Warren E. Burger: We'll hear arguments first this morning in Number 74-452, Twentieth Century Music Corporation against Aiken.
Simion H. Rifkind: Mr. Chief Justice --
Warren E. Burger: Mr. Rifkind.
Simion H. Rifkind: And may it please the Court. This case comes here on the petition for certiorari to review of decision of the Court of Appeals for the Third Circuit. The petitioners have brought this suit to enforce their copyright claims against the respondent Aiken, who they alleged had infringed their rights by a public performance for profit of two songs, one the copyrighter which belonged to each of the petitioners respectively. The district judge granted the statutory damages in favor of the plaintiff below of $250.00 for each infringement, the Court of Appeals reversed. Its asserted ground for reversal was that Aiken's conduct did not amount to a performance though it was public and it was for profit. The facts are simple. Respondent Aiken owns and operates a chain of fast food restaurants in the City of Pittsburgh. He decided to entertain his costumers and to improve the efficiency of his employees by furnishing them with popular musical performances throughout the business day. There were, as I believe we can take judicial notice, available to him several methods by which his purposes could be accomplished. One, he could hire one or more musicians to play such compositions as he or his agent selected from the cheap music generally available to the public. Secondly, he could if he chose equipt the premises with one or more machines that reproduce music mechanically when supplied with either records or tapes or piano roles, depending upon the nature of the particular machine that he decided to use, and these too are generally available for purchase by members of the public. Or he could subscribe to a service like Muzak which provides musical compositions for use in premises by machinery equipped for that purpose. And finally, he could if he wished, equipt his premises with a radio receiving set connected to an electric source of energy, install a sufficient number of loudspeakers so as to disseminate the sound agreeably throughout the premises that he wished to serve, and cause the radio receiving set to be oriented by his selection to any kind of music that he preferred from among the many that were being broadcast within the Pittsburgh area by the several stations doing business there. Aiken in fact chose the last mentioned method. I don't think I need to argue the point that it was the least costly method. The district judge after trial found that on the 11th of March 1972, Aiken had caused the costumers and employees in one of his restaurants to be entertained by two compositions of which the petitioners were respectively the copyright owners These compositions were received over Aiken's radio and were distributed through his restaurant and employment spaces through five loudspeakers which he had installed in the premises. These two compositions which he so played were broadcast that day by a FM station located in Pittsburgh and licensed to broadcast those compositions. Aiken however had no license for the public performance for profit of these compositions and the radio station had no authority to confer such permission upon Aiken.
William H. Rehnquist: There was no possibility of any implied license then, as that was referred to in the Jewell-LaSalle.
Simion H. Rifkind: That is Precisely, Mr. Justice Rehnquist. The possibility of an applied license had been expressly and explicitly withdrawn in the license issued by the copyright owners to this particular station as to all stations, and that had been true since 1932. So this --
Warren E. Burger: Mr. Rifkind, I'm not sure it's terribly important but I could not find in the record the aggregate number of loudspeaker outlets in all of his establishments.
Simion H. Rifkind: My understanding of the record is that there were five.
Warren E. Burger: Just five?
Simion H. Rifkind: Some in the public spaces where costumers were entertained and some in the workspaces where the employees were --
Warren E. Burger: But that's just in one restaurant, is it not?
Simion H. Rifkind: It's all in one restaurant.
Warren E. Burger: And he has only one?
Simion H. Rifkind: Oh no, he has other restaurants, but this particular infringement was of course brought as a test situation for the particular two songs that we are talking about. The District Court granted the plaintiff below the monetary damages requested which was $250.00 for each composition at the statutory rate. As I've already stated, the Court of Appeals reversed that and I submit that I can state with confidence that the business purpose behind the selection of any one of the methods by which Aiken could have supplied musical entertainment to his guests and employees was identical. It was to entertain guests and it was to improve the efficiency of his employees. This much I believe is clear on the record, and all of these methods which ever one he selected would have to have recourse to music created by composers and made available to the public by means of either cheap music, records, tapes,piano roles or broadcast of electrical impulses. And I suggest that until the Third Circuit had spoken, it was firmly established that no matter by which method Aiken entertained his guests and employees, he was bound to abstain unless he had a license from the copyright owner, such as ASCAP of course. And of course such licenses were universally available under the compulsion of a decree which is enforced with respect to ASCAP. I believe that it is still unquestioned that live performances in the restaurant by live musicians would be subject to the copyright laws and subject to Section 1 thereof, and that has been true certainly since Mr. Justice Holmes wrote Herbert against Shanley way back in 1917. I believe it is still unquestioned that the record, tape, piano role method or electronic method of music is a public performance for profit, and indeed so the Third Circuit itself had held on a number of times. And now the Third Circuit has decided that the last method, namely the radio plus loudspeaker method, although realistically and functionally indistinguishable from any of the other methods of furnishing the music, is for some reason beyond the reach of Section 1 of the Copyright Act although it is public, although it is for profit, but the Circuit Court said it is not a performance, and at arriving at that conclusion that it was not a performance, it said that it acted under the composure of this Court's mandate as expressed in the two CATV cases, the Fortnightly case and the Teleprompter case and it is that determination of the Court of Appeals that I most distinctly want to challenge. We challenge it and we challenge that decision on several grounds. We assert first that the old landmark decision rendered in 1931 entitled Buck against Jewell-LaSalle and reported in 283 U.S. by a majority court in an opinion written by Mr. Justice Brandeis, controls this case and that the judgment therefore should have gone for the petitioner. We also assert that Buck against Jewell-LaSalle can coexist in the same legal universe as Fortnightly and Teleprompter and that there is no incompatibility between them because Fortnightly and Teleprompter unlike this case, were concerned with a new technological development, never prior thereto with -- brought within the copyright system and never subjected to copyright royalty burdens and respect of which Congress had been quite silent. And thirdly, that in any event, private arrangements have for over 40 years been made between the creators and consumers of mucic in reliance on Jewell-LaSalle and that Jewell-LaSalle therefore ought to be allowed to survive until Congress directs otherwise. As far as the congressional voice is concerned, if I can read the incomplete compositions of that -- of those body, I can say that it seems to be targeted towards the continued viability of the doctrines of Jewell-LaSalle. Now, to develop some of those points a little more explicitly, in a sense, this case is of course concerned with the construction of a section of the Copyright Law, Section 1 thereof. And that is of primary interest to the authors, composers and publishers of music whom the founding fathers expressed the desire to encourage in the Copyright and Patent Clause of the Constitution. But from the point of view of the development of our jurisprudence, I believe that more is involved than whether respondent Aiken has to pay $5.00 a month for the privilege of entertaining his business guests and improving the morale of his employees with music created by the copyright owners. I suppose that the statute means exactly what this course declares it means. And as I've stated a little while ago, ever since 1931, which is 44 years ago, the meaning of that statute was made plain in the case that I have cited Buck against Jewell-LaSalle. It declared that Section 1 meant that one situated exactly like Aiken in this case and who did exactly what Aiken did in this case subjected himself to liability as an infringer of copyright, unless he was licensed to do what he did. The Court of Appeals in its analysis acknowledged that the case here under review is an all force with the facts of the case in Jewell-LaSalle. Over 5000 contracts are now extent that we know of which have been entered into in reliance and in observance of Jewell-LaSalle, and in that case Mr. Justice Brandeis for a unanimous court said “There is no difference” -- we give you the exact language if I may. “There is no difference in substance between the case where a hotel engages an orchestra to furnish the music, and that where by means of the radio set and loudspeakers here employed, it furnishes the same music for the same purpose.”
Warren E. Burger: Is not there one difference, Mr. Rifkind, in this sense possibly, to the question, do you think there's a difference since the radio station is selling advertising, presumably, and I would assume that as a matter of economics, the advertising rate is based upon the coverage of the radio station that it differs from the orchestra in the sense that the orchestra has no advertising, and the radio station is getting -- radio station having paid the royalty is getting a larger income because of the standard audience of restaurants, hotels, business establishments, etcetera.
