APTHEKER v. SECRETARY OF STATE

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Argument of John J. Abt

Chief Justice Earl Warren: Number 461, Herbert Aptheker et al., Appellants, versus the Secretary of State.

Mr. Abt.

Mr. 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.

Justice John M. Harlan: May I ask you question, is there any statutory restriction, any statutory restriction (Inaudible)?

Mr. 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.

Justice 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.

Mr. 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.

Justice John M. Harlan: (Inaudible)

Mr. 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.

Justice John M. Harlan: Is Mrs Flynn the individual victim?

Mr. 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 --

Justice Potter Stewart: Both of these -- both of these appellants are native born citizens?

Mr. 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.

Justice 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?

Mr. 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.

Justice Potter Stewart: They declined to offer any evidence at all, didn't they, at the administrative hearing?

Mr. 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.

Justice 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 --

Mr. John J. Abt: As to any illegitimate purposes of the Communist Party.

Justice Potter Stewart: Right, and that certainly does not cover these appellants.

Mr. John J. Abt: I think it may well cover these appellants.

Justice 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.

Mr. 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.

Justice Potter Stewart: Under the literally terms of the statute.

Mr. John J. Abt: Correct.

Justice 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.

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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 --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: Are you saying (Inaudible)?

Mr. 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.

Justice John M. Harlan: (Inaudible)

Mr. John J. Abt: Pardon.

Justice John M. Harlan: (Inaudible)

Mr. 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.

Justice 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 --

Mr. John J. Abt: Kent says not.

Justice Potter Stewart: Well Kent was not under then existing regulations --

Mr. John J. Abt: There is nothing since -- no legislation since that time Mr. Justice.

Justice Arthur J. Goldberg: If your argument seems to suggest the words of this statute are, of course (Inaudible)

Mr. 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.

Justice John M. Harlan: (Inaudible)

Mr. 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.

Justice John M. Harlan: I know this was (Inaudible) --

Mr. John J. Abt: But --

Justice John M. Harlan: -- yet by far under the security provisions.

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible) including everybody involved in the security matters (Inaudible).

Mr. John J. Abt: I am --

Justice Arthur J. Goldberg: You are trying to (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: At this stage, are you arguing that the (Inaudible)?

Mr. 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.

Justice 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.

Mr. John J. Abt: No I am not saying it is a punishment, but it's --

Justice Potter Stewart: Well, what are you the?

You say you can't punish the man.

Mr. 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.

Justice Arthur J. Goldberg: Would that be very unwise (Inaudible)?

Mr. 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.

Chief Justice Earl Warren: Mr. Forer.

Argument of Joseph Forer

Mr. 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 --

Justice 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.

Mr. 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.

Justice Potter Stewart: Well, what if he wanted to go over to some secret installation in the CIA to do its research?

Mr. 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 --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Joseph Forer: Of course it does, in the sense people are entitled to learn.

Now, the people that started the revolution, the American Revolution --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Joseph Forer: I think --

Justice Arthur J. Goldberg: What can you suggest to hereabouts (Inaudible)?

Mr. 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.

Justice Arthur J. Goldberg: Supposing Ms. Flynn has handed a resignation from (Inaudible)?

Mr. Joseph Forer: Theoretically she would, she'd have an awful time getting one, and as a matter of fact --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Unknown Speaker: Is it you're arguing that the defendant (Inaudible)?

Mr. 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.

Justice Potter Stewart: Well, let's stop pretending that this case is about buying food or travelling in subways too, because it isn't.

Mr. Joseph Forer: No it's about travelling, which is a fundamental human right.

Justice Potter Stewart: Outside North America.

Mr. 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 --

Justice Potter Stewart: That has nothing to do with going to the grocery store and buying food and that's --

Mr. Joseph Forer: No but the person --

Justice Potter Stewart: And let's just say, case is before us, which is difficult enough.

Mr. 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.

Unknown Speaker: (Inaudible)

Mr. 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.

Chief Justice Earl Warren: Mr. Chayes.

Argument of Abram Chayes

Mr. 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.

Justice Hugo L. Black: Did Congress have to make the findings of fact in order to draft the bill?

Mr. 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.

Justice Hugo L. Black: Are you depending on that case for justifying this position?

Mr. 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.

Justice 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?

Mr. 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.

Print this transcript Transcript: 

Argument of Abram Chayes

Mr. Abram Chayes: Mr. Chief Justice, may it please the court.

When we recessed a half a hour ago we had just reached the point of identifying in the large the two constitutional attacks on the statute, two bases for constitutional attack.

And I would now like to turn in the first instance to the Fifth Amendment attack.

And as we said, the question here is, is this fair, is it reasonable, is it a rational means to an end that Congress is free to pursue under the constitution.

Now it seems to me that this is fairly readily disposed of the end that Congress is pursing is the preservation of the national security by frustrating the purposes and objectives of a world movement which is dedicated to overthrowing our government.

And as this Court quoting Madison in the 41st federal has said, protection against foreign danger is one of the primitive objects of civil society.

It is an avowed an essential object of the American Union, the power requisite for obtaining it must be effectually confided to the federal counsels.

So we have an appropriate end, an end that Congress can constitutionally entertain.

And we have a finding that Congress has made on the basis of evidence that travel is a necessary part of the apparatus, the integument of this world organization whose purposes it is seeking to frustrate.

So that it is then not irrational to seek to prevent that travel as a way of seeking to prevent the attainment of those unlawful objectives.

Justice Potter Stewart: I don't -- I am not sure I thoroughly understand what you say -- the basic source of congressional power.

Mr. Abram Chayes: I think we agreed that the basic source of congressional power is the power to protect and defend the national security against foreign danger, foreign danger acting internally through dominated and controlled organizations.

And a foreign, a foreign movement which requires, because it's working at a distance, because it's working through semi-covert internal organizations, requires travel to establish contact and strength and tie the bonds with those internal organizations.

Justice Potter Stewart: Is this the war power?

Mr. Abram Chayes: No sir, it's not war time and therefore it's not the war power.

Justice Potter Stewart: Is it the implicit power to regulate foreign relation?

Mr. Abram Chayes: No sir, I think it's power to take, take action to protect and defend the security of the United States.

Justice Potter Stewart: That's what I am --

Mr. Abram Chayes: Now that's part of the power to conduct foreign relations because the object, one of the main objects of our foreign policy is it must be of our domestic policy is to protect the security of the United States.

Justice Potter Stewart: It's not the commerce power?

Mr. Abram Chayes: It's not the commerce power, no sir.

Justice Potter Stewart: I just want to know where you found it in the constitution.

Mr. Abram Chayes: I find it in the sovereign, the inherent power of every sovereign to protect its own existence against foreign danger.

Justice William O. Douglas: In the Edwards case, Edwards versus California, the Court I think had the power to restrict travel of citizens inside the country on the Commerce Clause.

