U.S. V. ROBEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300560015-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 27, 2016
• Document Release Date: January 9, 2013
• Sequence Number: 15
• Publication Date: December 11, 1967
• Content Type: MISC

0
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09 : CIA-RDP90-00530R000300560015-7
OCTOBER TERM, 1967.
Syllabus. 389 U. S.
.ctINITED=-_STATESTiC_R-OBE L.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF WASHINGTON.
No. 8. Argued November 14, 1966.?Reargued October 9, 1967.?
Decided December 11,V9073.
Appellee, a member of the Communist Party (which had been
ordered to register as a Communist-action organization under the
Subversive Activities Control Act) remained an employee at a
shipyard after the Secretary of Defense had designated it a
"defense facility" under the Act. Petitioner was thereafter in-
dicted under ? 5 (a) (1) (D) of the Act for having "unlawfully
and willfully engage[d]" in employment at the shipyard with
knowledge of the outstanding order against the Party and of the
notice of the Secretary's designation. The District Court, relying
on Scales v. United States, 367 U. S. 203, dismissed the indict-
ment for failure to allege that appellee was an active Party
member with knowledge of and a specific intent to advance its
unlawful purposes. The case was appealed to the Court of
Appeals and then certified to this Court as a direct appeal.
Held: Section 5 (a) (1) (D) is invalid since by its overbreadth it
unconstitutionally abridges the right of association protected by
the First Amendment. Pp. 262-268.
(a) The indiscriminate application of ? 5 (a) (1) (D) to all types
of association with Communist-action groups, regardless of the
quality and degree of membership, makes it impossible by limiting
construction to save the provision from constitutional infirmity.
Cf. Aptheker v. Secretary of State, 378 U. S. 500. P. 262.
(b) An individual's associational rights under the First Amend-
ment are no less basic than the right to travel involved in Aptheker.
Pp. 262-263.
(c) The fact that the Act was passed pursuant to Congress'
"war power" to further the "national defense" cannot "remove
constitutional limitations safeguarding essential liberties," Home
Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 426. Pp. 263-264.
(d) The statute literally establishes guilt by association alone,
without any need to show that an individual's association poses
the threat of sabotage and espionage in defense plants at which
the legislation is directed. P. 265.
STAT
UNITED STATES v. ROBEL. 259
258 Opinion of the Court.
(e) Section 5 (a) (1) (D) includes within its coverage not only
association which may be proscribed consistently with the First
Amendment but also association (such as that of passive mem-
bers of a designated organization, those unaware of or disagreeing
with its unlawful aims, and those in nonsensitive jobs at defense
facilities) which cannot be so proscribed. Pp. 265-266.
(f) Congress in exercising its ample power to safeguard the
national defense cannot, exceed constitutional bounds, particu-
larly where First Amendment rights are at stake. Pp. 266-268.
Affirmed.
Kevin 'I'. Maroney reargued the cause for the United
States. With him on the brief on reargument were
Solicitor General Marshall, Assistant Attorney General
Yeagley, John S. Martin, Jr., and Lee B. Anderson, and
on the original argument ,olicitor General Marshall,
Assistant Attorney General Yeagley, Nathan Lewin and
Mrs. Anderson.
John J. Abt reargued the cause for appellee. With
him on the, briefs on the original argument-and on the
reargument were John Coughlan and Joseph Porer.
John J. Sullivan., Marvin. M. Karpat kin, and Melvin L.
Wulf filed a brief on the original argument for the Ameri-
can Civil Liberties Union et al., as amici curiae, urging
affirmance.
Mn. CHIEF JUSTICE WARREN delivered the opinion
of the Court.
This appeal draws into question the constitutionality
of ? 5 (a)(1)(D) of the Subversive Activities Control
Act of 1950, 64 Stat. 992, 50 U. S. C. ? 784 (a)(1)(D),'
1 The Act was passed over the veto of President Truman. In
his veto message, President. Truman told Congress, "The Department.
of Justice,. the Department of Defense, the Central Intelligence
Agency, and the Department of State have all advised me that the
bill would seriously damage the security. and the intelligence opera-
tions for which they are responsible. They have strongly expressed
1-,-1 in - Saniti7ed Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
?
260
Declassified in Part - Sanitized Copy Approved for
Opinion of the Court.
Release 2013/01/09: CIA-RDP90-00530R000300560015-7
- 389 U. S. 258 Opinion of the Court.
which provides that, when a Communist-action organiza-
tion 2 is under a final order to register, it shall be unlawful
for any member of the organization "to engage in any
employment in any defense facility." In Communist
Party v. Subversive Activities Control Board, 367 U. S. 1
(1961), this Court sustained an order of the SACB
requiring the Communist Party of the United States
to register as a Communist-action organization under
the Act. The Board's order became final on October 20,
1961. At that time appellee, a member of the Commu-
nist Party, was employed as a machinist at the Seattle,
Washington, shipyard of Todd Shipyards Corporation.
