author: Mr. Justice Brennan Mr. Justice Harlan,

text:
    ZWICKLER v. KOOTA, DISTRICT ATTORNEY OF KINGS COUNTY.
    No. 29.
    Argued October 12, 1967.
    Decided December 5, 1967.

      Emanuel Redfield argued the cause and filed a brief for appellant.

      Samuel A. Hirshowits, First Assistant Attorney General of New York, argued the cause for appellee. With him on the brief were Louis J. Lefkowits, Attorney General, and Irving L. Rollins, George D. Zuckerman and Brenda SolojJ, Assistant Attorneys General.

      Jack Greenberg, Melvyn Zarr and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, urging reversal.

      Harry Brodbar and Raymond J. Scanlan filed a brief for the National District Attorneys Association, as amicus curiae, urging affirmance.
   Mr. Justice Brennan

delivered the opinion of the Court.

Section 781-b of the New York Penal Law makes it a crime to distribute in quantity, among other things, any handbill for another which contains any statement concerning any candidate in connection with any election of public officers, without also printing thereon the name and post office address of the printer thereof and of the person at whose instance such handbill is so distributed. Appellant was convicted of violating the statute by distributing anonymous handbills critical of the record of a United States Congressman seeking re-election at the 1964 elections. The conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term, and the New York Court of Appeals affirmed without opinion, 16 N. Y. 2d 1069, 266 N. Y. S. 2d 140, 213 N. E. 2d 467. Thereafter appellant, invoking the District Court’s jurisdiction under the Civil Rights Act, 28 U. S. C. § 1343, and the Declaratory Judgment Act, 28 U. S. C. § 2201, sought declaratory and injunctive relief in the District Court for the Eastern District of New York on the ground that, on its face, the statute was repugnant to the guarantees of free expression secured by the Federal Constitution. His contention, below and in this Court, is that the statute suffers from impermissible “overbreadth” in that its sweep embraces anonymous handbills both within and outside the protection of the First Amendment. Cf. Talley v. California, 362 U. S. 60. A three-judge court, one judge dissenting, applied the doctrine of abstention and dismissed the complaint, remitting appellant to the New York courts to assert his constitutional challenge in defense of any criminal prosecution for any future violations of the statute or, short of this, to the institution of “an action in the state court for a declaratory judgment.” 261 F. Supp. 985, 993. Because appellant’s appeal presents an important question of the scope of the discretion of the district courts to abstain from deciding the merits of a challenge that a state statute on its face violates the Federal Constitution, we noted probable jurisdiction. 386 U. S. 906. We reverse.

We shall consider first whether abstention from the declaratory judgment sought by appellant would have been appropriate in the absence of his request for injunc-tive relief, and second, if not, whether abstention was nevertheless justified because appellant also sought an injunction against future criminal prosecutions for violation of § 781-b.

I.

During most of the Nation’s first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. The only exception was the 25th section of the Judiciary Act of 1789, 1 Stat. 85, providing for review in this Court when a claim of federal right was denied by a state court. But that policy was completely altered after the Civil War when nationalism dominated political thought and brought with it congressional investiture of the federal judiciary with enormously increased powers. The Act of March 3, 1875, was the principal . . measure of the broadening federal domain in the area of individual rights,” McNeese v. Board of Education, 373 U. S. 668, 673. By that statute . . Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789. These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reli-ances for vindicating every right given by the Constitution, the laws, and treaties of the Untied States.” (Emphasis added.) Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65. Indeed, even before the 1875 Act, Congress, in the Civil Rights Act of 1871, subjected to suit, “[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States or other person ... to the deprivation of any rights . . . secured by the Constitution and laws . . . ,” 42 U. S. C. § 1983; and gave the district courts “original jurisdiction” of actions “[t]o redress the deprivation, under color of any State law ... of any right . . . secured by the Constitution . . . .” 28 U. S. C. § 1343 (3).

In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, “. . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States . . . ,” Robb v. Connolly, 111 U. S. 624, 637. “We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.” Stapleton v. Mitchell, 60 F. Supp. 51, 55; see McNeese v. Board of Education, 373 U. S., at 674, n. 6. Cf. Cohens v. Virginia, 6 Wheat. 264, 404. The judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U. S. 496, sanctions such escape only in narrowly limited “special circumstances.” Propper v. Clark, 337 U. S. 472, 492. One of the “special circumstances” — that thought by the District Court to be present in this case— is the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question. Harrison v. NAACP, 360 U. S. 167. Compare Baggett v. Bullitt, 377 U. S. 360.

But we have here no question of a construction of § 781-b that would “avoid or modify the constitutional question.” Appellant’s challenge is not that the statute is void for “vagueness,” that is, that it is a statute “which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . .” Connally v. General Construction Co., 269 U. S. 385, 391. Rather his constitutional attack is that the statute, although lacking neither clarity nor precision, is void for “overbreadth,” that is, that it offends the constitutional principle that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U. S. 288, 307. See Aptheker v. Secretary of State, 378 U. S. 500, 508-509; NAACP v. Button, 371 U. S. 415, 438; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293; Shelton v. Tucker, 364 U. S. 479, 488; Schware v. Board of Bar Examiners, 353 U. S. 232, 246; Martin v. City of Struthers, 319 U. S. 141, 146-149; Cantwell v. Connecticut, 310 U. S. 296, 304-307; Schneider v. State, 308 U. S. 147, 161, 165. Ap-pellee does not contest appellant’s suggestion that § 781-b is both clear and precise; indeed, appellee concedes that state court construction cannot narrow its allegedly indiscriminate cast and render unnecessary a decision of appellant’s constitutional challenge. See Aptheker v. Secretary of State, 378 U. S. 500.

The analysis in United States v. Livingston, 179 F. Supp. 9, 12-13, aff’d, Livingston v. United States, 364 U. S. 281, is the guide to decision here:

“Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction. Harrison v. N. A. A. C. P., 360 IT. S. 167. The decision in Harrison, however, is not a broad encyclical commanding automatic remission to the state courts of all federal constitutional questions arising in the application of state statutes. N. A. A. C. P. v. Bennett, 360 U. S. 471. Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit.”

In Turner v. City of Memphis, 369 U. S. 350 (per curiam), we vacated an abstention order which had been granted on the sole ground that a declaratory judgment action ought to have been brought in the state court before the federal court was called upon to consider the constitutionality of a statute alleged to be violative of the Fourteenth Amendment. In McNeese v. Board of Education, 373 U. S. 668, we again emphasized that abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim. After examining the purposes of the Civil Rights Act, under which that action was brought, we concluded that “[w]e would defeat those purposes if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court.” 373 U. S., at 672. For the “recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law.” England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 415-416.