Mr. Abram Chayes: Yes it did in the Edwards case although as you know Mr. Justice Douglas the Crandall and Nevada suggested and other comments have suggested --

Justice William O. Douglas: That was a minority view I think in that case.

Mr. Abram Chayes: Yes, but it seems to me one has to consider that it is also --

Justice William O. Douglas: I was wondering if you could, under the theory, you now advance whatever commerce power, foreign commerce or what not, whether you could justify an act of Congress that would make all members of the Communist Party in-house custody here.

Mr. Abram Chayes: Well I think that's imprisonment and this isn't imprisonment.

Justice William O. Douglas: I mean in their own house.

Mr. Abram Chayes: Yes it still is, I think when you get to confining people in a narrow room that comes to be imprisonment and that is the kind of punishment that has to be taken on the basis of a judicial trail.

Justice William O. Douglas: Or instead of a house custody perhaps within a radius say 10 miles from their house.

Mr. Abram Chayes: Well I think there have been certain circumstances as the court knows in which the court has sustained that power as to American citizens.

Now they are --

Justice John M. Harlan: (Inaudible)

Mr. Abram Chayes: They are, they are circumstances of acute danger, yes.

Justice William O. Douglas: That's, that would -- that's on the war power.

Mr. Abram Chayes: Yes, and all that we say here is that the danger may not be so grave as to justify that kind of confinement, but it is plain enough --

Justice William O. Douglas: But If I do -- kill them of communication or preventing or affording or making it more difficult, that would I think strike really deep?

Mr. Abram Chayes: Well the question is in each case, what is the danger perceived, how reasonable are the relations as the means to the end.

Justice William O. Douglas: Would you think that these people could have got a passport if they had shown that their parents were dying in Paris?

Mr. Abram Chayes: They can't get a passport but the Secretary of State has discretionary authority under Section 215 to waive the requirement of passport for exit.

Now my friend said that that won't waive the requirement of the foreign government for a passport as a means of entry, but in fact we will also give a document of identification which is in most cases enough to get him into a country that has a passport entry requirement.

So that there does exist under the statute as it now stands I believe adequate power for the Secretary of State to make an exception in meritorious circumstances.

Justice William O. Douglas: Had any exceptions been made?

Mr. Abram Chayes: No we haven't had any applications for an exception since this statute has been in effect.

But it is true that the before Kent and Briehl, before those cases in which the court struck down our administration practice, when we were denying passports to communists on the basis of our internal regulations, we did make an exception in one case I think on the basis of the secretary's power to make exceptions under Section 2 (15).

Unknown Speaker: You mean that no man has the right to travel (Inaudible), and that one man, the Secretary of State, gives them a right to travel under his discretion?

Mr. Abram Chayes: No person who has been shown on an open record to be a member of the Communist Party has a right to a passport unless the Secretary of State --

Unknown Speaker: But of course others parties could be named.

Mr. Abram Chayes: Well the only parties that can be named are parties that are also found on an open record and at the end of a judicial type hearing to have these characteristics namely foreign control, dedicated to the purpose of imposing a dictatorship here, and committed to doing it by whatever means it's necessary.

Unknown Speaker: What constitutional provision limits to that?

Mr. Abram Chayes: Well, we are saying that's what the statute requires in this case.

Unknown Speaker: I'm talking about what constitutional provision limits to that.

Mr. Abram Chayes: Our -- the argument that we are making sir is that when a statute is so limited, it falls within an appropriate power to protect against threats to the national security, and that Congress -- the question here is not what the limits are of congressional action but whether this statute is constitutional.

And we say that this statute is so limited to parties of this kind.

Remember, if it please the Court, the Communist Party is not designated here by affiant either legislative or administrative.

Unknown Speaker: Why hasn't it?

Mr. Abram Chayes: Nobody picked the Communist Party out and said it was a bad party and therefore people can't travel.

It was found to be a party having certain characteristics after a full administrative hearing complying with all the safeguards of procedural due process in which it was free however it chose to meet the charge that it had these characteristics and it was found to have had them and this Court sustained those findings.

Unknown Speaker: In an administrative hearings?

Mr. Abram Chayes: This Court sustained the findings.

Unknown Speaker: I understand that, in administrative hearing now --

Mr. Abram Chayes: It was a full hearing and requirement of substantial -- of preponderance of evidence in the statute.

Unknown Speaker: (Inaudible) for administrative or military tribunal?

Mr. Abram Chayes: Well, we are now talking I think for the moment about the question whether this is a rational means to this end.

And all I am suggesting is that having established these preconditions namely that the organization is found to have these characteristics in an administrative hearing, that the parties -- the persons are found to be members of the party in a full due process hearing, that the organization is found by Congress to depend on travel, it's not irrational then to seek to inhibit travel in order to frustrate the objectives that the movement is seeking to accomplish.

Unknown Speaker: This very statute (Inaudible) an act that doesn't necessary to have absolute prohibition?

Mr. Abram Chayes: Well that's what I was going to say -- oh absolute prohibition on travel.

Unknown Speaker: Could they take that into consideration?

Suppose -- I suppose the different shades and types of communists, some are perhaps more dangerous than others, you're telling.

Mr. Abram Chayes: Well, I think that's exactly the main burden of the attack on the statute under the Fifth Amendment.

It is that to say that all communists can't be permitted or given passports is too broad, so broad as to be irrational.

But I submit that at least for the Fifth Amendment side of the case, I think perhaps different considerations would and different principles would operate.

I think those principles operate to sustain, but different principle operate on the First Amendment side of the case, but for the Fifth Amendment side of the case, I think we are in the same place we were in American Communication Association versus Douds, where this Court said that the mere fact that membership in a political association is made the basis of classification does not mean that the classification is irrational or unconstitutional.

And indeed the Court will remember that in the Douds case again two of the dissenters, Justices Frankfurter and Jackson, upheld the oath on the membership side of the oath.

They were worried about the belief side of the oath; there is no belief issue here.

There is an objective standard, membership.

Now why did Douds say that?

Douds cited a whole series of cases; it cited Agnew versus Board of Governors or the Federal Reserve, upholding a statute, which prohibited all underwriters from serving as officers or directors of national banks.

It wasn't necessary to bring home to the particular underwriter that he might be going to commit a breach of trust or have a conflict of interest on the national bank.

It was enough that the class was rationally related, the classification was rationally related to the evil to be forestalled.

Justice Hugo L. Black: (Inaudible), while this statute bars the members of the party (Inaudible), and they want to travel abroad.

Mr. Abram Chayes: And they want to travel, travel aboard.

Well I think again if I may address that on the First Amendment side of the case, because I think that's where it was addressed in Douds.