On August 20, 1962, the Secretary of Defense, acting
under authority delegated by ? 5 (b) of the Act, desig-
nated that shipyard a "defense facility." Appellee's con-
tinued employment at the shipyard after that date
subjected him to prosecution under ? 5 (a) (1) (D), and
on May 21, 1963, an indictment was filed charging him
with a violation of that section. The indictment alleged
in substance that appellee had "unlawfully and willfully
engage[d] in employment" at the shipyard with knowl-
edge of the outstanding order against the Party and with
knowledge and notice of the shipyard's designation as
the hope that the bill would not become law." H. H. Doc. No. 708,
81st Cong., 2d Sess., 1 (1950).
President Truman also observed that "the language of the bill
is so broad and vague that it might well result in penalizing the
legitimate activities of people who are not Communists at all, but
loyal citizens." Id., at 3.
2 Section 3 (3)(a) of the Act, 50 U. S. C. ? 782 (3)(a), defines
a "Communist-action organization" as:
"any organization in the United States (other than a diplomatic
representative or mission of a foreign government accredited as such
by the Department of State) which (i) is substantially directed,
dominated, or controlled by the foreign government or foreign
organization controlling the world Communist movement . . . and
(ii) operates primarily to advance the objectives of such world
Communist movement . . . ."
261
a defense facility by the Secretary of Defense. The
United States District Court for the Western District
of Washington granted appellee's motion to dismiss the
indictment on October 4. 1965.. To overcome what it
viewed as a "likely constitutional infirmity" in ? 5 (a)
(1)(D), the District Court read into that section "the
requirements of active membaship and specific intent."
Because the indictment failed to allege that appellee's
Communist Party membership was of that quality, the
indictment was dismissed. The Government, unwilling
to accept that narrow construction of ? 5 (a) (1) (D) and
insisting on the broadest possible application of the
statute,' initially took its appeal to the Court of Appeals
for the Ninth Circuit. On the Government's motion,
the case was certified here as properly a direct appeal to
this Court under 18 U. S. C. ? 3731. We noted probable
jurisdiction. 384 U. S. 937.4 We affirm the judgment
of the District Court, but on the ground that ? 5 (a)
(1) (D) is an unconstitutional abridgment of the right
of association protected by the First Amendment.'
3 The Government has itersisted in this view in its arguments
to this Court. Brief for the Governtiwnt 45-56.
We initially heard oral argument in this ease on November 14,
1966. On June 5, 1967, we entered the following order:
"Case is restored to the calendar for reargument and counsel
are directed to brief and. argue, in addition to the questions pre-
sented, the question whether the delegation of authority to the
Secretary of Defense to designate 'defense facilities' satisfies perti-
nent constitutional standards."' 387 U. S. 939.
We heard additional arguments on October 9, 1967.
5 In addition to arguing that ? 5 (a)(1)(D) is invalid under the
First Amendment, appellee asserted the statute was also unconsti-
tutional because (1) it offended substantive and procedural due
process under the Fifth Amendment; (2) it contained an uncon-
stitutional delegation of legislative power to the Secretary of De-
fense; and (3) it is a bill of attainder. Because we agree that the
statute is contrary to the First Amendment, we find it unnecessary
to consider the other constitutional arguments.
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
262 I.J.131.1J11, 114.1,1V1, 11'u. UINIIIiAIJ i) it n:3 v. xtutsra.. 263
Opinion of the Court.
389 U. S. 258 Opinion of the Court.
We cannot agree with the District Court that ? 5 (a)
(1)(D) can be saved from constitutional infirmity by
limiting its application to active members of Communist-
action organizations who have the specific intent of
furthering the unlawful goals of such organizations. The
District Court relied on Scales v. United States, 367 U. S.
203 (1961), in placing its limiting construction on ? 5 (a)
(1)(D). It, is true that in Scales we read the elements
of active membership and specific intent into the mem-
bership clause of the Smith Act.' However, in Aptheker
v. Secretary of State, 378 U. S. 500 (1964), we noted that
the Smith Act's membership clause required a defendant
to have knowledge of the organization's illegal advocacy,
a requirement that "was intimately connected with the
construction limiting membership to 'active' members."
Id., at 511, n. 9. Aptheker involved a challenge to ? 6
of the Subversive Activities Control Act, 50 U. S. C.
? 785, which provides that, when a Communist organiza-
tion is registered or under a final order to register, it shall
be unlawful for any member thereof with knowledge or
notice thereof to apply for a passport. We held that
"[t]he clarity and preciseness of the provision in question
make it impossible to narrow its indiscriminately cast
and overly broad scope without substantial rewriting."
Id., at 515. Wzg-rtaker_the
cItEis__precisely?b_ecause---thatiTstritute_swe-reps?intliscrimi-
grately _ acrogs?all-_-types?o f?associa:tio n_with_Com m u n
tic_tion_groups, to -the quality_andidTgre-e
cof-m-enib-ership,_that it runs afoul_of the_FFs17-Amendrrierit.
In Aptheker, we held ? 6 unconstitutional because it
too broadly and indiscriminately infringed upon consti-
tutionally protected rights. The Government has argued
that, despite the overbreadth which is obvious on the
face of ? 5 (a)(1)(D), Aptheker is not controlling in
0 IS U. S. C. ? 2385.
this case because the right to travel is a more basic free-
dom than the right to be employed in a defense facility.