These principles have particular significance when, as in this case, the attack upon the statute on its face is for repugnancy to the First Amendment. In such case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect. See Dombrowski v. Pfister, 380 U. S. 479, 486-487; Baggett v. Bullitt, supra, at 378-379; NAACP v. Button, supra, at 433; cf. Garrison v. Louisiana, 379 U. S. 64, 74-75; Smith v. California, 361 U. S. 147.

It follows that unless appellant’s addition of a prayer for injunctive relief supplies one, no “special circumstance” prerequisite to application of the doctrine of abstention is present here, Baggett v. Bullitt, 377 U. S. 360, 375-379, and it was error to refuse to pass on appellant’s claim for a declaratory judgment.

HH I — I

In support of his prayer for an injunction against further prosecutions for violation of § 781-b, appellant’s amended complaint alleges that he desires to continue to distribute anonymous handbills in quantity “in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election campaign of 1966.” He further alleges that “[b]ecause of the previous prosecution of plaintiff for making the distribution of the leaflet . . . plaintiff is in fear of exercising his right to make distribution as aforesaid and is in danger of again being prosecuted therefor, unless his right of expression is declared by this court, without submitting himself to the penalties of the statute.”

The majority below was of the view that, in light of this prayer, abstention from deciding the declaratory judgment issue was justified because appellant had made no showing of “special circumstances” entitling him to an injunction against criminal prosecution. Appellee supports this holding by reliance upon the maxim that a federal district court should be slow to act “where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.” Douglas v. City of Jeannette, 319 U. S. 157, 162. We have recently recognized the continuing validity of that pronouncement. Dombrowski v. Pfister, 380 U. S. 479, 483-485. However, appellant here did not, as did the plaintiffs in Douglas, 319 U. S., at 159, seek solely to “restrain threatened criminal prosecution of [him] in the state courts . . . .” Rather, he also requested a declaratory judgment that the state statute underlying the apprehended criminal prosecution was unconstitutional.

The majority below, although recognizing that Douglas might be inapposite to this case, 261 F. Supp., at 990, read Dombrowski v. Pfister as requiring abstention from considering appellant’s request for a declaratory judgment in the absence of a showing by appellant of “special circumstances to justify the exercise of federal court jurisdiction . . .” to grant injunctive relief. 261 F. Supp., at 991. Since the majority found no “special circumstances” justifying that relief, the majority concluded that it was also required to abstain from considering the request for declaratory relief.

This conclusion was error. Dombrowski teaches that the questions of abstention and of injunctive relief are not the same. The question of the propriety of the action of the District Court in abstaining was discussed as an independent issue governed by different considerations. We squarely held that “the abstention doctrine is inappropriate for cases such as the present one where . . . statutes are justifiably attacked on their face as abridging free expression . . . .” 380 U. S., at 489-490. This view was reaffirmed in Keyishian v. Board of Regents, 385 U. S. 589, 601, n. 9, when a statute was attacked as unconstitutional on its face and we said, citing Dombrowski and Baggett v. Bullitt, supra, “[t]his is not a case where abstention pending state court interpretation would be appropriate . . . .”

It follows that the District Court’s views on the question of injunctive relief are irrelevant to the question of abstention here. For a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction. Douglas v. City of Jeannette, supra, is not contrary. That case involved only the request for injunctive relief. The Court refused to enjoin prosecution under an ordinance declared unconstitutional the same day in Murdock v. Pennsylvania, 319 U. S. 105. Comity between the federal and Pennsylvania courts was deemed sufficient reason to justify the holding that “in view of the decision rendered today in Murdock ... we find no ground for supposing that the intervention of a federal court, in order to secure petitioners’ constitutional rights, will be either necessary or appropriate.” 319 U. S., at 165. It will be the task of the District Court on the remand to decide whether an injunction will be “necessary or appropriate” should appellant’s prayer for declaratory relief prevail. We express no view whatever with respect to the appropriateness of declaratory relief in the circumstances of this case or the constitutional validity of the law.

The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. * s0 „.dered,

Mr. Justice Harlan,

concurring in the judgment.

I agree that, in the circumstances of this case, the District Court should not have declined to adjudicate appellant’s constitutional claims. I am, however, constrained by my uncertainty as to the implications of certain portions of the Court’s opinion to state my views separately.

This Court has repeatedly indicated that “abstention” is appropriate “where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships.” Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25, 32 (dissenting opinion). See generally Harrison v. NAACP, 360 U. S. 167; County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 188-189. The first of these interests has been found in cases in which the federal constitutional issue might be mooted or "presented in a different posture” by a state court determination of pertinent state law. See, e. g., Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168; Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101; Alabama State Federation of Labor v. McAdory, 325 U. S. 450. The second of these interests has been found, for example, in situations in which the exercise of jurisdiction by a federal court would disrupt a state administrative process, Burford v. Sun Oil Co., 319 U. S. 315; interfere with the collection of state taxes, Toomer v. Witsell, 334 U. S. 385, 392; or otherwise create “needless friction” between the enforcement of state and federal policies. Louisiana Power & Light Co. v. City of Thibodaux, supra, at 33. See also Harrison v. NAACP, supra.

I agree that the present situation is within none of these categories, and that the District Court should therefore not have dismissed, but proceeded to judgment on the issues in the case. In particular, I can find in this statute no room for a state construction which might obviate the need for a decision on the constitutional issue. If, however, the opinion of the Court is intended to suggest that the central, or even a principal, issue in deciding the propriety of abstention is whether the complaint has alleged “overbreadth,” or only “vagueness,” with respect to the New York statute in question, I cannot agree. My reasons are three. First, neither principle has ever been definitively delimited by this Court; a doctrine built upon their supposed differences would be likely to founder for lack of a foundation. See generally, Note, The Yoid-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67. Second, there is no reason to suppose that a case involving allegations of overbreadth would inevitably be inappropriate for abstention; the federal court might nonetheless reasonably consider that its exercise of jurisdiction would create “needless friction” with state officials, Louisiana Power & Light Co. v. City of Thibodaux, supra, at 33; or it might reasonably conclude that a state court determination would present the federal issues “in a different posture.” County of Allegheny v. Frank Mashuda Co., supra, at 189. Third, such a standard might in effect reduce the abstention doctrine to a pleader’s option; the fundamental interests served by the doctrine would be jettisoned whenever a complainant had sufficient foresight to insert into his pleading an allegation of overbreadth. I can see no proper alternative to a careful examination, in light of the interests served by abstention, of the circumstances of each case.

I agree with the Court, substantially for the reasons given in its opinion, that whether or not injunctive relief might ultimately prove appropriate in this instance is not a pertinent question at this stage of the matter.

I accordingly concur in the judgment of the Court, but in doing so wish to emphasize that, like the Court, I intimate no view whatever upon the merits of the constitutional challenge to this statute.

