# Aptheker v. Secretary of State/Concurrence Douglas

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United States Supreme Court
378 U.S. 500
Aptheker v. Secretary of State
Argued: April 21, 1964. --- Decided: June 22, 1964
Mr. Justice DOUGLAS, concurring.
While I join the opinion of the Court, I add only a few words to indicate what I think is the basic reach of the problem before us.
We noted in Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204, that 'freedom of movement,' both internally and abroad, is 'deeply engrained' in our history. I would not suppose that a Communist, any more than an indigent, could be barred from traveling interstate. I think that a Communist, the same as anyone else, has this right. Being a Communist certainly is not a crime; and while traveling may increase the likelihood of illegal events happening, so does being alive. If, as I think, the right to move freely from State to State is a privilege and immunity of national citizen hip (see Edwards v. California, 314 U.S. 160, 178, 62 S.Ct. 164, 169, 86 L.Ed. 119), none can be barred from exercising it, though anyone who uses it as an occasion to commit a crime can of course be punished. But the right remains sacrosanct, only illegal conduct being punishable.
Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interests of security. That is why riding boxcars carries extreme penalties in Communist lands. That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes, yet abhorrent in the United States.
Freedom of movement, at home and abroad, is important for job and business opportunities-for cultural, political, and social activities-for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as to give rise to punishable conduct is part of the price we pay for this free society.
Freedom of movement is kin to the right of assembly and to the right of association. These rights may not be abridged, De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; NAACP v. Alabama, 357 U.S. 449, 460-462, 78 S.Ct. 1163, 1170-1171, 2 L.Ed.2d 1488, only illegal conduct being within the purview of crime in the constitutional sense.
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. This freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful-knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.
America is of course sovereign; but her sovereignty is woven in an international web that makes her one of the family of nations. The ties with all the continents are close-commercially as well as culturally. Our concerns are planetary, beyond sunrises and sunsets. Citizenship implicates us in those problems and perplexities, as well as in domestic ones. 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.
Mr. Justice CLARK, whom Mr. Justice HARLAN joins and whom Mr. Justice WHITE joins in part, dissenting.
The Court refuses to consider the constitutionality of § 6 of the Subversive Activities Control Act as applied to the appellants in this case, Elizabeth Gurley Flynn, the Chairman of the Communist Party of the United States, and Herbert Aptheker, the editor of the Party's 'theoretical organ,' Political Affairs. Instead, the Court declares the section invalid on its face under the Fifth Amendment. This is contrary to the long-prevailing practice of this Court. As we said in United States v. Raines, 362 U.S. 17, 20-21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960):
'The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them. This was made patent in the first case here exercising that power-'the gravest and most delicate duty that this Court is called on to perform.' (Holmes, J., in lodgett v. Holden, 275 U.S. 142, 148, 276 U.S. 594, 48 S.Ct. 105, 107, 72 L.Ed. 206.) Marbury v. Madison, 1 Cranch 137, 177-180, 2 L.Ed. 60. This Court, as is the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S.C.o. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Heald v. District of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434, 435, 66 L.Ed. 852; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Collins v. State of Texas, 223 U.S. 288, 295-296, 32 S.Ct. 286, 288, 56 L.Ed. 439; People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160-161, 27 S.Ct. 188, 190-191, 51 L.Ed. 415. Cf. Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537, 61 S.Ct. 376, 379, 85 L.Ed. 322; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513, 57 S.Ct. 868, 874, 81 L.Ed. 1245; Virginian R. Co. v. System Federation, 300 U.S. 515, 558, 57 S.Ct. 592, 605, 81 L.Ed. 789; Blackmer v. United States, 284 U.S. 421, 442, 52 S.Ct. 252, 257, 76 L.Ed. 375; Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50, 54-55, 46 S.Ct. 375, 376-377, 70 L.Ed. 827; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, 35 S.Ct. 167, 169, 59 L.Ed. 364; Tyler v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347-348, 56 S.Ct. 466, 483-484, 80 L.Ed. 688 (concurring opinion).'
Indeed, only last Term we specifically held in United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963):
'In this connection we also note that the approach to 'vagueness' governing a case like this is different from that followed in cases arising under the First Amendment. There we are concerned with the vagueness of the statute 'on its face' * * *. (In other cases we also consider the statute) in the light of the conduct to which it is applied.'
The Court says that National Dairy is not apposite, citing Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405. But Thornhill and Button are First Amendment cases, while the holding of this case is based on the Fifth Amendment's guarantee of the right to travel abroad. Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1119, 2 L.Ed.2d 1204 (1958). Consequently they are not apposite here.