Simion H. Rifkind: Let me explain that most explicitly. The rates established between the licensing organization, in this case ASCAP, which speaks for the owners of these compositions and the radio industry is determined under a system which is subject to judicial surveillance under the decree in United States against ASCAP, which has been administered in the Southern District of New York since 1940 and amended in 1950. If my history, if my recollection of the dates is correct and I believe it is. Those terms are negotiated in terms of what rights are conferred upon the broadcaster. In this particular situation, broadcasters are expressly excluded from the right of conferring any authority upon people in Aiken's position, and consequently the rate that they pay takes into account the fact that ASCAP will collect another fee from the Aikens of this country, and therefore the fee paid by the broadcasters does not overlap the fee paid by the Aikens. The District Court and the Court of Appeals both agreed that the circumstance that the radio station in Jewell-LaSalle was unlicensed and that here it was licensed was a difference without significance. The -- I've explained why the suggestion that Mr. Justice Brandeis made in the footnote, as I believe Mr. Justice Rehnquist called attention that there might conceivably be -- the argument might be made that there's an implied license is no longer valid because in 1932 that was explicitly excluded. Logically, I should say, the suggestion of an implied license underscores the conclusion that the hotel or Aiken was performing and performing publicly for profit, because if it was not performing or not performing publicly for profit, there'd be no point in talking about a license. It's only public performance for profit that requires a license, so Mr. Justice Brandeis' discussion of a possible implied license necessarily emphasizes his view that there was a performance and of course a performance for profit. Now, the Third Circuit seemed to be under the impression that Jewell-LaSalle had been overruled by this Court. And I believe that therein, again I find myself in sharp disagreement with that Court. I suppose it can not be challenged that this Court has never yet uttered the talismanic phrase which actually would decanonize Jewell-LaSalle. This Court had said in Fortnightly that Jewell-LaSalle should be understood as limited to its own facts. The facts here are the very facts to which the Court said it should be limited to, and that is the very converse of treating it as overruled. Words of limitation to facts, a phrase not unusual in the opinions of this Court, I've always thought meant that the principle of the case may no longer be regarded as an axiom from which new theorems and new propositions might logically be deduced. The Court of Appeals went much further than that. It has acted in reliance on the anticipation that this Court will overrule Jewell, and we entertain the hope that that prophecy is not a valid one. Be contend that the Court should not overrule Jewell. Indeed we assert that this case presents a conspicuous example of the salutary purposes of the rule of stare decisis. For instance, I've already mentioned, very many people have shaped their business conduct in observance of and in reliance on that case. Moreover, the rule offends no moral principle. It does not offend good judgment as is evidenced by the fact that all over the world, Jewell-LaSalle is in fact lived by and if it should appear that this Court thinks that some different policy should now prevail, it seems to me that the proper agency to grapple with that is the Congress, and indeed the Congress is grappling with that problem at this very moment. As Your Honors know, the Copyright Act has been under active consideration by the Congress for some time, and the delay in the new bill has been not Jewell-LaSalle, but the delay has been caused by the inability of the Congress to decide what to do about CATV. Fortnightly, the first CATV case, was the first occasion on which the Jewell decision was ever questioned in this Court. In that case, there were a number -- there was one dissent and three nonparticipants. In that case the Court confronted a brand new industry which had never been subjected to the copyright system, a new technology. And then in 1974, the Court encountered another further development of that same technology in Fortnightly which brought signals beyond the realm of the original antennae. But neither of the majority nor the minority in either of those cases suggested that Jewell should be overruled. The majority never even mentioned Jewell in the last Teleprompter case, and no justice to express the thought that hotel keepers and restaurateurs were free to entertain guests and stimulate employees by the free use of their music. Aiken's behavior belongs to the unsophisticated realm of what we are fully familiar with, and it wouldn't be a bad idea therefore to see how the world regards that kind of behavior. I shall be brief and say that Great Britain, Canada, New Zealand, Australia, France, Germany and every other country I could find any evidence of treats Aiken's performance as a breach of the copyright privilege. In the functional sense which is the idea introduced into this field by the decisions in Fortnightly and Teleprompter, comparison was made to the viewer erecting a giant antennae. And I would like to suggest that another way to look at it would be as if it was a giant ear trumpet which made it possible for the listener to get signals which otherwise he couldn't hear. And here's the point I want to make the distinction between those two kinds of cases. The purveyor of ear trumpets doesn't exploit music even though he sells them on the lobby of the opera house, but the furnisher of music to his costumers does exploit music no matter by what means as long as they're within his control that he brings it to bear upon business guests and his business employees.
Potter Stewart: Go to a barbershop and the radio is turned on, a three-chair barbershop, does the barber have to --
Simion H. Rifkind: That's a --
Potter Stewart: Pay ASCAP license?
Simion H. Rifkind: Fair question. I think the real question is, is the barber playing that music for his own entertainment or is he doing it for business purpose?
Potter Stewart: Let's say the facts are stipulated that he's doing it for the --
Simion H. Rifkind: And I will only report the practice.
Potter Stewart: Pleasant reaction of his costumers.
Simion H. Rifkind: The practice has been to impose no royalty charge on the one set type of operation.
Potter Stewart: Why not?
Simion H. Rifkind: Because it is impossible to draw the line on a nationwide basis --
Potter Stewart: But you're drawing the line.
Simion H. Rifkind: I beg your pardon?
Potter Stewart: What do you mean impossible? You've just told us you've drawn a line.
Simion H. Rifkind: I draw a line between the self-entertainment and the business entertainment.
Potter Stewart: No, no this is a barbershop --
Simion H. Rifkind: This is the barbershop and the barber of course can entertain himself as well as his costumers.
Potter Stewart: So the restauranteur in this case?
Simion H. Rifkind: Not when he puts in 5 or 50 or 100 loudspeakers.
Potter Stewart: Now, this is four or you say five, the record seems to indicate four. But what is the difference? Why do you draw the line?
Simion H. Rifkind: It is to some extent, a practical accommodation to the facts of life that you go in to a small grocer who has a little set on his counter which he amuses himself, papa and mama are running an establishment, we say that's for their personal entertainment and only incidentally if at all for business purposes. When you take a restaurant and install 3, 4 or 5 or 50 loudspeakers, we say that's a business exploitation of the music. Now, all questions of this kind involve --
Potter Stewart: But if this one is a performance, so is the other, is it not? Each is a performance and that's a critical word under the statute, is it not?
Simion H. Rifkind: Each is a performance, but it is hard to see that you can say with assurance in any particular occasion, Your Honor suggest to me one way stipulated that he's doing it for business purposes. I think if it was stipulated for business purposes, then technically speaking he would be performing publicly for profit and be subject to a charge. But as a practical matter, no licensing organization that I know of has ever pursued such a course of conduct.
Potter Stewart: How about a dentist's office?
Simion H. Rifkind: Same thing. No one set type that is usually used in the home has ever been subjected to a royalty or to a license requirement.
Potter Stewart: No, no we're not talking about a home, we're talking about public performance.
Simion H. Rifkind: No, I say if the home type of radio has ever been subjected, the kind of thing that the man would have in his home, and the Congress recognizes the distinction in all of the new bills that have been introduced.
Potter Stewart: Well, Congress hasn't enacted any?
Simion H. Rifkind: Not yet.
Potter Stewart: So it hasn't recognized any of these things?
Simion H. Rifkind: The House has passed a bill in '67. The Senate passed a bill in '74. They are substantially the same on this. The Senate's Bill was passed I think by a majority of 70 to 1. They recognized the principle of Jewell-LaSalle, both bills do. And the thing that has slowed down the enactment is been the problem with the CATV stations. I will suspend if I may and I would like to reserve the balance of my time for response.
Warren E. Burger: Very well Mr. Rifkind. Mr. Cohen.
Harold David Cohen: Mr. Chief Justice, members of the Court. The argument of my distinguished adversary has a captivating sound, but essentially I believe it begs the very question in dispute. I think Mr. Justice Stewart has put his finger on the point. The question is whether the Court of Appeals erred in deciding that when Mr. Aiken in his fast food shop where he has people in for not more than 15 minutes at the most, 60% of the costumers come in to pickup the delicatessen and take it out within two or three minutes, if they decide to consume it on the premises, then they can take it on disposable paper over to a counter. No waitresses are supplied and they can stay there and eat it, and it's usually about 10 minutes, a maximum of 15 minutes. I would agree with my learned brother that if Mr. Aiken hired the Pittsburgh Symphony Orchestra to perform in his fast food establishment, or a trio of musicians, or he put in complicated equipment whereby he could go out and buy tapes, select tapes and decide when they should be run without commercials, and perhaps with some advertisements for Aiken's that he might well be chargeable with infringing the copyrights of the music he performed, but that is not this case. We are concerned with the simple question whether on this particular day on this one store and the record deals only with one store, and I think it is a euphemism to call it a restaurant. Whether on this day he engaged in a performance of ASCAP's two musical compositions when he turned his radio to an FM station in Pittsburgh and the radio broadcast came through the air to his store and were heard by his three employees and such costumers as happened incidentally to be on the premises.
Warren E. Burger: To see, if I understood your illustration, Mr. Cohen. If the restaurant or store or factory took a typical tape recording machine which many people now use to preserve good programs, and copied all the good programs that he thought his costumers would like and eliminated the advertising, and then had those running by five loudspeakers or three or ten within his establishment, do I understand you to say that might run afoul --
Harold David Cohen: Yes there is --
Warren E. Burger: Or a Buck case?
Harold David Cohen: No, not at the Buck case. The Buck case had to do with radio broadcast. I think it might run afoul of another provision or section apart of Section 1 (e) of the Copyright Act. That is, there is an exclusive right to record performances and I think if there were tapes or records, that might be an infringement.
Warren E. Burger: This would be like copying recordings --
Harold David Cohen: That's right.
Warren E. Burger: But they have to pay a royalty.
Harold David Cohen: But in this instance, he has no control over what comes in. The broadcasters as this Court has stated in the Fortnightly case and repeated in the Teleprompter case, are performing. They are the ones who go out and select the programs. They're the ones who make the arrangements with the talent sources, with the record companies, with ASCAP and other performing rights organizations.
Potter Stewart: And they pay for the licenses?
Harold David Cohen: They pay ASCAP for their royalties.
Potter Stewart: And they charge their own costumers --
Harold David Cohen: They charge their costumers --
Potter Stewart: On the basis of how large listening audience they have?