       N. Y. Penal Law § 781-b (now superseded in identical language by N. Y. Election Law § 457, see Laws 1965, c. 1031, at 1782-1783):
      “No person shall print, publish, reproduce or distribute in quantity, nor order to be printed, published, reproduced or distributed by any method any handbill, pamphlet, circular, post card, placard or letter for another, which contains any statement, notice, information, allegation or other material concerning any political party, candidate, committee, person, proposition or amendment to the state constitution, whether in favor of or against a political party, candidate, committee, person, proposition or amendment to the state constitution, in connection with any election of public officers, party officials, candidates for nomination for public office, party position, proposition or amendment to the state constitution without also printing or reproducing thereon legibly and in the English language the name and post-office address of the printer thereof and of the person or committee at whose instance or request such handbill, pamphlet, circular, post card, placard or letter is so printed, published, reproduced or distributed, and of the person who ordered such printing, publishing, reproduction or distribution, and no person nor committee shall so print, publish, reproduce or distribute or order to be printed, published, reproduced or distributed any such handbill, pamphlet, circular, post card, placard or letter without also printing, publishing, or reproducing his or its name and post-office address thereon. A violation of the provisions of this section shall constitute a misdemeanor.
      “The term ‘printer’ as used in this section means the principal who or which by independent contractual relationship is responsible directly to the person or committee at whose instance or request a handbill, pamphlet, circular, post card, placard or letter is printed, published, reproduced or distributed by such principal, and does not include a person working for or employed by such a principal.”

       “In our opinion, the People failed to establish that defendant distributed anonymous literature ‘in quantity’ in violation of the provisions of Section 781 (b) [sic] of the Penal Law. We do not reach the question of the constitutionality of the statute involved.” People v. Zwickler, Sup. Ct., App. Term, Kings County, April 23, 1965 (unreported), as quoted in Zwickler v. Koota, 261 F. Supp. 985, 987.

       Appellee questions the statement of the majority below that “[t]he complaint. . . alleges a case or controversy which is within the adjudicatory power of this court. Douglas v. City of Jeannette, 319 U. S. 157, 162.” 261 F. Supp., at 989. Notwithstanding this statement, we are not persuaded, in light of its decision to abstain, that the majority below considered the prerequisites to a declaratory judgment or that these issues were in fact adjudicated. “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273. It will be for the District Court on the remand to decide whether appellant’s allegations entitle him to a declaratory judgment on the constitutional question.

       It is better practice, in a case raising a federal constitutional or statutory claim, to retain jurisdiction, rather than to dismiss, see Note, Federal-Question Abstention: Justice Frankfurter’s Doctrine in an Activist Era, 80 Harv. L. Rev. 604 (1967), but other courts have also ordered dismissal. Compare Government & Civic Employees Organizing Committee, CIO v. Windsor, 353 U. S. 364; Shipman v. DuPre, 339 U. S. 321, with Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368; Local SSSB, United Marine Div., Int'l Long

        shoremen’s Assn. v. Battle, 101 F. Supp. 650 (D. C. E. D. Va.), aff’d per curiam, 342 U. S. 880. See generally Note, Judicial Abstention From the Exercise of Federal Jurisdiction, 59 Col. L. Rev. 749, 772-774 (1959).

       New York provides a Declaratory Judgment remedy, N. Y. Civ. Prac. § 3001. See De Veau v. Braisted, 5 App. Div. 2d 603, 174 N. Y. S. 2d 596 (2d Dept.), aff’d, 5 N. Y. 2d 236, 183 N. Y. S. 2d 793, 157 N. E. 2d 165, aff’d, 363 U. S. 144.

       Thus Congress did not exercise the grant under Art. Ill, § 2, cl. 1, of the Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority Original “arising under” jurisdiction was vested in the federal courts by § 11 of the Act of February 13, 1801, c. 4, 2 Stat. 92, but it was repealed only a year later by § 1 of the Act of March 8, 1802, c. 8, 2 Stat. 132. An earlier version of the Judiciary Act of 1789, which died in committee, provided for jurisdiction in the federal courts “ ‘of all cases of federal jurisdiction, whether in law or equity above the value of five hundred dollars’...” Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 61 (1923). See generally Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System, c. 1.

       “The history of the federal courts is woven into the history of the times. The factors in our national life which came in with reconstruction are the same factors which increased the business of the federal courts, enlarged their jurisdiction, modified and expanded their structure.” Frankfurter & Landis, supra, at 59; see also Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L. Q. 499, 507-511 (1928).

       The statute granted the district courts “original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority ...” Act of March 3, 1875, § 1, 18 Stat. 470. See generally Hart & Wechsler, The Federal Courts and the Federal System 727-733; Wright, Federal Courts § 17; Chadboum & Levin, Original Jurisdiction of Federal Questions, 90 U. Pa. L. Rev. 639 (1942); Forrester, Federal Question Jurisdiction and Section 5, 18 Tulane L. Rev. 263 (1943); Forrester, The Nature of a “Federal Question,” 16 Tulane L. Rev. 362 (1942); Mishkin, The Federal “Question” in the District Courts, 53 Col. L. Rev. 157 (1953).
      “This development in the federal judiciary, which in the retrospect seems revolutionary, received hardly a contemporary comment.” Frankfurter & Landis, supra, at 65. While there is practically no legislative history of the Act, see id., at 65-69, for a summary of what history is available, commentators are generally agreed that a broad grant of jurisdiction was intended. See, e. g., Forrester, The Nature of a “Federal Question,” 16 Tulane L. Rev. 362, 374-385 (1942); Mishkin, The Federal “Question” in the District Courts, 53 Col. L. Rev. 157, 160 (1953). This is not to say that this Court has read the congressional grant of power in the Act of 1875 as equated with the potential for federal jurisdiction found in Article III of the Constitution. See, e. g., National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 613-615 (opinion of Rutledge, J.); Shoshone Mining Co. v. Rutter, 177 U. S. 505.

       Five Civil Rights Acts were passed between 1866 and 1875. See 14 Stat. 27 (1866), 16 Stat. 140 (1870), 16 Stat. 433 (1871), 17 Stat. 13 (1871), 18 Stat. 335 (1875). Only § 1 of the Act of April 20, 1871, 17 Stat. 13, presently codified as 42 U. S. C. § 1983, achieved measurable success in later years. See generally Note, The Civil Rights Act of 1871: Continuing Vitality, 40 Notre Dame Law. 70 (1964).