We agree that Aptheker is not controlling since it was de-
cided under the Fifth Amendment. But we cannot agree
with the Government's characterization of the essential
issue in this case. It is true that the specific disability
imposed by ? 5 (a)(1)(D) is to limit the employment
opportunities of those who fall within its coverage, and
such a limitation is not without serious constitutional
implications. See Greene v. McElroy, 360 U. S. 474, 492
(1959). But, the operative fact upon which the job dis-
ability depends is the exercise of an individual's right of
association, which is protected by the provisions of the
First Amendment. Wherever one would place the right
to travel on a scale of constitutional values, it is clear
that those rights protected by the First Amendment are
no less basic in our democratic scheme.
The Government seeks to defend the statute on the
ground that it was passed pursuant to Congress' war
power. The Government argues that this Court has
given broad deference to the exercise of that constitu-
tional power by the national legislature. That argument
finds support in a number of decisions of this Court.'
However, the phrase "war power" cannot be invoked as
a talismanic incantation to support any exercise of con-
gressional power which can be brought within its ambit.
7 Our decisions leave little doubt that the right of association is
specifically protected by the First Amendment.. E. g., Aptheker v.
Secretary of State, supra, at 507; Gibson v. Florida Legislative
Investigation Committee, 372 U. S. 539, 543 (1963); Bates v. City
of Little Rock, 361 U. S. 516, 522-523 (1960); NAACP v. Alabama
ex rel. Patterson, 357 U. S. 449, 460 (1958). See generally Emerson,
Freedom of Association and Freedom of Expression, 74 Yale L..1. 1
(1964).
"See, e. g., Liddy!. V. United States, 334 U. S. 742, 754-772
(1948); Ilirabayashi V. United States, 320 U. S. 81, 93 (1943).
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
2.64
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7 ,
OUTO.LitAt TElt1V1, 11167. kin .L
Opinion of the Court. 389 U. S.
"taiven-the-war_pow_er_ oes_n ot_i_einoy_e_con sti tuttaiai?
climitationsiWeguarding-essential-libertiesY Home Bldg.
& Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934).
More specifically in this case, the Government asserts
that ? 5 (a) (1)(D) is an expression "of the growing con-
cern shown by the executive and legislative branches of
government over the risks of internal subversion in plants
on which the national defense depend[s]." Yet, this
concept of "national defense" cannot be deemed an end
in itself, justifying any exercise of legislative power de-
signed to promote such a goal. Implicit in the term
"national defense" is the notion of defending those val-
ues and ideals which set this Nation apart. For almost
two centuries, our country has taken singular pride in
the democratic ideals enshrined in its Constitution, and
the most cherished of those ideals have found expression
in the First Amendment. It would indeed be ironic if,
in the name of national defense, we would sanction the
subversion of one of those liberties?the freedom of
association?which makes the defense of the Nation
worthwhile.
When Congress' exercise of one of its enumerated
powers clashes with those individual liberties protected
by the Bill of Rights, it is our "delicate and difficult task"
to determine whether the resulting restriction on freedom
can be tolerated. See Schneider v. State, 308 U. S. 147,
161 (1939). The Government emphasizes that the pur-
pose of ? 5 (a) (1) (D) is to reduce the threat of sabotage
and espionage in the Nation's defense plants. The Gov-
ernment's interest in such a prophylactic measure is not
insubstantial. But it cannot be doubted that the means
chosen to implement that governmental purpose in this
instance cut deeply into the right of association. Sec-
tion 5 (a) (1) (D) put appellee to the choice of surrender-
Brief for the Government. 15.
258 Opinion of the Court.
265
ing his organizational affiliation, regardless of whether
his membership threatened the security of a defense
facility," or giving up his job.1' Wireit:apppflee-refuseth
crintimil?tYeTraity of five years' imprisonment and a
$10,000 fine.' 2 The statute quite literally establishes
guilt by association alone, without any need to establish
that an individual's association poses the threat feared
by the Government in proscribing it." The inhibiting
effect on the exercise of First Amendment rights is clear.
,TtAagTh-e-come=ax i om a
-
N.4:1 CP v. Button,
371 U. S. 415, 438 (1963); see Aptheker v. Secretary of.
State, 378 U. S. 500, 512-513; S/witon v. Tucker, 364
U. S. 479, 488 (1960). Such precision is notably lacking
in ira-M)7(-1-)-(11). lat?sTairite casts its net across___
The appellee has worked at the shipyard, apparently without,
incident and apparently without concealing his Communist Party
membership, for more than 10 years. And we are told that, following
appellee's indictment and arrest, "he was released on his own recog-
nizance, and immediately returned to his job as a machinist at the
Todd Shipyards, where he has worked ever since." Brief for Ap-
pellee 6, n. S. As far as we can determine, appellee is the only
individual the Government. has attempted to prosecute under
?5 (a) (1)(D).