Harold David Cohen: Exactly. And I'm sure that when this FM station goes out and makes the pitch to the advertiser, he says “We can reach people whether they're at their home, or in their cars driving to from their homes, or whether they're in stores, or whether they're waiting in doctors' offices, or whether they're sitting on a barber's chair, or wherever.” In other words, he tries to maximize his audience so that his revenues will be greater, and in turn ASCAP profits because the amount which it receives from the broadcaster is the percentage of the broadcaster's revenues. So what in effect they are trying to do here stripped of some of the language is to exact the double payment. There's nothing in the record that indicates that when they go to the broadcaster they say, “Well, we're not going to charge you as much as we otherwise might because we're going to get Mr. Aiken to give us $60.00 a year. So we're going to take or deduct that from the amount that you are going to have to pay.”
William H. Rehnquist: Well, Mr. Rifkind says they've been doing that for 40 years and they've been doing it on the authority of Jewell-LaSalle.
Harold David Cohen: It's curious indeed that if for 40 years they have been doing it, they have 5,150 licenses. I think we can take notice of the fact that there are hundreds of thousands of establishments in this country like Mr. Aiken's. Barbershops, beauty salons, doctors' offices if you will, restaurants and if they have 5000 licenses and these are hotels and motels and large supermarkets and the like, it does not show that they have vigorously relied upon Jewell-LaSalle as a basis for --
William H. Rehnquist: Well, does that include Muzak, the 5000 figure?
Harold David Cohen: No the 5000 figure does not include Muzak. Muzak is a performer. That is the Muzak franchisee which supplies or actually performs a Muzak to the business establishment, does perform, does pay a royalty to ASCAP and that is separate, and that will continue to be paid in whatever amount the Court may deem reasonable and nondiscriminatory. That will continue to be paid regardless of the outcome of this case.
William H. Rehnquist: Do you think this case is factually distinguishable from Jewell-LaSalle?
Harold David Cohen: It's factually distinguishable --
William H. Rehnquist: In any --
Harold David Cohen: On two grounds.
William H. Rehnquist: Rational manner.
Harold David Cohen: Well, certainly the ground that you indicated namely, the license implied in this case -- which may be implied in this case by virtue of the fact that the broadcasting station was authorized in Pittsburgh, whereas the broadcasting station in Kansas City in the Jewell-LaSalle case was not authorized by the copyright owners, is a significant point of distinction.
William H. Rehnquist: But I thought the terms of the license of the broadcasting station negated any authority on its part to license anyone else?
Harold David Cohen: We are not saying that there is necessarily a license implied in fact, but there's certainly is a license implied in law. I do not believe that ASCAP can contrive language whereby they can say this, a broadcaster “We are going to license you to broadcast that is disseminate to the public our compositions, and we want you to pay us a royalty.” These are to go over the air to all members to the public and then say that Mr. Aiken or his costumers who are members to the public can not receive those broadcast without payment of the fee. Another point of distinction of course is that if we got into the quantitative test, which of course has since been discarded by this Court. Obviously, what Mr. Aiken has done in his store, which is a small room with two outfits on the ceiling of the public area or two speakers are located, and three other speakers, one on the washroom, the girl's washroom, one in the kitchen and one at the office for his employees is vastly different from the complicated mechanism of the large master radio receiving set in Jewell-LaSalle which piped Muzak to 200 rooms throughout the hotel. Or in the Statler Hotel case in New York where they had a radio engineer and two assistants on top of the building and they piped music through the ducts to 1900 rooms, and there they held it was a performance upon the authority of Jewell-LaSalle. That is not this case. However, I am not relying upon that because I think this Court has clearly stated in the Teleprompter case and on the Fortnightly case before, that viewers of television and by a parody of reasoning, listeners to radio broadcast do not perform, the broadcasters perform. It's difficult to conceive functionally how Mr. Aiken can be said to be performing music in his establishment when he has no control over what is being broadcast, when it is being broadcast. He has no dealings with advertisers. He has no idea of the tempo of the music or the kind of the music that is going, coming over, except as Mr. -- Judge Rifkind pointed out. Of course he may select one station because he thinks it may be more pleasing to him or people in his store, particularly his employees than another station. But the fact is, he does not attempt to edit anything that comes over. He gets the commercial announcements. He gets the station identifications, the public service announcements, the news, as well as the music. I'm sure that it would put an unbearable strain upon the ordinary meaning of performance. Perhaps someone sitting in Mr. Aiken's shop consuming a hamburger regard Mr. Aiken as a performer of the music. This music is coming to you from station WKJF FM, and there is nothing that Mr. Aiken does to intervene between that broadcast and the listening by the people primarily his employees. Incidentally --
Thurgood Marshall: Mr. Cohen?
Harold David Cohen: Yup?
Thurgood Marshall: If you know, what about a record player that's hooked up through an amplifying system.
Harold David Cohen: Well, the record player I would say --
Thurgood Marshall: Or tape player.
Harold David Cohen: I would be inclined to say that that would be a performance because of the special provision on the statute, but if he has a record player or tape machine, he goes out and buys the tapes or rents the tapes.
Thurgood Marshall: And selects them, selects what he wants.
Harold David Cohen: Selects what he wants, has control over what is being sent out. And presumably, he can intersperse his own commercial announcements. He may say “From the next five minutes you can get Aiken's chicken at 10% off.” He could not do it here, he --
Potter Stewart: But even if he doesn't, that's a performance, isn't it? That's clearly a performance.
Harold David Cohen: Yes.
Potter Stewart: A jukebox, so called.
Harold David Cohen: Well, the jukebox there's a special exemption for jukebox in the law which Congress is trying to modify to have an $8.00 jukebox charge imposed. So far as the legislation is concerned upon which Mr. Rifkind depends, I think it's pretty hard to find in the silence of Congress over these last 10, 15 years any indication that Jewell-LaSalle must be adhered to, otherwise this entire complex of business relationships is going to fall.
William H. Rehnquist: Would you think this Court in Jewell, in Teleprompter rather, intended to overrule Jewell-LaSalle which was a unanimous statutory decision on which presumably property rights have been established?
Harold David Cohen: Well, obviously this Court did not use the word overrule and I think the Supreme Court generally is reluctant to state explicitly that a former decision of the Court is overruled. But to say that Jewell-LaSalle must be understood to be limited to its own factual context and to undermine the basic rationale of Jewell-LaSalle, the basic premise on which Jewell-LaSalle was decided, namely that there is a performance because of this -- of what the hotel did by having this elaborate equipment and substitute the functional analysis test of Fortnightly and Teleprompter, obviously in effect emasculates Jewell-LaSalle. The vitality of Jewell-LaSalle is not what it was prior to the Fortnightly decision.
Potter Stewart: Well Mr. Cohen it's -- I think the phrase was its limited -- must be limited to its own facts.
Harold David Cohen: Right.
Potter Stewart: And one of the facts on Jewell-LaSalle was that the broadcasting station was unlicensed to sell.
Harold David Cohen: That was an important fact as I pointed out previously.
Potter Stewart: That's one of its own facts.
Harold David Cohen: That is right. Now --
Warren E. Burger: From what you said Mr. Cohen --
Harold David Cohen: Yes sir.
Warren E. Burger: I take it that all of your arguments would apply equally to the factual situation we have here, and a hypothetical restaurant let us say sits a thousand people as there are such with 20 different rooms, and in each room there was one outlet.
Harold David Cohen: Yes. If it used radio broadcast, I think it would logically. The difference comes of course a restaurant of that kind as the restaurant in the Herbert v. Shanley case to which my adversary eluded, may go in for a much different type of entertainment. To say that the business motivation of Mr. Aiken is like that of a hotel owner in Herbert v. Shanley, it seems to me to be fictional. The Vanderbilt Hotel in New York was concerned with the ambiance of its hotel restaurant so it had an orchestra play, and it had undoubtedly liveried waiters, and it had fine napkins and tablecloths. That is not true of an establishment of this kind which is willing to have just the radio come in and have two speakers in the public area where the sound can be audible evenly throughout the premises. The point is that my adversary is attempting to draw a line which I think is an arbitrary one -- artificial one between having a radio behind the counter encased in one cabinet that is it might have one speaker or two speakers, and that would not be a performance. But he did have that in this particular shop, but he found it to be blared if you were close to it if you heard it too loudly, if you were a little further away you might not hear it as well. And that blare did interfere with conversations with costumers, so instead he had speakers. I was not unusual, these days I'm told, in fact it's quite common when you buy a radio to have speakers outside of the tuning device and you might put them ten feet away, you may have them the other part of the room, you may put it in another room. But so far as Mr. Aiken's “performance” is concerned, he did nothing more than install this equipment. He did not manipulate it once it was installed and is no different than if he had just one unit with the speakers incased in a cabinet so far as his function relative to the broadcast were concerned -- was concerned. I think the reasoning of this Court in the Fortnightly and Teleprompter cases is dispositive of ASCAP's claim. I think the Court of Appeals correctly perceive it to be. It's certainly illogical, I would think to be clear that the function of a cable system has little in common with the function of a broadcaster, because like viewers and unlike broadcasters, they do not perform the programs they receive and carry, and then turn around and hold Mr. Aiken to be engaged in a performance. Mr. Aiken is obviously on the listening side of the line. As a matter of fact in the Fortnightly case and Teleprompter, many CATV systems serve commercial establishments as well as subscribers in there homes, to say on the one hand that the CATV system is on the listening side or the viewing side of the line, but Mr. Aiken who is a subscriber jumps over to the performing side of the line, seems to me to be arbitrary.
William J. Brennan, Jr.: Well, what's the situation of the Aikens if the new proposed new statute comes along?
