereof with knowledge or notice thereof to apply for a passport. We held that

[t]he clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting.

Id. at 515. We take the same view of § 5(a)(1)(D). It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.

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

Page 263

this case because the right to travel is a more basic freedom than the right to be employed in a defense facility. We agree that Aptheker is not controlling, since it was decided under the Fifth Amendment. But we cannot agree with the Government's characterization of the essential issue in this case. It is true that the specific disability imposed by § 5(a)(1)(D) is to limit the employment opportunities of those who fall within its coverage, and such a limitation is not without serious constitutional implications. See Green v. McElroy, 360 U.S. 474, 492 (1959). But the operative fact upon which the job disability depends is the exercise of an individual's right of association, which is protected by the provisions of the First Amendment.7 Wherever one would place the right to travel on a scale of constitutional values, it is clear that those rights protected by the First Amendment are no less basic in our democratic scheme.

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.8 However, the phrase "war power" cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit.

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"[E]ven the war power does not remove constitutional limitations safeguarding essential liberties." Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934). More specifically in this case, the Government asserts that § 5(a)(1)(D) is an expression

of the growing concern shown by the executive and legislative branches of government over the risks of internal subversion in plants on which the national defense depend[s].9

Yet, this concept of "national defense" cannot be deemed an end in [88 S.Ct. 424] itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term "national defense" is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties -- the freedom of association -- which makes the defense of the Nation worthwhile.

When Congress' exercise of one of...

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