# Reply Brief for Appellants — Aptheker v. Secretary of State > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0092%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief for Appellants - **Published:** January 1, 1964 - **Citation:** 378 U.S. 500 ## Text Ls Fil LED \ MAR 31 19° as | \ / TES CLERK \ \ "IN THE aaa Court of the United State October bc 1963 : 4G : No. 461 C be Y HERBERT APTHEKER ant ELIZABETH GURLEY FLYNN,. | : Appellants, V. ” \ THE SECRETARY OF STATE. “On Appeal From the United States District Court for the District of Columbia REPLY BRIEF FOR APPELLANTS: | - x) Joun J. Ast,’ .: 320 Broadway, New York 7,N. Y., JoserpH Forer, . 711 14th Street, N. Wi, . Washington 5, D. C., a Attorneys for Appellants. Ottice-Supreme Court, U.S. | 14 Amvennot™ 2, ~ Kent x, Dulles, 357-1 1 eo Se TABLE OF CONTENTS \ | | +A PAGE I. Substantive Due Process”. peeas errr tba i... 1 ‘IL. The First Amendment wears A eR ED a Citations ('ASES: vet : : Spe Adler vy. Board of Education, 342 U.S. 485 ....... 5, 6, 7. American Communications Association v. Douds : : . « . SPye apenas: 6 Beilan v. Board of Public Kdueation, 357 U.S. oe Gare Pe DOLE. Septet PEL! Bt AE ne: ee EN ER 6, 7, 8 Brieh! y, Ae 248 F. 2d MR Ol. vec c sc ca Se Cpascav) fandon, 342 U.S S. 524 Dee ain wa wees us 9 Communist Party v. S.A.¢ ‘B. 367 U.S. 1... .3, 10,16, 17 Dennis. United States, 341°U. 8. 494 00000000... 16 Fleming’ v. Nestor, 363 U. 8.603 ...,......66.. 9 Galvan-v. Press, 047 U. 8; 520 ooo icc cee cees ) Garner v. Beard of P whlie Works, 341 U_S. 716 i i, Gerende v. Board of Supervisors, 341 U’S.56 .. 7 Gold v. U nited States, 237 F. 2d 764; rey ‘dd on other grids., 352: Di MOUNDS sina Ske a's xs exten rere rere 19 Hurisiades v. Shaughnessy, 342 U.S. 580 ........ 9. Hawker v. New York, 170 \. S. 189 Be a ee ae 10 y o, 4 Konigsberg v. State Bar: 366.U, S. ers Tees © Lerner v. C asey, Oar. Wes Ds ev cevecss eee a SH Love}. Griffin, : - Ips S| BR cone 1d Morrisset ev, United States, 342 U, 10 6 : 41 We (\, \S. eee aL dtten eee | POP Y peal ra I gem VS 3 FY 2 ii ; a Pe PAGE Cases (Cont'd): ten Oyama v. Calfornia, 302 US. “O58 3... i ee ie 7 9 Seales v. United States, 367 U.S. 203 oe bes 8b Schieider v. Irvington, 808 U. S147 00.0... wo...» 15,17 Shevlin-Cerpenter Co_v. Mingesota, 218 U.S.57 10 sts : ‘ ° : ’ Takahashi v. Fish agra 994 U.8.410.....° 9 Thomas v. Collins, 323 U.S. 516 .......... Wasa aca - HW * Travis v. United States, 269 F. OR ie tek cae United States vs. Balint, 258 U.S. 250 0.2.0.2... 10 ~ United States v. Witkovich, 353.U. Ss. IM eee SOS Wieman v. Up eran, SEE S88 ee eamree a, 6 | t ay } Sisccie boy a _f o ‘ae = Communist Control Net o00.05..... ee es Geet wae B Battle Ast Sy sok a rs ete sive Ha see On eee x PERT BARTUEY BOE Goo les 4 cae Aci Ss Ebvleteees AE Dap 14, 19 MISCELLANEOUS: Ce ; 1 RECT RE EG igo oir cat ee, ey Fréedom to Travel, Report of Speeial. Committee tu Study Passport Procedures of the oe of the Bar of the City of New York (1958)... eke 12 Macauiay, Historic “al Essays, London, 1992 . 2... . 20 Parker. The Right to Go Abroad, 40 Va. L.. Rev, 853 11 Report of the Commission on Governnrent Security CORR 2 ohio tab taccdeas oe ToRr Oe ae 2,3, 13 Safeguarding the State Through Passport Control, 12 State Dept. Bull. 1066 (145) 22000. 3, f2 €) ‘IN: THE ° | Supreme Court of the Huited States October Term, 1963" a pay iota ; No. 461 2 3 4. Vv Hersert AprHeker and Exuiasetu Guriey Fiyxy, Appellants. ° Tur Sreeretary oF Sate. o-: > On Appeai From the United States District Court for the District of Columbia ray v REPLY BRIEF FOR APPELLANTS I. Substantive Due. Process. A. Our principal brief (pp. 22-26) showed that: hoth Congress and the executive have expressed their judgment - that a conclusive presumption, of the sort embodied in section 6, that ev ery member of the Communist Party “is ipso facto a security risk is unnecessary, and that the national security can be adequately protected by making Party membership simply one factor to be considered in passing on the qualifications of the individual. The govern-. ment states «Br. 42) that ‘‘the choice between alternative “policies is for the Congress.’’ But it is certainly persuasive of the unreasonableness of legislation bristling with due process difficulties that the legislative and exécutive branches have evidenced approval of an alternative ap- s - \ » . _ proach that avoids the most vulnerable feature of, _the legislation in question. s- oe Even the Report of the Commission on Government Security (1957), on which the government relies so heavily, found that the inflexibility of section 6 is detrimental to the national interest. The Report stated (p. 478) : - “It is understandable that the Seeretary of State, in his role as director of the nation’s foreign policy, may consider it advisable to grant a passport under certain conditions.” For example, the Daily Worker's correspondent was given a passport-to attend the ‘Geneva ‘summit conference’ to foresall Communist propaganda that the established Américan, press wquld present only the capitalist side of thé meeting. ‘‘There is also the possibility, by no means re-. . mow, that the Government’s intelligence agencies, for the furtherance of their objectives, may want : the Seeretary of State to grant a passport to a. known Communist. ‘* AS the Internal Security Act now stands, if the appellant is within the scope of thie defined member- ship classes, it would be vulawful for the Secretary -of State to issue or renew such a passport. We think this ‘is uliduly restrictive.’’ ‘Accordingly, the Report. (p. 475) recommended an amend- : ment to section 6 giving the Secretary discretion. to issue paseports. to mpemivers of preseribed. organizations.” : For First Amendment purposes, the existe nce'ot such an ade- . “quate alternative is decisive of the unconstitution: ity of section 6. Infra, P, WZ, “* The governnient argues ¢ Br, 487 that. the Secretary alres ady -has power to grant eXemptions fron: section 6 by aythorizing an indi- vidual $6 travel without a passport pursuant to 22 C..F: R. 53.3(h). But this authorization will be unavailing unless, the appropriate official. of the country of “destination has ‘and chooses, 3 exercis® power to - waite fs requirement naaking a passpoft a condition for entry. + 3 } 4 we - Aenean, G ~ “ vi The government urges (Br. 14-24) that the history of the passport laws and their administration supports its con- tention that section 6 is a reasonable regulation of foreign - travel. An examination of this history in Kent v. Dulles, 357 U.S. 116;-421-2 M5, 127-28. led the Court to conclude that, at least as late as 1926, the administrative practice ‘with respect to the denial of passports had ‘‘jelled’’ around : only two categorics of applleants—those lacking citizen- ship or, allegiance ‘and those-engaged in erime. As the , . Court-stated (at 128): = ~~ tm = j . . € ‘In retrospect, the Internal: Security Act of 1950 “can be viewed as eerystallizing foree that terminated _fluetuations in State Department passport policies “and procedures: prevalerit for years. Obviously, “an administrative practice that was patterned : ‘after and adopted -bacause of section 6 (and which the Court has held to be unauthorized) annot support the reasonabic tess of the legislation which i inspire “dit. The government also argues (Br. 36) that section 6 ‘ii support in the practice of denving passports during the “Civil War andWorld War |. The Court answered a sintlar argument in Kent by stating (at T2s): **We are not com pelled to equate"this present problem of statutory construc tion with problems that may arise-under the war pawer."’ No more mag the duo: process problem which this case pre sents be regolved by reference to the war power, Bb. The government argues (Br. 48-49) that seetion, 6— satisfies due process because the classptication of all Cony “MULAN as security risks is a-reasonable. one, cat least for the purpose of disqualifyi ing them for foreign travel, The government states (Br. 40) that “Congress aetéd rea. sonably iti treqting all members of Communist-action or a ganizations alike.’’ a As our principal briéf showed (pp. 16-19), a dimquatit ‘ation based solely on membership in the Conumunist P arty is unreasonable because the conclusive presumption it es- tablishes.is not credible, is contrary-to experience, and is UnneCeemeAy to meet the alleged evil: As we.further showed (Br. 19.22), the Court has applied to. Communists the prin ciple that t individuals may not be classified as security risk- solely on the basis of their’ organizational membership. Starting from the fundamental-proposition that ‘*guilt hy association’’ violates due process, the cases hold that Com- munist Party membership standing alone cannot support the imposition of criminal liability or civil disabilities: The membership must be accompanied by certain personal fac- ’ an ? tee perme i . tors, including culpable knowledge, and the member must tag oe permitted to .rebut any presumption of disqualification ; arising from his knowing membership. Phe government states (Br. 51). that “this Court has upheld numerous federal and statéatatutes, whickzhad the effect of limiting the liberty of members of the Communist Party as a class without differentiating among them.’’ This assertion is based on a review, of the authorities which is factitious ‘when it is not ‘merely sea toning » ae principay briet showed, ( (pp. 19-22) that ‘Scaies_y: United States, 367 U, S. 203; ddle rg. Bodrd of Education, .. $42.0. S. 485; and Wiemair v. Updearaff, 344 U.S. 153, cee stand for the propesition that a member of the-C ommunist Party may. not be denied liberty or even be disqualified for public employment solely because of his membership. The gov -ermment argues (Br. 03) that the limiting construc. tion which Scales gave the. membe ‘rship clause 6f the S Nth ‘Act was constitutionally necessary only beeanse, thi statute, unlike section 6, directly prohibits membershijs ib / ® nroseribed organizations. But. the principle which Scaled . | reeognized was applied by Adler and Wienan to eivil OS statutes which did not impesie® ste a direst prohibition. The “goyerniie at repre senis (By 524) that Wiremai _paetate: t only fo past membership at a titne when the me raise Was without knowlege or notice that the organization wus _ofticialiv condemned. “This is plainly . untrue.) “The ‘oath Anvolyed in Wiema + contained diserete chithes, one dis. claiming present. the other past, ine mbership in any or ranizatien which was on the Attorney General's list at the tine eo statiite prescribing the oath. was passed. *See Bs U.S. at- 184-860 Yet the court made no distinetion be. a “tween the two clauses, but Gnvalidated both because of se “their failure to require knowledge of the. ee s bad charaeter, Wiemun. therefore, squarely held that . person may not be disqualified for public employment _. merely because of present membership ivf an organization. . : ‘ - : 0 ‘which has been officially condemned.” Wie man has always been so inte rpreted. See, e.g., Lerner v. ¢ asy ry, aod U.S. 468, 474,477; Beilan v. Board of Edycation, 397 U.S. 3994, 414-15 (dissenting: opinion) ; Barsky v. Board of Re gents, : 347 U. S..442, 47 3 (dissenting opinion). od Wieman also contradicts the governmént’s thesis (Br. 47,53 “O4) that the scienter requirement is satisfied because appellants know that ‘the Communist Party was found to be a Communist-aetion organization. As the Wireman opin- ion plainly shows, the requisite scienter is knowledge that - ° . ° . ‘ * ” Jus the organization is bad, not*merely that it has been ofh- cially found to be bad.” Due process does not permit an _- iftdividual to be condemned ame because hejdisagrees with a government verdict.‘ - The government tsenaidaes that the statute upheld jn. Adler, unlike section 6, created only a prima favie presump- tion of disqualifieation because of knowing membership in a proscribed organization.’ The government diyserts” (Br. 54) that Adler did not hold that the statutory opportunity to rebut. the. presumption was constitutionally required, In fact, howeve ‘ry, Adlvr answered the due process attack on the s@iuie by stating (at 496, emphasis. supplied) : ae “Where, as here, the relatian between the, f fact found and the presumption is clear and direet and is not cone lusir e, the requirements: of glue process are. satisfied.’ ee And see our srinicipal brief, p. 21. “The government also seems to distinguish Ad/er on the theory that disqualifica- 4 Nor can guilty. knowledge be inferred from an: individ tal’s° . 8 P o.« % 7) ? ’ , \ 4 a . ~ leadership position in the organization... Nowak v. United States, 336 5 ae 3 00, 066, It only on that account, there is no merit to the government's inyitation to the Court (Br, 48-49) to hold section 6 vahid as applied to appellants, while maree open the validity of Its nepicaticn to “lesser members.” , 5 In this respect the statute was similar’ nh the f chore! gov ernment. employees’ security program. | See our princh val Uxief ~s —— a . ber ‘ship. ~] ‘tion for. foreign travel ‘tis a considerably milder disabil- ity’? than a disqualification for public employment (Br. 54). For: due process purposes, however, the interest of - an individual in ‘holding: public employment is not eptitled to the protection which must be accorded. his constitutional’ right fo travel. i Bee our pr inecipal briet, pp ;:22, n. 18; 47. At egos point, the government misrepresents’ Adler hy stating (B® 39) that the case ‘‘determined that a New York statute dvhich makes aay tneinber of an organization advocating the overthrow of the,government by force and violence ineligible, for-employment it the publie schodls, Was constitutional.*’ This statement-omits the very fea- « ~. tures of the statute which caused the Court to sustain ft, _namely, those requiring scienter and affording the accused teacher ‘an opporturity te introduce evidence of fitness to overeome the presumption arising from his knowing mem-_ The government (Br. 39). cites Suainle v. Byard | of Supervisors, 341 U.S, 56; Garney v. Board of Public Works, by U. S. 716; Beilan 2 Board of Public Education, 357 U. S. 399; Lerner v. Casey, 357 U.S. 468; Konigsberg v. State Bur, 366 U.S. 36; and In-re Anastaplo, 366 U. S. 82, for the proposition that the Court has ‘‘upheld ‘State laws imposing far more sexete restrictions upon members of the Communist Party’? than those contained in section. 