As applied to the prosecution of the Communist Party's top dignitaries, the section is clearly constitutional. The only objections the Court finds to the language of Congress are that it makes the section applicable: (1) 'whether or not the member (of the Party) actually knows or believes that he is associated with what is deemed to be a 'Communist-action' or a 'Communist-front' organization'; (2) 'whether or not one knows or believes that he is associated with an organization operating to further aims of the world Communist movement and 'to establish a Communist totalitarian dictatorship in the countries throughout the world * * *." Let us discuss these objections seriatim:
(1) There is a finding here-not under attack-that Mrs. Flynn 'was an active, participating and continuous member of the Communist Party of the United States; was active in the Party's affairs and its organization; and indeed was and still is one of its principal officials.' Likewise there is a finding-not under attack-as to Aptheker that he '(Aptheker) makes it quite clear in his own words that he has been a member of the Communist Party since 1939 and that he is very proud of this association and will do whatever he can to further the aims and goals of the Party.' The record shows that both Flynn and Aptheker were witnesses in behalf of the Party in the registration proceeding which resulted in the Party's being ordered to register as a Communist-action organization. Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). In addition, Mrs. Flynn was convicted under the Smith Act. See United States v. Flynn, 2 Cir., 216 F.2d 354 (1954). In view of these circumstances, no one could say with truth that the appellants did not know that they were associated with a Communist-action organization. In fact, neither appellant claims lack of notice or knowledge of the requirements of the section.
(2) As to knowledge that the Communist Party is involved in a world Communist movement aimed at establishing a totalitarian Communist dictatorship in countries throughout the world, Congress made specific findings in the Subversive Activities Control Act of 1950 (the very statute under which the hearing was held at which petitioners testified for the Party) and in the Communist Control Act of 1954 that: 'the Communist Party of the United States * * * is in fact an instrumentality of a conspiracy to overthrow the Government of the United States,' 68 Stat. 775; 'the policies and programs of the Communist Party are secretly prescribed for it by the foreign leaders of the world Communist movement,' ibid.; this control is in a 'Communist dictatorship of a foreign country,' whose purpose is 'to establish a Communist totalitarian dictatorship in the countries throughout the world,' 64 Stat. 987; and this is to be accomplished by 'action organizations' in various countries which seek 'the overthrow of existing governments by any available means,' id., at 988. These findings of the Congress, like those of the Examiner which are not under attack here, are binding on this Court. Communist Party v. Control Board, supra. There we said:
'It is not for the courts to reexamine the validity of these legislative findings and reject them. See Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 519, 96 L.Ed. 586. They are the product of extensive investigation by Committees of Congress over more than a decade and a half. Cf. Nebbia v. People of State of New York, 291 U.S. 502, 516, 530, 54 S.Ct. 505, 507, 513, 78 L.Ed. 940. We certainly cannot dismiss them as unfounded or irrational imaginings. See Galvan v. Press, 347 U.S. 522, 529, 74 S.Ct. 737, 741, 98 L.Ed. 911; American Communications Ass'n., C.I.O. v. Douds, 339 U.S. 382, 388-389, 70 S.Ct. 674, 678 679, 94 L.Ed. 925. At 367 U.S. 94-95, 81 S.Ct. at 1409.
It is, therefore, difficult for me to see how it can be said rationally that these appellants-top Party functionaries who testified on behalf of the Party in the registration proceeding involved in Communist Party v. Control Board, supra-did not know that they were 'associated with an organization operating to further aims of the world Communist movement and 'to establish a Communist totalitarian dictatorship in the countries throughout the world * * *."
How does the Court escape? It says that the section 'sweeps within its prohibition both knowing and unknowing members.' But we have no 'unknowing members' before us. Neither appellant contests these findings. All we have are irrational imaginings: a member of the Party might wish 'to visit a relative in Ireland, or to read rare manuscripts in the Bodleian Library of Oxford University * * *.' But no such party is here and no such claim is asserted. It will be soon enough to test this situation when it comes here.
Nor do I believe the section invalid 'on its face.' While the right to travel abroad is a part of the liberty protected by the Fifth Amendment, the Due Process Clause does not prohibit reasonable regulation of life, liberty or property. Here the restriction is reasonably related to the national security. As we said in Barenblatt v. United States, 360 U.S. 109, 127-128, 79 S.Ct. 1081, 1093, 3 L.Ed.2d 1115 (1959):
'That Congress has wide power to legislate in the field of Communist activity in this County, and to conduct appropriate investigations in aid thereof, is hardly debatable. The existence of such power has never been questioned by this Court * * *. In the last analysis this power rests on the right of self-preservation, 'the ultimate value of any society,' Dennis v. United States, 341 U.S. 494, 509, 71 S.Ct. 857, 867, 95 L.Ed. 1137.'