Harold David Cohen: Well, the proposed new statute is rather complicated. I must take issue with my friend Judge Rifkind.
Byron R. White: Do you mean you're ought to be here even under the new statute making the same argument?
Harold David Cohen: I think the new statute attempts and the legislative history indicates that establishments such as Aiken's, small establishment or barbershops or so forth, would not be subject to liability. And also, I may point out that the statute provides that there maybe transmissions even by a hotel to guest rooms without incurring any copyright liability. As a matter of fact the legislative history will disclose that even ASCAP, Judge Rifkind's client did not attempt to enforce Jewell-LaSalle against hotels which piped music to guest rooms. After the Statler case in New York was a victory for SCSACZAK which is a counterpart of ASCAP, there apparently was some question whether this was a performance for profit. At any rate, the legislative history discloses that there was very little attempt to enforce the rights of the performing rights organization against hotels which transmitted programs to private rooms in hotel even though Jewell-LaSalle presumably gave them that right under the Jewell-LaSalle construction of the 1909 Act. So, the answer to the question Mr. Justice Brennan is that I would be foolhardy if I attempted to prognosticate the effect of pending legislation. As you know, there has been -- they have been studying the revision of the copyright law since 1955. There was an authorization from Congress to the copyright office, extensive studies were made, there was, I refer to a report in 1961 as being the culmination of studies, but my opponent's reply brief says it was not the culmination but of course the foreword, though the report said, it is the culmination of studies. At any rate, there were a lot of comments and discussions and compromises and they came out with a statute. It passed one House, as Judge Rifkind pointed out, did not pass the other. I do not know what may eventually come out of this. But certainly, we are concerned here with the construction of an existing statute, and if this Court in 1931 decided a case on a premise or a doctrine which has been found not to be sound, not to be logical, it should be the responsibility of this Court to correct that decision not to wait for Congress to correct it. Thank you.
Simion H. Rifkind: May I take advantage of the few minutes that I have.
Warren E. Burger: for rebuttal, Mr. Rifkind.
Simion H. Rifkind: I gathered as I listened to my learned friend that there might be a distinction drawn between Jewell-LaSalle in this case and that the station in Jewell-LaSalle, the broadcast station was unlicensed and here it is licensed. I think the argument advanced by one of the dissenting justices in Fortnightly, Mr. Justice Fortas.
Warren E. Burger: The only dissenting justice, is it not?
Simion H. Rifkind: The only, excuse me, of course you are right. I was thinking for a moment of Teleprompter. In Fortnightly, he pointed out that the interpretation of the term performed cannot logically turn on the question on whether the material that is used is licensed or not licensed. And I don't think there's any way of meeting that logical proposition. More importantly, we have the distinction of a non-licensed station was a judicially first noticed and abandoned back in 1937 when Judge Woolsey in the southern district decided the Hotel Statler case, and since then and before then never once in all the literature of this subject, in all the discussions of the copyright office, in all the legislative discussion has there been so much of a trace of a distinction attributable to this coincidental fact. I can see how logically it can play the role. I heard the argument advanced that perhaps Aiken's performance was not for profit. You heard a suggestion that the costumers only spent a little bit of time there and so on and so forth. Well, on the merits of course that issue has been resolved by Herbert against Shanley where Mr. Justice Holmes made a cogent remark “It is true that music is not the sole object and neither is the food” he said. If music didn't pay, it would be given up. Mr. Aiken spent money to furnish music to his costumers. He must have regarded it as money well spent. I say, the issue below was treated as established. Indeed it was not challenged seriously as the Court of Appeals pointed out, so that the issue is not really in this Court. The petition for cert didn't mention it or neither did the answer to the petition for cert. To suggest now at this late stage of this case that this Court should consider whether only music which is offered for sale by a ticket at the door is within the copyright statutes, I think that that's to extend the implications of this case far beyond what we are now confronting. There was a question as to how many licenses of this kind were outstanding and the figure was given correctly, over 5000, But what was not stated that there are 75,000 establishments which used music, so I do not know and have no evidence of any information that there are lots of Aikens around this country. But even if there were, that wouldn't change the fact if the copyright owners have a right against Aiken, they have a right to enforce it. The suggestion was made that even though the implication of an -- the suggestion of an implied license is no longer tenable, in fact because the license to the radio station expressly excluded it that there was some kind of a doctrine by which ASCAP was prohibited from entering to that kind of an arrangement with the broadcast station. Well, all I can say is that that's a startling notion. Every time a piece of cheap music is installed at the corner store, it is -- gives confers authority upon the buyer to play it on his home. That doesn't mean that he may give a performance for profit on that cheap music and escape royalty obligations.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: Number 461, Herbert Aptheker et al., Appellants, versus the Secretary of State. Mr. Abt.
John J. Abt: Thank you Mr. Chief Justice, may I please the Court. This is an appeal from a final order of three judge court sitting in the District of Columbia denying appellants' motion for summary judgment granting the government's cross motion for summary judgment and dismissing the complaints. The complaints sought judgments declaring Section 6 of the Subversive Activities Control Act unconstitutional enjoining the Secretary of State from continuing, in effect, his revocation of the appellants' passports and ordering him to reissue passports to them. The single question that the case presents is whether Section 6 of Subversive Activities Control Act is unconstitutional on its face or as applied. Section 6 (a) of the act provides that when a final order has been issued requiring an organization to register under Section 7 of the act as a communist-action or a communist-front organization, it shall be unlawful for any member of the organization, who has knowledge or notice of this order, to apply for use or attempt to use a passport. Section 6 (b) provides that when a final order is in effect requiring an organization to register as a communist-action organization, Section 6(b) doesn't apply to fronts, a communist-action organization, it shall then be unlawful for any employee of the federal government to issue a passport to any person who he knows or has reason to believe is a member of the organization. Violations of Section 6 are punishable by fine and imprisonment under Section 15. Now there's no dispute about the facts. In April of 1953, the Subversive Activities Control Board ordered the Communist Party of United States to register as a communist-action organization. That order became final in October of 1961 after this Court denied a rehearing in Communist Party versus the SACB in which it had affirmed the board's order.
Speaker: May I ask you question, is there any statutory restriction, any statutory restriction (Inaudible)?
John J. Abt: The government claims that there is, Mr. Justice Harlan, we disagree. There is a provision in the regulations adopted by the Secretary of State pursuant to the authority given in the presidential proclamation, which put into effect the section of the law, which makes travel abroad without a passport unlawful. A provision of the regulation that the Secretary may, in his complete discretion when he thinks the national interest so requires, that he may authorize travel without a passport. Now that authorization while it might relieve the traveler of criminal prosecution for leaving or reentering the country without a passport but by no means assure him of entry into a foreign country because at least out of the western hemisphere most countries require the traveler to have the passport. And unless the foreign country waive this provision, the secretary's waiver wouldn't permit travel, in addition to which of course that would – the whole – this whole provision of the regulation is simply a matter of grace on the part of the Secretary, it's not a matter of right on the part of the applicant.
Potter Stewart: Insofar as the actual issuance of the passport goes, the Secretary apparently has no discretionary latitude at all. In fact he can, under the terms of 15 (c), he is sentenced to five years in prison.
John J. Abt: He can get five years in jail for issuing a passport if he has any reason to believe that the applicant was a member of the Communist Party. In January 1962, following of the denial of the rehearing in the Party case, the passport office notified the appellants that their passports have been revoked on the ground that use of them would violate Section 6. The appellants sought and secured administrative review of this -- of these relocations pursuant to the Department of Regulations. At the administrative hearings, the department offered evidence that each of the appellants was a member of the Communist Party and had notice of the final registration order by virtue of the fact that it had been published in the federal register. The appellants offered no evidence at the administrative hearing. The administrative proceedings culminated in a decision by the Secretary, in which he found that the appellants were members of the Communist Party with knowledge or notice of the existence of this final registration order, and hence that their use of passports would violate Section 6 and accordingly he confirmed his revocation, the revocation order. Now, I may say that the secretary made no finding and, of course, Section 6 requires none as to the character of appellant's membership in the organization as to their knowledge and attempt their activity, any other factor beyond the bare fact of their membership.
Speaker: (Inaudible)
John J. Abt: The Court below found Mr. Justice Harlan that Dr. Aptheker is the or was at the time the editor of political affairs, which is the theoretical journal of the Communist Party and that Ms. Flynn was the Chairman of the Communist Party. It found that from evidence introduced at the hearing and in the administrative record, but the Secretary's finding was based solely on his finding of the bare fact of membership, and under the statute, the fact, if it is fact that the appellants are leading members of the Communist Party, plays a role in the issue, the question of their right to passport.
Speaker: Is Mrs Flynn the individual victim?
John J. Abt: Mrs. Flynn is the individual, under the Smith Act, in the case that you decided in the Second Circuit Mr. Justice Harlan. But again, there was no such, no finding in the administrative record to that effect and under Section 6 it's utterly immaterial as to who she was other than the fact that she is a member of the Communist Party. Now, it appears to me from the record in the proceedings in the three-judge court, that Dr. Aptheker is a professional historian, is the author of many books and studies in his field. The revocation of his passport has prevented him from tendering gatherings of historians in Europe and Africa, denied him access which he desires to overseas his archives and depositories which he needs to -- for the purpose of pursuing his historical studies and has prevented him from accepting invitations to lecture on historical subject at universities abroad. Ms. Flynn has for many years written a column for the newspaper, The Worker, she is the author of several books and a speaker, and a lecturer, and she desires to travel to Europe as she has done in the past both for rest and recreation and to gather material for writing and speaking in this country. Now I shall say --
Potter Stewart: Both of these -- both of these appellants are native born citizens?