I just want to establish here that the general principle, that the classification, is not necessarily related to the particular persons of whom undesirable activity can be expected, is always the case, where the Congress tries to anticipate the evil rather than act after the evil has occurred, because the consequence of trying to anticipate the evil is you don't know whether any particular person is going to do the undesirable act, and so if Congress is to have the power to forestall evil, as it did in the Public Utility Holding Company Act cases, as it did in the board -- the Agnew case, and as it does over and over and over again.

Every factory is subject to inspection under the Food and Drug Act, why?

Not because we believe a particular manufacturer, we don't have to start with the proposition that a particular manufacturer is probably doing the bad thing.

We are trying to forestall he is doing the bad thing, and that's why the classification must be broader than merely those whom we now already are engaging in the disapproved conduct.

And the consequences saying we can't draw the circle any narrower or any broader than those who are already engaging or will engage that we know will engage in the conduct is to say we can't act in advance at all.

And so the only question is, is this a rational class, is it rational to say that all lawyers should be disqualified from jury service, for example, because some, maybe may not follow the instruction of the judge, but the instruction of their law professor.

Is it rational to do all the other things that we do on the basis of anticipatory desire to forestall conduct that it is appropriate to seek to forestall?

Justice Hugo L. Black: Why does it have to be rational?

Mr. Abram Chayes: It had to, because otherwise unless it's somehow related to what we are trying to do, then it's arbitrary, and that is a violation of the due process clause.

Justice Hugo L. Black: If I hear it correct at the beginning of your argument, there you said that you didn't have to depend much charge on whether or not it's rational to do this if you assume the government had the right to put a party out of business.

Of course it's rational, it's rational to do every one of the things that had been done and many more.

Mr. Abram Chayes: Well --

Justice Hugo L. Black: I don't see why that argument has -- why you have to struggle with it.

Mr. Abram Chayes: Because -- well I don't I don't think I have to struggle with it very hard either Mr. Justice Black, I think that's the sum total of the Fifth Amendment argument.

Justice Hugo L. Black: If the government has the power to put the party out of business in this way, everybody in it, it can do that in many more things.

They could put them all out of jobs, keep them from getting jobs, as has been frequently attempted and in many respects it has been done.

Mr. Abram Chayes: Well, I think the Court has held in the --

Justice Hugo L. Black: Keep them from morning run.

Mr. Abram Chayes: In the Communist Party case that it was not the object of the government to put the party out of business.

I think that was --

Justice Hugo L. Black: What was it about then?

Mr. Abram Chayes: Expressly considered in the Communist Party case and the Court held no, that wasn't the idea --

Justice Hugo L. Black: What was that object?

Mr. Abram Chayes: That Court held that the object of the -- this statutory scheme was not to put the Communist Party out of business, but was to regulate the conditions under which it could act.

Justice Hugo L. Black: But why shouldn't it has the power to do it, which is dangerous that you say they found it to be.

I don't understand that, you are not to (Inaudible).

Mr. Abram Chayes: They are trying to frustrate the evil objectives which Congress found.

Now the fact that Congress did so having a care to other rights and principles that operate also in the premises shouldn't make the act unconstitutional, quite the reverse, the fact that the --

Justice Hugo L. Black: The Court to pass on that weighing the circumstances each time.

Mr. Abram Chayes: The Court -- it doesn't have to pass on anything in this case, but the question whether the withdrawal of a passport from these two appellants under these circumstances was beyond the congressional power.

Justice Hugo L. Black: But you say that depends on whether we think that what they did right?

Mr. Abram Chayes: Well, it does for the Fifth Amendment part of the argument, yes sir, and that's why I say I don't think the Fifth Amendment part of the argument is very different.

Justice Hugo L. Black: That makes us the final arbiter of whether a law is constitutional, despite what the constitution -- what the Congress does?

Mr. Abram Chayes: No, you have to judge what Congress does and you have to judge it as you well -- all well understand with under the Fifth Amendment with deference to the fact that Congress has made this choice and that Congress has made this choice.

So to say that it's an irrational choice, it's the exercise of a very, very --

Justice Hugo L. Black: That's such an easy word for determining whether something violates the constitution, it's likes those easy words that allow you to bypass the words of a constitutional provision such as irrational and capricious.

It's always easy to find that one way or the other, you don't have to cover much of that.

Mr. Abram Chayes: Well, I don't know --

Justice Hugo L. Black: And the Court does you say.

Mr. Abram Chayes: I say the Court has done it, and has done it over and over again.

Justice Hugo L. Black: I agree with you.

Mr. Abram Chayes: And I say that I don't know any other test under the Fifth Amendment.

Now I think the real problem of this case and the real issues of difficulty and there are issues of difficulty arise not under the Fifth Amendment because as Mr. Justice Black has said it's not hard to find rationality in this pattern given the premises that Congress acted on and that this Court has said they could act on.

So the real problem --

Justice Hugo L. Black: I find none at all.

Mr. Abram Chayes: What?

Justice Hugo L. Black: I find none at all.

Mr. Abram Chayes: Fine.

I am pleased to accept your --

Justice Hugo L. Black: (Inaudible)

Mr. Abram Chayes: Yes, I'm pleased to accept the concession Mr. Justice Black. [Laughing]

Justice Hugo L. Black: I agree with you.

Mr. Abram Chayes: The real issues here are under the First Amendment.

And as our -- the counsel for the appellants say, the question here is, is the statute narrowly drawn so as to keep to a minimum the impingement and the peripheral impingement on First Amendment rights, which we've already defined and discussed.

And I say this statute is narrowly drawn. Nobody here is prevented from travel on suspicion or on some -- on the basis of some secret dossier.

In fact, quite the reverse, both on the procedural side and on the substantive side the statute is drawn as narrowly as possible consistent with the congressional purpose.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Abram Chayes: Well I'm somewhat, I would say, surprised Mr. Justice Goldberg to hear it said that a statute which permits the Secretary of State to withhold a passport if he finds that the travel maybe inimical to the national security or national interest of United States is narrower somehow than this statute.

Look at that standard, the standard that it --

Justice Arthur J. Goldberg: (Inaudible), and I am looking at the fact that (Inaudible).

Mr. Abram Chayes: Well I would only say Mr. Justice Goldberg that in the Briehl case itself, the Court said as to our then existing regulation, which you recall permitted the withdrawal of a passport not because of membership in the Communist Party but because the conduct abroad would be inimical to the interest of the United States and which took, only took Communist Party membership into account as appellants say would be a proper situation.

What the Court said about that is, and it said, “The only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective.”

That was this Section 6 that we're now talking about.

It would therefore be strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs.

Now I think it's possible in a sort of an abstract logical sense to say that all you're worried about is conduct abroad that's going to be dangerous to our security and therefore in order to prevent travel, you ought to have some showing that the conduct is likely to be dangerous to our security.