6. Nonesof these decisions gives the-skghtest support to: this description. tasty “ae ; Gerende is cited. (Br. 39) as upholding a Maryland re- quirement that every candidate. for public. office swear ‘that he is not engaged in an attempt té overthrow the: - government by violence. To “the contrary, this portion of the oath, which concerned the candidate’s personal inno- cence of crime, was not attacked by Gerende. And, of- course, this part of the oath has nothing to do.with the disqualification of section 6, which is imposed without .regard to personal innocence. ..The* portion of the oath ~ . . - , Ree Ww Cs which wes at issue in Gerende diselaimed membership in an organization engaged in an attempt at-violent overthrow. ‘The Court sustained this part of the oath only because Maryland: construed it to relate to membership with -knowledge of the organization’s criminal activity. The ‘sanction of section 6, in contrast, is imposed on persons who ‘havé -no knowledge that the Communist: Party. is in fact. a Commiunist-action organization as the Board found it to be, let alone that it is, or-eyen has been found to be, engaged in criminal activity. Garner involved two separate and distinct question» | Oné concerned the validity of an oath requiring public " employees to diselaim ménbership in organizations which ‘advocate violent overthrow. As in ‘Gerende; supra, the Court sustained the oath (at 7 23-24) by construing it to apply only to membership with knowledge that: the or- ganization im: fact engages. in the proscribed advocacy. The.government misrepresents this portion of the decision (Br. 39) by omitting the knowledge requirement, that tlic Court read into the oath. The second question decided by Garner was that nembership of a person in tlie Communist Party is relevant to his qualifications for public employ- ment, and ‘hence that-he, may constitutionally be required to disclose his member ship. The Court stated, however (at. 720),.‘¢Not before us is the question whether the city may ° determine that ‘an employee’s. disclosure of such political affiliation justifies his. discharge."’ . Accordingly, nothings in Garner supports,the government’s s contention that a fper 1% son may be disqualified: from public employment heeausy ‘of his nientbership i in the Communist Party. ~~ Beilan Vv. Board of Public Education, Lerner v. Casts 4, Konigsberg vy. State Bar, and In re Anastaplo. all supra” simply réiterate the ruling of Garner that public employees - and pplicants ‘for admission to the bar may be required | j to disclose membership in the Commuinst Party..: Not at * issue was whether such membership, standing alone, was Te ee Lerner v. Casey states (at 474-75) : : “Fin the claim tliat the statute offends due process because dismissal of an employee may be. based on mere present membership in the Communist ‘Party, without regard to the cha¥acter of such mem- - bership, cf. Wieman v. Updegraff, 344 U. S. 183, Fe must also fail. Apart from the fact that the statute 2 ¢ simply makes membership in an organization found - - to be subversive one of the elements which may enter _into the ultimate determination as to ‘doubtful trust: “and -reliability,’ appellant * * * was not discharged ‘ "on grounds that he was a party member.’ : The government’s reliance (Br. 38-39) on Harisiades ghee wari 342. U. S. 580; Galvan v. Press, 347 U,’S. 22, and Carlson v. Landon, 342 U. S. 524, is likewise mis- placed: These decisions, themselves dubious, rested on “the broad power of Congress over the admission and de- portation of aliens, uninhibited by requirements of sul, stantive due process. See Harisiades* at 597 (concurring . -opjnion) ; Galvan at 530-32. Moreover, Carlson, which sus- tained preventive detention of alien Communists-awaiting deportation, has been undermined by United States v. Wit- kovieh, 353 U.S. 194, discussed in our principal brief, Pp. , - 28- 29.' . © ¢ ‘ * The goveftthent also relies (Br. 52) on decisions sustaining sate_lexilaign tat disqualified - ‘aliens from certain occupations or Nesehip of land or the enjoyment of its fruits. To the extent that these. decisions may ge continuing validity (see, Taku- hasht v. Fish Commission, 334 U.S. 410, and Oyama v. California, : 332 VU. S. 633, 646,.649, 672), they | rest on such considerations as the hicsbeicalls limited nature of the rights of aliens, the deference ac- corded the judgment of a state legislature i in a matter of iocal concern, or the lack of importance att hed to'the: -interest affected. Similarly, the result in Flemming v- Nestor, 363 U. S. 603, 611-12 (Gov. Br 39) turned on petitioner's status as a deported alien and on what the Court considered the ephemeral nature of his ‘1 intere3t in “a non- contractual benefit under a public welfare bs aes-maaan of \ ‘ ‘ » 3 j “a @ ie ie a a wt - a 10, U nited. States vy, Balint, 258° Uz S. 250 and ci penter "Cox ve Minnesota, 3. 57, also relied om-by the government -{Br. 47), are not. remotely relevant. These decisions stand for the proposition tHat the legislature need. not require a mens rea for the punishment of harmful con- ‘ duet falling within, the category of ‘‘public welfare of- fenses.’* See Morrissette v. United States, 842 U. S. 246, 252-56. ‘Section 6, however, deprives persons. of their lib- erty without proof that\they. have engaged in harmful conduct, but upon the mere suspicion that they may do so. . The issue which section .6 presents is whether; at a miini- a mum; this» suspicion | must not. have a more substantial er of guilty knowledge and intent. Hawker v. New ¥ orks 170 U. S. 189, cited by the govern- ment. (Br. 52), is likewi ise wide of the mark, since the dis-"S, qualification ‘it sustained gvas for personal misconduct evi-- deneed by. a felony eahviction, not for anticipated future misconduct. presumed from nothing ‘but association. . | The.guv yeynment ~ only rem4ining authority is American i &: vmmueric ations Association v. Douds, 339 U. S$. 