John J. Abt: Both are native born citizens, yes. I should say that appellants' passports would have expired by their terms while the case was pending below but as the government agrees, this fact doesn't moot the case obviously because their applications from new passports were not only have been futile but would, as Mr. Justice Stewart suggested, have subjected them to a criminal prosecution from the bare act of making the application. Turning then first to the substantive due process question which this case presents. As I noted existing United States law and the laws of most foreign states prevent citizens from travelling at least outside of the western hemisphere without passports. The denial of the passport therefore is a prohibition of foreign travel. As the Court held in Kent versus Dulles, foreign travel is a part of the liberty of the citizen which protected by due process. Section 6 must therefore satisfy the due process requirement that a depravation of liberty may not be arbitrary and that it must bare some substantial and reasonable relation to a legitimate legislative objective. Now, the object of Congress, the legislative objective and the enactment of Section 6, is stated in the Section 2 (8) of the act, which appears at Page 54 of our brief. That object was to protect the national security by closing of a means of communication between American and foreign communists, that is to say by preventing their face-to-face contact at least in Europe, which form of communication Congress found, and I quote now from Section 2 (8) ‘is a prerequisite for the carrying on of activities to further the purposes of the Communist Movement.' And elsewhere as the Court knows in Section 2, Congress found that these purposes of the Communist Movement are a threat to the national security. Thus, Section 6 was enacted by Congress as a security measure. The government defends it here as a security measure and it must be adjudged therefore, and it must stand or fall as a security measure. So judged, I submit, Section 6 must fall as an arbitrary depravation of a personal liberty which finds no justification in any genuine security need. This is so in the first place because as I've already pointed out the depravation of Section 6 is based on nothing but the bare fact of membership in an organization which is found to be an action or a front organization. Thus, the section bars travel by a member who has and who if you were given the opportunity could establish that he has a perfectly legitimate and even a vitally necessary reason for travelling aboard. Again, the section prohibits travel by members who have never engaged and who do not intend to engage and who could have established that fact if they were given an opportunity to do so an unlawful activity of any kind, either this in country or abroad, and for whom to use Mr. Justice Harlan's phrase in the Scales case, the organization is a vehicle for legitimate political activity. Similarly, it's completely irrelevant under Section 6 that the member does not know or believe that the organization engages in any illegitimate activity of any kind or that it has any of the sinister characteristic that the act and the board's order attributed to it.
Potter Stewart: Mr. Abt is it open to your appellants to assert the claims on behalf of these hypothetical people? Your appellants, not having introduced any such evidence as to their lack of belief or their -- to put them in the position of people who have a reason to travel to Europe to see a sick wife or so on. Those are hypothetical people who are not before us, do they?
John J. Abt: They are not hypothetical people, they are the real people that are before this Court Mr. Justice Stewart, these appellants because they had no opportunity to make such a showing and if they had offered such a showing it would have been held irrelevant and it is completely irrelevant under the statute.
Potter Stewart: They declined to offer any evidence at all, didn't they, at the administrative hearing?
John J. Abt: Yes, but the only issue before the -- the only issue at the administrative hearing was whether or not they were member of the Communist Party. They had no opportunity and the statute afforded them no opportunity to show that they were people of the category I've just described, and indeed their affidavits in the three-judge court which are un-contradicted and must be accepted here as fact state that their purpose in travelling was not only perfectly legitimate, but as Mr. Forer will point out, it was for protective purposes, that's the same purposes protected by the First Amendment. And that's -- so that we're not talking about hypothetical people, we're talking about the two appellants who are here.
Potter Stewart: Well you are referring to people who could have established by evidence that they had no knowledge at all as to the purposes of the Communist Party, they still lack --
John J. Abt: As to any illegitimate purposes of the Communist Party.
Potter Stewart: Right, and that certainly does not cover these appellants.
John J. Abt: I think it may well cover these appellants.
Potter Stewart: You don't know. They didn't offer any evidence, you don't know what they might have been permitted to offer. They didn't offer anything.
John J. Abt: Well under the statute -- I don't know what the Secretary or the Hearing Officer might said, well go ahead and offer it, you may offer this evidence. But under the statute none of that evidence was available for consideration by the Secretary. The Secretary had found that these were very, very nice people who had never committed an unlawful act in their lives, had no knowledge of any unlawful activity by the Communist Party, and intended to go abroad for the best of purposes, and -- but yet found they were members of the Communist Party and he'd issue the passport to them, as you pointed out Mr. Justice Stewart, you can face five years in jail for that.
Potter Stewart: Under the literally terms of the statute.
John J. Abt: Correct.
Potter Stewart: But I'm not only pointing out that you don't have that particular kind of case here, because there was no such evidence properly.
John J. Abt: But the question is who has the burden? Who under a constitutional statute would have the burden? And beyond that is the question that the act is written makes such evidence completely irrelevant.
Arthur J. Goldberg: (Inaudible)
John J. Abt: But that Mr. Justice Goldberg, that kind of membership was a different question, that was a meaningful membership in Rowoldt was not a question of membership with knowledge of the character, with the alleged illicit character, of the organization. It was something more than the bare fact of having joined the organization, that was all was an issue there. Now we're not -- we don't for moment say this is a Rowoldt case. And --
Arthur J. Goldberg: (Inaudible)
John J. Abt: Well I did make in a record in the District Court. But let me say to clarify the matter, we're not from -- and if that was what you meant by your question Mr. Justice Stewart, then I misunderstood it, misinterpreted it. We're not for a moment calming that this is a Rowoldt case. But we are saying that the statute is invalid because it doesn't require anything, any showing by the Secretary except the bare fact of membership. And in this respect the section differs very radically from security measures like, for example, the Federal Employees Security Program, which makes membership at an organization that has been officially found to be or listed as subversive, simply one piece of evidence to be considered in determining a person's -- or evaluating a person's loyalty.
Arthur J. Goldberg: Are you saying (Inaudible)?
John J. Abt: No sir I would not. I would say that -- I would say that the statue would be a valid statute and that's going to be the burden of my part of the argument. If it said that -- or let me restate that, I'm making too much of a concession. I would say that my -- the point I'm now making would wash out, if the statute said, that the fact a person was a functionary or a garden verity of member is one fact that the Secretary of State should take into consideration in determining whether his travel abroad was inimical to the national security. Then the statue would be equated with the ordinary loyalty or security of programs such as the Employees Security Program. And the Department of Justice itself in 1950 when the act was under consideration in Congress, pointed out the vital distinction between those two approaches, that is to say the approach that makes members -- the bare fact of membership conclusive evidence of disloyalty, and which -- and the approach which makes that fact of membership simply one factor to be considered. The department in this -- in the letter that it sent to the House Committee that was considering the legislation that eventuated in the act, opposed a provision that's now incorporated in Section 5 of the act, which parallels the passport provision in terms of defense and federal employment. The letters is quoted in our -- page 23 of our brief. That provision made it unlawful or makes it unlawful for a member of the Communist Party to hold federal employment or employment at any defense facility. And the department in its letter pointed out that there is a world of difference between a statute of that kind and one which, in the words of the letter from the department to the House Committee, and I quote it, “enables a member to respond to charges against him. And to show in a manner consistent with American concepts of justice and fairness that his membership is innocent and does not reflect upon his loyalty”, and that would go for a functionary as well as for an ordinary member Mr. Justice Goldberg. Three decisions of the Court subsequent to the passage of the act confirmed the view that the department expressed in this letter and established that individual guilt or disqualification may not be conclusively presumed from the bare of fact of membership in the Communist Party. First case to which I refer is the Scales case, which the Court upheld the membership clause of the Smith Act, but only by construing it to require not only membership in an organization that insights the violence, but knowledge by the accused of the -- the fact of the insightments, active membership by the accused, and a personal intent on the part of the accused to overthrow the Government of the United States. Now Scales of course was a criminal case, but the Court has applied the same principle in at least two cases of statutes which impose civil disabilities. The First was Adler versus The Board of Education, which involved a New York statute that made knowing membership in an organization found by the New York Board of Regents to advocate the violent overthrow of the government, prima facie evidence of disqualification to teach in the public schools. Again, the Court sustained the statute, but only because it required two things. First proof, not only is the organization had been listed by the Board of Regents, but that the teacher knew the character of the organization. And second, because it required or accorded rather, the teacher a hearing, at which he could offer evidence to overcome the prima facie presumption of disqualification that flowed from his membership with knowledge of the character of the organization. And in Wieman versus Updegraff, the Oklahoma -- the Court stuck down an Oklahoma statute which lacked these protective provisions. A statute which made the bare fact of membership present or past disqualifying and the Court there stated that -- such a statute violated due process because of its indiscriminate classifications of knowing and with innocent activity, and Section 6 we submit is invalid for same reason. The fact of the matter is that both the executive and Congress have recognized that this kind of indiscriminate classification of all of the members of the Communist Party as security risks isn't required for any legitimate security purpose. I've already mentioned the letter from the Department of Justice which took this position and the State Department itself seems to have held the same view with reference to passports. Because as the government's brief reviles, the department in 1948 adopted the practice of issuing or denying of passports to people that were found to be members of the Communist Party on an individual basis, depending on its appraisal of the qualification of the particular applicant. Then after the passage of the Subversive Activities Control Act in 1950, the department inaugurated the practice of denying passports to all suspected communists indiscriminately. But this change was not occasioned by any observed inadequacy of the previous practice for security purposes, it was adopted and this is clear from the record which we cite in our brief. In deference to what was thought to be the policy of Congress is expressed in Section 6. Then in 1958 when the Kent decision came down and invalidated the practice, which the State Department had adopted, the administration had bills introduced in Congress to give the Secretary the authority, which Kent held that he lacked. The administration bill however didn't make membership in the Communist Party alone disqualify, didn't establish this kind of conclusive presumption of disqualification. Instead that bill followed the pattern of the Federal Employee Security Program, as well as the 1948 practice of the Department of State itself. And by making such membership, that is to say membership in the Communist Party or other prescribed organizations, only one factor to be considered in determining whether the issuances of a passport would be inimical to the national security. Number of other bills introduced in Congress after the Kent decision took the same approach and two of the bills, which embodied this approach and one of which specifically said that no person should be denied a passport merely because of the fact of his membership in any organization, two of such bills were passed in the House in the 85th and 86th Congresses, the Senate never acted on the legislation. Matter of fact even in 1957 report of the Commission on Government Security, which antedated the decision in Kent and on which the government relies very heavily in its brief as evidence of the necessity of a legislation even this report -- along the lines of the question that you asked Mr. Justice Harlan, even this report found that the inflexibility of Section 6 is, may well be and is a prejudicial to the national interest. And accordingly this report, which again I emphasize antedated Kent, recommended an amendment to Section 6 that would give the Secretary discretionary authority to issue passports to communists. Now it seems to me plain from this history that neither the Executive nor Congress believed that the conclusive presumption of Section 6, that is the conclusive presumption of disqualification which it establishes, isn't even necessary or desirable as a matter of policy. And we think that the enactment of Section 6 doesn't indicate any considerate congressional judgment to the contrary.