       See, e. g., City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639; Government & Civic Employees Organizing Committee, CIO v. Windsor, 353 U. S. 364; Leiter Minerals, Inc. v. United States, 352 U. S. 220; Albertson v. Millard, 345 U. S. 242; Shipman v. DuPre, 339 U. S. 321; Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368; American Federation of Labor v. Watson, 327 U. S. 582; Alabama State Federation of Labor v. McAdory, 325 U. S. 450; Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101; Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168. See,generally Wright, The Abstention Doctrine Reconsidered, 37 Tex. L. Rev. 815 (1959); Note, Judicial Abstention From the Exercise of Federal Jurisdiction, 59 Col. L. Rev. 749 (1959); Note, Federal-Question Abstention: Justice Frankfurter’s Doctrine in an Activist Era, 80 Harv. L. Rev. 604 (1967); Note, Doctrine of Abstention: Need of Reappraisal, 40 Notre Dame Law. 101 (1964). Even when parties are sent to state court for clarification of state law, the federal question may be reserved for decision by the district court. England v. Louisiana State Board of Medical Examiners, 375 U. S. 411.

       Other “special circumstances” have been found in diversity cases, see, e. g., Clay v. Sun Insurance Ltd., 363 U. S. 207; Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25; Meredith v. Winter Haven, 320 U. S. 228; but see County of Allegheny v. Frank Mashuda Co., 360 U. S. 185; cf. Note, Abstention and Certification in Diversity Suits: “Perfection of Means and Confusion of Goals,” 73 Yale L. J. 850, and cases cited therein; and in cases involving possible disruption of complex state administrative processes, see, e. g., Alabama Public Serv. Comm’n v. Southern R. Co., 341 U. S. 341; Burford v. Sun Oil Co., 319 U. S. 315; cf. County of Allegheny v. Frank Mashuda Co., 360 U. S. 185; Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25. See generally Wright, Federal Courts § 52; Note, 59 Col. L. Rev., supra, at 757-762.

       A lower court held “void for indefiniteness” a predecessor statute of § 781-b. People v. Clampitt, 34 Misc. 2d 766, 222 N. Y. S. 2d 23 (Ct. Spec. Sess., N. Y. City, 1961). Thereupon the legislature amended the statute to its present form, providing that an offense could not be made out under it until whatever literature might be “printed”’ or “reproduced” might also be “distributed.” The constitutionality of the amended statute has not been determined in the New York courts.

       For the different constitutional considerations involved in attacks for “vagueness” and for “overbreadth” see Keyishian v. Board of Regents, 385 U. S. 589, 603-604, 608-610.

       We have frequently emphasized that abstention is not to be ordered unless the state statute is of an uncertain nature, and is obviously susceptible of a limiting construction. Harman v. Forssenius, 380 U. S. 528, 534; Davis v. Mann, 377 U. S. 678, 690; Baggett v. Bullitt, 377 U. S. 360, 375-379; England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 415-416; McNeese v. Board of Education, 373 U. S. 668, 673, 674; NAACP v. Bennett, 360 U. S. 471; City of Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 84; Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105; Note, 80 Harv. L. Rev., supra, at 605; Note, 40 Notre Dame Law., supra, n. 10, at 102.

       Of course appellant must establish the elements governing the issuance of a declaratory judgment. See n. 3, supra.

       Appellant urges that these allegations refute appellee’s suggestion in his Motion to Dismiss that “[s]ince the political literature appellant intended to distribute all related to the 1966 congressional candidacy of Abraham Multer . . . , this matter now might be properly dismissed for mootness.” This dispute will be part of the issues to be decided by the District Court on the remand. See n. 3, supra. Multer has since been elected to the Supreme Court of New York and will take office on January 1, 1968. New York Times, p. 31, col. 2, November 8, 1967.

       Our discussion of the issue of injunctive relief in Dombrowski is at 380 U. S., at 483-489, and our discussion of the issue of abstention is at 489-492.

        County of Allegheny v. Frank Mashuda Co., supra, at 189.

       Unlike the Court, I obtain no assistance for this conclusion from the ubiquitous and slippery “chilling effect” doctrine. Appellant might have sought in the state courts the declaratory relief he now asks. N. Y. Civ. Prac. § 3001. Given the state courts’ disposition of appellant’s earlier prosecution, he can scarcely maintain that those courts would not promptly provide any relief to which he is entitled. Absent such allegations, it is difficult to see how that doctrine can have the slightest relevance. See Dombrowski v. Pfister, 380 U. S. 479, 499 (dissenting opinion). In these circumstances, to apply the amorphous chilling-effect doctrine would serve only to chill the interests sought to be maintained by abstention.


source: Caselaw Access Project

author:
Mr. Chief Justice Warren
      Me. Justice Brennan, Mr. Justice White,

license: Public Domain

text:
    UNITED STATES v. ROBEL.
    No. 8.
    Argued November 14, 1966.
    Reargued October 9, 1967.
    Decided December 11, 1967.

      Kevin T. 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 Solicitor 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 Caughlcm and Joseph Forer.

      John J. Sullivan, Marvin M. Karpatkin and Melvin L. Wulf filed a brief on the original argument for the American Civil Liberties Union et al., as amici curiae, urging affirmance.
   Mr. 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), which provides that, when a Communist-action organization 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 Communist 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, designated that shipyard a “defense facility.” Appellee’s continued 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 knowledge of the outstanding order against the Party and with knowledge and notice of the shipyard’s designation as 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 membership 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. 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.

We cannot agree with the District Court that § 6 (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 membership 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 organization 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. We take the same view of § 5 (a)(1)(D). It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.

In Aptheker, we held § 6 unconstitutional because it too broadly and indiscriminately infringed upon constitutionally 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 this case because the right to travel is a more basic freedom than the right to be employed in a defense facility. We agree that Aptheker is not controlling since it was decided 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 disability 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 constitutional 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 congressional power which can be brought within its ambit. “[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.” 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 concern shown by the executive and legislative branches of government ovér 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-designed to promote such a goal. Implicit in the term “national defense” is the notion of defending those values 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 purpose of § 5 (a) (1) (D) is to reduce the threat of sabotage and espionage in the Nation’s defense plants. The Government’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. Section 5 (a)(1)(D) put appellee to the choice of surrendering his organizational affiliation, regardless of whether his membership threatened the security of a defense facility, or giving up his job. When appellee refused to make that choice, he became subject to a possible criminal penalty of five years’ imprisonment and a $10,000 fine. 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.

It has become axiomatic that “[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1963); see Aptheker v. Secretary of State, 378 U. S. 500, 512-513; Shelton v. Tucker, 364 U. S. 479, 488 (1960). Such precision is notably lacking in §5 (a)(1)(D). That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. 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. Thus, §5 (a)(1)(D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. See Elfbrandt 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 Constitution will not tolerate.