And that has a very plausible and pleasing sound to it, and I don't deny that abstractly that sounds like a narrower regulation.

But if you think of the problem of administering that kind of statute, if you think of the problem of appraising evidence to fathom an individual's future intentions, if you think of the problem of what this is, giving the person the opportunity to go abroad and there to do what he pleases.

He may correctly have no and properly say that he has no intention of doing anything wrong, when he appears before the hearing, but when he gets over there, there may then be an opportunity to engage in the wrongful activity which he embraces, indeed that's happened and cases of that kind are cited, of misuse of passport after accepting stipulations.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Abram Chayes: Surely, and all I say is that -- to say that that's narrower than the inhabitation proposed here, is to me a strange way of dealing with it, because what have we done when we've had to -- when we've had to administer standards of that kind.

We have relied on confidential evidence, because after all if you have a standard of that kind, the necessity or the desirability of seeming -- of relying on confidential evidence seems greater.

So most of these bills that are cited in the appellants' brief do provide that in certain cases the Secretary may rely on secret or confidential evidence.

We reverse burdens of proof which is in fact what we did in the passport regulations that existed in Kent and Briehl, in the Kent and Briehl cases.

It was necessary for the applicant to satisfy the Secretary that he was going abroad for a bad end -- an innocent end or we throw the net wider.

Justice Arthur J. Goldberg: Assuming what I sought that this was, as you were saying (Inaudible).

Mr. Abram Chayes: Yes but also --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Abram Chayes: But it was also possible to deny passports to people who weren't members at all, who we suspected on various grounds without any objective indicia of dedication to these ends.

And so when you put all these things together, which I submit Mr. Justice Goldberg are the practicalities of administering this kind of a standard and if you look to see which one is going to inhibit protected activity more, which one is going to have a wider reach within the population, which is the imposition of a loyalty oath and a loyalty test.

The standard which appellants suggest is the appropriate one, would in fact be broader than the standard we have here.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Abram Chayes: Well, I think we do have the statute and our regulations provide that if a person is going abroad for the specific purpose of conducting unlawful activities abroad, he can be denied a passport, and we have done that upon occasion.

So that an espionage person, the person who is actually going abroad and we know that he is going abroad to do something unlawful is covered, and I think the Court in the Kent case said that that was an appropriate regulation of the passport right.

So the difficulty is that it only happens in the rarest of case that we know that a person is going abroad for espionage.

And my friends say that the prevention of espionage is the only object of this statue.

I think that's not the case.

I think anybody who has engaged in a cooperative venture, all of us have engaged in many for business, for pleasure, for government, knows that face-to-face contact, knowledge, understanding of the minds and of the actions of one's co-participants is an essential to the success of that kind of venture.

This isn't speech in the accepted sense, this isn't associated in the accepted sense.

This is a team getting together to work for its object as a team.

Now when its objects are unlawful or when its objects are those of the kind that this world organization has, it seems to me necessarily that to follow, that this kind of personal contact face-to-face intercourse is essential to the carrying out of those objects and therefore --

Justice Hugo L. Black: Suppose Congress, instead of passing this law as it did, had passed a law that said that any person who has certain beliefs shall be denied a passport and did not give him a jury trial, would that violate his rights?

Mr. Abram Chayes: Well, I'm not prepared to say that it would.

It would be a much harder case than this.

As the Court --

Justice Hugo L. Black: Why, because it's a just a number of people instead of one?

Mr. Abram Chayes: No because it is not a number of people who simply entertain beliefs, it's a number --

Justice Hugo L. Black: But it might be a -- it might be a little more difficult here because the law, constitution does say something about the right of assembly which all the courts have taken, to me, a right of people to join a party.

Mr. Abram Chayes: Well, the constitution says something about belief as well, speech as well.

But --

Justice Hugo L. Black: It says something about a jury trial.

Mr. Abram Chayes: The point --

Justice Hugo L. Black: When the government does something to somebody, isn't he entitled to a jury trial.

Mr. Abram Chayes: No when the government imposes disabilities, which are not criminal penalties on a person, he's not necessarily entitled to a jury trail.

Justice Hugo L. Black: What's the difference in -- they put at the end of the act, this is a criminal penalty, and if he believes this, he has certain beliefs the government will -- the Secretary will deny, in his discretion, a passport.

Mr. Abram Chayes: Well I think there are two differences, main differences in a criminal penalty.

And I don't disagree that by compounding civil disabilities one can reach the point where one is really prohibiting the activity outright.

But the main difference --

Justice Hugo L. Black: Well it is prohibiting these people.

Mr. Abram Chayes: Not from speaking or believing or associating.

Justice Hugo L. Black: Well, it's prohibiting them going abroad.

Mr. Abram Chayes: Prohibiting -- it's regulating their travel.

Justice Hugo L. Black: It's regulating it by prohibiting them or keeping them from doing it.

Mr. Abram Chayes: But not prohibiting speech.

Justice Hugo L. Black: Well, suppose the law was just the same and you had to try person by person, would they be entitled to an indictment or a trial by jury?

Mr. Abram Chayes: Not in accordance with the -- not according to this legislation which was offered and which these people --

Justice Hugo L. Black: I am talking about according to the (Inaudible) it's supposed to be over the legislative balance.

Mr. Abram Chayes: Mr. Justice Black I don't believe they would be entitled to a jury trial on the issue whether they can have a passport.

For example --

Justice Hugo L. Black: In other words they can -- Secretary could call any of us down there at any time, we wanted a passport, he say well you have certain beliefs that --

Mr. Abram Chayes: No he has to --

Justice Hugo L. Black: And if you have these beliefs you can't have a passport.

Mr. Abram Chayes: No, he has to --

Justice Hugo L. Black: And we have said we want a jury to try this out not you, the administrative agency we couldn't get it.

Mr. Abram Chayes: No the Secretary can act only in accordance with statutory authority given to him by Congress, that's what the Kent case said.

Justice Hugo L. Black: Yes, but I -- it's necessary now and then to remember that there is something that's open to power of Congress, namely the constitution of the United States.

And I'm asking you if the government can take things away that are of value to a citizen without giving him a jury trial.

Mr. Abram Chayes: Well every young man --

Justice Hugo L. Black: Individually.

Mr. Abram Chayes: Every young man who served in the army has had his locomotion restricted without a jury trial.

Anyone who is put into quarantine because he has got the smallpox --

Justice Hugo L. Black: What is the relevance of that here?

Mr. Abram Chayes: The relevance of that --

Justice Hugo L. Black: He had -- this Court upheld the right of the government to draft denial.

Mr. Abram Chayes: The relevance of that is --

Justice Hugo L. Black: And they can't draft denial.

It's not doing anything to them except what it does that everybody alike.