382, to whieh its brief refers repeatedly. but: without attempting to answer the demonstration of yur principal brief (pp. — '. that ‘the case, UXcorree y decided, is inapplicable: C 1 Ul tle stories told’ by Communist defectors in ” their’ books; and’ their outpourings before Congressioual | —Comphittees are fully credited, they establish, in the words ° of the “gave rnment's sunimary (Br. 56-57), that, ‘‘travel, by . Communist, Party metabers provides. opportunity for com- municati@n of information: hetween components of the world . Conjmunist movement, ‘for. training, for espionage and . as propaganda °activities; and’ for transmittal of American passports which may. be. used by Soviet agents.’’. ° » It should first: be vohounven that ‘for thie- past | 28 years ‘America: Communists have made no yse of the opportu- nitiés thus afforded them. As the Board fouttd in the Party ~~ ‘ : & ; case, American Comntaaniits — not gone abroad for- any of these purposes | since 1936. See our principal brief, -p. Sey 32. Nothing in. the poverninen s review of what it calls — jah - thie evidence’*’ (Brs 25-35 d). is s at variance with t the. ‘Board's ator ae findings. soe pom . 5 ae es - = a I ; . ‘Mereover, as “the gov ernment. recognizes (Br. 46), t the ; . | foreign training and ‘‘ propaganda activities” of Américan_ : Communists,’ and their interchange of— information with foreign. Communists, are not unlawful and are protected - by the First Amendment) _ ee - There remains the argument that section 6 is justified » by the ‘sdanger’’ that foreign travel gives American Com- ies munists an: opportunity forte @spicnage or to turn their'pass- | sorts over to Soviet spies, eas giv eee The gove n ‘does not and cannot cite a single casé ENTE of. espionage involv r fopeiz el by an- American. . 3 ‘* Spies and traitors aot usually travel abroad—Rather, thiey retfiain inconspicuously at home, as recéiit outa tae cases have demoustrated.’. Parker, The Right: to Go ~~ Abroad, 40 Va. L. Rev. $53, 873: The ‘government’ argues . | SS (Br. 49). that appellants - are_leaders. ot thy Communist’ SS Party and therefore ‘tare exactly.the kind ‘of Party mem- —S bers whom Congress could. ‘reasonably believe ‘should bé ise travel.’’ But it is absurd to:suppose that-such ’ ‘Tar figures would be selected for an espionage mission , ; in lving foreign travel, even if {Cwere believed that = fh | would accept oné, ~~ ite: kOe * _ The lae any genuine relation betwe een “soetion 4 quad . _° ,. the danger of espionage also appears from the. soar — ‘coverage of the section-Would a genuine anti-esphinage , ‘ law prohibit, suspects from travelling to Monte C arlo but - © not to Latin America? Will spies desiring_to travel abroad . eles to perform their mission be prevented from doi by a ..°... prohibition that is effective only so long’ as, they 1 remain She nt oa ‘members of the Communist Party? Can the prevehtion of >". _ faee to face contact abroad be of any value for security © —- QS Peal » ‘ a rC.) & : purposes while alternative means of communication remain. .open?? The text of the statute is itself sufficient to demon- ‘strate that the alleged danger of espionage is a pretext. The notion that section 6 will be useful in preserving the integrity of United States passports is similarly insub- ‘stantial. First, it assumes that a nation presently engaged ‘ ‘in racing us to the moon is incapable of counterfeiting our. . passports if disposed to do so. Second, even if the assump- tion were warranted, it would tet justify burning the house to, roast the pig. The danger could be met, as it was in World War, II, by requiring eitizens to surrender their passports upon reentering the United States rather than by prohibiting them from travelling.- Safeguarding the State Through Passport Control, 12'State Dept. Bull: 1066, 1068. “The word ‘Communist’ is not an incantation subvert. ing at a stroke our Constitution and all our cherished liber- ‘ ties” Brigh! v. Dulles, 248 F.2d 561, 584 (Bazelon, J., dissenting). The government’s argument, like the statute it | defends, disregards this injunction. In contrast is the 1958 . 