source: Caselaw Access Project

author: Mr. Justice Goldberg Mr. Justice Harlan, Mr. Justice Stewart, Mr. Justice White,

license: Public Domain

text:
    ESCOBEDO v. ILLINOIS.
    No. 615.
    Argued April 29, 1964.
    Decided June 22, 1964.

      Barry L. Kroll argued the cause for petitioner. With him on the brief was Donald M. Haskell.

      James R. Thompson argued the cause for respondent. With him on the brief were Daniel P. Ward and Elmer C. Kissane.

      Bernard Weisberg argued the cause for the American Civil Liberties Union, as amicus curiae, urging reversal. With him on the brief was Walter T. Fisher.

   Mr. Justice Goldberg

delivered the opinion of the Court.

The critical question in this case is whether, under the circumstances, .the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of “the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as “made obligatory upon the States by the Fourteenth Amendment,” Gideon v. Wainwright, 372 U. S. 335, 342, and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation.

On the night of January 19, 1960, petitioner’s brother-in-law was fatally shot. In the early hours of the next morning, at 2:30 a. m., petitioner was arrested without a warrant and interrogated. Petitioner made no statement to the police and was released at 5 that afternoon pursuant to a state court writ of habeas corpus obtained by Mr. Warren Wolfson, a lawyer who had been retained by petitioner.

On January 30, Benedict DiGerlando, who was then in police custody and who was later indicted for the murder along with petitioner, told the police that petitioner had fired the fatal shots. Between 8 and 9 that evening, petitioner and his sister, the widow of the deceased, were arrested and taken to police headquarters. En route to the police station, the police “had handcuffed the defendant behind his back,” and “one of the arresting officers told defendant that DiGerlando had named him as the one who shot” the deceased. Petitioner testified, without contradiction, that the “detectives said they had us pretty well, up pretty tight, and we might as well admit to this crime,” and that he replied, “I am sorry but I would like to have advice from my lawyer.” A police officer testified that although petitioner was not formally charged “he was in custody” and “couldn’t walk out the door.”

Shortly after petitioner reached police headquarters, his retained lawyer arrived. The lawyer described the ensuing events in the following terms:

“On that day I received a phone call [from “the mother of another defendant”] and pursuant to that phone call I went to the Detective Bureau at 11th and State. The first person I talked to was the Sergeant on duty at the Bureau Desk, Sergeant Pidgeon. I asked Sergeant Pidgeon for permission to speak to my client, Danny Escobedo. . . . Sergeant Pidgeon made a call to the Bureau lockup and informed me that the boy had been taken from the lockup to the Homicide Bureau. This was between 9:30 and 10:00 in the evening. Before I went anywhere, he called the Homicide Bureau and told them there was an attorney waiting to see Escobedo. He told me I could not see him. Then I went upstairs to the Homicide Bureau. There were several Homicide Detectives around and I talked to them. I identified myself as Escobedo’s attorney and asked permission to see him. They said I could not. . . . The police officer told me to see Chief Flynn who was on duty. I identified myself to Chief Flynn and asked permission to see my client. He said I could not. . . . I think it was approximately 11:00 o’clock. He said I couldn’t' see him because they hadn’t completed questioning. . . . [F]or a second or two I spotted him in an office in the Homicide Bureau. The door was open and I could see through the office. ... I waved to him and. he waved back and then the door was closed, by one of the officers at Homicide. There were four or five officers milling around the Homicide Detail that night. As to whether I talked to Captain Flynn any later that day, I waited around for another hour or two and went back again and renewed by [sic] request to see my client. He again told me I could not. . . . I filed an oficial complaint with Commissioner Phelan of the Chicago Police Department. I had a conversation with every police officer I could find. I was told at Homicide that I couldn’t see him and I would have to get a writ of habeas corpus. I left the Homicide Bureau and from the Detective Bureau at 11th and State at approximately 1:00 A. M. [Sunday morning] I had no opportunity to talk to my client that night. I quoted to Captain Flynn the Section of the Criminal Code which allows an attorney the right to see his client.”

Petitioner testified that during the course of the interrogation he repeatedly asked to speak to his lawyer and that the police said that his lawyer “didn’t want to see” him. The testimony of the police officers confirmed these accounts in substantial detail.

Notwithstanding repeated requests by each, petitioner and his retained lawyer were afforded no opportunity to consult during the course of the entire interrogation. At one point, as previously noted, petitioner and his attorney came into each other’s view for a few moments but the attorney was quickly ushered away. Petitioner testified “that he heard a detective telling the attorney the latter would not be allowed to talk to [him] ‘until they were done’ ” and that he heard the attorney being refused permission to remain in the adjoining room. A police officer testified that he had told the lawyer that he could not see petitioner until “we were through interrogating” him.

There is testimony by the police that during the interrogation, petitioner, a 22-year-old of Mexican extraction with no record of previous experience with the police, “was handcuffed” in a standing position and that he “was nervous, he had circles under his eyes and he was upset” and was “agitated” because “he had not slept well in over a week.”

It is undisputed that during the course of the interrogation Officer Montejano, who “grew up” in petitioner’s neighborhood, who knew his family, and who uses “Spanish language in [his] police work,” conferred alone with petitioner “for about a quarter of an hour. . . .” Petitioner testified that the officer said to him “in Spanish that my sister and I could go home if I pinned it on Benedict DiGerlando,” that “he would see to it that we would go home and be held only as witnesses, if anything, if we had made a statement against DiGerlando . . . , that we would be able to go home that night.” Petitioner testified that he made the statement in issue because of this assurance. Officer Montejano denied offering any such assurance.

A police officer testified that during the interrogation the following occurred:

“I informed him of what DiGerlando told me and when I did, he told me that DiGerlando was [lying] and I said, ‘Would you care to tell DiGer-lando that?’ and he said, ‘Yes, I will.’ So, I brought . . . Escobedo in and he confronted DiGer-lando and he told him that he was lying and said, 'I didn’t shoot Manuel, you did it.’ ”

In this way, petitioner, for the first time, admitted to some knowledge of the crime. After that he made additional statements further implicating himself in the murder plot. At this point an Assistant State’s Attorney, Theodore J. Cooper, was summoned “to take” a statement. Mr. Cooper, an experienced lawyer who was assigned to the Homicide Division to take “statements from some defendants and some prisoners that they had in custody,” “took” petitioner’s statement by asking carefully framed questions apparently designed to assure the admissibility into evidence of the resulting answers. Mr. Cooper testified that he did not advise petitioner of his constitutional rights, and it is undisputed that no one during the course of the interrogation so advised him.

Petitioner moved both before and during trial to suppress the incriminating statement, but the motions were denied. Petitioner was convicted of murder and he appealed the conviction.

The Supreme Court of Illinois, in its original opinion of February 1, 1963, held the statement inadmissible and reversed the conviction. The court said:

“[I]t seems manifest to us, from the undisputed evidence and the circumstances surrounding defendant at the time of his statement and shortly prior thereto, that the defendant understood he would be permitted to go home if he gave the statement and would be granted an immunity from prosecution.”

Compare Lynumn v. Illinois, 372 U. S. 528.