They are not leaving it up to a single administrative agency or man or somebody he appoints maybe he never seen --

Mr. Abram Chayes: Nor --

Justice Hugo L. Black: -- to pass on what his beliefs are.

Mr. Abram Chayes: Nor is the Congress here.

The Congress here is establishing a general classification, all people holding, falling within that classification are treated alike.

No sir, all people being members having objectively manifested their membership in a certain kind or organization.

Justice Hugo L. Black: They decide to do it perfectly rational, and it would be rational to try them separately.

Are you going to let them be tried by an administrative agency for their beliefs?

Mr. Abram Chayes: I don't -- I think the question of trial here is just an apposite.

This isn't a trial for their beliefs.

Justice Hugo L. Black: Well, what is it?

If you were asking for a passport, and they got you before an administrative agency, they charge you with having bad beliefs --

Mr. Abram Chayes: There are all --

Justice Hugo L. Black: Do you think they were trying you when they put on evidence before an agency?

Mr. Abram Chayes: There are all sorts of things that I can be given or denied by government without a jury trial.

Justice Hugo L. Black: Undoubtedly.

Mr. Abram Chayes: I can --

Justice Hugo L. Black: Undoubtedly, when you have a law that presents a governmental power and applies to everybody alike, and you follow the procedures which the constitution outlines.

Mr. Abram Chayes: The only -- my only answer to that Mr. Justice Black is that this is not designed as punishment either as punishment for conduct or to prohibit conduct, and once --

Justice Hugo L. Black: Well, whether you -- punishment is a broad word and includes many things.

I think I would consider it a pretty severe punishment, if I want to go abroad and they say that my beliefs were such, that I couldn't go.

Mr. Abram Chayes: There is no question that it's a disability and I don't want to demean or deprecate the disability.

But the Court has said that disabilities other than criminal punishment can be imposed on people on the basis of this kind of membership.

Justice Hugo L. Black: Now even a civil case, if the man has a civil case against him, he has a right to a trial by jury.

Mr. Abram Chayes: The Court has said for example that aliens can be deported on this same basis under the same statute.

Justice Hugo L. Black: Aliens and they drew a distinction there wherever they say aliens, did they say aliens?

Mr. Abram Chayes: Well I think the distinction --

Justice Hugo L. Black: Did they say that a non-alien could be citizen?

Mr. Abram Chayes: No, but they said that a non-alien could be deprived of his officership in a labor union or could be required a -- or could be required to swear that he was not a member of this party in order to hold a position in a labor union, which could then make use of the facilities of the labor board.

All I'm saying is that under the decisions of this Court, it's clear that as to matters which don't involve criminal punishment, which don't involve a direct prohibition of speech, association, belief, disabilities maybe imposed on the basis of certain kinds of membership and membership as the Court said only the other day in the Quinones case, membership in which the element of advocacy of unlawful objectives was not brought home to the person upon whom the disability was imposed.

So it seems to me if the constitution resides or is to be found in the interpretations that this Court has given it, I can answer your question very easily.

No, a person is not entitled to a jury trial every time --

Justice Hugo L. Black: My question is not premised on the First Amendment, there are other provisions of the constitution.

Mr. Abram Chayes: Yes.

Justice Hugo L. Black: One of them is the right to a trial by jury.

And if the government creates something, I don't know what they designate it, criminal offense or just anything in theory, the argument of the government here has to be that the government can't deprive them of the right to travel on account of disputed fact for what they believe, by letting a single administrator pass on those facts.

Mr. Abram Chayes: Well, a single administrator on an open record and at a full hearing yes, that's so --

Justice Hugo L. Black: At a full hearing, but the constitution provides the kind of full hearing a citizen is entitled to, before he has --

Mr. Abram Chayes: Before he is punished for crime.

Justice Hugo L. Black: It all depends then on the semantic meaning of the word punish.

Mr. Abram Chayes: But this Court in the Mendoza case only last year I think spent five or six pages of an opinion trying to determine whether a disability, a disability in that case of loss of citizenship, was designed as a punishment for crime in which case the Court decided it was designed as a punishment for crime and then decided it could not be imposed without a jury trial, but in another parallel --

Justice Hugo L. Black: Did that case hold, I've forgotten, did that case hold if they hadn't decided it was a punishment, they wouldn't have been entitled to a jury trial.

Mr. Abram Chayes: In another parallel case, where they decided that denaturalization was not a punishment for crime, but an exercise of the foreign affairs power they held that denaturalization was not a punishment and that a citizenship could be taken away from him without a jury trial as to the facts.

So there you have in two cases in this Court dealing with the same kind of disability, denaturalization.

The Court in two separate opinions saying in one yes it is a criminal penalty and therefore there must be a jury trial and in the other, no it isn't a criminal penalty, in this case it's a different kind of thing and therefore we need a jury trial.

Justice Hugo L. Black: Your argument leads you to the point that it is the most substanding citizen in the United States against whom there was no block on his (Inaudible), never had been, they want to take away his citizenship, can be done by an administrative agency without a jury trial.

Mr. Abram Chayes: No my argument does not lead me to that point at all.

It says that where denaturalization is imposed as a punishment, and this Court will determine in each particular statutory provision whether it is imposed as a punishment or not.

Where it's imposed as a punishment, it requires a jury trial; where it's imposed for something else, it doesn't require a jury trial.

And I submit those --

Justice Hugo L. Black: In the case to which you refer Mr. Justice Goldberg wrote --

Mr. Abram Chayes: Wrote the opinion in the Mendoza case I think.

Justice Hugo L. Black: Did he -- did it hold that, I forget.

Mr. Abram Chayes: It holds -- It held that because in that case denaturalization was intended by Congress as a punishment, punishment for desertion I think it was.

Justice Hugo L. Black: What did it say would have been the result if it had not been considered to be full punishment?

Mr. Abram Chayes: Well, I think the whole structure of the opinion indicates that if Mr. Justice Goldberg had found that it was not intended as a punishment, he would not have required a jury trial.

Justice Hugo L. Black: Did he say so, did he say so?

Mr. Abram Chayes: He did not, no, but Mr. Justice Brennan in a different case did manage to uphold the depravation of citizenship on -- the Perez case I think, on a ground and without a jury trial.

I think in -- we do have to consider, I agree we have to consider whether the accumulation of disabilities mounts up to a prohibition of the activity rather than merely a regulation of it.

But here I submit the statute is drawn so as not to prohibit the activity, but so as to define the conditions under which it maybe carried out and that it seems to me is the difference between the Scales case, for example, which appellants have cited and relied on very heavily and the cases we have here.

You cannot punish speech, you cannot put a man in jail for it, you cannot prohibit it as a norm of conduct without bringing home to that individual and in a trial by jury that he himself advocated the illegal objects of the organization.