Speaker: (Inaudible)
John J. Abt: Pardon.
Speaker: (Inaudible)
John J. Abt: Well let me explain to you why I think it's on the books Mr. Justice Harlan. It's on the books first of all because it was a product of what now appear I think to most of us who have been -- the exaggerated fears of our national security that were engendered by the outbreak of the Korean War. And second it's likewise a product and the legislative history that we cite in our brief shows that of the prevailing misapprehension prior to the decision in Kent that the issuance or denial of a passport was a matter of grace with the government, something that the government could withhold, give or withhold with pleasure uninhibited by any constitutional limitations, and I think that those two considerations are what account for Section 6.
Potter Stewart: This statute was not on the books at all, would the secretary have any power under existing other regulations and statutes to consider withholding and to withhold the passports from --
John J. Abt: Kent says not.
Potter Stewart: Well Kent was not under then existing regulations --
John J. Abt: There is nothing since -- no legislation since that time Mr. Justice.
Arthur J. Goldberg: If your argument seems to suggest the words of this statute are, of course (Inaudible)
John J. Abt: Well, if you want to get around -- that if the Congress wanted to get around the point that I am now making, all it has to do is to enact the bill that the Secretary of State send up to the Hill after the Kent decision, which made membership in the Communist Party simple one factor to be considered in a total evaluation of the applicant as a security risk. And our brief -- if you want the language Mr. Justice Goldberg, it's in our brief and we quote the bills that were pending in the Congress. The government's defense of Section 6 comes down to the proposition that it's a reasonable measure for the prevention of espionage. But I submit that on the face of the matter, it's absurd to suppose that known members of the Communist Party, let alone party leaders against whom the government says that the act was particularly directed would be selected for some foreign espionage in its submission. And there is no evidence that gives the slightest credence to any such supposition either in the very lengthy record before the board, the Subversive Activities Control Board in the registration proceeding or anywhere else. Furthermore no genuine anti-espionage law would prevent suspects from travelling to Monte Carlo or to Rome by permitting them to make trips to Mexico City or Rio, nor can the prevention of face-to-face contact in Europe be seriously defended as a security measure while all other means of communication are left wide open.
Speaker: (Inaudible)
John J. Abt: You are getting into a -- or you maybe approaching a different another area Mr. Justice Harlan, which is not involved in this case. There might be considerations of foreign relations, which would -- which might justify that kind of a regulation.
Speaker: I know this was (Inaudible) --
John J. Abt: But --
Speaker: -- yet by far under the security provisions.
John J. Abt: That's the only justification that Congress gave, that's the only justification that the government advances, and that's the only justification I can conceive of. Nobody suggested that this legislation can be supported on any concept of necessity for not embarrassing our foreign relations in some fashion. Finally, Section 6 would violate due process even I submit if it were reasonable to classify all members of the Communist Party a security risks ipso facto. This is so because the right to travel is a part of a liberty of every citizen and a person may not be deprived of his liberty merely upon the suspicion, no matter how well founded that suspicion may be, that he will abuse it. The practice of preventive detention, and that's what Section 6 is, has no place I submit in our constitutional system. With us, the presumption of innocence is so fundamental that even persons convicted of crime may not be deprived of their liberty pending appeal as a means of preventing them from committing other crimes, but only to the extent necessary to secure their presence and their submission to the orders of the court.
Arthur J. Goldberg: (Inaudible) including everybody involved in the security matters (Inaudible).
John J. Abt: I am --
Arthur J. Goldberg: You are trying to (Inaudible)
John J. Abt: I am saying that we should – we got to proceed in security matters Mr. Justice Goldberg just as we proceed elsewhere. We can charge a man with the fact -- with crime after he -- the crime that has been committed, you can try him, you can put him in jail, punish him. But you can't punish a man because you suspect that if you don't punish him he is going to commit a crime. That's -- that Mr. Justice Goldberg to me is a throwback to the writs of ne exeat regnum that the British crown used to suppress defenders by confining -- sent by confining the defenders.
Arthur J. Goldberg: At this stage, are you arguing that the (Inaudible)?
John J. Abt: That's correct, and I would argue that that bill is not invalid -- is invalid because it's a form of preventive detention.
Potter Stewart: Your hypothesis of the argument that you are now making is that the refusal to issue a passport to a would-be traveler aboard is punishment.
John J. Abt: No I am not saying it is a punishment, but it's --
Potter Stewart: Well, what are you the? You say you can't punish the man.
John J. Abt: It's a deprivation of liberty based not upon a past act which -- on past conduct, but a deprivation of liberty based on a suspicion of future misconduct, and as I say to me that is preventive detention. That's what the British used, the British kings used when they issued writs of ne exeat regnum, and it's particularly obnoxious where the descent or the where the suspected activity is activity of a political nature. Let me point out only in conclusion, concluding my portion of the argument, that no other western democracy confines its communists within its borders, and if to do so would be a suicide pact Mr. Justice Goldberg and France, England, Italy all of them have much larger and more powerful communists parties than we have -- have entered into the suicide pacts.
Arthur J. Goldberg: Would that be very unwise (Inaudible)?
John J. Abt: Yes Your Honor and I say that under the constitution Congress does not have the power to deprive a man of liberty because it thinks that if he is given his liberty he may abuse it. He's got to abuse it first and then you can punish him for the abuse but you can't deprive him of liberty in anticipation of an abuse. And I want to submit that the, that the government's fervor in defending what to me is the – an odious practice of preventive detention is a symptom of what Senator Fulbright recently called and I quote him, “a morbid preoccupation with the dangers of communist subversion and a flexion for which we Americans continue to pay so dearly in terms of our personal liberty and equally in terms of our national dignity.” Mr. Forer will continue.
Earl Warren: Mr. Forer.
Joseph Forer: Mr. Chief Justice may it please the court. I will take up our contention that Section 6 on its face and as applied violates the First Amendment. And first I would like take up and explain our position as to the various ways in which Section 6 interferes with speech and association. And I think that this is desirable because of the position taken by the government in its brief. The government argues that Section 6 is just a travel control statute, that all it controls is the conduct of travelling, and that any restrictions on speech and association are only incidental or byproducts. The fact is however that Section 6 is and was meant to be both a direct and indirect restraint of First Amendment rights. Now on the first place this appears from Section 2 (8) of the Act, which, as Mr. Abt pointed out, states the purpose of Section 6. And that purpose, as Mr. Abt has already stated, is to prevent American communist from communication with foreign communist because it was felt that out of such communication something might happen to facilitate the coming of revolution in this country. So the theory of Section 6 isn't that communist create a danger by the fact of their travel or by the mode of their travel, the way speeding automobile drivers do. The theory of Section 6 is that the danger arose from what communist who travelled would do after they arrived at their destination. And that danger was speaking to and associating with foreign communists, which of course is speech and association. And in fact Section 6 does prevent American communist from meeting and speaking with foreign communist. So, Section 6 is a direct and intended restraint on the speech and association of American communists and what is incidental is the section's effect on travel. Now, of course Section 6 doesn't just restraint communist from talking to other communists, not everybody in Europe is a communist. It therefore restraints American communist from talking to non-communist, and Section 6 also imposes like restraints on non-communists who happened to be members of organizations down by the Subversive Activities Control Board to be communist-front organizations or who are people who aren't members of anything, but who are people concerning whom the passport office has or thinks it has reason to believe that they are members of prescribed organization, but it further affects on First Amendment rights indeed, as illustrated by the situation here that the appellants want to go to Europe to study and to observe. So, Section 6 is preventing them not only from exercising their First Amendment right to speak and to associate but also their First Amendment right to learn. The situation is no different as far as appellants is concerned if they were confronted with law that prohibited them from going to libraries or universities or lecture halls or bookstores. In addition to that, appellants --
Potter Stewart: It's a good rhetoric but it is quite different, because there are good many libraries, and lecture halls, and bookstores here in the United States which are available.