The State petitioned for, and the court granted, rehearing. The court then affirmed the conviction. It said: “[T]he officer denied making the promise and the trier of fact believed him. We find no reason for disturbing the trial court’s finding that the confession was voluntary.” 28 Ill. 2d 41, 45-46, 190 N. E. 2d 825, 827. The court also held, on the authority of this Court’s decisions in Crooker v. California, 357 U. S. 433, and Cicenia v. Lagay, 357 U. S. 504, that the confession was admissible even though “it was obtained after he had requested the assistance of counsel, which request was denied.” 28 Ill. 2d, at 46, 190 N. E. 2d, at 827. We granted a writ of certiorari to consider whether the petitioner’s statement was constitutionally admissible at his trial. 375 U. S. 902. We conclude, for the reasons stated below, that it was not and, accordingly, we reverse the judgment of conviction.

In Massiah v. United States, 377 U. S. 201, this Court observed that “a Constitution which guarantees a defendant the aid of counsel at . . . trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less . . . might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Id., at 204, quoting Douglas, J., concurring in Spano v. New York, 360 U. S. 315, 326.

The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a general investigation of “an unsolved crime.” Spano v. New York, 360 U. S. 315, 327 (Stewart, J., concurring). Petitioner had become the accused, and the purpose of the interrogation was to “get him” to confess his guilt despite his constitutional right not to do so. At the time of. his arrest and throughout the course of the interrogation, the police told petitioner that they had convincing evidence that he had fired the fatal shots. Without informing him of his absolute right to remain silent in the face of this accusation, the police urged him to make a statement. As this Court observed many years ago:

“It cannot be doubted that, placed in the position in which the accused was when the statement was made to him that the other suspected person had charged him with crime, the result was to produce upon his mind the fear that if he remained silent it would be considered an admission of guilt, and therefore render certain his being committed for trial as the guilty person, and it cannot be conceived that the converse impression would not also have naturally arisen, that by denying there was hope of removing the suspicion from himself.” Bram v. United States, 168 U. S. 532, 562.

Petitioner, a layman, was undoubtedly unaware that under Illinois law an admission of “mere” complicity in the murder plot was legally as damaging as an admission of firing of the fatal shots. Illinois v. Escobedo, 28 Ill. 2d 41, 190 N. E. 2d 825. The “guiding hand of counsel” was essential to advise petitioner of his rights in this delicate situation. Powell v. Alabama, 287 U. S. 45, 69. This was the “stage when legal aid and advice” were most critical to petitioner. Massiah v. United States, supra, at 204. It was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 U. S. 52, and the preliminary hearing in White v. Maryland, 373 U. S. 59. What happened at this interrogation could certainly “affect the whole trial,” Hamilton v. Alabama, supra, at 54, since rights “may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.” Ibid. It would exalt form over substance to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the ¿uthorities had secured a formal indictment. Petitioner had, for all practical purposes, already been charged with murder.

The New York Court of Appeals, whose decisions this Court cited with approval in Massiah, 377 U. S. 201, at 205, has recently recognized that, under circumstances such as those here, no meaningful distinction can be drawn between interrogation of an accused before and after formal indictment. In People v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628, that court, in an opinion by Judge Fuld, held that a “confession taken from a defendant, during a period of detention [prior to indictment], after his attorney had requested and been denied access to him” could not be used against him in a criminal trial. Id., at 151, 193 N. E. 2d, at 629. The court observed that it “would be highly incongruous if our system of justice permitted the district attorney, the lawyer representing the State, to extract a confession from the accused while his own lawyer, seeking to speak with him, was kept from him by the police.” Id., at 152, 193 N. E. 2d, at 629.

In Gideon v. Wainwright, 372 U. S. 335, we held that every person accused of a crime, whether state or federal, is entitled to a lawyer at trial. The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the “right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination.” In re Groban, 352 U. S. 330, 344 (Black, J., dissenting). “One can imagine a cynical prosecutor saying: 'Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.’ ” Ex parte Sullivan, 107 F. Supp. 514, 517-518.

It is argued that if the right to counsel is afforded prior to indictment, the number of confessions obtained by the police will diminish significantly, because most confessions are obtained during the period between arrest and indictment, and “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” Watts v. Indiana, 338 U. S. 49, 59 (Jackson, J., concurring in part and dissenting in part). This argument, of course, cuts two ways. The fact that many confessions are obtained during this period points up its critical nature as a “stage when legal aid and advice” are surely needed. Massiah v. United States, supra, at 204; Hamilton v. Alabama, supra; White v. Maryland, supra. The right to counsel would indeed be hollow if it began at a period when few confessions were obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criticalness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor of the right of the accused to be advised by his lawyer of his privilege against self-incrimination. See Note, 73 Yale L. J. 1000, 1048-1051 (1964).

We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system, which depends on extrinsic evidence independently secured through skillful investigation. As Dean Wigmore so wisely said:

“[A]ny system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. The exercise of the power to extract answers begets a forgetfulness of the just limitations of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer,— that is, to a confession of guilt. Thus the legitimate use grows into the unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized.” 8 Wigmore, Evidence (3d ed. 1940), 309. (Emphasis in original.)

This Court also has recognized that “history amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence . . . .” Haynes v. Washington, 373 U. S. 503, 519.

We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.

We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as “made obligatory upon the States by the Fourteenth Amendment,” Gideon v. Wainwright, 372 U. S., at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.

Crooker v. California, 357 U. S. 433, does not compel a contrary result. In that case the Court merely rejected the absolute rule sought by petitioner, that “every state denial of a request to contact counsel [is] an infringement of the constitutional right without regard to the circumstances of the case.” Id., at 440. (Emphasis in original.) In its place, the following rule was announced:

“[S]tate refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits, . . . but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of 'that fundamental fairness essential to the very concept of justice. . . .’ The latter determination necessarily depends upon all the circumstances of the case.” 357 U. S., at 439-440. (Emphasis added.)

The Court, applying “these principles” to “the sum total of the circumstances [there] during the time petitioner was without counsel,” id., at 440, concluded that he had not been fundamentally prejudiced by the denial of his request for counsel. Among the critical circumstances which distinguish that case from this one are that the petitioner there, but not here, was explicitly advised by the police of his constitutional right to remain silent and not to “say anything” in response to the questions, id., at 437, and that petitioner there, but not here, was a well-educated man who had studied criminal law while attending law school for a year. The Court’s opinion in Cicenia v. Lagay, 357 U. S. 504, decided the same day, merely said that the “contention that petitioner had a constitutional right to confer with counsel is disposed of by Crooker v. California . . . That case adds nothing, therefore, to Crooker. In any event, to the extent that Cicenia or Crooker may be inconsistent with the principles announced today, they are not to be regarded as controlling.

Nothing we have said today affects the powers of the police to investigate “an unsolved crime,” Spano v. New York, 360 U. S. 315, 327 (Stewart, J., concurring), by gathering information from witnesses and by other “proper investigative efforts.” Haynes v. Washington, 373 U. S. 503, 519. We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession— our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.

The judgment of the Illinois Supreme Court is reversed and the case remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Harlan,

dissenting.

