# United States v. Robel/Opinion of the Court

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United States Supreme Court
389 U.S. 258
United States v. Robel
Argued: Oct. 9, 1967. --- Decided: Dec 11, 1967
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), which provides that, when a Communist-action organization 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 of U.S. v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961), this Court sustained an order of the SACB requiring the Communist Party of the United States to register as a Communist-action 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 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, 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, 86 S.Ct. 1458, 16 L.Ed.2d 537. 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.
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, 81 S.Ct. 1469, 6 L.Ed.2d 782 (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. However, in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), we noted that the Smith Act's membership clause required a defendant to have knowledge of the organization's illegal advocacy, a requirement that 'was intimately connected with the construction limiting membership to 'active' members.' Id., at 511, n. 9, 84 S.Ct. at 1666. 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, 84 S.Ct., at 1669. 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 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 Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (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. Whereever 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. 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. '(E)ven the war power does not remove constitutional limitations safeguarding essential liberties.' Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 (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).' Yet, this concept of 'national defense' cannot be deemed an end in 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 its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our 'delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated. See Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). The Government emphasizes that the purpose of § 5(a)(1)(D) is to reduce the threat of sabotage and espionage in the Nation's defense plants. The Government's interest in such a prophylactic measure is not insubstantial. But it cannot be doubted that the means chosen to implement that governmental purpose in this instance cut deeply into the right of association. Section 5(a)(1)(D) put appellee to the choice of surrendering his organizational affiliation, regardless of whether his membership threatenened the security of a defense facility, or giving up his job. When appellee refused to make that choice, he became subject to a possible criminal penalty of five years' imprisonment and a $10,000 fine. The statute quite literally establishes guilt by association alone, without any need to establish that an individual's association poses the threat feared by the Government in proscribing it. The inhibiting effect on the exercise of First Amendment rights is clear.
It has become axiomatic that '(p)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); see Aptheker v. Secretary of State, 378 U.S. 500, 512-513, 84 S.Ct. 1659, 1667, 12 L.Ed.2d 992; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). Such precision is notably lacking in § 5(a)(1)(D). That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. It is made irrelevant to the statute's operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the organization's unlawful airms, or that he may disagree with those unlawful aims. It is also made irrelevant that an individual who is subject to the penalties of § 5(a)(1)(D) may occupy a nonsensitive position in a defense facility. Thus, § 5(a) (1)(D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. See Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Aptheker v. Secretary of State, supra; NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); NAACP v. Button, supra. This the Constitution will not tolerate.
We are not unmindful of the congressional concern over the danger of sabotage and espionage in national defense industries, and nothing we hold today should be read to deny Congress the power under narrowly drawn legislation to keep from sensitive positions in defense facilities those who would use their positions to disrupt the Nation's production facilities. We have recognized that, while the Constitution protects against invasions of individual rights, it does not withdraw from the Government the power to safeguard its vital interests. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 563, 9 L.Ed.2d 644 (1963). Spies and saboteurs do exist, and Congress can, of course, prescribe criminal penalties for those who engage in espionage and sabotage. The government can deny access to its secrets to those who would use such information to harm the Nation. And Congress can declare sensitive positions in national defense industries off limits to those who would use such positions to disrupt the production of defense materials. The Government has told us that Congress, in passing § 5(a)(1)(D), made a considered judgment that one possible alternative to that statute-an industrial security screening program-would be inadequate and ineffective to protect against sabotage in defense facilities. It is not our function to examine the validity of that congressional judgment. Neither is it our function to determine whether an industrial security screening program exhausts the possible alternatives to the statute under review. We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a 'less drastic' impact on the continued vitality of First Amendment freedoms. Shelton v. Tucker, supra; cf. United States v. Brown, 381 U.S. 437, 461, 85 S.Ct. 1707, 1721, 14 L.Ed.2d 484 (1965). The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less.
Affirmed.
Mr. Justice MARSHALL took no part in the consideration or decision of this case.