Joseph Forer: No, but you see Dr. Aptheker who wants to go to the British museum to look at source material that is not available in this country.
Potter Stewart: Well, what if he wanted to go over to some secret installation in the CIA to do its research?
Joseph Forer: That would be different. CIA could keep anybody out that it is chose too, but that doesn't enable, I mean it's a clear interference with First Amendment rights to say that you can't go, not only to any library but to a specific library. Now may I say this, at the moment I am not even arguing whether or not these interferences violate the principles of the First Amendment and I'll come to that in a moment. All I am trying to do now is to show that there is a First Amendment problem here because there are these various aspects of the First Amendment -- First Amendment interest which Section 6 invades. And what I was trying to show is that Section 6 doesn't just prevent people from traveling, it prevents them from learning as well as from talking and as well as from associating, and of course it doesn't just prevent --
Arthur J. Goldberg: (Inaudible)
Joseph Forer: Of course it does, in the sense people are entitled to learn. Now, the people that started the revolution, the American Revolution --
Arthur J. Goldberg: (Inaudible)
Joseph Forer: That the British Museum isn't subject to our constitution, but this is the United States government that's preventing Dr. Aptheker from going to the British museum, and it is preventing him from going to the British museum while allowing other people to go. And by preventing Dr. Aptheker, and Ms. Flynn from going to Europe and learning, it is also preventing them from coming back and teaching to people in this country what they have learned and both of them are in the business of teaching people what they learn, both of them are writers and lecturers. So it is a fact that Section 6 is interfering with the First Amendment right to hear and the First Amendment right to learn of the potential readers and listeners, communists and non-communists or like who might be interested in reading or listening to Dr. Aptheker and Mrs. Flynn. Now in addition to these restraints which I prescribe and which we consider to be direct, Section 6 also deters the First Amendment Right of association within the United States, and this is so of course because the disability to travel arises from Section 6 solely out of an exercise of the Right of Association, that is membership in a prescribed organization. And this deterrence not only discourages people from joining organizations, which Subversive Activities Control Board has actually found to be a communist-action or a communist-front organization. It also operates to deter them from organizations against which proceedings are pending or against which some proceeding might conceivably be instituted. And it also discourages people from cooperating with or participating in the activities of suspected organizations or organizations which might be suspected, or participating in their activities in ways short of membership, because of the possibility that such cooperation or participation might be interpreted by the passport office as giving the office reason to believe that in fact they are them. And finally, the Section also intrudes on interests of conscience and privacy. It makes the association of every would be traveler a matter of public business and a subject of government surveillance, and it subjects every would be traveler to the possible indignity of a loyalty test or a political test before he can qualify to travel.
Arthur J. Goldberg: (Inaudible)
Joseph Forer: I think --
Arthur J. Goldberg: What can you suggest to hereabouts (Inaudible)?
Joseph Forer: You mean that's all the statute said? Yes I certainly would, by all mean. It would be a -- it would violate the Fifth Amendment as an indiscriminate and purposeless restriction on its liberty and I also think it would interfere the First Amendment. It would involve a great many of these things that I have mentioned including the necessity for the government to determine whether every traveler is or is not a communist. Now I have mentioned the several different ways both direct and indirect in which we think that Section 6 interferes very substantially with the First Amendment interests of both communist and non-communists, and now I want to come to the theoretical bases on which we think those interferences violate the First Amendment. Now one principle which is clear under the First Amendment and which is a common place, whatever else maybe obscure about the First Amendment, is the principle of precision of regulation. As I say, this Court has stated again and again that where the First Amendment area is concerned, the government must regulate narrowly and that it may not as might in cases of regulation subject only to due process for reasons of administrative efficiency, control or burden the exercise protected rights in order to aid the regulation of unprotected conduct, nor may it, in the First Amendment area, ignore the availability of less drastic means for achieving the same basic purposes. Now Section 6 is so broad that it obviously violates this principle. It bars the travel not only of people who are going abroad for criminal or dangerous purposes, but also of people who wish to go abroad, as here, for innocuous and protected purposes. If the government could not make it a crime consistent with the First Amendment and I am sure it could not, it couldn't make it a crime for Dr. Aptheker to study at the British Museum and it couldn't make it a crime for Ms. Flynn to look at the paintings at the Louvre, by the same token the government cannot impose a prior restraint on Dr. Aptheker and Ms. Flynn from going to the museum or going to the Louvre for those purposes. Now this excessive breadth of Section 6 is the inevitable result of the indirect, and I may say, even perverse manner in which Congress chose to legislation. On the one hand Congress said its purpose is to prevent conspiratorial communication. But Section 6 doesn't prohibit or punish conspiratorial communication. There is nothing to stop, so far as Section 6 is concerned, any number of individuals from traveling aboard for the purposes of the conspiring to engage in dangerous activities or to bring revolution to this country.
Arthur J. Goldberg: Supposing Ms. Flynn has handed a resignation from (Inaudible)?
Joseph Forer: Theoretically she would, she'd have an awful time getting one, and as a matter of fact --
Arthur J. Goldberg: (Inaudible)
Joseph Forer: No, no that's right so far as the statute is concerned you can get your due process constitutional liberty to travel provided you surrender your First Amendment right to be a member of the Communist Party.
Arthur J. Goldberg: (Inaudible)
Joseph Forer: Well certainly, people have the First Amendment right to be members of political parties. Now you don't have a right to be a member of a party with knowledge and intent that this party is going to engage in dangerous activity. But as I understand from the Scales case all the -- even the cases which upheld convictions of Communist, from the Douds case, now of course there is a First Amendment right to be a member of the Communist Party in order to engage in its peaceable political activities which nobody doubts that it does engage. Now, so by this perverse mechanism, the statute instead of prohibiting what it said it was after, that is going abroad for conspiratorial communication, all it did is prohibit people from going abroad merely because they are members of certain organizations. Now even the government recognizes in its brief that it is inconceivable and unreasonable to suppose that every communist will, every time he goes abroad, engage in dangerous talk or activity. Therefore, it automatically follows that Section 6 inevitably suppresses a great volume of protected speech and association along with whatever slight amount of unprotected communication it might speculatively prevent. Now the government and some of the questions from the bench appear to justify this approach on the ground that Congress could reasonably believe that the Communist Party is a bad organization. But even if it were true, that would not permit Congress constitutionally to prevent communist from engaging in peaceable speech and association or to punish them for doing so, because it is unconstitutional to abridge the protected speech and association, not because of the nature of the speech or the association, but because of the identity of the speaker and even more so because of the identity of the organization to which he belongs. And I thought this was settled as far back as 1937 in De Jonge against Oregon. And there the Court held that even assuming that the Communist Party was guilty of criminal syndicalism, the state could not, consistent with the First Amendment, punish persons, members of the Communist Party for conducting peaceable party meetings. Now in fact Section 6 goes beyond the Oregon statute that De Jonge invalidated. After all, Mr. De Jonge in this meeting that he was conducted and which was held to be beyond the state's reach, Mr. De Jonge was carrying on Communist Party business when he conducted this protected meeting. He was running a meeting to protest anti-strike activity which was sponsored by the party and he urged the audience to join the party. But Section 6 is broader, because it applies to members of the Communist Party even when they desire to travel abroad for reasons unconnected with party business. Furthermore, the statute in De Jonge required the state to prove that the Communist Party advocated criminal syndicalism. But Section 6 doesn't require any proof that the Communist Party engages in any criminal conduct or that it engages in any advocacy which is of an unprotected nature. And the fact is that the Subversive Activities Control Board, which is no friend of the Communist Party, after lengthy hearings was unable to find and did not find that the Communist Party engages in criminal activities or in incitement for violent overthrow. Now these defects to Section 6, including that it's too broad because it also applies as Mr. Abt pointed to members who are innocent, as well as guilty, are magnified by the fact that it is a prior as well as indiscriminate restraint. In Near against Minnesota, the Court struck down as a prior restraint, a statute which prohibited the circulation of future issues of a newspaper which had published previous scandalous issues. Now Section 6 is more extreme. It prohibits the circulation of persons, not because of any past misconduct of theirs, but because of suspected misconduct by other people in their organization. Now I think perhaps the most fundamental reason why Section 6 violates the First Amendment is that it is simply incompatible with the amendment that people should have to pass loyalty or political tests as a condition to their engaging in peacetime in the elementary human right of freedom of locomotion. Now the Court has upheld loyalty screening and persons holding public office or for what it considered quasi public jobs such as labor union offices. But here the loyalty screening is being applied for the purpose of determining who could engage in purely private pursuits. If I can borrow the language of the economists, here the loyalty purge or loyalty test is being -- and the loyalty apparatus is being extended from the public sector to the private sector.
