Aptheker, et. al. v. Secretary of State
Decided on June 22, 1964; 378 US 500


A. Issues Discussed: First Amendment, Fifth Amendment, freedom of association, freedom of speech, freedom of the press, national security, right to travel

B. Legal Question Presented:

Does the enforcement of Section 6 of the Subversive Activities Control Act of 1950, making it unlawful for any member of a registered Communist party to apply or use a US passport, violate the due process clause of the Fifth Amendment?

A. Background:

Appellants, ranking officials of the American Communist Party Herbert Aptheker and Elizabeth Gurley Flynn, filed suit after the revocation of their passports by the Subversive Activities Control Board. Their appeal resulted after the following events:

n October 20, 1961, the Subversive Activities Control Board issued a final order that the American Communist Party register under Section 7 of the Subversive Activities Control Act.

Prior to the registration issuance order both appellants, native-born citizens and residents of the United States, had held valid passports. Subsequently, on January 22, 1962, the Acting Director of the Passport Office notified appellants that their passports had been revoked due to the Department of State believing that the use of their passports violated Section 6 of the Subversive Activities Control Act.

Both appellants appealed to the Board of Passport Appeals which recommended affirmance of the revocations. The Secretary of State subsequently approved the recommendations of the Board.

Appellants thereupon filed separate complaints seeking declaratory and injunctive relief in the United States District Court for the District of Columbia. The complaints, considered together, asked that judgments be entered declaring Section 6 of the Subversive Activities Control Act unconstitutional and ordering the Secretary of State to issue passports to the appellants.

The three-judge District Court, which was convened to review the constitutional question, rejected appellants' contentions, sustained the constitutionality of Section 6 of the Subversive Activities Control Act, and granted the Secretary's motion for summary judgment.

The US Supreme Court accepted the case on appeal from the District Court.
B. Counsel of Record:


Opposing Side

John J. Abt and Joseph Forer argued the cause and filed briefs for appellants. Abram Chayes argued the cause for appellee. With him on the brief were Solicitor General Cox, Assistant Attorney General Yeagley, Bruce J. Terris, Kevin T. Maroney, Lee B. Anderson and Thomas Ehrlich.
C. The Arguments:
Opposing Side
Unavailable The prohibition of Section 6 should be held constitutional when applied to the particular individuals in this case due to their top-ranking involvement in the Communist Party.


Opposing Side
Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
No amici curiae briefs were filed on behalf of Respondent.

"The denial of a passport, given existing domestic and foreign laws, is a severe restriction upon, and in effect a prohibition against, world-wide foreign travel. Present laws and regulations make it a crime for a United States citizen to travel outside the Western Hemisphere or to Cuba without a passport. By its plain import [Section] 6 of the Control Act effectively prohibits travel anywhere in the world outside the Western Hemisphere by members of any 'Communist organization' - including 'Communist-action' and 'Communist-front' organizations... The restrictive effect of the legislation cannot be gain-said by emphasizing, as the Government seems to do, that a member of a registering organization could recapture his freedom to travel by simply in good faith abandoning his membership in the organization. Since freedom of association is itself guaranteed in the First Amendment, restrictions imposed upon the right to travel cannot be dismissed by asserting that the right to travel could be fully exercised if the individual would first yield up his membership in a given association...

In addition to the absence of criteria linking the bare fact of membership to the individual's knowledge, activity or commitment, [Section] 6 also excludes other considerations which might more closely relate the denial of passports to the stated purpose of the legislation. The prohibition of [Section] 6 applies regardless of the purposes for which an individual wishes to travel. Under the statute it is a crime for a notified member of a registered organization to apply for a passport to travel abroad to visit a sick relative, to receive medical treatment, or for any other wholly innocent purpose. In determining whether there has been an abridgment of the Fifth Amendment's guarantee of liberty, this Court must recognize the danger of punishing a member of a Communist organization 'for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share'... In addition it must be noted that [Section] 6 applies to a member regardless of the security-sensitivity of the areas in which he wishes to travel. As a result, if a notified member of a registered organization were to apply for a passport to visit a relative in Ireland, or to read rare manuscripts in the Bodleian Library of Oxford University, the applicant would be guilty of a crime; whereas, if he were to travel to Canada or Latin America to carry on criminal activities directed against the United States, he could do so free from the prohibitive reach of [Section] 6...

The legislation which the President proposed did not make membership in a Communist organization, without more, a disqualification for obtaining a passport... Irrespective of views as to the validity of this or other such proposals, they demonstrate the conviction of the Executive Branch that our national security can be adequately protected by means which, when compared with [Section] 6, are more discriminately tailored to the constitutional liberties of individuals...

In our view the foregoing considerations compel the conclusion that [Section] 6 of the Control Act is unconstitutional on its face. The section, judged by its plain import and by the substantive evil which Congress sought to control, sweeps too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment. The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe. The broad and enveloping prohibition indiscriminately excludes plainly relevant considerations such as the individual's knowledge, activity, commitment, and purposes in and places for travel...

[S]ince freedom of travel is a constitutional liberty closely related to rights of free speech and association, we believe that appellants in this case should not be required to assume the burden of demonstrating that Congress could not have written a statute constitutionally prohibiting their travel."

Held: The judgment of the District Court of the District of Columbia is reversed and the cause remanded for proceedings in conformity with this opinion.
Justice Vote: 6 Pro vs. 3 Con
  • Goldberg, A. Pro (Wrote majority opinion)
  • Black, H. Pro (Wrote concurring opinion)
  • Douglass, W. Pro (Wrote concurring opinion)
  • Stewart, P. Pro (joined majority opinion)
  • Brennan, W. Pro (joined majority opinion)
  • Warren, E. Pro (joined majority opinion)
  • Clark, T. Con (Wrote dissenting opinion)
  • Harlan, J. Con (Voted with the minority, joined Clark's dissent)
  • White, B. Con (Voted with the minority, joined Clark's dissent in part)

The ACLU filed as amicus urging reversal; the Supreme Court reversed and remanded the District Court's ruling by a 6-3 vote, giving the ACLU an apparent win.