## Notes

* ↑ The Act was passed over the veto of President Truman. In his veto message, President Truman told Congress, 'The Department of Justice, the Department of Defense, the Central Intelligence Agency, and the Department of State have all advised me that the bill would seriously damage the security and the intelligence operations for which they are responsible. They have strongly expressed the hope that the bill would not become law.' H.R.Doc. No. 708, 81st Cong., 2d Sess., 1 (1950).
* ↑ Section 3(3)(a) of the Act, 50 U.S.C. § 782(3)(a), defines a 'Communist-action organization' as:
* ↑ The Government has persisted in this view in its arguments to this Court. Brief for the Government 48-56.
* ↑ We initially heard oral argument in this case on November 14, 1966. On June 5, 1967, we entered the following order:
* ↑ In addition to arguing that § 5(a)(1)(D) is invalid under the First Amendment, appellee asserted the statute was also unconstitutional because (1) it offended substantive and procedural due process under the Fifth Amendment; (2) it contained an unconstitutional delegation of legislative power to the Secretary of Defense; and (3) it is a bill of attainder. Because we agree that the statute is contrary to the First Amendment, we find it unnecessary to consider the other constitutional arguments.
* ↑ 18 U.S.C. § 2385.
* ↑ Our decisions leave little doubt that the right of association is specifically protected by the First Amendment. E.g., Aptheker v. Secretary of State, supra, 378 U.S. at 507, 84 S.Ct. at 1664; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543, 83 S.Ct. 889, 892, 9 L.Ed.2d 929 (1963); Bates v. City of Little Rock, 361 U.S. 516, 522-523, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. State of Alabama ex rel. Patterson. 357 U.S. 449, 460, 79 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). See generally Emerson, Freedom of Association and Freedom of Expression, 74 Yale L.J. 1 (1964).
* ↑ See, e.g., Lichter v. United States, 334 U.S. 742, 754 772, 68 S.Ct. 1294, 1301-1310, 92 L.Ed. 1694 (1948); Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774 (1943).
* ↑ Brief for the Government 15.
* ↑ The appellee has worked at the shipyard, apparently without incident and apparently without concealing his Communist Party membership, for more than 10 years. And we are told that, following appellee's indictment and arrest, 'he was released on his own recognizance, and immediately returned to his job as a machinist at the Todd Shipyards, where he has worked ever since.' Brief for Appellee 6, n. 8. As far as we can determine, appellee is the only individual the Government has attempted to prosecute under § 5(a)(1)(D).
* ↑ We recognized in Greene v. McElroy, 360 U.S., at 492, 79 S.Ct., at 1411, 3 L.Ed.2d 1377, that 'the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment.'
* ↑ 50 U.S.C. § 794(c).
* ↑ The Government has insisted that Congress, in enacting § 5(a)(D), has not sought 'to punish membership in 'Communist-action' * * * organizations.' Brief for the Government 53. Rather, the Government asserts, Congress has simply sought to regulate access to employment in defense facilities. But it is clear the employment disability is imposed only because of such membership.
* ↑ See Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961).
* ↑ See Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966).
* ↑ A number of complex motivations may impel an individual to align himself with a particular organization. See gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 562 565, 83 S.Ct. 889, 902-903, 9 L.Ed.2d 929 (1963) (concurring opinion). It is for that reason that the mere presence of an individual's name on an organization's membership rolls is insufficient to impute to him the organization's illegal goals.
* ↑ See Cole v. Young, 351 U.S. 536, 546, 76 S.Ct. 861, 868, 100 L.Ed. 1396 (1956): '(I)t is difficult to justify summary suspensions and unreviewable dismissals on loyalty grounds of employees who are not in 'sensitive' positions and who are thus not situated where they could bring about any discernible adverse effects on the Nation's security.'
* ↑ Congress has already provided stiff penalties for those who conduct espionage and sabotage against the United States. 18 U.S.C. §§ 792-798 (espionage); §§ 2151-2156 (sabotage).
* ↑ The Department of Defense, pursuant to Executive Order 10865, as amended by Executive Order 10909, has established detailed procedures for screening those working in private industry who, because of their jobs, must have access to classified defense information. 32 CFR Part 155. The provisions of those regulations are not before the Court in this case.
* ↑ It has been suggested that this case should be decided by 'balancing' the governmental interests expressed in § 5(a)(1)(D) against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual's exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way 'balanced' those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict. There is, of course, nothing novel in that analysis. Such a course of adjudication was enunciated by Chief Justice Marshall when he declared: 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' M'Culloch v. State of Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819) (emphasis added). In this case, the means chosen by Congress are contrary to the 'letter and spirit' of the First Amendment.
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