"(W-&--recognized?inGreene-v77/1/-cEirolizr360-7-U7St
4.!_tho-,-_-_right_to7thoht_sp-e-cifit_privaite-Temployment-_-_-awd=t71=f61157P a
cchosen7profe_ssion-zfree-kom-unreasurtable-gover-nmen-tal-intefference
ropePt-v-'?con cep ts ?o f?the=Fift h
cArnenc_Lment."
1250 U. S. C. ? 794 (c).
" The Government has insisted that Congress, in enacting
? 5 (a) (1) (D), has not sought "to punish membership in 'Com-
munist-action' . . organizations." Brief for the Government. 53.
Rather, the Government asserts, Congress has simply sought to
regulate access to employment. in defense facilities. But it. is clear the
employment disability is imposed only because of such membership.
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
266 Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
Opinion of the Court. 389 U. S.
rbroad-ran-ge-tif associationtirctiVittariridaTiiiiiKifeTY,
ctrappin-gmembersliip will& can be-constitutionally-pirn-
cished-14-an-d-mem1SershiTTIv ifeh cannot be sof)i:-oscrib-e-R'
It is made irrelevant to the statute's operation that an
individual may be a passive or inactive member of a
designated organization, that he may be unaware of the
organization's unlawful aims, or that he may disagree
with those unlawful aims." It is also made irrelevant
that an individual who is subject to the penalties of
? 5 (a)(1)(D) may occupy a nonsensitive position in a
defense facility." Th-us-L-A-5-(a):(1)(D)_containralie
cfatal-defect-of-overbreadth\12ecause it seeks to bar em-
ployment both for association which may be proscribed
and for association which may not be proscribed con-
sistently with First Amendment rights. See Elf brandt
v. Russell, 384 U. S. 11; Aptheker v. Secretary of State,
supra; NAACP v. Alabama ex rel. Flowers, 377 U. S.
288 (1964); NAACP v. Button, supra. This the Consti-
tution will not tolerate.
iWe- are not tirT-nindful_orthe congressi5I-ml concern
t[_.:0' _Ver?the?danger of-slibe-and-espi-onagirtion-al
cdefiiiiTindustri-esran-d-n-athing--we-huld-to-day slidad-b e
tread-to-deny CongfeTrthe-power under narrowly drawn
,..(1.4-aliitioll-to---kaTifroin_sensitive_poSitloi-7-s=i-riddefire,
14 See Scales v. United States, 367 U. S. 203 (1961).
15 See Elf brandt v. Russell, 384 U. S. 11 (1966).
"A number of complex motivations may impel an individual to
align himself with a particular organization. See Gibson v. Florida
Legislative Investigation Committee, 372 U. S. 539, 562-565 (1963)
(concurring opinion). It is for that reason that the mere presence
of an individual's name on an organization's membership rolls is
insufficient to impute to him the organization's illegal goals.
" Seei-Colear?pig-35-1:11.17S7536, 546 (1956): "[Fit is difficult to
justify summary suspensions and unreviewable dismissals on loyalty
grounds of employees who are not in 'sensitive' positions and who
are thus not situated where they multi bring about any discern-
ible adverse effects on the Nation's security."
UNITED STATES v. ROBEL. 267
258 Opinion of the Court.
tacilities_those who-WOuld-use-their-positions-to_disrupt
have,recogniR'4
ithat, while tlie7Gonstirtifion _pro tects_agai,
tindivid riThts, it-does not withdraw from the-GO7N7ei-TiF
pent-the-power to-sOeguard its vitarffterest-S. Kennedy
'vr-7rfeez, 372 U. S. 144, 10 (1963). Spies
and saboteurs do exist, and Congress can, of course, pre-
scribe criminal penalties for those who engage in espionage
and sabotage.'" TET-Government can deny access to it
tsecrets to di-au-who wolrld-u-se-strch--inform-ation-tolgtrmi
the-Nritimi," !Mr-Congress -can declare sensitive ppsi-
Etions in national_defense_md_ustries off-Iliffits-145-thr-Cse
ylrnoi1iusesu disrupt the_prodti
of-tefense materiiiTh. The Government has told us that
Congress, in passing ? 5 (a)(1)(D), made a considered
judgment that one possible alternative to that statute?
an industrial security screening program?would be
inadequate and ineffective to protect against sabotage
in defense facilities. It is not our function to examine
the validity of that congressional judgment. Neither
is it our function to determine whether an industrial
security screening program exhausts the possible alter-
natives to the statute under review. We are concerned
rsoleirwith-datmnirring-wlyeth-er-the statute befcire-us
thas-exceeded the bounds iffiT5iis-e?Lby_tli7e-Cor-Ti(itilticin
evhen-First-Am-e-ndment-rights-are-at-stalm. The task
of writing legislation which will stay within those bounds
has been committed to Congress. (Our dee-ision todEy
"Congress has already provided stiff iienalties for those who
conduct espionage and sabotage against the United States. 18
U. S. C. ?792-798 (espionage); ?2151-2l56 (sabotage).
" The Department of Defense, pursuant to Executive Order
10865, as amended by Executive Order 10909, has established de-
tailed procedures for screening those working ill private industry
who, because of their jobs, musI. have access to classified defense
information. 32 CH{ Part, 155. The provisions of those regu-
lations are not before the Court in this case.