But when it comes to disabilities less than criminal penalties, the Court has sustained a number and had sustained them very recently to be imposed without a jury trial and on the basis of association, that is membership without brining home to the individual any unlawful advocacy, any commitment to the unlawful objectives of the organization.

So long as it is shown that his association with the organization is not merely nominal or passive, but is some sort of a meaningful involvement in the association, in the organization's activities.

Justice Potter Stewart: It strikes me that the distinction you are now making has got things turn around.

I had always thought that most people were of the view that prior restrain without trial was a more, more serious impairment of free speech and subsequent conviction after the speech had been delivered and with the conviction with all the charges of a criminal term.

Mr. Abram Chayes: Well, the point is that this is not designed as a prior restraint on speech, as was the case in Near versus Minnesota or the obscenity statutes.

It's not designed to prevent people in advance from saying dangerous things or to keep them from access to the marketplace of ideas.

It's designed to prevent them from doing other things, contributing in other ways to the success and to the objectives of this world organization which we have already described.

Although unfortunately at the same time, they may also be speaking or associating, and that's why it's not a prior restraint case in the sense of Near or the licensing cases and so on.

Justice Hugo L. Black: You know it's -- you mean it's not been intended to keep them from going aboard because, as here, that he may converge with somebody about his idea.

Mr. Abram Chayes: No it's not.

It's not intended as a regulation of speech at all, it has as we all agree the consequences of preventing some speech and inhibiting some association.

But the question there is not to be judged in the same way as it was in De Jonge and Oregon, the case on which the appellant relies where the problem was can you prohibit this speech, can you put a man in jail for this speech.

Justice Arthur J. Goldberg: Now, this has had -- there is something that you can see, but this is not necessary to tailor the statute (Inaudible) for a particular reason that Congress felt he could.

Mr. Abram Chayes: It is necessary to tailor the statute in that way, and we submit that this statute is so tailored.

I could read just one quotation from Justice Jackson in the Douds case when he talked about the inferences which Congress could draw from membership in this organization.

‘Inferences for membership in such an organization,' he said, ‘are justifiably different from those to be drawn from membership in the usual type of political party.

Individuals who assume such obligations are chargeable on ordinary conspiracy principles with responsibility for and participation in all that makes up the parties program.'

And that was in an opinion where he said, you couldn't make a disability depend on belief, but you could on membership in this kind of organization.

As this Court has held over and over again in the deportation cases, in Douds, and in other similar cases.

I would say, if it please the Court that as the discussion has shown this is not an easy case, it's a case which presents us, the Congress in the first instance, the administration in the second, and now the court sitting in review with the agony of choice.

We have here great ends of government on both sides of the scale.

Great end of free speech and free association to which we are dedicated.

And on the other side of the scale the great end of protecting the security of our government.

Congress was faced with this choice in the first instance, the choice was a necessary one.

You can't have one and still have the other.

You've got to make some choice if you are going to deal with this problem, and the alternative, the alternative is to prohibit Congress to prevent it, to say it does not have the power to deal with this problem.

Congress made the choice, I submit, that in Fifth Amendment terms, it was a rational choice.

I submit that in First Amendment terms, it was a choice, which in practical consequence was the narrow choice rather than the broad choice, that a statute directed to suspicion of evil conduct aboard, a statute permitting as would seem to be necessary under any other standard resort to secret information, is a broader statute not a narrower statute.

However, it may seem superficially that here Congress insisted upon full procedural due process in which every person subject to the disabilities of this statute have the right to meet the evidence against him, to appear by attorney, and to make argument and to have a decision on the record.

I submit that it chose an objective criteria as this Court has said in Killian and in the deportation cases, an objective criteria, a criteria manifested by objective acts.

What Mr. Justice Brennan called membership in the Douds sense in his dissent in the Killian case.

That's the kind of criterion that has been chosen here.

It's an objective criterion and it has the effect of narrowing the statute rather than submitting the applicant to the whim or the suspicion of an administrator.

For these reasons --

Justice Byron R. White: Mr. Chayes does your approach leave any room at all for distinguishing between these particular people who are involved here and any other member of the party or --

Mr. Abram Chayes: Well I think --

Justice Byron R. White: -- you stand their -- you stand or fall on the validity of these, this statute, these -- of the any member.

Mr. Abram Chayes: No, I think it's very important to note that the Court need only decide the case for these two appellants and as to these two appellants, as we have already said, they are the president of the party and the editor of its chief theoretical journal.

The record is replete with evidence which by any standard of meaningfulness makes their association with the party meaningful, so that we do believe the Court can decide on these two appellants and leave for another day someone whose contact with the party is less intimate.

On the other hand we do --

Justice Hugo L. Black: Does that mean that you agree that just being a member of the Communist Party is not enough?

Mr. Abram Chayes: No we believe that you have to be a member in the sense which member has been decided in cases in this Court construing the same term in other sections of the same statute.

Justice Hugo L. Black: But he is a member, he is a member of that party, that's all.

Mr. Abram Chayes: But we say that the Court need not, all I am answering is Mr. Justice White's question.

Justice Hugo L. Black: You got to hold it over the heads of all of them, so that each time you can say well there is enough on this one, but never get the other types of --

Mr. Abram Chayes: No, Mr. Justice Black we've defended, and my argument has been premised on defending the constitutionality of the statute on its face.

Justice Hugo L. Black: What's the difference in it as that way, and an ancient bill of attainder such as they had many times in England and Scotland and Ireland?

Mr. Abram Chayes: Well, the reason or the difference is that anyone can remove himself by that -- from the pains of the statute by simply resigning from the party as I guess Mr. Justice Harlan stated, and the essential character of a bill of attainder is that it's existing punishment, it's present punishment for past conduct without a jury trial.

Justice Hugo L. Black: It was a legislative determination on findings which they sometimes made and sometimes didn't that a whole group of people were tainted, some of them had to be ostracized, some of them wouldn't be permitted to go within 10 miles of London or whatever it was, some of them would be tried for one thing or another.

But it was a legislative determination on their finding.

Mr. Abram Chayes: Well, here we say, there was no legislative determination on these people or on this party.

These people and this party had a judicial type hearing before administrative, before administrative agencies subject to review in court.

And --

Justice Hugo L. Black: I suspect you rely very heavily on the finding of Congress that's the reason I ask you about it a lot.

Mr. Abram Chayes: We have finding of Congress which described the problem they were dealing with, but which did not proscribe this party.

Justice Hugo L. Black: You just turn that over to the administrator.

Mr. Abram Chayes: The complete answer to the bill of attainder argument, I submit, is that anyone can remove himself from the penalties of this statute by simply resigning from the party and although that maybe a difficult choice.

Justice Hugo L. Black: Well they said --

Mr. Abram Chayes: It's inconsistent with --

Justice Hugo L. Black: Well, it does that in England when they proscribed -- had a proscription but no Catholics should come within -- no Catholic priest should come within 10 miles of London, he could have resigned his priesthood and gone to London.

