Schneider v. Smith

• Citation: 88 S.Ct. 682,390 U.S. 17,19 L.Ed.2d 799
• Decision Date: 16 January 1968
• Docket Number: No. 196,196
• Parties: Herbert SCHNEIDER, Appellant, v. Willard SMITH, Commandant, United States Coast Guard
• Court: United States Supreme Court

390 U.S. 17

88 S.Ct. 682

19 L.Ed.2d 799

Herbert SCHNEIDER, Appellant,

v Willard SMITH, Commandant, United States Coast Guard.

No. 196.

Argued Dec. 12 and 13, 1967.

Decided Jan. 16, 1968.

Leonard W. Schroeter, and John Caughlan, Seattle, Wash., for appellant.

John S. Martin, Jr., Washington, D.C., for appellee.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Appellant, who has served on board American-flag commercial vessels in various capacities, is now qualified to act as a second assistant engineer on steam vessels. But between 1949 and 1964 he was employed in trades other than that of a merchant seaman. In October 1964 he applied to the Commandant of the Coast Guard for a validation of the permit or license which evidences his ability to act as a second assistant engineer.

Under the Magnuson Act, 64 Stat. 427, 50 U.S.C. § 191(b), the President is authorized, if he finds that 'the security of the United States is endangered by * * * subversive activity,' to issue rules and regulations 'to safeguard against destruction, loss, or injury from sabotage or other subversive acts' all 'vessels' in the territories or waters subject to the jurisdiction of the United States.¹

President Truman promulgated Regulations, 33 CFR, pt. 6, which give the Commandant of the Coast Guard authority to grant or withhold validation of any permit or license evidencing the right of a seaman to serve on a merchant vessel of the United States. § 6.10—3. He is directed not to issue such validation unless he is satisfied that 'the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States.' § 6.10—1.

The questionnaire, which appellant in his application was required to submit, contained the following inquiry which he answered:

'ITEM 4. Do you now advocate, or have you ever advocated, the overthrow or alteration of the Government of the United States by force or violence or by unconstitutional means?

'Answer: No.'

The questionnaire contained the following inquiries which related to his membership and participation in organizations which were on the special list of the Attorney General as authorized by Executive Order 10450, 18 Fed.Reg. 2489:

'ITEM 5. Have you ever submitted material for publication to any of the organizations listed in Item 6 below?

'Answer. No.

'ITEM 6. Are you now, or have you ever been, a member of, or affiliated or associated with in any way, any of the organizations set forth below? (There followed a list of more than 250 organizations.)

'Answer. Yes.

'If your answer is 'yes,' give full details in Item 7.

'ITEM 7. (Use this space to explain Items 1 through 6. * * * Attach a separate sheet if there is not enough space here.)

'Answer. I have been a member of many political & social organizations, including several named on this list.

'I cannot remember the names of most of them & could not be specific about any.

'To the best of my knowledge, I have not been a member or participated in the activities of any of these organizations for ten years.'

Upon receiving the questionnaire returned by the appellant, the Commandant advised him that the information was not sufficient and that answers to further interrogatories were necessary.²

In reply, appellant, speaking through his counsel, admitted to the Commandant that he had been a member of the Communist Party as well as other organizations on the Attorney General's list and that he had subscribed to People's World. He said that he had joined the Party because of his personal philosophy and idealistic goals, but later quit it and the other organizations due to fundamental disagreement with Communist methods and techniques. But beyond that he said he would not answer because 'it woudl be obnoxious to a truly free citizen to answer the kinds of questions under compulsion that you require.' The Commandant declined to process the application further, relying upon 33 CFR § 121.05(d)(2), which authorizes him to hold the application in abeyance if an applicant fails or refuses to furnish the additional information.

Appellant thereupon brought this action for declaratory relief that the provisions of the Magnuson Act in question and the Commandant's actions thereunder were unconstitutional, praying that the Commandant be directed to approve his application and that he be enjoined from interfering with appellant's employment upon vessels flying the American flag.