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
? Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
268 OCT013ER TERM, 1967. ITN 'TED STATES v. 11.013E1,. 209
Opinion of the Court,. 389 U. S.
neeognizes-that,-when-legitirrtstTiV
'eerns-are-expretTeTann._a._statute_wh ich imposes-a _su b,-
taintial-burtlest_A m en dment..a,ct,iiiTiffes,
Con-gress-must-atineve Thy_ineans_wliich?JiPe
Vless-drasticv-imp-a-ct on_the-continued vitaliryt
Amendfreec?IoniTY Shelton v. Tucker, supra; cf.
United States v. Brown, 381 U. S. 437, 461 (1965). The
Constitution and the basic position of First Amendment
rights in our democratic fabric demand nothing less.
Affirmed.
MR. JUSTICE MARSHALL took no part in the considera-
tion or decision of this case.
20 It has been suggested that this case should be decided by "bal-
ancing" the governmental interests expressed in ?5 (a)(1)(D)
against the First Amendment rights asserted by the appellee. This
we decline to do. We recognize that both interests are substantial,
but we deem it inappropriate for this Court to label one as being
more important or more substantial than the other. Our inquiry
is more circumscribed. Faced with a clear conflict between a. fed-
eral statute enacted in the interests of national security and an
individual's exercise of his First Amendment rights, we have con-
fined our analysis to whether Congress has adopted a constitutional
means in achieving its concededly legitimate legislative goal. In
making this determination we have found it necessary to measure
the validity of the means adopted by Congress against, both the
goal it has sought to achieve and the specific prohibitions of the
First Amendment. But we have in no way "balanced" those respec-
tive interests. We have ruled only that the Constitution requires
that the conflict between congressional power and individual rights
be accommodated by legislation drawn more narrowly to avoid the
conflict. There is, of course, nothing novel in that analysis. Such
a course of adjudication was enunciated by Chief Justice Marshall
when he declared: "Let the end be legitimate, let it be within the
scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution, are con-
stitutional." M'Culloch v. Maryland, 4 Wheat. 316, 421 (1819)
(emphasis added). In this case, the means chosen by Congress
are contrary to the "letter and spirit" of the First Amendment.
258 BRENNAN, J., concurring in result .
Mit JUSTICE BRENN,ANTICIltriny; in the result.
470TO-ratturt=ttre.1%-itrelg:rrrera?-?-o-fam-llistrier-----(:16TfiT
rshott111:-.be,..-a-ffirnied-but.b.reacli..thate.result-..fordifferent
fre-a-stirTs.
ebike:_tive7Colyr,t7117disa-gree with the District Court-till:at
,?75:_-_(-a7)-(717.)-(13):Ican:lbeffead-7,02:applyz..oirlyzto.raeitiive_mmein,.
daers.-rwitet.-Itare:at-trel-specifivintent,tomfurt-her=the=Partyis:
anlawftrkobiectives. In Aptheker v. Secretary of State,
378 U. S. 500, we rejected that reading of ? 6 of the Act
which provides that, when a Communist organization is
registered or under final order to register, it shall be un-
lawful for any member thereof with knowledge or notice
of the order to apply for or use a passport. We held that
It] he clarity and preciseness of the provision in question
make it impossible to narrow its indiscriminately cast and
overly broad scope without substantial rewriting." 378
U. S., at 515. I take the same view of ? 5 (a)(1)(D).
Aptheker held ? 6 of the Act overbroad in that it de-
prived Party members of the right to travel without
regard to whether they were active members of the Party
or intended to further the Party's unlawful objectives,
and therefore invalidly abridged, on the basis of political
associations, the members' constitutionally protected
right to travel. cSection=-5-ta----)7(7,17-also----treats=asir-
orelevgiTt;:wfretivmt;---ara---inembers::are-act-tre7---orzklyow
cpte_7Rarkyz-'57:_tml-a-w-fu-l-puilposes7:orziniend=tompursttemtlwse
cptimo-Ps. Compare Keyishian v. Board of I?eyents, 385
U. S. 589; Elfbrandt v. Russell, 384 U. S. 11, 17; Scales
v. United States, 367 U. S. 203; Schpeiderman v. United
States, 320 U. S. 118, 136. Indeed, a member such as
appellee, who has worked at the Todd Shipyards with-
out complaint or known ground for suspicion for over
10 years, is afforded no opportunity to prove that the
statute's presumption that he is a security risk is invalid
as applied to him. And
Declassified in in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
-270 OCTOBER TERM, 1967. UNITED STATES v. ROBEL. 271
BRENNAN, J., concurring in result.