I would affirm the judgment of the Supreme Court of Illinois on the basis of Cicenia v. Lagay, 357 U. S. 504, decided by this Court only six years ago. Like my Brother White, post, p. 495, I think the rule announced today is most ill-conceived and that it seriously and unjustifiably fetters perfectly legitimate methods of criminal law enforcement.

Mr. Justice Stewart,

dissenting.

I think this case is directly controlled by Cicenia v. Lagay, 357 U. S. 504, and I would therefore affirm the judgment.

Massiah v. United States, 377 U. S. 201, is not in point here. In that case a federal grand jury had indicted Massiah. He had retained a lawyer and entered a formal plea of not guilty. Under our system of federal justice an indictment and arraignment are followed by a trial, at which the Sixth Amendment guarantees the defendant the assistance of counsel. But Massiah was released on bail, and thereafter agents of the Federal Government deliberately elicited incriminating statements from him in the absence of his lawyer. We held that the use of these statements against him at his trial denied him the basic protections of the Sixth Amendment guarantee. Putting to one side the fact that the case now before us is not a federal case, the vital fact remains that this case does not involve the deliberate interrogation of a defendant after the initiation of judicial proceedings against him. The Court disregards this basic differenbe between the present case and Massiah’s, with the bland assertion that “that fact should make no difference.” Ante, p. 485.

It is “that fact,” I submit, which makes all the difference. Under our system of criminal justice the institution of formal, meaningful judicial proceedings, by way of indictment, information, or arraignment, marks the point at which a criminal investigation has ended and adversary proceedings have commenced. It is at this point that the constitutional guarantees attach which pertain to a criminal trial. Among those guarantees are the right to a speedy trial, the right of confrontation, and the right to trial by jury. Another is the guarantee of the assistance of counsel. Gideon v. Wainwright, 372 U. S. 335; Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59.

The confession which the Court today holds inadmissible was a voluntary one. It was given during the course of a perfectly legitimate police investigation of an unsolved murder. The Court says that what happened during this investigation “affected” the trial. I had always supposed that the whole purpose of a police investigation of a murder was to “affect” the trial of the murderer, and that it would be only an incompetent, unsuccessful, or corrupt investigation which would not do so. The Court further says that the Illinois police officers did not advise the petitioner of his “constitutional rights” before he confessed to the murder. This Court has never held that the Constitution requires the police to give any “advice” under circumstances such as these.

Supported by no stronger authority than its own rhetoric, the Court today converts a routine police investigation of an unsolved murder into a distorted analogue of a judicial trial. It imports into this investigation constitutional concepts historically applicable only after the onset of formal prosecutorial proceedings. By doing so, I think the Court perverts those precious constitutional guarantees, and frustrates the vital interests of society in preserving the legitimate and proper function of honest and purposeful police investigation.

Like my Brother ClaRK, I cannot escape the logic of my Brother White’s conclusions as to the extraordinary implications which emanate from the Court’s opinion in this case, and I share their views as to the untold and highly unfortunate impact today’s decision may have upon the fair administration of criminal justice. I can only hope we have completely misunderstood what the Court has said.

Mr. Justice White,

with whom Mr. Justice Clark and Mr. Justice Stewart join,

dissenting.

In Massiah v. United States, 377 U. S. 201, the Court held that as of the date of the indictment the prosecution is disentitled to secure admissions from the accused. The Court now moves that date back to the time when the prosecution begins to “focus” on the accused. Although the opinion purports to be limited to the facts of this case, it would be naive to think that the new constitutional right announced will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainright, 372 U. S. 335; Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353, or has asked to consult with counsel in the course of interrogation. Cf. Carnley v. Cochran, 369 U. S. 506. At the very least the Court holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police thereafter is inadmissible in evidence unless the accused has waived his right to counsel. The decision is thus another major step in the direction of the goal which the Court seemingly has in mind — to bar from evidence all admissions obtained from an individual suspected of crime, whether involuntarily made or not. It does of course put us one step “ahead” of the English judges who have had the good sense to leave the matter a discretionary one with the trial court. I reject this step and the invitation to go farther which the Court has now issued.

By abandoning the voluntary-involuntary test for admissibility of confessions, the Court seems driven by the notion that it is uncivilized law enforcement to use an accused’s own admissions against him at his trial. It attempts to find a home for this new and nebulous rule of due process by attaching it to the right to counsel guaranteed in the federal system by the Sixth Amendment and binding upon the States by virtue of the due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright, supra. The right to counsel now not only entitles the accused to counsel’s advice and aid in preparing for trial but stands as an impenetrable barrier to any interrogation once the accused has become a suspect. From that very moment apparently his right to counsel attaches, a rule wholly unworkable and impossible to administer unless police cars are equipped with public defenders and undercover agents and police informants have defense counsel at their side. I would not abandon the Court’s prior cases defining with some care and analysis the circumstances requiring the presence or aid of counsel and substitute the amorphous and wholly unworkable principle that counsel is constitutionally required whenever he would or could be helpful. Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59; Gideon v. Wainwright, supra. These cases dealt with the requirement of counsel at proceedings in which definable rights could be won or lost, not with stages where probative evidence might be obtained. Under this new approach one might just as well argue that a potential defendant is constitutionally entitled to a lawyer before, not after, he commits a crime, since it is then that crucial incriminating evidence is put within the reach of the Government by the would-be accused. Until now there simply has been no right guaranteed by the Federal Constitution to be free from the use at trial of a voluntary admission made prior to indictment.

It is incongruous to assume that the provision for counsel in the Sixth Amendment was meant to amend or supersede the self-incrimination provision of the Fifth Amendment, which is now applicable to the States. Malloy v. Hogan, 378 U. S. 1. That amendment addresses itself to the very issue of incriminating admissions of an accused and resolves it by proscribing only compelled statements. Neither the Framers, the constitutional language, a century of decisions of this Court nor Professor Wigmore provides an iota of support for the idea that an accused has an absolute constitutional right not to answer even in the absence of compulsion — the constitutional right not to incriminate himself by making voluntary disclosures.

Today’s decision cannot be squared with other provisions of the Constitution which, in my view, define the system of criminal justice this Court is empowered to administer. The Fourth Amendment permits upon probable cause even compulsory searches of the suspect and his possessions and the use of the fruits of the search at trial, all in the absence of counsel. The Fifth Amendment and state constitutional provisions authorize, indeed require, inquisitorial grand jury proceedings at which a potential defendant, in the absence of counsel, is shielded against no more than compulsory incrimination. Mulloney v. United States, 79 F. 2d 566, 578 (C. A. 1st Cir.); United States v. Benjamin, 120 F. 2d 521, 522 (C. A. 2d Cir.); United States v. Scully, 225 F. 2d 113, 115 (C. A. 2d Cir.); United States v. Gilboy, 160 F. Supp. 442 (D. C. M. D. Pa.). A grand jury witness, who may be a suspect, is interrogated and his answers, at least until today, are admissible in evidence at trial. And these provisions have been thought of as constitutional safeguards to persons suspected of an offense. Furthermore, until now, the Constitution has permitted the accused to be fingerprinted and to be identified in a line-up or in the courtroom itself.