The right to travel is not absolute. Congress had ample evidence that use of passports by Americans belonging to the world Communist movement is a threat to our national security. Passports were denied to Communists from the time of the Soviet Revolution until the early 30's and then again later in the 40's. In 1950 Congress determined, in the Subversive Activities Control Act, that foreign travel 'is a prerequisite for the carrying on of activities to further the purposes of the Communist movement.' 64 Stat. 988. The Congress had before it evidence that such use of passports by Communist Party members: enabled the leaders of the world Communist movement in the Soviet Union to give orders to their comrades in the United States and to exchange vital secrets as well; facilitated the training of American Communist leaders by experts in sabotage and the like in Moscow; gave closer central control to the world Communist movement; and, of utmost importance, provided world Communist leaders with passports for Soviet secret agents to use in the United States for espionage purposes. This evidence afforded the Congress a rational basis upon which to place the denial of passports to members of the Communist Party in the United States. The denial is reasonably related to the national security. The degree of restraint upon travel is outweighed by the dangers to our very existence.
The remedy adopted by the Congress is reasonably tailored to accomplish the purpose. It may be true that not every member of the Party would endanger our national security by traveling abroad, but which Communist Party member is worthy of trust? Since the Party is a secret, conspiratorial organization subject to rigid discipline by Moscow, the Congress merely determined that it was not wise to take the risk which foreign travel by Communists entailed. The fact that all persons in a class may not engage in harmful conduct does not of itself make the classification invalid. Westfall v. United States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036 (1927); North American Co. v. Securities & Exchange Comm'n, 327 U.S. 686, 710-711, 66 S.Ct. 785, 798-799, 90 L.Ed. 945 (1946); American Communications Assn. v. Douds, 339 U.S. 382, 406, 70 S.Ct. 674, 688, 94 L.Ed. 925 (1950). In Schneiderman v. United States, 320 U.S. 118, 132, 163, 172, 63 S.Ct. 1333, 1340, 1355, 1359, 87 L.Ed. 1796 (1943), this Court indicated that Congress might exclude all Communists from entering this country. And in Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898), the Court upheld a state statute preventing all felons from practicing medicine; similarly, all aliens may be barred from operating pool halls, State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 396-397, 47 S.Ct. 630, 631, 71 L.Ed. 1115 (1927). More onerous burdens than those found in § 6 were placed on all union officers (whose organization was enjoying privileges under the National Labor Relations Act), who were barred from their offices (and livelihood in that regard) if they were Communist Party members. American Communications Assn. v. Douds, supra. Likewise, this Court approved the action of the Congress in authorizing deportation of all aliens who had been members of the Party. Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954). We also upheld the vesting of power in the Attorney General to hold all Communist Party members without bail pending determination as to their deportability. Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952). In the realm of state power, Maryland was permitted to require all candidates to take an oath that they were not engaged in any attempt to overthrow the Government by force and violence, Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745 (1951); Los Angeles was allowed to require all employees to take a non-Communist oath on penalty of discharge, Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); New York exercised similar powers over public school employees with our approval, Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); the States were permitted to discharge all teachers and 'security agency' employees who refused to answer questions concerning their Communist affiliations, Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 1324, 2 L.Ed.2d 1423 (1958); and California and Illinois were permitted to deny admission to the practice of law of all applicants who refused to answer questions as to their Communist affiliations, Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961), and In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961).
Nor do I subscribe to the loose generalization that individual guilt may be conclusively presumed from membership in the Party. One cannot consider the matter in isolation but must relate it to the subject matter involved and the legislative findings upon which the action is based. It is true that in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), the Court found that the intention of the Congress in the Smith Act was 'to reach only 'active' members having also a guilty knowledge and intent.' 367 U.S. at 228, 81 S.Ct. at 1486. But that was a criminal prosecution under the Smith Act which, of course, carried stricter standards. And, in addition, this requirement, as laid down in Scales, was not held to be a constitutional mandate. The Court was merely interpreting a criminal statute which directly prohibits membership in organizations that come within its terms. The Act here does not prohibit membership, but merely restricts members in a field in which the Congress has found danger to our security. Nor is Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), cited by the majority, apposite here. That case dealt with an oath based on membership in organizations on the Attorney General's list of subversive groups. The Act condemned the employee who was a member of any listed organization regardless of whether he actually knew the organization was so listed; furthermore, the statute proscribed past membership in the listed organizations. Here proof of actual membership is necessary and notice of registration or entry of a final order directing registration under the Act is required. Finally, the member of the Party here can avoid the Act's § nctions by terminating his membership, which was not possible in Wieman. Appellants also depend on Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952), which upheld a statute with a rebuttable presumption that members of the Party supported Communist objectives. The Court did not hold that the opportunity to rebut was constitutionally required in the circumstances of that case, but even if it had, Adler would not control here. The evidence before Congress as to the danger to national security was of such strength that it warranted the denial of passports, a much less onerous disability than loss of employment.
For these reasons, I would affirm.
Mr. Justice WHITE joins in Section I of this dissent and for the reasons stated therein would affirm the judgment.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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