Aptheker v. Secretary of State

The Court began with Kent v. Dulles,[2] reaffirming that the right to travel abroad was 'an important aspect of the citizen's 'liberty" guaranteed in the Due Process Clause of the Fifth Amendment. It then cited NAACP v. Alabama[3] and NAACP v. Button[4] in support of the "well-established principles by which to test whether the restrictions here imposed [were] consistent with the liberty guaranteed in the Fifth Amendment." It enumerated these principles by citing Shelton v. Tucker via NAACP v. Alabama "'(E)ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.'"

It then considered the congressional purpose underlying § 6 of the Control Act, noting that the legislation in question flowed from the congressional desire to protect national security which it held was obviously and unarguably within the Congress' Constitutional power. But it concluded that the legislation was indiscriminate due to an absence of criteria linking the bare fact of membership in a Communist organization to the individual's knowledge, activity or commitment. The provision swept within its prohibition both knowing and unknowing members, citing Wieman v. Updegraff: 'Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power.'[5] The irrebuttable presumption of Section 6 that individuals who are members of the specified organizations will, if given passports, engage in activities inimical to the security of the United States also rendered irrelevant the member's degree of activity in the organization and his commitment to its purpose, citing Schware v. Board of Bar Examiners.[6]

The Court further noted that section 6 excluded other considerations which might more closely relate the denial of passports to the stated purpose of the legislation, such as the purposes for which an individual wishes to travel or the security-sensitivity of the areas in which he wishes to travel. In determining whether there has been an abridgment of the Fifth Amendment's guarantee of liberty, the Court recognized the danger of punishing a member of a Communist organization 'for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share, citing Noto v. United States. And it noted that Congress had within its power 'less drastic' means of achieving the congressional objective of safeguarding the nation's security.

The Court then considered the government's alternate theory, rejecting it because the law was clear and precise and could not be judicially rewritten to take in only top party members. The Court concluded that "since freedom of travel is a constitutional liberty closely related to rights of free speech and association, we believe that appellants in this case should not be required to assume the burden of demonstrating that Congress could not have written a statute constitutionally prohibiting their travel."

In a concurring opinion, Justice Black expressed his opinion that the whole act, including Section 6, was a bill of attainder. He held it appropriate "to point out that the Framers thought that the best way to promote the internal security of our people is to protect their First Amendment freedoms of speech, press, religion and assembly, and that we cannot take away the liberty of groups whose views most people detest without jeopardizing the liberty of all others whose views, though popular today, may themselves be detested tomorrow."

Justice Douglas, also concurring, opined that "Freedom of movement is kin to the right of assembly and to the right of association. These rights may not be abridged," citing De Jonge v. Oregon.[7] "War may be the occasion for serious curtailment of liberty. Absent war, I see no way to keep a citizen from traveling within or without the country, unless there is power to detain him. Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243. And no authority to detain exists except under extreme conditions, e.g., unless he has been convicted of a crime or unless there is probable cause for issuing a warrant of arrest by standards of the Fourth Amendment." "We cannot exercise and enjoy citizenship in world perspective without the right to travel abroad; and I see no constitutional way to curb it unless, as I said, there is the power to detain."

Justice Clark wrote the minority opinion which was joined by Justices Harlan and White. The minority objected to the refusal of the majority to consider the government's alternate theory, citing United States v. Raines, 362 U.S. 17, distinguishing the Court's thinking in First Amendment cases in Thornhill and Button and Fifth Amendment cases in Kent. The minority would hold that as applied to the prosecution of the Communist Party's top dignitaries, the section was clearly constitutional, noting that Aptheker and Flynn fail the majority's criteria for "indiscriminate" because each clearly knew of their party membership and each was committed to its causes. Neither desired to travel to some innocent destination. Consequently, the Court should not reject the law on the hypothetical but should rather hold the law constitutional as applied.

He would also find the section valid on its face, holding that the remedy adopted by the Congress had a rational basis because it was reasonably related to national security and reasonably tailored to accomplish the purpose. He rejected the "loose generalization" that individual guilt might be conclusively presumed from membership in the Party" because the matter could not be held in isolation but need be considered relative to the subject matter involved and legislative findings.

Justice White, without elaboration, would hold Section 6 constitutional as applied but did not join Justice Clark in his facial analysis.