The Court chooses to ignore these matters and to rely on the virtues and morality of a system of criminal law enforcement which does not depend on the “confession.” No such judgment is to be found in the Constitution. It might be appropriate for a legislature to provide that a suspect should not be consulted during a criminal investigation ; that an accused should never be called before a grand jury to answer, even if he wants to, what may well be incriminating questions; and that no person, whether he be a suspect, guilty criminal or innocent bystander, should be put to the ordeal of responding to orderly non-compulsory inquiry by the State. But this is not the system our Constitution requires. The only “inquisitions” the Constitution forbids are those which compel incrimination. Escobedo’s statements were not compelled and the Court does not hold that they were.

This new American judges’ rule, which is to be applied in both federal and state courts, is perhaps thought to be a necessary safeguard against the possibility of extorted confessions. To this extent it reflects a deep-seated distrust of law enforcement officers everywhere, unsupported by relevant data or current material based upon our own experience. Obviously law enforcement officers can make mistakes and exceed their authority, as today’s decision shows that even judges can do, but I have somewhat more faith than the Court evidently has in the ability and desire of prosecutors and of the power of the appellate courts to discern and correct such violations of the law.

The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he mistakenly believes that he must and that his admissions will not be used against him. But this worry hardly calls for the broadside the Court has now fired. The failure to inform an accused that he need not answer and that his answers may be used against him is very relevant indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of constitutional rights. If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used against him. When the accused has not been informed of his rights at all the Court characteristically and properly looks very closely at the surrounding circumstances. See Ward v. Texas, 316 U. S. 547; Haley v. Ohio, 332 U. S. 596; Payne v. Arkansas, 356 U. S. 560. I would continue to do so. But in this case Danny Escobedo knew full well that he did not have to answer and knew full well that his lawyer had advised him not to answer.

I do not suggest for a moment that law enforcement will be destroyed by the rule announced today. The need for peace and order is too insistent for that. But it will be crippled and its task made a great deal more difficult, all in my opinion, for unsound, unstated reasons, which can find no home in any of the provisions of the Constitution.

       Petitioner testified that this ambiguous gesture “could have meant most anything,” but that he “took it upon [his] own to think that [the lawyer was telling him] not to say anything,” and that the lawyer “wanted to talk” to him.

       The statute then in effect provided in pertinent part that: “All public officers . . . having the custody of any person . . . restrained of his liberty for any alleged cause whatever, shall, except in cases of imminent danger of escape, admit any practicing attorney . . . whom such person . . . may desire to see or consult . . . Ill. Rev. Stat. (1959), c. 38, §477. Repealed as of Jan. 1, 1964, by Act approved Aug. 14, 1963, H. B. No. 851.

       The trial judge justified the handcuffing on the ground that it “is ordinary police procedure.”

       Compare Haynes v. Washington, 373 U. S. 503, 515 (decided on the same day as the decision of the Illinois Supreme Court here), where we said:
      “Our conclusion is in no way foreclosed, as the State contends, by the fact that the state trial judge or the jury may have reached a different result on this issue.
      “It is well settled that the duty of constitutional adjudication resting upon this Court requires that the question whether the Due Process Clause of the Fourteenth Amendment has been violated by admission into evidence of a coerced confession be the subject of an independent determination here, see, e. g., Ashcraft v. Tennessee, 322 U. S. 143, 147-148; ‘we cannot escape the responsibility of making our own examination of the record, Spano v. New York, 360 U. S. 315, 316.” (Emphasis in original.)

       Although there is testimony in the record that petitioner and his lawyer had previously discussed what petitioner should do in the event of interrogation, there is no evidence that they discussed what petitioner should, or could, do in the face of a false accusation that he had fired the fatal bullets.

       The English Judges’ Rules also recognize that a functional rather than a formal test must be applied and that, under circumstances such as those here, no special significance should be attached to formal indictment. The applicable Rule does not permit the police to question an accused, except in certain extremely limited situations not relevant here, at any time after the defendant “has been charged or informed that he may be 'prosecuted.” [1964] Crim. L. Rev. 166-170 (emphasis supplied). Although voluntary statements obtained in violation of these rules are not automatically excluded from evidence the judge may, in the exercise of his discretion, exclude them. “Recent eases suggest that perhaps the judges have been tightening up [and almost] inevitably, the effect of the new Rules will be to stimulate this tendency.” Id., at 182.

       Canon 9 of the American Bar Association’s Canon of Professional Ethics provides that:
      “A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.” See Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 Neb. L. Rev. 483, 599-604.

       Twenty-two States, including Illinois, urged us so to hold.

       The Soviet criminal code does not permit a lawyer to be present during the investigation. The Soviet trial has thus been aptly described as “an appeal from the pretrial investigation.” Feifer, Justice in Moscow (1964), 86.

       See Barrett, Police Practices and the Law — From Arrest to Release or Charge, 50 Cal. L. Rev. 11, 43 (1962).

       See Committee Print, Subcommittee to Investigate Administration of the Internal Security Act, Senate Committee on the Judiciary, 85th Cong., 1st Sess., reporting and analyzing the proceedings at the XXth Congress of the Communist Party of the Soviet Union, February 25, 1956, exposing the false confessions obtained during the Stalin purges of the 1930’s. See also Miller v. United States, 320 F. 2d 767, 772-773 (opinion of Chief Judge Bazelon); Lifton, Thought Reform and the Psychology of Totalism (1961); Rogge, Why Men Confess (1959); Schein, Coercive Persuasion (1961).

       See Stephen, History of the Criminal Law, quoted in 8 Wigmore, Evidence (3d ed. 1940), 312; Report and Recommendations of the Commissioners’ Committee on Police Arrests for Investigation, District of Columbia (1962).

       Cf. Report of Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice (1963), 10-11: “The survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. . . . Persons [denied access to counsel] are incapable of providing the challenges that are indispensable to satisfactory operation of the system. The loss to the interests of accused, individuals, occasioned by these failures, are great and apparent. It' is also clear that a situation in which persons are required to contest a serious accusation but are denied access to the tools of contest is offensive to fairness and equity. Beyond these considerations, however, is the fact that [this situation is] detrimental to the proper functioning of the system of justice and that the loss in vitality of the adversary system, thereby occasioned, significantly endangers the basic interests of a free community.”

       The accused may, of course, intelligently and knowingly waive his privilege against self-incrimination and his right to counsel either at a pretrial stage or at the trial. See Johnson v. Zerbst, 304 U. S. 458. But no knowing and intelligent waiver of any constitutional right can be said to have occurred under the circumstances of this case.

       The authority of Cicenia v. Lagay, 357 U. S. 504, and Crooker v. California, 357 U. S. 433, was weakened by the subsequent decisions of this Court in Hamilton v. Alabama, 368 U. S. 52, White v. Maryland, 373 U. S. 59, and Massiah v. United States, 377 U. S. 201 (as the dissenting opinion in the last-cited case recognized).