Mr. Abram Chayes: Well, I think that whether that was an attainder or not or whether it was some other kind of regulation, I think it was probably not an attainder.

Justice Hugo L. Black: Mr. Chayes what is the practice of the department so for as the prohibiting passports to mere members of the party.

Mr. Abram Chayes: We've had no cases before us except these two.

Justice Hugo L. Black: You mean there is no practice.

Mr. Abram Chayes: So that there is no practice.

I would point out as Mr. Justice Stewart pointed out that these appellants now say that the statute must be construed to prohibit any member from getting a party -- passport even though his connection -- however tenuous his connection with the party maybe, but they did not raise that issue.

And the usual way to test that kind of an issue is to raise it so that it can be tested on a record.

The department's interpretation of the statute, although it's not one that has been tested in actual adjudication, would be that a member of the party means what this Court has said member means in other cases under this statute.

Justice Byron R. White: What is that?

Mr. Abram Chayes: Well it's talked -- it's used a different phraseology in different cases.

It said -- I think the best thing or the best way to describe it is that it's talked about meaningful association, and it means some involvement in the policies and programs.

Justice Byron R. White: Anyway it make it an innocent association.

Mr. Abram Chayes: Innocent, passive, nominal; innocent is negated by the statute itself in terms, because it requires knowledge that the organization is required to register.

So you have at least to know you belong this organization.

Justice Byron R. White: Even if he is joining the party to get -- to help to get a job or to --

Mr. Abram Chayes: Well, under constraint or duress, surely.

I think this Court knows the cases Rowoldt, Galvan, the other --

Justice Byron R. White: So that's the kind of meaningful association you are talking about.

Mr. Abram Chayes: Well, I don't see how we content the member means one thing in one section and another thing in another section.

Justice Byron R. White: Do you think it embraces the inceptive active membership --

Mr. Abram Chayes: No, I don't think it goes as far as active membership in the Scales case because this is not a criminal case.

Unknown Speaker: What I say, I was looking at page four of your brief.

The hearing officer made a conclusion that Mrs. Flynn was “An active participating and continuous member”, but the board, which affirmed his conclusion, its finding was at all material times Mrs. Flynn was a member of.

Is there any significance in this?

Mr. Abram Chayes: I don't think there is any significance in the difference in phraseology.

I think when the board and the secretary use the term member in a conclusory finding, they meant member as defined in the statute.

Unknown Speaker: Well, yes what -- the hearing officer apparently -- well there was some significance in making a finding that she was active, participating and continuing?

Mr. Abram Chayes: Well, I think that finding stands undisputed even though it wasn't repeated.

I mean the facts show that, the fact show continuing membership since 1937.

They show her in a variety of officer positions in the party, they show a great many activities.

Indeed as Mr. Justice Harlan said at one time conviction.

Justice Byron R. White: Well how about the other party?

Mr. Abram Chayes: The other party also longstanding membership in the party, Dr. Aptheker the editor of its theoretical -- of its principle theoretical journal, indeed the record shows travel by Dr. Aptheker to Japan in the past to meet with Japanese party leaders.

So that again there is, as to Dr. Aptheker, a long history of intimate association with the party.

So that --

Chief Justice Earl Warren: When the hearing officer hold as to him, did he hold the same thing --

Mr. Abram Chayes: It says -- I think it said as to both.

No, I am sorry, that's Mrs. Flynn and that's the only one I can -- I'll supply the hearing officer's finding as to Dr. Aptheker.

Chief Justice Earl Warren: Yeah, well I was just wondering if there was any distinction between the two as found by the hearing officer and that has some bearing perhaps on the effect of the finding of the board itself where they said that we find it to be a member.

Mr. Abram Chayes: I don't believe Mr. Justice Warren that there is really any basis for distinguishing between these two people.

Chief Justice Earl Warren: Yes I do --

Mr. Abram Chayes: They are as Mr. Justice Goldberg said, functionaries of the party.

They are intimately connected with its history over a period of 30 years.

If the statue can apply to anybody, it can apply -- it's got to apply to them.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Abram Chayes: Yes, but I want -- think that it's worth pointing to the Court and it cites these cases, the Rowoldt case, the Gastelum-Quinones case, which we have just been discussing.

Justice William J. Brennan: Do I understand Mr. Chayes, you are suggesting that if we agree with the government's position, we do it only in the context of proof of meaningful membership and reserve for another day whether mere membership --

Mr. Abram Chayes: No, Mr. Justice Brennan our position --

Justice William J. Brennan: You want the (Inaudible)

Mr. Abram Chayes: No, no our position is that member in this section means what it means in other sections of the same statute, and that therefore “mere membership”, if you by mere membership you mean unwitting membership, coerced membership, nominal membership, passive membership, take the terms that you want, is not precluded by this statute any more than it is in the -- it was in the Rowoldt case.

Justice William J. Brennan: I'm just wondering, this does mean -- are you suggesting -- I confess I don't quite follow you.

Are you suggesting then that if it's a revocation proceeding which this was or if it's an application proceeding, that there has to be a hearing and if what turns up in the evidence is only nominal mere whatever other -- what basis you want to put on it, that then the passport issue will not be revoked, is that that what you're telling me?

Mr. Abram Chayes: What I am saying is exactly that Mr. Justice Brennan.

I'm saying that we talk about a standard in language, but as you recognize, the problem is on the case-by-case determination to decide to apply that standard to cases, and it's very hard to talk about what you would need in terms of evidence to get you over the line without having seen the particular case.

But I take it our position is that on the Rowoldt record we could not deny passport, yes.

And I take it first --

Justice William J. Brennan: Notwithstanding member of the party as to which the Congress is found it's dedicated to subject it with the overthrow and so forth.

Mr. Abram Chayes: That's exactly what the Court held in Rowoldt itself.

Justice William J. Brennan: Well we didn't have the Rowoldt, did we, for the benefit of --

Mr. Abram Chayes: Oh yeah, it's the same statute, that's the point, it's just the second title of the same statute.

Justice William J. Brennan: With all of these finding and everything?

Mr. Abram Chayes: Yes.

Justice Byron R. White: Could you tell me, where whatever -- where in the record any action that the board took?

Mr. Abram Chayes: I think the board referred to -- here is the Board of Passport Appeals.

Justice Byron R. White: Yes, where exactly is that in the record?

Mr. Abram Chayes: And you can --

Justice Byron R. White: Is that just the letters?

Mr. Abram Chayes: It's only referred to in the letters, that is the finding of the Board of Passport Appeals.

Justice Byron R. White: And so you'll --

Mr. Abram Chayes: It is not in the printed record, but it is in the certified record that has been filed with the Court.

Justice Byron R. White: Was that an opinion, a set of findings or what?