We are not unmindful of the congressional concern over the danger of sabotage and espionage in national defense industries, and nothing we hold today should be read to deny Congress the power under narrowly drawn legislation to keep from sensitive positions in defense facilities those who would use their positions to disrupt the Nation’s production facilities. We have recognized that, while the Constitution protects against invasions of individual rights, it does not withdraw from the Government the power to safeguard its vital interests. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 160 (1963). Spies and saboteurs do exist, and Congress can, of course, prescribe criminal penalties for those who engage in espionage and sabotage. The Government can deny access to its secrets to those who would use such information to harm the Nation. And Congress can declare sensitive positions in national defense industries off limits to those who would use such positions to disrupt the production of defense materials. 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 alternatives to the statute under review. We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a “less drastic” impact on the continued vitality of First Amendment freedoms. 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 consideration or decision of this case.

Me. Justice Brennan,

concurring in the result.

I too agree that the judgment of the District Court should be affirmed but I reach that result for different reasons.

Like the Court, I disagree with the District Court that §5(a)(l)(D) can be read to apply only to active members who have the specific intent to further the Party’s unlawful objectives. 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 unlawful for any member thereof with knowledge or notice of the order to apply for or use 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.” 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 deprived 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. Section 5 (a)(1)(D) also treats as irrelevant whether or not the members are active, or know the Party’s unlawful purposes, or intend to pursue those purposes. Compare Keyishian v. Board of Regents, 385 U. S. 589; Elfbrandt v. Russell, 384 U. S. 11, 17; Scales v. United States, 367 U. S. 203; Schneiderman v. United States, 320 U. S. 118, 136. Indeed, a member such as appellee, who has worked at the Todd Shipyards without 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 no importance whatever is attached to the sensitivity of the jobs held by Party members, a factor long considered relevant in security cases. Furthermore, like §6, §5 (a)(1)(D) affects constitutionally 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 “[individual liberties fundamental to American institutions [which] are not to be destroyed under pretext of preserving those institutions, even from the gravest external dangers.” Communist Party v. Subversive Activities 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 establishing or retaining such associations. See Wieman v. Updegraff, 344 U. S. 183, 191. “Broad prophylactic rules in the area of free expression are suspect. . . . Precision of regulation must be the touchstone in . . . area[s] so closely touching our most precious 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.

It is true, however, as the Government points out, that Congress often regulates indiscriminately, through preventive or prophylactic measures, e. g., Board of Governors v. Agnew, 329 U. S. 441; North American Co. v. SEC, 327 U. S. 686, and that such regulation has been upheld even where fundamental freedoms are potentially affected, Hirabayashi v. United States, 320 U. S. 81 ; Cafeteria Workers v. McElroy, 367 U. S. 886; Carlson v. Landon, 342 U. S. 524. Each regulation must be examined in terms of its potential impact upon fundamental rights, the importance of the end sought and the necessity for the means adopted. The Government 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 deprived every Party member of the right to apply for or to hold a passport. If § 5 (a)(1)(D) were in fact narrowly applied, the restrictions it would place upon employment are not as great as those placed upon the right to travel by § 6. 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, I am not persuaded to the Court’s view that overbreadth is fatal to this statute, as I agreed it was in other contexts; see, e. g., Keyishian v. Board of Regents, 385 U. S. 589; Elfbrandt v. Russell, 384 U. S. 11; Aptheker v. Secretary of State, 378 U. S. 500; NAACP v. Button, 371 U. S. 415.

However, acceptance of the validity of these distinctions and recognition of congressional power to utilize a prophylactic device such as §5 (a)(1)(D) to safeguard against espionage and sabotage at essential defense facilities, would not end inquiry in this case. Even if the statute is not overbroad on its face — because there may be “defense facilities” so essential to our national security that Congress could constitutionally exclude all Party members from employment in them — the congressional delegation of authority to the Secretary of Defense to designate “defense facilities” creates the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of protected freedoms and therefore, in my view, renders this statute invalid. Because the statute contains no meaningful standard by which the Secretary is to govern his designations, and no procedures to contest or review his designations, the “defense facility” formulation is constitutionally insufficient to mark “the field within which the [Secretary] is to act so that it may be known whether he has kept within it in compliance with the legislative will.” Yakus 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 designated, 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 significant limitation upon the Secretary’s discretion. But the standard under which Congress delegated the designating power is so indefinite as to be meaningless. 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, 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.” 50 U. S. C. § 782 (7). And § 5 (b) grants the Secretary of Defense untrammelled discretion to designate as a “defense facility” 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 employed there. Congress could easily have been more specific. Instead, Congress left the Secretary completely 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 indispensability of the facility’s service or product to the' national security.

Congress ordinarily may delegate power under broad 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. No other general rule would be feasible or desirable. Delegation of power under general directives is an inevitable consequence of our complex society, with its myriad, ever changing, highly technical problems. “The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality ... to perform its function . . . .” Panama Refining Co. v. Ryan, 293 U. S. 388, 421; Currin v. Wallace, 306 U. S. 1, 15. It is generally enough that, in conferring power upon an appropriate authority, Congress indicate its general policy, and act in terms or within a context which limits the power conferred. See, e. g., Arizona v. California, 373 U. S. 546, 584-585; 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 structure usually established for the purpose, to be heard by the implementing agency and to secure meaningful review of its action in the courts, and for Congress itself to review its agent’s action to correct significant departures from Congress’ intention.

The area of permissible indefiniteness narrows, however, when the regulation invokes criminal sanctions and potentially affects fundamental rights, as does §5 (a)(1)(D). See Barenblatt v. United States, 360 U. S. 109, 140, n. 7 (Black, J., dissenting). This is because the numerous deficiencies connected with vague legislative directives, whether to a legislative committee, United States v. Rumely, 345 U. S. 41; to an executive officer, Panama Refining Co. v. Ryan, 293 U. S. 388; to a judge and jury, Cline v. Frink 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; are far more serious when liberty and the exercise of fundamental rights are at stake. See also Gojack 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. Alabama, 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 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. “[Standards of permissible statutory vagueness are strict . . .” in protected areas. NAACP v. Button, 371 U. S., at 432. “Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.” Greene v. McElroy, 360 U. S. 474, 507.

Congress has the resources and the power to inform itself, and is the appropriate forum where the conflicting pros and cons should have been presented and considered. But instead of a determination by Congress reflected in guiding standards of the types of facilities to which §5 (a)(1)(D) should be applied, the statute provides for a resolution by the Secretary of Defense acting on his own accord. It is true that the Secretary presumably has at his disposal the information and expertise necessary to make reasoned judgments on which facilities are important to national security. But that is not the question to be resolved under this statute. Compare Hague v. CIO, 307 U. S. 496. Rather, the Secretary is in effect determining which facilities are so important to the national security that Party members, active or inactive, well- or ill-intentioned, should be prohibited from working within them in any capacity, sensitive or innocuous, under threat of criminal prosecution. In resolving this conflict of interests, the Secretary’s judgment, colored by his overriding obligation to protect the national defense, is not a constitutionally acceptable substitute for Congress’ judgment, in the absence of further, limiting guidance.