       “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

      “[I]t seeems from reported cases that the judges have given up enforcing their own rules, for it is no longer the practice to exclude evidence obtained by questioning in custody. ... A traditional principle of ‘fairness’ to criminals, which has quite possibly lost some of the reason for its existence, is maintained in words while it is disregarded in fact. . . .
      “The reader may be expecting at this point a vigorous denunciation of the police and of the judges, and a plea for a return to the Judges’ Rules as interpreted in 1930. What has to be considered, however, is whether these Rules are a workable part of the machinery of justice. Perhaps the truth is that the Rules have been abandoned, by tacit consent, just because they are 'an unreasonable restriction upon the activities of the police in bringing criminals to book.” Williams, Questioning by the Police: Some Practical Considerations, [1960] Crim. L. Rev. 325, 331-332. See also [1964] Crim. L. Rev. 161-182.


author: Mr. Justice Goldberg Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Clark, Mr. Justice White

text:
    APTHEKER et al. v. SECRETARY OF STATE.
    No. 461.
    Argued April 21, 1964.
    Decided June 22, 1964.

      John J. Abt and Joseph Forer argued the cause and filed briefs for appellants.

      Abram Chayes argued the cause for appellee. With him on the brief were Solicitor General Cox, Assistant Attorney General Yeagley, Bruce J. Terris, Kevin T. Maroney, Lee B. Anderson and Thomas Ehrlich.

      Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging, reversal.
   Mr. Justice Goldberg

delivered the opinion of the Court.

This appeal involves a single question: the constitutionality of § 6 of the Subversive Activities Control Act of 1950, 64 Stat. 993, 50 U. S. C. § 785. Section 6 provides in pertinent part that:

“(a) When a Communist organization ... is registered, or there is in effect a final order of the Board requiring such organization to register, it shall be unlawful for any member of such organization, with knowledge or notice that such organization is so registered or that such order has become final— “(1) to make application for a passport, or the renewal of a passport, to be issued or renewed by or under the authority of the United States; or “(2) to use or attempt to use any such passport.”

Section 6 became effective, with respect to appellants, on October 20, 1961, when a final order of the Subversive Activities Control Board issued directing the Communist Party of the United States to register under § 7 of the Subversive Activities Control Act. The registration order had been upheld earlier in 1961 by this Court’s decision in Communist Party of the United States v. Subversive Activities Control Board, 367 U. S. 1. Prior to issuance of the final registration order both appellants, who are native-born citizens and residents of the United States, had held valid passports. Subsequently, on January 22, 1962, the Acting Director of the Passport Office notified appellants that their passports were revoked because the Department of State believed that their use of the passports would violate § 6. Appellants were also notified of their right to seek administrative review of the revocations under Department of State regulations.

Appellants requested and received hearings to review the revocations of their passports. The respective hearing examiners concluded that “the Department of State had reason to believe that [appellants are] within the purview of Section 6 (a)(2) of the Subversive Activities Control Act . . . and as a result thereof . f . use of a passport would be in violation of the law.” On the basis of this conclusion the examiners recommended that the passport revocations be sustained. Both appellants appealed to the Board of Passport Appeals which recommended affirmance of the revocations. The Secretary of State subsequently approved the recommendations of the Board. The Secretary stated that he “relied solely on the evidence in the record” and that, as the basis of his decision, he:

“specifically adopted as his own the [Board’s] finding of fact that 'at all material times [appellants were members] of the Communist Party of the United States with knowledge or notice that such organization had been required to register as a Communist organization under the Subversive Activities Control Act.’ ”

Appellants thereupon filed separate complaints seeking declaratory and injunctive relief in the United States District Court for the District of Columbia. The complaints, which have been considered together, asked that judgments be entered declaring § 6 of the Subversive Activities Control Act unconstitutional and ordering the Secretary of State to issue passports to appellants. Each appellant-plaintiff alleged that § 6 was unconstitutional as, inter alia, “a deprivation without due process of law of plaintiff’s constitutional liberty to travel abroad, in violation of the Fifth Amendment to the Constitution of the United States.” Appellants conceded that the Secretary of State had an adequate basis for finding that they were members of the Communist Party of the United States and that the action revoking their passports was proper if § 6 was constitutional. The parties agreed that all administrative remedies had been exhausted and that it would be futile, and indeed a criminal offense, for either appellant to apply for a passport while remaining a member of the Communist Party.

The three-judge District Court, which was convened to review the constitutional question, rejected appellants’ contentions, sustained the constitutionality of § 6 of the Control Act, and granted the Secretary’s motion for summary judgment. 219 F. Supp. 709. The court concluded that:

“the enactment by Congress of section 6, which prohibits these plaintiffs from obtaining passports so long as they are members of an organization — in this case the Communist Party — under a final order to register with the Attorney General ... is a valid exercise of the power of Congress to protect and preserve our Government against the threat posed by the world Communist movement and that the regulatory scheme bears a reasonable relation thereto.” Id., at 714.

This Court noted probable jurisdiction. 375 U. S. 928.

Appellants attack § 6, both on its face and as applied, as an unconstitutional deprivation of the liberty guaranteed in the Bill of Rights. The Government, while conceding that the right to travel is protected by the Fifth Amendment, contends that the Due Process Clause does not prevent the reasonable regulation of liberty and that § 6 is a reasonable regulation because of its relation to the danger the world Communist movement presents for our national security. Alternatively, the Government argues that “whether or not denial of passports to some members of the Communist Party might be deemed not reasonably related to national security, surely Section 6 was reasonable as applied to the top-ranking Party leaders involved here.”

' We hold, for the reasons stated below, that § 6 of the Control Act too broadly and indiscriminately restricts the right to travel and thereby abridges the liberty guaranteed by the Fifth Amendment.

I.

In 1958 in Kent v. Dulles, 357 U. S. 116, 127, this Court declared that the right to travel abroad is “an important aspect of the citizen’s ‘liberty’ ” guaranteed in the Due Process Clause of the Fifth Amendment. The Court stated that:

“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” Id., at 125-126.

In Kent, however, the Court concluded that Congress had not conferred authority upon the Secretary of State to deny passports because of alleged Communist beliefs and associations. Therefore, although the decision protected the constitutional right to travel, the Court did not examine “the extent to which it can be curtailed.” Id., at 127. The Court, referring to § 6 of the Subversive Activities Control Act, noted that “the only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective.” Id., at 130. Two years later in Communist Party of the United States v. Subversive Activities Control Board, supra, this Court reviewed and upheld the registration requirement of § 7 of the Control Act. The Court, however, did not pass upon the “various consequences of the Party’s registration for its individual members,” id., at 70, because:

“It is wholly speculative now to foreshadow whether, or under what conditions, a member of the Party may in the future apply for a passport, or seek government or defense-facility or labor-union employment, or, being an alien, become a party to a naturalization or a denaturalization proceeding. None of these things may happen. If they do, appropriate administrative and judicial procedures will be available to test the constitutionality of applications of particular sections of the Act to particular persons in particular situations. Nothing justifies previsioning those issues now.” Id., at 79. (Emphasis added.)

The present case, therefore, is the first in which this Court has been called upon to consider the constitutionality of the restrictions which § 6 imposes on the right to travel.