Speaker: Is it you're arguing that the defendant (Inaudible)?
Joseph Forer: I wouldn't consider that a loyalty or a political test. If they -- you would there get into the problem of preventive detention, but leaving that aside, if you could punish -- and you have the problem of prior restraint, it may be that the Secretary of State could be given authority to prevent people from going abroad to engage in physical violence, espionage, and so forth. But just to prevent people from going abroad because of that politics is something different. And the fact is if Congress can impose these political tests on people seeking to travel abroad, because it doesn't like communists or think they're dangerous or communist-front organization, then it can also impose loyalty or political tests as a condition to people engaging in the pursuits of driving automobiles or to people travelling in the subways or to people buying food. Now I'm sure it is just as important to the Communist Movement that officials of the Communist Party be able to drive automobiles, travel in subways, or buy food as it is for them to travel abroad. And yet if Congress can impose these kind of political and loyalty test which has nothing to do with what the person is doing or going to do, but just political considerations, if it can transport the government loyalty test to all these private everyday activities, then we just have to stop pretending that we have a free society because everybody is subject to a loyalty test for everything he does.
Potter Stewart: Well, let's stop pretending that this case is about buying food or travelling in subways too, because it isn't.
Joseph Forer: No it's about travelling, which is a fundamental human right.
Potter Stewart: Outside North America.
Joseph Forer: Well if the Secretary of State tomorrow should decide to require passports to Canada, Mexico, and so forth then automatically Section 6 would be applicable to the rest of the country. So it's preventing people from going to --
Potter Stewart: That has nothing to do with going to the grocery store and buying food and that's --
Joseph Forer: No but the person --
Potter Stewart: And let's just say, case is before us, which is difficult enough.
Joseph Forer: Now the principle is the same, the principle is of imposing loyalty tests on people who are going abroad, travelling for private purposes, on the justification that people going abroad might do harm. What I was pointing out that the justification for controlling them from travelling on the subway is even stronger. It's a much more factless thing just to prevent them from going to Europe, if you really want to stop them from being dangerous, you just stop them from doing anything, yes.
Speaker: (Inaudible)
Joseph Forer: I suspect that some of the justices are joined in the Japanese relocation cases may have second thoughts about it at this late stage, but in any event those cases were upheld purely as an extraordinary exercise of the war power because of war condition. We will reserve the rest of our time for rebuttal.
Earl Warren: Mr. Chayes.
Abram Chayes: Mr. Chief Justice, may I please the Court. As Justice Goldberg has just said, the Court is again called upon in these cases before us today to deal with another of the difficult almost agonizing problems that have emerged from the efforts of Congress in this statute and others to deal with what all must recognize was a reasonably judged threat to our national security. What was that threat? The existence as Congress found of an International Communist Movement dominated by a foreign power, dedicated to the purpose and object of imposing in this country a communist totalitarian dictatorship. Operating through organizations of disciplined members acting to further those purposes in countries outsides of the center and found of the world movement. Those findings of which this Court, as Justice Douglas said in the Communist Party case, have often -- has often taken judicial notice, are also before the Court now as findings of a legislature, of a coordinate branch of the government acting in the exercise of its constitutional duty, and those findings also have been held by this Court in the Communist Party case to be findings which Congress could make on the record before it. That is the problem that Congress was trying to deal with.
Hugo L. Black: Did Congress have to make the findings of fact in order to draft the bill?
Abram Chayes: Mr. Justice Black it is clear that the situation with respect to which Congress acts is always one of the elements in determining whether its action is reasonable or is within constitutional limits. As Justice Goldberg said a moment ago, this Court sustained the confinement of persons based only on their race in relocation camps during the war, because the circumstances then prevailing and as then appeared to the Congress were of such magnitude as to justify it.
Hugo L. Black: Are you depending on that case for justifying this position?
Abram Chayes: No sir I'm saying only that as this Court has often said, emergency does not create power, but it may create the occasion for its exercise. As Mr. Justice Goldberg said, we are not now at war. But we are in a cold war, that cold war has certain characteristics and certainly those characteristics create the occasion for Congress to seek to deal with them, and this Court has so held time and time again. Now appellants here are members of the Communist Party of the United States, indeed Mrs. Flynn is the Chairman of that party and Mr. Aptheker is Editor of its theoretical journal. This was established on the record in a full administrative hearing in the Department of State, and indeed I take it this much is admitted by appellants for the purposes of this case. The Communist Party is one of those organizations which Congress said existed, dominated by a foreign power, the Soviet Union, dedicated to imposing a communist dictatorship in this country, prepared to use any necessary means to that end, whether a force or a fraud. And this too was established in a full administrative hearing after which the party was ordered to register. That is the character of this particular organization was established in a proceeding at which it had full opportunity to present evidence and to make argument that it was not this kind of organization which was dedicated to these purposes and furthering these ends. And it was found by the Board that it was such an organization. And on review in this Court, the registration order of the Board was sustained by a vote of 5:4. But the findings of fact about the character of this organization were accepted by seven of the justices on this Court. None, I might say, more succinctly or emphatically than by Mr. Justice Douglas who dissented from the registration order on another ground. He said, the Board found that the Communist Party of the United States is a disciplined organization, operating in this nation under Soviet control to install a Soviet style dictatorship in the United States. Those findings are based I think on facts and I would not disturb them. Now Congress found also in this statute and on the record before it, it could so find that travel abroad by members of the Communist Party was an important means, indeed it said a prerequisite for advancing the purposes of that party. The record before it showed travel by United States members of the party abroad not only to visit the British museum. But for instruction and training to transmit and receive orders, to report to establish face-to-face contact among leaders and members. And I think it's almost self-evident that a world wide conspiratorial organization of the kind which Congress found this world communist movement to be, acting through a variety of discrete and semi covert organizations throughout the world, as Congress found this movement to act, must depend on travel and face to face contact to bind it together and to transmit impulses for action to its constituent parts. And so Congress, on this record and on these findings before it, a legislative record as we know that extended over ten years of investigation and analysis, during which as my friend for the appellants pointed out, events happened to the Korean War, the fall of Czechoslovakia, the Berlin Blockade, all of which were seen before Congress as a part of the world movement with which it was trying to deal. But as part of a comprehensive statutory scheme designed to frustrate the purposes of this World Communist Movement, Congress enacted that members of American organizations controlled by that movement and acting predominantly to further its interests should be denied passports, a prerequisite in most cases to travel abroad. Now it's pursuant to that enactment that the passports of these two appellants were withdrawn and the question before the Court is, can this be done within the constitution. Now as appellants have pointed out, there are two fundamental grounds of constitutional attack here, one under the Fifth Amendment and one under the First Amendment, and both them ought to be dealt with separately, because different standards and different tests are applicable under each. As is often the case, both parties here are agreed as to the words in which those tests are expressed and the question becomes how those test are to be applied in a particular case. For the Fifth Amendment, our starting point is Kent and Dulles. That case, as the Court knows, says that travel is part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment. In other words, when speaking of travel generally, generically one might say, the Court was careful to say that the protection was the protection afforded by the Fifth Amendment, and as the appellants have said, the test under the Fifth Amendment is essentially what is fair, what is reasonable. Is this measure a rational means to an end that Congress could entertain under the constitution or is it arbitrary? Does it bear so little rational relation to a proper congressional purpose that we must put it down to whim or passion or prejudice rather than the action of reasonable men in pursuit of the great ends of government? The second question is under the First Amendment, and there, as my friend pointed out, it is clear in this case as it was in the Douds case that the operation of this statute acts to inhibit the exercise of certain rights of speech and association by certain people. That is what makes a First Amendment question. There were no inhibition on those rights of associations and they are particularly in this case association rather than belief or speech as Mr. Justice Goldberg pointed out when he -- or I guess it was Mr. Justice Harlan when he talked about the power to resign and continue to speak and believe everything else that you may speak or believe. In this case, as I say as in Douds, the government concedes that there is inhibition in the statute on the rights of association and that is the beginning of analysis of the First Amendment problem.
Potter Stewart: What impediment upon freedom of association do you concede the freedom to associate in the Communist Party of the United States or the freedom to associate abroad with other communists or both?
Abram Chayes: Well, I think you have to look at both -- at both the categories that the appellants have advanced somewhat differently. It is clear that as to American citizens joining the Communist Party, this exercise is the same kind of inhibition as the Douds requirement did or as to person within the United States joining the Communist Party, it exercise the same kind of inhibition as to aliens within the United States as the deportation cases do. In other words, it makes a disability, some disability, not a prohibition of speech but a disability, depend upon an association and therefore inhibits to that extent the association. Now as to the other part of the argument, it is true of course that if Dr. Aptheker or Mrs. Flynn can't go abroad, they can't go to the British museum. But if we take the view that that by itself raises a First Amendment problem and an insoluble First Amendment problem, because it's a direct prohibition of speech, then the whole analysis in Kent and Dulles is gone. Then the restraint on travel or the restriction of travel is not a deprival of Fifth Amendment liberty but of First Amendment rights, and if that's so we ought -- the Court ought never to have come to the conclusion that it did in Dulles that the Amendment which protects travel, qua travel is the Fifth Amendment. Here we are dealing, and as Mr. Justice Goldberg pointed out, if the appellants' arguments is correct, we could not prohibit a person from going abroad if we knew he was going to commit espionage because he might also be going to visit the British Museum.