The need for a legislative judgment is especially acute here, since it is imperative when liberty and the exercise of fundamental freedoms are involved that constitutional rights not be unduly infringed. Cantwell v. Connecticut, supra, at 304. Before we can decide whether it is an undue infringement of protected rights to send a person to prison for holding employment at a certain type of facility, it ought at least to appear that Congress authorized the proscription as warranted and necessary. Such congressional determinations will not be assumed. “They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized . . . but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws.” Greene v. McElroy, supra, at 507.

Second. We said in Watkins v. United States, 354 U. S. 178, 205, that Congress must take steps to assure “respect for constitutional liberties” by preventing the existence of “a wide gulf between the responsibility for the use of . . . power and the actual exercise of that power.” Procedural protections to avoid that gulf have been recognized' as essential when fundamental freedoms are regulated, Speiser v. Randall, 357 U. S. 513; Marcus v. Search Warrant, 367 U. S. 717, 730; A Quantity of Copies of Books v. Kansas, 378 U. S. 205, 213; even when Congress acts pursuant to its “great powers,” Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164. Without procedural safeguards, regulatory schemes will tend through their indiscriminate application to inhibit the activity involved. See Marcus v. Search Warrant, supra, at 734-735.

It is true that “[a] construction of the statute which would deny all opportunity for judicial determination of an asserted constitutional right is not to be favored.” Lockerty v. Phillips, 319 U. S. 182, 188. However, the text and history of this section compel the conclusion that Congress deliberately chose not to provide for protest either to the Secretary or the courts from any designation by the Secretary of a facility as a “defense facility.” The absence of any provision in this regard contrasts strongly with the care that Congress took to provide for the determination by the SACB that the Party is a Communist-action organization, and for judicial review of that determination. The Act “requires the registration only of organizations which . . . are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court’s determination whether the administrative findings as to fact are supported by the preponderance of the evidence.” Communist Party v. Subversive Activities Control Board, supra, at 86-87. In contrast, the Act nowhere provides for an administrative-hearing on the Secretary’s designation, either public or private, nor is his finding subject to review. A Party member charged with notice of the designation must quit the Party or his job; he cannot contest the Secretary’s action on trial if he retains both and is prosecuted.

This is persuasive evidence that the matter of the designation of “defense facilities” was purposely committed by Congress entirely to the discretionary judgment of the Secretary. Unlike the opportunities for hearing and judicial review afforded the Party itself, the Party member was not to be heard by the Secretary to protest the designation of his place of employment as a “defense facility,” nor was the member to have recourse to the courts. This pointed distinction, as in the case of the statute before the Court in Schilling v. Rogers, 363 U. S. 666, 674, is compelling evidence “that in this Act Congress was advertent to the role of courts, and an absence in any specific area of any kind of provision for judicial participation strongly indicates a legislative purpose that there be no such participation.” This clear indication of the congressional plan, coupled with a flexibility- — as regards the boundaries of the Secretary’s discretion — so unguided as to be entirely unguid-ing, must also mean that Congress contemplated that an affected Party member was not to be heard to contend even at his criminal trial that the Secretary acted beyond the scope of his powers, or that the designation of the particular facility was arbitrary and capricious. Cf. Estep v. United States, 327 U. S. 114.

The legislative history of the section confirms this conclusion. That history makes clear that Congress was concerned that neither the Secretary’s reasons for a designation nor the fact of the designation should be publicized. This emerged after President Truman vetoed the statute. In its original form the Act required the Secretary to “designate and proclaim, and from time to time revise, a list of facilities ... to be promptly published in the Federal Register . . . .” § 5 (b). The President commented in his veto message, “[s]pies and saboteurs would willingly spend years of effort seeking to find out the information that this bill would require the Government to hand them on a silver platter.” H. R. Doc. No. 708, 81st Cong., 2d Sess., 2 (1950). Shortly after this Court sustained the registration provisions of the Act in Communist Party v. Subversive Activities Control Board, supra, the Act was amended at the request of the Secretary to eliminate the requirement that the list of designated facilities be published in the Federal Register. 76 Stat. 91. Instead, the list is classified information. Whether or not such classification is practically meaningful — in light of the fact that notice of a designation must be posted in the designated facility— the history is persuasive against any congressional intention to provide for hearings or judicial review that might be attended with undesired publicity. We are therefore not free to imply limitations upon the Secretary’s discretion or procedural safeguards that Congress obviously chose to omit. Compare Cole v. Young, 351 U. S. 536; United States v. Rumely, supra; Ex parte Endo, 323 U. S. 283, 299; Japanese Immigrant Case, 189 U. S. 86, 101; see Greene v. McElroy, supra, at 507.

Third. The indefiniteness of the delegation in this case also results in inadequate notice to affected persons. Although the form of notice provided for in § 5 (b) affords affected persons reasonable opportunity to conform their behavior to avoid punishment, it is not enough that persons engaged in arguably protected activity be reasonably well advised that their actions are subject to regulation. Persons so engaged must not be compelled to conform their behavior to commands, no matter how unambiguous, from delegated agents whose authority to issue the commands is unclear. Marcus v. Search Warrant, supra, at 736. The legislative directive must delineate the scope of the agent’s authority so that those affected by the agent’s commands may know that his command is within his authority and is not his own arbitrary fiat. Cramp v. Board of Public Instruction, 368 U. S. 278; Scull v. Virginia, 359 U. S. 344; Watkins v. United States, supra, at 208-209. There is no way for persons affected by § 5 (a)(1)(D) to know whether the Secretary is acting within his authority, and therefore no fair basis upon which they may determine whether or not to risk disobedience in the exercise of activities normally protected.

Section 5(a)(1)(D) denies significant employment rights under threat of criminal punishment to persons simply because of their political associations. The Government makes no claim that Robel is a security risk. He has worked as a machinist at the shipyards for many years, and we are told is working there now. We are in effect invited by the Government to assume that Robel is a law abiding citizen, earning a living at his chosen trade. The justification urged for punishing him is that Congress may properly conclude that members of the Communist Party, even though nominal or inactive members and believing only in change through lawful means, are more likely than other citizens to engage in acts of espionage and sabotage harmful to our national security. This may be so. But in areas of protected freedoms, regulation based upon mere association and not upon proof of misconduct or even of intention to act unlawfully, must at least be accompanied by standards or procedural protections sufficient to safeguard against indiscriminate application. “If . . . ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress . . . [a]nd if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.” Kent v. Dulles, 357 U. S. 116, 129.

Mr. Justice White,

with whom Mr. Justice Harlan joins,

dissenting.

The Court holds that because of the First Amendment a member of the Communist Party who knows that the Party has been held to be a Communist-action organization may not be barred from employment in defense establishments important to the security of the Nation. It therefore refuses to enforce the contrary judgments of the Legislative and Executive Branches of the Government. Respectfully disagreeing with this view, I dissent.