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

Although previous cases have not involved the constitutionality of statutory restrictions upon the right to travel abroad, there are well-established principles by which to test whether the restrictions here imposed are consistent with the liberty guaranteed in the Fifth Amendment. It is a familiar and basic principle, recently reaffirmed in NAACP v. Alabama, 377 U. S. 288, 307, 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.” See, e. g., 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, 239; Martin v. 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. In applying this principle the Court in NAACP v. Alabama, supra, referred to the criteria enunciated in Shelton v. Tucker, supra, at 488:

“[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”

This principle requires that we consider the congressional purpose underlying § 6 of the Control Act. The Government emphasizes that the legislation in question flows, as the statute itself declares, from the congressional desire to protect our national security. That Congress under the Constitution has power to safeguard our Nation’s security is obvious and unarguable. Cf. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 159-160. As we said in Mendoza-Martinez, “while the Constitution protects against invasions of individual rights, it is not a suicide pact.” Id., at 160. At the same time the Constitution requires that the powers of government “must be so exercised as not, in attaining a permissible end," unduly to infringe” a constitutionally protected freedom. Cantwell v. Connecticut, supra, at 304.

Section 6 provides that any member of a Communist organization which has registered or has been ordered to register commits a crime if he attempts to use or obtain a United States passport. The section applies to members who act “with knowledge or notice” that the organization is under a final registration order. “Notice” is specifically defined in § 13 (k). That section provides that publication in the Federal Register of the fact of registration or of issuance of a final registration order “shall constitute notice to all members of such organization that such order has become final.” Thus the terms of § 6 apply whether or not the member actually knows or believes that he is associated with what is deemed to be a “Communist-action” or a “Communist-front” organization. The section also applies whether or not one knows or believes that he is associated with an organization operating to further aims of the world Communist movement and “to establish a Communist totalitarian dictatorship in the countries throughout the world . . .

64 Stat. 987, 50 U. S. C. § 781 (1). The provision therefore sweeps within its prohibition both knowing and unknowing members. In related contexts this Court has had occasion to consider the substantiality of the relationship between an individual and a group where, as here, the fact of membership in that group has been made the sole criterion for limiting the individual's freedom. In Wieman v. Updegraff, 344 U. S. 183, the Court held that the due process guarantee of the Constitution was violated when a State, in an attempt to bar disloyal individuals from its employ, excluded persons solely on the basis of organizational memberships without regard' to their knowledge concerning the organizations to which they had belonged. The Court concluded that: “Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power.” Id., at 191.

Section 6 also renders irrelevant the member’s degree of activity in the organization and his commitment to its purpose. These factors, like knowledge, would bear on the likelihood that travel by such a person would be attended by the type of activity which Congress sought to control. As the Court has elsewhere noted, “men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.” Cf. Schneiderman v. United States, 320 U. S. 118, 136. It was in this vein that the Court in Schware v. Board of Bar Examiners, 353 U. S., at 246, stated that even “[a]ssuming that some members of the Communist Party . . . had illegal aims and engaged in illegal activities, it cannot automatically be inferred that all members shared their evil purposes or participated in their illegal conduct.” Section 6, however, establishes an irrebuttable presumption that individuals who are members of the specified organizations will, if given passports, engage in activities inimical to the security of the United States.

In addition to the absence of criteria linking the bare fact of membership to the individual’s knowledge, activity or commitment, § 6 also excludes other considerations which might more closely relate the denial of passports to the stated purpose of the legislation. The prohibition of § 6 applies regardless of the purposes for which an individual wishes to travel. Under the statute it is a crime for a notified member of a registered organization to apply for a passport to travel abroad to visit a sick relative, to receive medical treatment, or for any other wholly innocent purpose. In determining whether there has been an abridgment of the Fifth Amendment’s guarantee of liberty, this Court must recognize the danger of punishing a member of a Communist organization “for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.” Noto v. United States, 367 U. S. 290, 299-300; Scales v. United States, 367 U. S. 203, 229-230. In addition it must be noted that § 6 applies to a member regardless of the security-sensitivity of the areas in which he wishes to travel. As a result, if a notified member of a registered organization were to apply for a passport to visit a relative in Ireland, or to read rare manuscripts in the Bodleian Library of Oxford University, the applicant would be guilty of a crime; whereas, if he were to travel to Canada or Latin America to carry on criminal activities directed against the United States, he could do so free from the prohibitive reach of § 6.

In determining the constitutionality of § 6, it is also important to consider that Congress has within its power “less drastic” means of achieving the congressional objective of safeguarding our national security. Shelton v. Tucker, 364 U. S., at 488. The Federal Employee Loyalty Program, which was before this Court in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, provides an example. Under Executive Order No. 9835, membership in a Communist organization is not considered conclusive but only as one factor to be weighed in determining the loyalty of an applicant or employee. It is relevant to note that less than a month after the decision in Kent v. Dulles, supra, President Eisenhower sent a message to Congress stating that: “Any limitations on the right to travel can only be tolerated in terms of overriding requirements of our national security, and must be subject to substantive and procedural guaranties.” Message from the President — Issuance of Passports, H. Doc. No. 417, 85th Cong., 2d Sess.; 104 Cong. Rec. 13046. The legislation which the President proposed did not make membership in a Communist organization, without more, a disqualification for obtaining a passport. S. 4110, H. R. 13318, 85th Cong., 2d Sess. Irrespective of views as to the validity of this or other such proposals, they demonstrate the conviction of the Executive Branch that our national security can be adequately protected by means which, when compared with § 6, are more dis-criminately tailored to the constitutional liberties of individuals.

In our view the foregoing considerations compel the conclusion that § 6 of the Control Act is unconstitutional on its face. The section, judged by its plain import and by the substantive evil which Congress sought to control, sweeps too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment. The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe. The broad and enveloping prohibition indiscriminately excludes plainly relevant considerations such as the individual's knowledge, activity, commitment, and purposes in and places for travel. The section therefore is patently not a regulation “narrowly drawn to prevent the supposed evil,” cf. Cantwell v. Connecticut, 310 U. S., at 307, yet here, as elsewhere, precision must be the touchstone of legislation so affecting basic freedoms, NAACP v. Button, 371 U. S., at 438.

II.

The Government alternatively urges that, if § 6 cannot be sustained on its face, the prohibition should nevertheless be held constitutional as applied to these particular appellants. The Government argues that “surely Section 6 was reasonable as applied to the top-ranking Party leaders involved here.” It is not disputed that appellants are top-ranking leaders: Appellant Aptheker is editor of Political Affairs, the “theoretical organ” of the Party in this country and appellant Flynn is chairman of the Party.

It must be remembered that “[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it. Scales v. United States, supra, at 211. To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects.

The clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting. The situation here is different from that in cases such as United States v. National Dairy Products Corp., 372 U. S. 29, where the Court is called upon to consider the content of allegedly vague statutory language. Here, in contrast, an attempt to “construe” the statute and to probe its recesses for some core of constitutionality would inject an element of vagueness into the statute’s scope and application; the plain words would thus become uncertain in meaning only if courts proceeded on a case-by-case basis to separate out constitutional from unconstitutional areas of coverage. This course would not be proper, or desirable, in dealing with a section which so severely curtails personal liberty.