'y report of the Special Committee to. Study Passport Pro- ~* . skould be an evidenti cedures of the Association of, the Bar of the City of New York. yg report, entitled Freedom to T rere, utates (pp. 42-43) ) ‘* Neither, membership in, nor support. of, any organization, short of: violation of the Smith Act, is _ punishable in.the. Uv nited States, arid these should not serve as criteria fo itatjon of travel. -If travel is to be restrained, al ometimes it -must be, there y shdwing that the ‘travel of ‘the particular applicant will constitute a definable ‘ - danger to the national sectirity of The United States.. It is anticipated action rather. than contemplated —_— whieh should serve as the basis for restricting a ¥s ‘Conspiritots coul “still use the mails, sahdes. telephones, radios and, not least, foreign ssies and consulates in the United States.” Brie. v. Dulles, 248-F> 2d 561, 586 ( Bazelon, J. , dissenting - seeh an impertant freedom es that of travel abroad. — : | “In so stating, thé Committee is aware that there es are disadvantages, and even_risks, in issuing pass- ’ -perts to some supporters of the Communist Party. However, the Commission believes that the sorhewhat. ‘conjectural danger that might be invelved’ in the adoption of a policy to issue passports to such indi- viduals .is far outweighed -by the affirmative advan- tages to be achieved from close adherence to tlie high ,._ - rariking value represented by the ideal of free travel. , Travel of an individual should be restrained only | ep upon''a clear showing of real danger to the nation ' which would follow from the travel of the particular ‘applicant. The generalized taint which properly attaches ‘to the C ommunist arty as an organization® should not be carried over to restrain the travel of.an . individual without evidence which specifically links the individual to dangerous activity abroad.’ See also Id., Pp 12, 58-62. i gees “7 . : io Th. The 1 First ‘Amendment. & A: The ginerbaint: states: that, “Section 6 regulates only conduct—more specifically’ foreign.travel’” (Br. 5: 5),” and ‘‘imposes only indirect, peripheral restrictions’ (Br: 56) on First Amendment -rights. It concludes: from this (Br. 57) that the issue presented by section’ 6 is whether its ‘‘incidental restraint.on rights protected by the First Amendment w as appropriate and reasonable under all the. cireumstanees.’’ We show first that the governnfent’s -premise is fallacious, and then that" its conclusion does not follow from the: premise. : ° 1. The purpose of section 6 is to ‘prevent American 2 Communists, from communicating or associating with the Communists of ‘other countries: As our principal agit pointed out (p. 37), this purpose is expressly stated i _seetion” 2(8). The government’s | brief (p. 81) pond further documentation of ‘our point from the Report of - the Commission on Government Security, whicli stated : x bgt. * t4-. “The ‘saidileal isan important instrument in. support of the reeognized.Communist technique of communication _ by personal ‘contact. Tt has. been - *, employed over ‘the-years to insure the presence of “American Communists and Americans under: Com- ~ & munist discipline at Soviet centers for indoctrination * ». and training, ineluding the Lenin School in Moscow. It has been utilized by Communist: sympathizers as a vehicle for their atten at and participation in "activities of international Céipmunist propaganda organizations. It has been a device for the movement of Soviet agents and spies into’ and out of the, United : “States and other free nations of the world. e, “‘ Communication’? is a First Amendment. freedom, a fact which cannot be altered by characterizing it as a ‘‘Communist technique,’ ‘indoctrination and trainin and “propaganda. > Accordingly, section 6 was designed fo, — and does, prevent speech and association of American . Communists. Section 6, therefore, is a direct and calculated“. .~ restraint of First Amendment interests. What is ‘*inei- dental’’ is the section’s effect on travel. American Communications Association: v. Douds, supra, at 396, held that section 9(h) of the Taft Hartley law did not directly restrain First Amendment rights on the ground | that it ‘‘does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduet Which Congress has determined is:carried on by persens who may be identified by their political associations and beliefs.’? Here, in contrast, there is no claim that travel, as-such, by American Communists is ‘‘harmful con- > «duet."** What is feared aré ‘the consequénces of speech’ . «and association which Communist, travéllers may engage in.® Ls. . po The association and expression which section 6 restrains x includes that which is peaceable and therefore constitution- &». ©. ally protected. This the government concedes (Br. 46). It follows that section 6 is invalid because it is,a direct abridgment of rights guaranteed. by the First (Amendment. Se¢tion 6 is not only’a direct, but also.a prior, restraint of expression and association. It is therefore invalid under 'Louell v. Griffin, 303 U.S. 44, and the kindred cases cited in-our principal brief (p. 42). That séction 6 is in form. a regulation of the issHance and use of passports is no more ‘pertinent than the ¥act that the ordinances condemned in _ Schneidey v. [rvington, 308 U. S. 147, as restraints of the distribution of leaflets, toek the form of regulations of. the use of the stréets. . sar + Se pe 3 That sedtion 6, as applied in this case; is not a curb on Vier e, » Sie ‘unlawfuk acts or ‘‘dangerous”’ advocacy, alsé appears from - . 