389 U. S. 25S liltEN NAN, .1., concurring in result.
cbers-,--a--factor--long-c_onsideredrrelevantin7s-e-c-urityrfcascEr)
Furthermore, like ? 6, ? 5 (a)(1)(D) affects constitu-
tionally protected rights. "[T]he right to hold specific
private employment and to follow a chosen profession
free from unreasonable governmental interference comes
within the 'liberty' and 'property' concepts of the Fifth
Amendment . . . ." Greene v. McElroy, 360 U. S. 474,
492. That right is therefore also included among the
"[i]ndividual liberties fundamental to American institu-
tions [which] are not to be destroyed under pretext of
preserving those institutions, even from the gravest ex-
ternal dangers." Communist Party v. Subversive Activ-
ities Control Board, 367 U. S. 1, 96. Since employment
opportunities are denied by ? 5 (a)(1)(D) simply on
the basis of political associations the statute also has
the potential of curtailing free expression by inhibiting
persons from establighing or retaining such associations.
See Wieman v. Upelegraff, 344 U. S. 183, 191. "Broad
prophylactic rules in the area of free expression are
suspect. . . . Precision of regulation must be the touch-
stone in . . . area[s] so closely touching our most pre-
cious freedoms." NAACP v. Button, 371 U. S. 415,
438; see Shelton v. Tucker, 364 U. S. 479, 488; Cantwell
v. Connecticut, 310 U. S. 296, 304.
cit-is-tru er:h-owever_T--as:th-e76uvernment-Tointsrou tTtlyat.
go_agtess7-often-_-_reguiates--indiscrirninately,---thromgh=pre-
c-_-ventivez-or:Iprophy-la-ctic7m-ea:sures, e. g., Board of Gover-
nors v. Agnew, 329 U. S. 441; North American Co. v.
SEC, 327 U. S. 686, and=that----grich?reg-ulation7-_-has7-been
aph-etd--eve -where-4U-id- am e n tal=frewlum-s-zare-zpot-en -
ctiTaly=a7ffaTed, Hirabayashi v. United States, 320 U. S. 81;
1 See,a?agiszy;;;Exing,--351-_?_,U7S7:7W; 546:
"[lit is difficult to justify summary suspensions and unreviewable
dismissals on loyalty grounds of employees who are not in 'sensitive'
positions and who are thus not situated where they could bring
- About any discernible adverse effects on the Nation's security."
Ga setcria4Fork: -_-=-,si,,I_L,??7,==;.----3.67:111-7---.97-886; Carlson v.
Landon, 342. U. S. 524. Eack--r-egniation---must----15---,--exF:
--- - - a-
montal_rigli-ts,=414.e?invor-taRee,of--the?e-nd?sought--and.,
tite.dieoessi-t-y_=for=t1te=m-ea-ns-.-adopted. The Govern men t
argues that ? 5 (a)(1)(D) may be distinguished from ? 6
on the basis of these factors. Section 5 (a)(1)(D) limits
employment only in "any defense facility," while ? 6 de-
prived every Party member of the right to apply for or
to hold a passport. If ? 5 (a) (1)(D) were in fact nar-
rowly applied, the restrictions it would place upon em-
ployment are not as great as those placed upon .the
right to travel by ? 6.2 The problems presented by the
employment of Party members .at defense facilities,
moreover, may well involve greater hazards to national
security than those created by allowing Party members
to travel abroad. We .may assume, too, that Congress
may have been justified in its conclusion that alternatives
to ? 5 (a)(1)(D) were inadequate.' For these reasons,
2 The Government also points out that ?5 (a)(1)(D) applies only
to members of "Communist-action" organizations, while ?6 applied
also to members of "Communist-front" organizations, groulis which
the Govermnent contends are less dangerous to the national security
under Congress' definitions, and whose members are therefore pre-
sumably less dangerous. This distinction is, however, open to some
doubt.. Even if a "front" organization, which is defined as an
organization either dominated by or primarily operated for the pur-
pose of aiding and supporting "action'' organizations, could in some
fashion be regarded as less dangerous, Aptheker held ?6 invalid
because it. failed to discriminate among affected persons on the bases
of their activity and commitment to unlawful purposes, and nothing
in the opinion indicates the result would have been different. if
Congress had been indiscriminate in these respects with regard only
to "Communist-action" group members.
The choice of a prophylactic measure "must be viewed in the
light of less drastic means for achieving the same basic purpose."
Shelton v. Tucker, 364 U. S. 479, 4SS. Since I would affirm on
another ground, however, I put aside the question whether existing
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
272
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09 : CIA-RDP9u0iN01015a0DROSTA3T00E5s6Ov0. 1R5013EL. -
7
273
BRENNAN, J., concurring in result. 389 U.S.
cl-zarn.notversuadedictoitheiGourtIsiviewithatoroverbrerdth
isirfatabito4-hisystat-ute, as I agreed it was in other con-
texts; see, e. g., Keyishian v. Board of Regents, 385 U. S.