The constitutional right found to override the public interest in national security defined by Congress is the right of association, here the right of appellee Robel to remain a member of the Communist Party after being notified of its adjudication as a Communist-action organization. Nothing in the Constitution requires this result. The right of association is not mentioned in the Constitution. It is a judicial construct appended to the First Amendment rights to speak freely, to assemble, and to petition for redress of grievances. While the right of association has deep roots in history and is supported by the inescapable necessity for group action in a republic as large and complex as ours, it has only recently blossomed as the controlling factor in constitutional litigation; its contours as yet lack delineation. Although official interference with First Amendment rights has drawn close scrutiny, it is now apparent that the right of association is not absolute and is subject to significant regulation by the State. The law of criminal conspiracy restricts the purposes for which men may associate and the means they may use to implement their plans. Labor unions, and membership in them, are intricately controlled by statutes, both federal and state, as are political parties and corporations.

The relevant cases uniformly reveal the necessity for accommodating the right of association and the public interest. NAACP v. Alabama, 357 U. S. 449 (1958), which contained the first substantial discussion of the right in an opinion of this Court, exemplifies the judicial approach. There, after noting the impact of official action on the right to associate, the Court inquired “whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner’s members of their constitutionally protected right of association.” 357 U. S., at 463. The same path to decision is evident in Bates v. City of Little Rock, 361 U. S. 516 (1960); NAACP v. Button, 371 U. S. 415 (1963); and Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964). Only last week, in United Mine Workers v. Illinois Bar Assn., ante, p. 217, the Court weighed the right to associate in an organization furnishing salaried legal services to its members against the State’s interest in insuring adequate and personal legal representation, and found the State’s interest insufficient to justify its restrictions.

Nor does the Court mandate a different course in this case. Apparently “active” members of the Communist Party who have demonstrated their commitment to the illegal aims of the Party may be barred from defense facilities. This exclusion would have the same deterrent effect upon associational rights as the statute before us, but the governmental interest in security would override that effect. Also, the Court would seem to permit barring appellee, although not an “active” member of the Party, from employment in “sensitive” positions in the defense establishment. Here, too, the interest in anticipating and preventing espionage or sabotage would outweigh the deterrent impact of job disqualification. If I read the Court correctly, associating with the Communist Party may at times be deterred by barring members from employment and nonmembership may at times be imposed as a condition of engaging in defense work. In the case before us the Court simply disagrees with the Congress and the Defense Department, ruling that Robel does not present a sufficient danger to the national security to require him to choose between membership in the Communist Party and his employment in a defense facility. Having less confidence than the majority in the prescience of this remote body when dealing with threats to the security of the country, I much prefer the judgment of Congress and the Executive Branch that the interest of appellee in remaining a member of the Communist Party, knowing that it has been adjudicated a Communist-action organization, is less substantial than the public interest in excluding him from employment in critical defense industries.

The national interest asserted by the Congress is real and substantial. After years of study, Congress prefaced the Subversive Activities Control Act of 1950, 64 Stat. 987, 50 U. S. C. §§ 781-798, with its findings that there exists an international Communist movement which by treachery, deceit, espionage, and sabotage seeks to overthrow existing governments; that the movement operates in this country through Communist-action organizations which are under foreign domination and control and which seek to overthrow the Government by any necessary means, including force and violence; that the Communist movement in the United States is made up of thousands of adherents, rigidly disciplined, operating in secrecy, and employing espionage and sabotage tactics in form and manner evasive of existing laws. Congress therefore, among other things, defined the characteristics of Communist-action organizations, provided for their adjudication by the SACB, and decided that the security of the United States required the exclusion of Communist-action organization members from employment in certain defense facilities. After long and complex litigation, the SACB found the Communist Party to be a Communist-action organization within the meaning of the Act. That conclusion was affirmed both by the Court of Appeals, Communist Party v. Subversive Activities Control Board, 107 U. S. App. D. C. 279, 277 F. 2d 78 (1959), and this Court, 367 U. S. 1 (1961). Also affirmed were the underlying determinations, required by the Act, that the Party is directed or controlled by a foreign government or organization, that it operates primarily to advance the aims of the world Communist movement, and that it sufficiently satisfies the criteria of Communist-action organizations specified by 50 U. S. C. § 792 (e), including the finding by the Board that many Party members are subject to or recognize the discipline of the controlling foreign government or organization. This Court accepted the congressional appraisal that the Party posed a threat “not only to existing government in the United States, but to the United States as a sovereign, independent nation . . . 367 U. S., at 95.

Against this background protective measures were clearly appropriate. One of them, contained in 50 U. S. C. § 784 (a) (1) (D), which became activated with the affirmance of the Party’s designation as a Communist-action organization, makes it unlawful “[f]or any member of such organization, with knowledge or notice . . . that such order has become final... to engage in any employment in any defense facility . . . .” A defense facility is any of the specified types of establishment “with respect to the operation of which [the Secretary of Defense] finds and determines that the security of the United States requires” that members of such organizations not be employed. Given the characteristics of the Party, its foreign domination, its primary goal of government overthrow, the discipline which it exercises over its members, and its propensity for espionage and sabotage, the exclusion of members of the Party who know the Party is a Communist-action organization from certain defense plants is well within the powers of Congress.

Congress should be entitled to take suitable precautionary measures. Some Party members may be no threat at all, but many of them undoubtedly are, and- it is exceedingly difficult to identify those in advance of the very events which Congress seeks to avoid. If Party members such as Robel may be barred from “sensitive positions,” it is because they are potential threats to security. For the same reason they should be excludable from employment in defense plants which Congress and the Secretary of Defense consider of critical importance to the security of the country.

The statute does not prohibit membership in the Communist Party. Nor are appellee and other Communists excluded from all employment in the United States, or even from all defense plants. The touchstones for exclusion are the requirements of national security, and the facilities designated under this standard amount to only about one percent of all the industrial establishments in the United States.

It is this impact on associational rights, although specific and minimal, which the Court finds impermissible. But as the statute’s dampening effect on associational rights is to be weighed against the asserted and obvious government interest in keeping members of Communist-action groups from defense facilities, it would seem important to identify what interest Robel has in joining and remaining a member of a group whose primary goals he may not share. We are unenlightened, however, by the opinion of the Court or by the record in this case, as to the purposes which Robel and others like him may have in associating with the Party. The legal aims and programs of the Party are not identified or appraised nor are Robel’s activities as a member of the Party. The Court is left with a vague and formless concept of associational rights and its own notions of what constitutes an unreasonable risk to defense facilities.