Since this case involves a personal liberty protected by the Bill of Rights, we believe that the proper approach to legislation curtailing that liberty must be that adopted by this Court in NAACP v. Button, 371 U. S. 415, and Thornhill v. Alabama, 310 U. S. 88. In NAACP v. Button the Court stated that:

“[I]n appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 97-98; Winters v. New York, [333 U. S. 507], 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313. . . . The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U. S. 717, 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.” 371 U. S., at 432-433.

For essentially the same reasons this Court had concluded that the constitutionality of the statute in Thornhill v. Alabama should be judged on its face:

“An accused, after arrest and conviction under such a statute [on its face unconstitutionally abridging freedom of speech], does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him.” 310 U. S., at 98.

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

Accordingly the judgment of the three-judge District Court is reversed and the cause remanded for proceedings in conformity with this opinion.

Reversed and remanded.

Mr. Justice Black,

concurring.

Section 6 of the Subversive Activities Control Act makes it a felony for a member of a “Communist,” “Communist-action,” or “Communist-front” organization to apply for, use, or attempt to use a passport for travel abroad. I concur in the Court’s holding that this section of the Act is unconstitutional, but not on the ground that the Due Process Clause of the Fifth Amendment, standing alone, confers on all our people a constitutional liberty to travel abroad at will. Without reference to other constitutional provisions, Congress has, in my judgment, broad powers to regulate the issuance of passports under its specific power to regulate commerce with foreign nations. The Due Process Clauses of the Fifth and Fourteenth Amendments do mean to me, however, that neither the Secretary of State nor any other government agent can deny people in this country their liberty to travel or their liberty to do anything else except in accordance with the “law of the land” as declared by the Constitution or by valid laws made pursuant to it. For reasons stated in my dissenting opinion in Communist Party v. Subversive Activities Control Board, 367 U. S. 1, 137, I think the whole Act, including § 6, is not a valid law, that it sets up a comprehensive statutory plan which violates the Federal Constitution because (1) it constitutes a “Bill of Attainder,” which Art. I, § 9, of the Constitution forbids Congress to pass; (2) it penalizes and punishes appellants and restricts their liberty on legislative and administrative fact-findings that they are subversives, and in effect traitors to their country, without giving them the benefit of a trial according to due process, which requires a trial by jury before an independent judge, after an indictment, and in accordance with all the other procedural protections of the Fourth, Fifth, and Sixth Amendments; and (3) it denies appellants the freedom of speech, press, and association which the First Amendment guarantees.

The Subversive Activities Control Act is supposed to be designed to protect this Nation’s “internal security.” This case offers another appropriate occasion to point out that the Framers thought (and I agree) that the best way to promote the internal security of our people is to protect their First Amendment freedoms of speech, press, religion and assembly, and that we cannot take away the liberty of groups whose views most people detest without jeopardizing the liberty of all others whose views, though popular today, may themselves be detested tomorrow.

Mr. Justice Douglas,

concurring.

While I join the opinion of the Court, I add only a few words to indicate what I think is the basic reach of the problem before us.

We noted in Kent v. Dulles, 357 U. S. 116, 126, that “freedom of movement,” both internally and abroad, is “deeply engrained” in our history. I would not suppose that a Communist, any more than an indigent, could be barred from traveling interstate. I think that a Communist, the same as anyone else, has this right. Being a Communist certainly is not a crime; and while traveling may increase the likelihood of illegal events happening, so does being alive. If, as I think, the right to move freely from State to State is a privilege and immunity of national citizenship (see Edwards v. California, 314 U. S. 160, 178), none can be barred from exercising it, though anyone who uses it as an occasion to commit a crime can of course be punished. But the right remains sacrosanct, only illegal conduct being punishable.

Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interests of security. That is why riding boxcars carries extreme penalties in Communist lands. That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes, yet abhorrent in the United States.

Freedom of movement, at home and abroad, is important for job and business opportunities — for cultural, political, and social activities — for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as to give rise to punishable conduct is part of the price we pay for this free society.

Freedom of movement is kin to the right of assembly and to the right of association. These rights may not be abridged, De Jonge v. Oregon, 299 U. S. 353; NAACP v. Alabama, 357 U. S. 449, 460-462, only illegal conduct being within the purview of crime in the constitutional sense.

War may be the occasion for serious curtailment of liberty. Absent war, I see no way to keep a citizen from traveling within or without the country, unless there is power to detain him. Ex parte Endo, 323 U. S. 283. And no authority to detain exists except under extreme conditions, e. g., unless he has been convicted of a crime or unless there is probable cause for issuing a warrant of arrest by standards of the Fourth Amendment. This freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful— knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.

America is of course sovereign; but her sovereignty is woven in an international web that makes her one of the family of nations. The ties with all the continents are close — commercially as well as culturally. Our concerns are planetary, beyond sunrises and sunsets. Citizenship implicates us in those problems and perplexities, as well' as in domestic ones. We cannot exercise and enjoy citizenship in world perspective without the right to travel abroad; and I see no constitutional way to curb it unless, as I said, there is the power to detain.

Mr. Justice Clark,

whom Mr. Justice Harlan joins and whom Mr. Justice White joins in part,

dissenting.

I.

The Court refuses to consider the constitutionality of § 6 of the Subversive Activities Control Act as applied to the appellants in this case, Elizabeth Gurley Flynn, the Chairman of the Communist Party of the United States, and Herbert Aptheker, the editor of the Party’s “theoretical organ,” Political Affairs. Instead, the Court declares the section invalid on its face under the Fifth Amendment. This is contrary to the long-prevailing practice of this Court. As we said in United States v. Raines, 362 U. S. 17, 20-21 (1960):

“The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them. This was made patent in the first case here exercising that power — -‘the gravest and most delicate duty that this Court is called on to perform.’ [Holmes, J., in Blodgett v. Holden, 275 U. S. 142, 148.] Marbury v. Madison, 1 Cranch 137, 177-180. This Court, as is the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in. actual controversies. In the exercise of that jurisdiction, it is bound'by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U. S. 396; Heald v. District of Columbia, 259 U. S. 114, 123; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217; Collins v. Texas, 223 U. S. 288, 295-296; New York ex rel. Hatch v. Reardon, 204 U. S. 152, 160-161. Cf. Voeller v. Neilston Warehouse Co., 311 U. S. 531, 537; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 513; Virginian R. Co. v. System Federation, 300 U. S. 515, 558; Blackmer v. United States, 284 U. S. 421, 442; Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50, 54-55; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576; Tyler v. Judges of the Court of Registration, 179 U. S. 405; Ashwander v. TV A, 297 TJ. S. 288, 347-348 (concurring opinion).”

Indeed, only last Term we specifically held in United States v. National Dairy Products Corp., 372 U. S. 29, 36 (1963):

“In this connection we also note that the approach to ‘vagueness’ governing a case like this is different from that followed in cases arising under the First Amendment. There we are concerned with the vagueness of the statute ‘on its face’.... [In other cases we also consider the statute] in the light of the conduct to which it is applied.”

The Court says that National Dairy is not apposite, citing Thornhill v. Alabama, 310 U. S. 88, and NAACP v. Button, 371 U. S. 415. But Thornhill and Button are First Amendment cases, while the holding of this case is based on the Fifth Amendment’s guarantee of the right to travel abroad. Kent v. Dulles, 357 U. S. 116, 127 (1958). Consequently they are not apposite here.