589; Elf brandt v. Russell, 384 U. S. 11; Aptheker v. Sec-
retary of State, 378 U. S. 500; NAACP v. Button, 371
U. S. 415.
However, acceptance of the validity of these distinc-
tions and recognition of congressional power to utilize
a prophylactic device such as ? 5 (a)(1)(D) to safe-
guard against espionage and sabotage at essential defense
facilities, would not end inquiry in this case. wEvenirif
th-ev-statutelisanotwoverbroadironmits,face,==--becausernthere
oayabeig-f&IMewfd-eilitieSVdiSoxesseria-littowOUranational
secur-itygt-hat-v-eon greggrcoul dlcon st-it-uti on allyEexcludeiall
cRartymcmemb-ersiifromaterriploymentrinAmt-hem--,ftfrewcon-
ggressionalwdelegationwofffauthoritiyArtoarthem-Socretaryirof
Defenseirtoitdesignatemigdefenseirfa;cilities4ircreatosittlro
(c_langeAidioverbro_a(?,1-wunauthorized7andvarbitranytappli-
cation-mofirc_rinztinallisa-nctionsiiini,aoyEarea-wofworote-cted
freedornwandlthereforeigirlimykviemItrendersictihisTstatute
jnvaiid. frBecausel.theirsta-tute..-conta'nsilm-o-mwm-eanitrgfui
(stan11-4,rdwbriwIY-iciTuitIWISecretal?rrivitoxgovernwhisirclesig,
security programs were inadequate to prevent serious, possibly
catastrophic consequences.
Congress rejected suggestions of the President and the Department,
of Justice that existing security programs were adequate with only
slight modifications. See H. R. Doc. No. 679, 81st Cong., 2d Sess., 5
(1950); Hearings on Legislation to Outlaw Certain Un-American
and Subversive Activities before the House Un-American Activities
Committee, 81st Cong., 2d Sess., 2122-2125 (1950). Those programs
cover most of the facilities within the reach of ? 5 (a) (1) (D) and
make Party membership an important factor governing access.
32 CFR ? 155.5. They provide measures to prevent and punish
subversive acts. The Department of Defense, moreover, had screened
some 3,000,000 defense contractor employees under these procedures
by 1956, Brown, Loyalty and Security 179-180 (1958), thereby pro-
viding at least some evidence of its capacity to handle this problem
in a more discriminating manner.
258 BRENNAN, J., concurring in result,.
drationsTirordrpoirproce7du-re-s-itorcont-TsvorireviewrhisTdesig-
ei.ations-mEtlieladdici.iitygatfo-mmintioniris-wc-o-nstitu.-
(tiona,Ilywiltsulii0entwto-mitn-arkmatimitfiddinwithithwvilich
43.4-rSecretaryliffisigto-iiractirsolitt-liatmitiormaymbeark-pown,
whethe4Iteih:asikeptvwithiniit-riorcompfis,pcwithwtheyleg7
l'akus v. United States, 321 U. S. 414, 425.
The Secretary's role in designating "defense facilities"
is fundamental to the potential breadth of the statute,
since the greater the number and types of facilities desig-
nated, the greater is the indiscriminate denial of job
opportunities, under threat of criminal punishment, to
Party members because of their political associations.
A clear, manageable standard might have been a signifi-
cant limitation upon the Secretary's discretion. But the
..staild-ardwrattier.aathichicGong-re_ssxdelegatedutiteidesignat-
.MgiffpowermifiNttvira-sl[toirb-eirnroanirigtegs. The
statute defines "facility" broadly enough to include
virtually every place of employment in the United
States; the term includes "any plant, factory or other
manufacturing, producing or service establishment, air-
port, airport facility, vessel, pier, water-front facility,
mine, railroad? public utility, laboratory, station, or
other establishment or facility, or any part, division, or
department of any of the foregoing." 50 U. S. C.
? 782 (7). And ? 5 (b) grants the Secretary of Defense
untrammelled discretion to designate as a "defense facil-
ity" any facility "with respect to the operation of which
he finds and determines that the security of the United
States requires . . ." that Party members should not be
Cl ii p 1 oyed there. G'oligress-ircauldweas-dyilltave.beelprmore
.s_pecifirc:4 Instead, Congress left the Secretary completely
' Congress, in fact, originally proposed to limit. the Secretary's
discretion in designating "defense facilities." H. IL 9.490, passed
by both the House and Senate, provided that. the Secretary should
determine and designate each "defense plant" as defined in ? 3 (7)
of the Act. The difference between that version and ? 5 (a) (1) (D)
n,,,Iccifiart in Part - Sanitized Copv Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
274 Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
k: 1.11 r,;) v. ituisr.b. 275
BRENNAN, J., concurring in result. 389 U.S. 958 BliEN NAN, .1., concurring in result.
at large in determining the relevance and weight to be
accorded such factors as the importance and secrecy of the
facility and of the work being done there, and the indis-
pensability of the facility's service or product to the
national security.
as_Go.ngressoor_dimrilyamayiEdelegatempowensunder.rbr_oad
.standards. E. g., Dakota Central Tel. Co. v. South
Dakota, 250 U. S. 163, 183; FPC v. Hope Natural Gas Co.,
320 U. S. 591; NBC v. United States, 319 U. S. 190.
-1sT.0..o.theri.rgeneral.r_uleimwo-ulduilyeiNfe-as-itleo-r.rdegiTclble.
eeleg-atio,n.ofirpower.under.genera-lirdirectivesmisiranwill-
ev-itabJeirconsequenceigofirourmcomple)?TAuso-cietylikwithmits
airlyriadAgyierchanging-Ti-higahlyatecIrnicaliproblerns. "The
Constitution has never been regarded as denying to the
Congress the necessary resources of flexibility and prac-
ticality ... to perform its function ... ." Panama Re-
fining Co. v. Ryan, 293 U. S. 388, 421; Currin v. Wallace,
306 U. S. 1, 15. artaisiffgerreratlyarehou:ghAithatrin.e0h-
ferri-rvipoweraiup-onit-anitrapproprziTat,earuthor-ity?Co_rigfess
adopted at conference is commented upon in H. R. Conf. Rep. No.