8 : ” * the fact that the denial of travel rights fo appellants’ was. kee based selely on their membership in-an organization which was not found by the Board to have engaged in any such acts or advoeaey. See our principal brief, pp. 35-386. , a The government contends (Br: 62) that this fact is ‘ef no import for two reasons. First, it says, ‘*Congress found * be . 4 x . :. ; . * As we have showne (supra, pp. 10-12), the ‘government's claim that section 6 was désigned in. part as:am dnti-espionage measure 1s untenable. Moreover, if ‘that were the, Congressional purpose, it, would not justify a eontrol that is not limited to the preyentian of espionage but’ operates as a broad restraint on First Amendment rights. See mfra, pp. 16-18. vidual of the right’ te¢ travel, is to p¥event him from making state- ments abroad critical ‘of or embarrassing to our policies, or offensive to our political taste, they are the very type of: legislation the First Amendment forbits.” Brichl vo Duliés, 248 F.-2d 361, 586 ( Bazelon, : fi, dissenting ). ~“t 4? Q * “Tf: the design,af the passport statutes, in depriving - an indi. : in Section 2(15) that Communist-action érganizations pre- ‘sent a clear and present danger,’’ and the Board ‘‘was not required to repeat the finding made, by Congress."’ The ~ Congressional finding of a clear and present danger has no constitutional significance: Since the First Amendment is ae imitation on the legislative power, it must be applied bythe courts. _ Otherwise Congress could eseape the limi- ation merely by. self-serving. declarations. Accordingly, ‘The doctrine that there must be a Gear and present danger of a substantive eyil that Congress has a right te prevent ts a judicial rule to be applied. as a matter of law by the courts.”’) Dennis v. United. States, 341 U. S. 494; 513. Moreover, the existence of.a clear and present danger de- pends on the content of a particular expression or. the nature of a‘ particular association and the cireumstances of their occurrence. It must therefore be determined on the facts presented by each case as it arises and cannot be legielativ ely found in adv ance. The facts shown he before the Board, and include no dangerous ‘ad : unlay’ ful acts. The government’s second aygument. (Br. 62) i is that the absence of findings or evidence of unlawful acts or danger- ~ ous advocacy is of no moment because the Court ‘rejected - the same contention in the Communist Party case, 367.U.S. at 56, on the ground tliat the ‘Subversive Activities Control ° Agt is a regulatory, not a prohibitory statute.’ ’’ The ; Court's. comment, however, was made solely with oa to the registration requirements of the Act (see 367/U. S at 78-79), and ‘has no application to section 6 which is: - ‘plainly ‘‘a., prohibitory statute" (see our principal brief, Pp. te 4 ’ : ane a The First Amendment does mot prohibi nly ‘‘di- rect’? restraints of speech and 4 irs any governmental abridgment of. those rights. Inquiry into whether legislation violates this jbar is ttot foreclosed by .- tion permit the latter t their innoéence. As our the fact that it js: Bierncially, addrésaed to ‘action. See - Thomas v. Collins, 323 U. 8. 516, 547; American Communi-_ * cations Association v, Douds; supra, “at 399. Furthermore, * even where legislation is addressed to_unlaw ful. ‘action, it? will be invalid if its deterrent effect on: the exercise of First Amendment rights outweighs, the importance of the legis- _ laiive objective, or if the legislation unnecessarily interfetes with First Amendment interests. American Comniunica- - tions ee v. Douds, supra, “at 399-4014 Communist H te nh S. A.C. B. .. Supra, at 91, on Look tase, i State, 308 U.S. 147, 163. : te Hee OSI, " 2° We have seen that section 6 divecty: restrains the First Amendment rights of travellers to communicate and associ- ate. In addition, it is; ‘as ‘the government acknowledges, an indirect restraint on the Firs tion in the C ommunist Party, . tion’s prohibitions attach by re This i is so because the see- First Amendment | even if-we consider it only 4 in this latter ‘aspect. : . ek te On the one hand,: the section is excessively roid’ in its effect 6y association. For it prohibits. travel by, and there- fore diSpourages the association, not only of persons who seek te travel abroad for sinister purposes or who other» wise have evil intentions, and knowledge, but also of persons who have no baneful purposes or views. Nor does the sec- tain ‘travel rights by proving neipal brief shows (pp. 23-26), Congress had available to it alternativd forms of travel‘con- trol, fully satisfactory.to the executive branch, which would Amendment right of associa- - Sin Of, and ‘hence area dis- _couragement to, Party mémbership. Section 6 violates the have avoided such unnecessary interference’ witli ‘consti- * tutionally protected association, while affording adequate protection against any: genuine danger. On the other hand, as we have seen (supra, pp. 11-12), section 6 is an anept vehicle for controlling dangerous conduct or expressior 18. 