A three-judge court was convened and the complaint was dismissed. 263 F.Supp. 496. The case is here on appeal, 28 U.S.C. § 1253. We postponed the question of jurisdiction to the merits. 389 U.S. 810, 88 S.Ct. 53, 19 L.Ed.2d 62.

We agree, as does appellee, that the case was one to be heard by a threejudge court and that accordingly we have jurisdiction of this appeal. For appellant did raise the question as to whether the statute was unconstitutional because of vagueness and abridgement of First Amendment rights and also questioned whether the power to install a screening program was validly delegated. A three-judge court was accordingly proper. Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179.

The Magnuson Act gives the President no express authority to set up a screening program for personnel on merchant vessels of the United States. As respects 'any foreign-flag vessels' the power to control those who 'go or remain on board' is clear. 50 U.S.C. § 191(a). As respects personnel of our own merchant ships, the power exists under the Act only if it is found in the power to 'safeguard' vessels and waterfront facilities against 'sabotage or other subversive acts,' that is, under § 191(b). The Solicitor General argues that the power to exclude persons from vessels 'clearly implies authority to establish a screening procedure for determining who shall be allowed on board.' But that power to exclude is contained in § 191(a) which, as noted, applies to 'foreign-flag vessels,' while, as we have said, the issue tendered here must find footing in § 191(b).³

We agree with the District Court that keeping our merchant marine free of saboteurs is within the purview of this Act. Our question is a much narrower one.

The Regulations prescribe the standards by which the Commandant is to judge the 'character and habits of life' of the employee to determine whether his 'presence * * * on board' the vessel would be 'inimical to the security of the United States':

'(a) Advocacy of the overthrow or alteration of the Government of the United States by unconstitutional means.

'(b) Commission of, or attempts or preparations to commit, an act of espionage, sabotage, sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.

'(c) Performing, or attempting to perform, duties or otherwise acting so as to serve the interests of another government to the detriment of the United States.

'(d) Deliberate unauthorized disclosure of classified defense information.

'(e) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, group, or combination of persons designated by the Attorney General pursuant to Executive Order 10450, as amended.' 33 CFR § 121.03.

If we assume arguendo that the Act authorizes a type of screening program directed at 'membership' or 'sympathetic association,' the problem raised by it and the Regulations would be kin to the one presented in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, where a teacher to be hired by a public school of Arkansas had to submit an affidavit 'listing all organizations to which he at the time belongs and to which he has belonged during the past five years.' Id., at 481, 81 S.Ct., at 248.

We held that an Act touching on First Amendment rights must be narrowly drawn so that the precise evil is exposed; that an unlimited and indiscriminate search of the employee's past which interferes with his associational freedom is unconstitutional. Id., at 487—490, 81 S.Ct., at 251—253.

If we gave § 191(b) the broad construction the Solicitor General urges, we would face here the kind of issue present in Shelton v. Tucker, supra, whether government can probe the reading habits, political philosophy, beliefs, and attitudes on social and economic issues of prospective seamen on our merchant vessels.

A saboteur on a merchant vessel may, of course, be dangerous. But no charge that appellant was a saboteur was made. Indeed, no conduct of appellant was at issue before the Commandant. The propositions tendered in the complaint were (1) plaintiff is now and always has been loyal to the United States; (2) he has not been active in any organization on the Attorney General's list for the past 10 years; (3) he has never committed any act of sabotage or espionage or any act inimical to the security of the United States. Those propositions were neither contested by the Commandant nor conceded. He took the position that admission of evidence on those propositions was 'irrelevant and immaterial.'

We are loath to conclude that Congress, in its grant of authority to the President to 'safeguard' vessels and waterfront facilities from 'sabotage or other subversive acts,' undertook to reach into the First Amendment area. The provision of the Act in question, 50 U.S.C. § 191(b), speaks only in terms of actions, not ideas or beliefs or reading habits or social, educational, or political associations.

The purpose of the Constitution and Bill of Rights, unlike more recent models promoting a welfare state, was to take government off the backs of people. The First Amendment's ban against Congress 'abridging' freedom of speech, the right peaceably to assemble and to petition, and the 'associational freedom' (Shelton v. Tucker, supra, at 490, 81 S.Ct. 247) that goes with those rights creates a...