3112, 81st Cong., 2d Sess., 50 (1950):
"Under section 3 (7) a defense plant was defined as any plant,
factory, or other manufacturing or service establishment., or any part
thereof, engaged in the production or furnishing, for the use of the
Government of any commodity or service determined and designated
by the Secretary of Defense to be of such character as to affect the
military security of the United States.
"Section 3 (7), and the provisions of section 5 relating to the desig-
nation of defense plants by the Secretary of Defense, have been
modified in the conference substitute so as to broaden the concept of
defense plants to cover any appropriately designated plant, factory
or other manufacturing, producing, or service establishment., airport,
airport facility, vessel, pier, water-front facility, mine, railroad, public
utility, laboratory, station, or other establishment or facility, or
any part, division, or department of any of the foregoing. Because
of this broader coverage, section 3 (7) has been changed so as to
define the two terms 'facility' and 'defense facility.' "
inilicatqwitsirgeliera:ImiPPliffziwartidurael-ffiniertetitnswqritiLip
(aige:otrtextiEwhidTailithiU,10T909:R4Wer3T04-Pr-rad . See, e.
Arizona v. California, 373 U. S. 546, 584-583; FCC v.
RCA Communications, Inc., 346 U. S. 86; Lichter v.
United States, 334 U. S. 742; Yakus v. United States,
supra, at 424; Bandini Petroleum Co. v. Superior Court,
284 U. S. 8; FTC v. Gratz, 253 U. S. 421; Buttfield v.
Stranahan, 192 U. S. 470. Given such a situation, it is
possible for affected persons, within the procedural struc-
ture usually established for the purpose, to be heard by
the implementing agency and to secure meaningful re-
view of its action in the courts, and for Congress itself
to review its agent's action to correct significant depar-
tures from Congress' intention.
TiheirareamEofirper,ntissiblemintleffiritme_sssnamoAms.;Nihow-
areNierlikw_hrowttreisiregutati-olivairivioTkesywcritninallffsa-netions
-,a-adverpotanittallffeW?erfundamentairirrights, as does
? 5 (a)(1)(D). See Barenblatt v. United States, 360
U. S. 109, 140, n. 7 (BLACK, J., dissenting). .This
,i_s_whecausamittreminumerousiiideficienciesvirconTrectedwwith
.yaguevicgislativeidirectives, whether to a legislative com-
mittee, United States v. Rumely, 345 U. S. 41; to an
executive officer, Panama Refining Co. v. Ryan, 293
S. 388; to a judge and jury, Cline v. Prink Dairy
Co., 274 U. S. 445, 465; or to private persons, Bantam
Books, Inc. v. Sullivan, 372 U. S. 58; see Schechter
Poultry Corp. v. United States, 295 U. S. 495; arearlar
tptoremserio:usmiwfmTjurlibertrraTa.P1Ethei.exerci-gelrofiwfanda-
moTraIC-ghts.-aF,e_ua-taLsta-ke. See also Go jack v. United
States, 384 U. S. 702; Kunz v. New York, 340 U. S. 290;
Winters v. New York, 333 U. S. 507; Thornhill v. Ala-
bama, 310 U. S. 88; Hague v. CIO, 307 U. S. 496;
Herndon, v. Lowry, 301 U. S. 242.
First. The failure to provide adequate standards in
? 5 (a)(1)(D) reflects Congress' failure to have made a
"legislative judgment," Cantwell v. -Connecticut, 310
276-943 0 - 68 - 25
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09 : CIA-RDP90-00530R000300560015-7
Declassified in Part - Sanitized Copy Appro
276 ut.)Tutskitt TEAM, MI.
BRENNAN, J., concurring in result. 389 U. S.
ved for Release 2013/01/09: CIA-RDP90-00530R000300560015-7
'IN! 1 11,ll ft)1 A I'M v. filiBEL.
U. S., at 307, on the extent to which the prophylactic
measure should be applied. Formulation of policy is a
legislature's primary responsibility, entrusted to it by the
electorate, and to the extent Congress delegates authority
under indefinite standards, this policy-making function is
passed on to other agencies, often not answerable or
responsive in the same degree to the people. "[S]tand-
ards of permissible statutory vagueness are strict . . ."
in protected areas. NAACP v. Button, 371 U. S., at
432. "Wilthmitrialllialiaction.by.lawmakersr.decisions