Mr. Abram Chayes: It was a set of short memorandum and finding.

Justice Byron R. White: Did they purport to adopt the findings or to reject any findings of the hearing officer?

Mr. Abram Chayes: No, it did not, it accepted the findings below.

The --

Justice Byron R. White: Well, they accepted the findings of the hearing officer?

Mr. Abram Chayes: Well, they did not purport to reject any I think.

What they did was, in effect, it's a very short paper coming substantially to the conclusory finding that is referred to in these records.

Unknown Speaker: Your answer to the Mr. Justice Goldberg prompted me to ask you this question.

He asked you about findings of the reviewing court.

Are you relying on the findings of the board that is supposed to have heard the evidence?

Are you relying on the findings of the court to review that reviewed it?

Mr. Abram Chayes: We're relying on the finding of the board as sustained substantive by the court upon review and –

Unknown Speaker: What findings of fact are you relying upon?

Mr. Abram Chayes: On the findings of fact of the board.

Unknown Speaker: Only?

Mr. Abram Chayes: But the finding of the fact of the board is that these people were members within the meaning of the statue.

Unknown Speaker: That is not that they were meaningful members, is it?

Mr. Abram Chayes: Our argument is that member means what it is mean the statute, in that finding, and therefore -- and if anybody is a member within the meaning of that test as prescribed in this statute, these people are.

Thank you Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Abt.

Argument of John J. Abt

Mr. John J. Abt: I would first like to point out to the Court the finding of the hearing officer in the case of Dr. Aptheker, which appears as a part of the letter from Mrs. Knight to him at page 13 of the record.

It states the hearing officer concluded that on the basis of the evidence of record, the state department had reason to believe that you were within the purview of Section 6 (a) of the act.

That's the only finding that the hearing officer made in that case.

It didn't even make a finding of membership, only a finding that he had reason to believe that Dr. Aptheker was a member.

Second I would like –

Chief Justice Earl Warren: What did the board find, did the board --

Mr. John J. Abt: Well, there was no finding by the board.

Chief Justice Earl Warren: No finding?

Mr. John J. Abt: No.

Unknown Speaker: What about the hearing officer?

Mr. John J. Abt: Well, this was the finding of the hearing officer.

Hearing officer found that he had reason to believe that Dr. Aptheker was a member.

It appears at page 13 of the record.

Justice Potter Stewart: That is not really an issue in this case.

You told as much earlier in your (Inaudible) Rowoldt and Perfetto case and all of it.

Mr. John J. Abt: Of course it's not an issue.

It's not an issue except to the extent that it's been talking about mere membership, whatever mere membership is, and by mere membership I assume we've been talking about non-meaningful membership in the Rowoldt sense, a coerced membership or a casual membership something on this kind, that's not in this case.

But I do want to reply to a question that the Chief Justice asked as to whether the state department has applied passport provision to rank and file members.

Let's used at term instead of mere member of the organization.

And the answer to that Mr. Chief Justice is that the statute makes it difficult but not impossible for a rank and file member to apply for a passport, because by the very act of applying, he's subjecting himself to a possible five-year prison sentence, and this no academic business.

The Department of Justice last Fall indicted a women, I don't know whether she is a mere member or rank and file member, or what kind of member she is, but indicted her out of down in San Francisco charged with just doing one thing for having applied for a passport while being a member of the Communist Party.

And that I should think would be sufficient to discourage rank and file members from testing out the application of the act to themselves.

Unknown Speaker: (Inaudible) that the application then disclosed her membership.

Mr. John J. Abt: No, no, no, the Section 6 makes it a crime for a member of the party to apply.

She applied, and the government alleges that she is a member.

Chief Justice Earl Warren: That's one of the sections as I recall that the Court found it unnecessary to pass.

Mr. John J. Abt: That's quite right, because Mr. Justice Frankfurter we may not be, may never be confronted with that problem because Communist may never want a trial.

Chief Justice Earl Warren: They might never want to take this risk, why.

Mr. John J. Abt: That's right, that's correct.

And I think Mr. Justice Douglas who said that that's a unique kind of situation which requires a citizen to subject himself to a possible five-year penalty in order to find out whether a statute is constitutional or not.

Unknown Speaker: (Inaudible)

Mr. John J. Abt: It says what Mr. Justice Harlan.

Justice John M. Harlan: The questionability of the application of the statute to applying for a passport.

Mr. John J. Abt: No that's not -- that's not directly before the Court.

Justice John M. Harlan: That's not involved here.

Mr. John J. Abt: No and I raised, I made the remark I did and reply to a question that the Chief Justice asked to Mr. Chayes.

Unknown Speaker: Well, that's the same meaning.

You've got this here (Inaudible) through the revocation proceeding.

Mr. John J. Abt: There happen, there happened to be a revocation proceeding otherwise we would have to try out in the criminal case.

Unknown Speaker: (Inaudible) doesn't want to go to a (Inaudible).

Mr. John J. Abt: The State department did us a favor I would say, or did the organization a favor in permitting this case to brought in a civil from rather than requiring a criminal prosecution to try it out.

Now, as I understand Mr. Chayes, what he, in bottom, is saying is that it's necessary to deny passports to all members of the Communist Party as a class indiscriminately, because we have to forestall the possibility of their doing something illegal if they went abroad.

Now, and it's too risky to wait until they do something illegal and then prosecute them.

I'd like to say only that all democracy I think Mr. Justice Holmes who made the point long ago I can't remember the exact phrase, but all democracy is a risk.

The presumption of innocence is very risky business.

And the rule against the prior restraints on First Amendment -- on the exercise of First Amendment rights is a very risky business.

You got to wait until something bad is done under our constitution before you can prosecute a man or punishing or deny -- or deprive him of his liberty.

Now -- but even if we put that one aside, put aside the argument I made earlier on the question of preventive detention, which I think is very much in the foreground of this case, and talk only about the form of this statute.

Mr. Chayes is a legal advisor for the state department but I must say that he talks, when he argues to this Court, as a typical prosecutor.

The typical prosecutor says, if we have to prove that this man from the beginning of ab initio, this man committed a crime, will never get a conviction, and therefore we need a presumption that was Tot case that Mr. Justice Black -- in which Mr. Justice Black wrote the opinion and that's been the cry the of prosecutor since the beginning of time, we need the help of a presumption.

Now, I don't think that the national security is so endangered that we've got to throw away the presumption of innocence and rely on these kind of presumptions that every person who joined the Communist Party, merely because of his membership, is a potential spy, saboteur, or whatnot in order to protect the national security of this country.

Indeed I think in terms of the real source and base of our national security, it lies not in shortcut procedures of this kind but the real base of our national security that lies in the perseverance of our constitution and the democratic processors that have been traditional with us and I that I hope that we'll continue to observe.

Thank you.