The Court says that mere membership in an association with knowledge that the association pursues unlawful aims cannot be the basis for criminal prosecution, Scales v. United States, 367 U. S. 203 (1961), or for denial of a passport, Aptheker v. Secretary of State, 378 U. S. 500 (1964). But denying the opportunity to be employed in some defense plants is a much smaller deterrent to the exercise of associational rights than denial of a passport or a criminal penalty attached solely to membership, and the Government’s interest in keeping potential spies and saboteurs from defense plants is much greater than its interest in keeping disloyal Americans from traveling abroad or in committing all Party members to prison. The “delicate and difficult” judgment to which the Court refers should thus result in a different conclusion from that reached in the Scales and Aptheker cases.

The Court’s motives are worthy. It seeks the widest bounds for the exercise of individual liberty consistent with the security of the country. In so doing it arrogates to itself -an independent judgment of the requirements of national security. These are matters about which judges should be wary. James Madison wrote:

“Security against foreign danger is one of the primitive objects of civil society. . . .
“. . . The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of Unnecessary and multiplied repetitions.”

       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 operations for which they are responsible. They have strongly expressed the hope that the bill would not become law.” H. R. 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.

       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 . . . .”

       The Government has persisted in this view in its arguments to this Court. Brief for the Government 48-56.

       We initially heard oral argument in this case 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 presented, the question whether the delegation of authority to the Secretary of Defense to designate 'defense facilities’ satisfies pertinent constitutional standards.” 387 U. S. 939.
      We heard additional arguments on October 9, 1967.

       In addition to arguing that §5 (a)(1)(D) is invalid under the First Amendment, appellee asserted the statute was also unconstitutional because (1) it offended substantive and procedural due process under the Fifth Amendment; (2) it contained an unconstitutional delegation of legislative power to the Secretary of Defense; 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.

       18 U. S. C. § 2385.

       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 Bock, 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. J. 1 (1964).

       See, e. g., Lichter v. United States, 334 U. S. 742, 754-772 (1948); Hirabayashi v. United States, 320 U. S. 81, 93 (1943).

       Brief for the Government 15.

       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 recognizance, 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. 8. As far as we can determine, appellee is the only individual the Government has attempted to prosecute under §5 (a)(1)(D).

       We recognized in Greene v. McElroy, 360 U. S., at 492, that “the 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.”

       50 U. S. C. § 794 (c).

       The Government has insisted that Congress, in enacting §5 (a)(1)(D), has not sought “to punish membership in ‘Communist-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.

       See Scales v. United, States, 367 U. S. 203 (1961).

       See Elfbrandt 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.

       See Cole v. Young, 351 U. S. 536, 546 (1956): “[I]t 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.”

       Congress has already provided stiff penalties for those who conduct espionage and sabotage against the United States. 18 U. S. C. §§792-798 (espionage); §§2151-2156 (sabotage).

       The Department of Defense, pursuant to Executive Order 10865, as amended by Executive Order 10909, has established detailed procedures for screening those working in private industry who, because of their jobs, must have access to classified defense information. 32 CFB, Part 155. The provisions of those regulations are not before the Court in this case.

       It has been suggested that this case should be decided by “balancing” 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 federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined 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 respective 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 constitutional.” 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.

       See Cole v. Young, 351 U. S. 536, 546:
      “[I]t 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.”

       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, groups which the Government contends are less dangerous to the national security under Congress’ definitions, and whose members are therefore presumably 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 purpose 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, 488. Since I would affirm on another ground, however, I put aside the question whether existing 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 providing at least some evidence of its capacity to handle this problem in a more discriminating manner.

       Congress, in fact, originally proposed to limit the Secretary’s discretion in designating “defense facilities.” H. R. 9490, 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) 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 designation 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.’ ”

       The Secretary has published criteria which guide him in applying the statute:
      “The list of ‘defense facilities’ is comprised of (1) facilities engaged in important classified military projects; (2) facilities producing important weapons systems, subassemblies and their components; (3) facilities producing essential common components, intermediates, basic materials and raw materials; (4) important utility and service facilities; and (5) research laboratories whose contributions are important to the national defense. The list, which will be amended from time to time as necessary, has been classified for reasons of security.”
      Department of Defense Release No. 1363-62, Aug. 20, 1962. These broad standards, which might easily justify applying the statute to most of our major industries, cannot be read into the statute to limit the Secretary’s discretion, since they are subject to unreviewable amendment.

       The statute contemplates only four significant findings before criminal liability attaches: (1) that the Communist Party is a “Communist-action organization”; (2) that defendant is a member of the Communist Party; (3) that defendant is engaged in employment at a “defense facility”; and (4) that he had notice that his place of employment was a “defense facility.” The first finding was made by the Subversive Activities Control Board. The third finding — that the shipyard is a “defense facility” — was made by the Secretary of Defense. The fourth finding refers to the notice requirement which is no more than a presumption from the posting required of the employer by §5 (b). Thus the only issue which a defendant can effectively contest is whether he is a Communist Party member. In view of the result which I would reach, however, I need not consider appellee’s argument that this affords defendants only the shadow of a trial, and violates due process.

       If men may speak as individuals, they may speak in groups as well. If they may assemble and petition, they must have the right to associate to some extent. In this sense the right of association simply extends constitutional protection to First Amendment rights when exercised with others rather than by an individual alone. In NAACP v. Alabama, the Court said that the freedom to associate for the advancement of beliefs and ideas is constitutionally protected and that it is “immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters 357 U. S. 449, 460 (1958). That case involved the propagation of ideas by a group as well as litigation as a form of petition. The latter First Amendment element was also involved in NAACP v. Button, 371 U. S. 415 (1963); Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964); and United Mine Workers v. Illinois Bar Assn., ante, p. 217. The activities in Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), although commercially motivated, were aimed at influencing legislative action. Whether the right to associate is an independent First Amendment right carrying its own credentials and will be carried beyond the implementation of other First Amendment rights awaits a definitive answer. In this connection it should be noted that the Court recently dismissed, as not presenting a substantial federal question, an appeal challenging Florida regulations which forbid a Florida accountant from associating in his work, whether as partner or employee, with any nonresident accountant; out-of-state associations are barred from the State unless every partner is a qualified Florida accountant, and in practice only Florida residents can become qualified there. Mercer v. Hemmings, ante, p. 46.

       1 cannot agree with my Brother BrenNAN that Congress delegated improperly when it authorized the Secretary of Defense to determine “with respect to the operation of which [defense facilities] . . . the security of the United States requires the application of the provisions of subsection (a) of this section.” Rather I think this is precisely the sort of application of a legislative determination to specific facts within the administrator’s expertise that today’s complex governmental structure requires and that this Court has frequently upheld. E. g., Yakus v. United States, 321 U. S. 414 (1944). I would reject also appellee’s contention that the statute is a bill of attainder. See United States v. Brown, 381 U. S. 437, 462 (1965) (White, J., dissenting).

       The Federalist No. 41, pp. 269-270 (Cooke ed. 1961).