4° "Thus the section ‘Sacrifices constitutionally protected asso- -eiation for no legitimate purpose. The xovernment’ 8 only answer (Br. 61,.n. 16) is that “Congress could reasonably eonsider — widabos of Com- + munist-action organizations—as class which threatened ~ American security. **. We:have already seen that there is nothing reasonable about such a classification. . But even if the government were right, ‘its argument is irrelevant. ‘* Reasonable classification’’ is a due’ process’ ‘requirement. It does not satisfy the more stringent requirements of the © First Amendment. See our principal brief, -pp. 39-41... B. The government contends: (Br. 49, 64; n. 17) that the validity of section 6 should be passed upon only in terms-of its application to appellants, and that the Court should not . consider the impact of the statute. on ‘lesser members of the € ompmnsiniat Party,”’ members of organizations ordered to register as Communist- fronts, or the many other persons whose association and expression will be. inhibited. by sec- tion 6. : « We have shown that section 6 is unconstitutional when . * viewed solely in its application toe appellants. Moreover, where a statute protects the right, of association as well-as views. More- _over, the experience of the past fifteén years demonstrates —_— a ‘ mi y , . ‘ e —— ‘ : . ‘ LL ae etl 4 « 6 n . . . ; ~ . , 3 Oy ts . ‘that it is-precisely views, beliefs and ideology which are the -ageepted hallmark .of - me mbership in-the Communist P arty. And section » of: the Vommunist Control Act: has enact ted. these indicia of Party membership into law.'® 4, ol Nor will it do for the gov ernment to argue (Br. 70) that ( ‘ommunist P arty members may escape the sanction of sec-’ tion 6 S*by sitiply ‘resigning from the Party.’ Persons | cannot be gompelled fo barter their constitutional: right of association for aii opportinity to exercise their constitu. » tional liberty te travel, Moreover, because beliefs and -eXpression are. the badge of Communist Party membership, *” a resignation for the purpose of enjoying. rights denied to : members is not the. virhiple process that the governments brief makes it appéar. For éxamiple, a trade wiion officer was convicted of making: a false Taft-Hartley affidavit on the testimony: of government “experts” that his published, 99 resignation was couched in ‘*Aesopean Tangyage,’’ con- ". strued to reaflirin his membership ; that the failure of the,» celebration of May. Day. . Gald v.. United. States, 237 F. 2d 764, 767-69; rev'd on other grounds, 352 U.S. 985, See also, Travis v. United States, 269 F, 2d 928, 937-38. It is apparent '» that no Communist Party member. can be-assured of the ’ Party to denounce him showed that his resignation was in.” bad faith, and that he.had appeared as a speaker at a public right to travel abroad ‘unless, Ife not only surrenders his, right of association -by resigning but also renounces his “views and beliefs. . e « of* It is therefore disingentavs for the government to as- sure the Court (Br. 63) that there is ‘litt possibility any person will be unfairly considered as a membier of a Cow- w'The government concedes (Br. 50. n. 14) that the crucial factor ny determining Patty membership wider section 5 is whether’ the individual in question is “dedicated to furthering the Jwerld Com- munist movement's] objectives. ae: miunist-action organization when in fact he is not.*’"! . At a minimum, section 6 will subject all passport applicants who are suspect to the indignity of government loyalty hearings “probing: their views and associations. Under these cirewn- _jstances, sectiori 6 is bound to inhibit ‘the exercise of Hie - First Amendment freedoms of every American who may . _ Wish to: trav el abroad. ‘ r ts This case cannot be affirmed without levitimatining. = the first time the principle that citizens may be deprived % constitutionally. protected liberties on the basis of a con- elusive presumption’ of unfitness derived solel¥* from or- ganizational’ membership. History attests that such a -precedént. is incompatible with a free society. More than a century ago, Lord Macaulay stated : < : . wv “To, punish a man hecaitibe we infer from the pature of some doetrine which. he holds, or frem the. conduct of other persons who hold the same doctrine with him, that he will commit a érime, is persecution, sand is, in every case, wicked and foolish.’” Historic al re ee Bones, London, 1982, pp: 7-8. ” "Respectfully + submitted, ee a Joun J. Apr, Fosepn Forer, Ra Attorneys for: Appellants. « r v . ~ es «? » 1t Little comfort can be had from the fact that the State Depart- ; iment has the burden. of, proof when the burden is‘not to prove mem- bership “but merely ‘ "reason to believe that the applicant belongs” al) aa ee ; ees ‘ “49 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0092%3A7. Public record. Not legal advice.