As applied to the prosecution of the Communist Party’s top dignitaries, the section is clearly constitutional. The only objections the Court finds to the language of Congress are that it makes the section applicable: (1) “whether or not the member [of the Party] actually knows or believes that he is associated with what is deemed to be a ‘Communist-action’ or a ‘Communist-front’ organization”; (2) “whether or not one knows or believes that he is associated with an organization operating to further aims of the world Communist movement and ‘to establish a Communist totalitarian dictatorship in the countries throughout the world ....’” Let us discuss these objections seriatim:

(1) There is a finding here — not under attack — that Mrs. Flynn “was an active, participating and continuous member of the Communist Party of the United States; was active in the Party’s affairs and its organization; and indeed was and still is one of its principal officials.” Likewise there is a finding — not under attack — as to Aptheker that he “[Aptheker] makes it quite clear in his own words that he has been a member of the Communist Party since 1939 and that he is very proud of this association and will do whatever he can to further the aims and goals of the Party.” The record shows that both Flynn and Aptheker were witnesses in behalf of the Party in the registration proceeding which resulted in the Party’s being ordered to register as a Communist-action organization. Communist Party v. Subversive Activities Control Board, 367 U. S. 1 (1961). In addition, Mrs. Flynn was convicted under the Smith Act. See United States v. Flynn, 216 F. 2d 354 (1954). In view of these circumstances, no one could say with truth that the appellants did not know that they were associated with a Communist-action organization. In fact, neither appellant claims lack of notice or knowledge of the requirements of the section.

(2) As to knowledge that the Communist Party is involved in a world Communist movement aimed at establishing a totalitarian Communist dictatorship in countries throughout the world, Congress made specific findings in the Subversive Activities Control Act of 1950 (the very statute under which the hearing was held at which petitioners testified for the Party) and in the Communist Control Act of 1954 that: “the Communist Party of the United States ... is in fact an instrumentality of a conspiracy to overthrow the Government of the United States,” 68 Stat. 775; “the policies and programs of the Communist Party are secretly prescribed for it by the foreign leaders of the world Communist movement,” ibid.; this control is in a “Communist dictatorship of a foreign country,” whose purpose is “to establish a Communist totalitarian dictatorship in the countries throughout the world,” 64 Stat. 987; and this is to be accomplished by “action organizations” in various countries which seek “the overthrow of existing governments by any available means,” id., at 988. These findings of the Congress, like those of the Examiner which are not under attack here, are binding on this Court. Communist Party v. Control Board, supra. There we said:

“It is not for the courts to re-examine the validity of these legislative findings and reject them. See Harisiades v. Skaughnessy, 342 U. S. 580, 590. They are the product of extensive investigation by Committees of Congress over more than a decade and a half. Cf. Nebbia v. New York, 291 U. S. 502, 516, 530. We certainly cannot dismiss them as unfounded or irrational imaginings. See Galvan v. Press, 347 U. S. 522, 529; American Communications Assn. v. Douds, 339 U. S. 382, 388-389.” At 94-95.

It is, therefore, difficult for me to see how it can be said rationally that these appellants — top Party functionaries who testified on behalf of the Party in the registration proceeding involved in Communist Party v. Control Board, supra — did not know that they were “associated with an organization operating to further aims of the world Communist movement and To establish a Communist totalitarian dictatorship in the countries throughout the world

How does the Court escape? It says that the section “sweeps within its prohibition both knowing and unknowing members.” But we have no “unknowing members” before us. Neither appellant contests these findings. All we have are irrational imaginings: a member of the Party might wish “to visit a relative in Ireland, or to read rare manuscripts in the Bodleian Library of Oxford University . . . .” But no such party is here and no such claim is asserted. It will be soon enough to test this situation when it comes here.

II.

Nor do I believe the section invalid “on its face.” While the right to travel abroad is a part of the liberty protected by the Fifth Amendment, the Due Process Clause does not prohibit reasonable regulation of life, liberty or property. Here the restriction is reasonably related to the national security. As we said in Barenblatt v. United States, 360 U. S. 109, 127-128 (1959):

“That Congress has wide power to legislate in the field of Communist activity in this Country, and to conduct appropriate investigations in aid thereof, is hardly debatable. The existence of such power has never been questioned by this Court .... In the last analysis this power rests on the right of self-preservation, The ultimate value of any society, Dennis v. United States, 341 U. S. 494, 509.”

The right to travel is not absolute. Congress had ample evidence that use of passports by Americans belonging to the world Communist movement is a threat to our national security. Passports were denied to Communists from the time of the Soviet Revolution until the early 30’s and then again later in the 40’s. In 1950 Congress determined, in the Subversive Activities Control Act, that foreign travel “is a prerequisite for the carrying on of activities to further the purposes of the Communist movement.” 64 Stat. 988. The Congress had before it evidence that such use of passports by Communist Party members: enabled the leaders of the world Communist movement in the Soviet Union to give orders to their comrades in the United States and to exchange vital secrets as well; facilitated the training of American Communist leaders by experts in sabotage and the like in Moscow; gave closer central control to the world Communist movement; and, of utmost importance, provided world Communist leaders with passports for Soviet secret agents to use in the United States for espionage purposes. This evidence afforded the Congress a rational basis upon which to place the denial of passports to members of the Communist Party in the United States. The denial is reasonably related to the national security. The degree of restraint upon travel is outweighed by the dangers to our very existence.

The remedy adopted by the Congress is reasonably tailored to accomplish the purpose. It may be true that not every member of the Party would endanger our national security by traveling abroad, but which Communist Party member is worthy of trust? Since the Party is a secret, conspiratorial organization subject to rigid discipline by Moscow, the Congress merely determined that it was' not wise to take the risk which foreign travel by Communists entailed. The fact that all persons in a class may not engage in harmful conduct does not of itself make the classification invalid. Westfall v. United States, 274 U. S. 256, 259 (1927); North American Co. v. Securities & Exchange Comm’n, 327 U. S. 686, 710-711 (1946); American Communications Assn. v. Douds, 339 U. S. 382, 406 (1950). In Schneiderman v. United States, 320 U. S. 118, 132, 163, 172 (1943), this Court indicated that Congress might exclude all Communists from entering this country. And in Hawker v. New York, 170 U. S. 189 (1898), the Court upheld a state statute preventing all felons from practicing medicine; similarly, all aliens may be barred from operating pool halls, Clarke v. Deckebach, 274 U. S. 392, 396-397 (1927). More onerous burdens than those found in § 6 were placed on all union officers (whose organization was enjoying privileges under the National Labor Relations Act), who were barred from their offices (and livelihood in that regard) if they were Communist Party members. American Communications Assn. v. Douds, supra. Likewise, this Court approved the action of the Congress in authorizing deportation of all aliens who had been members of the Party. Harisiades v. Shaughnessy, 342 U. S. 580, 590 (1952); Galvan v. Press, 347 U. S. 522 (1954). We also upheld the vesting of power in the Attorney General to hold all Communist Party members without bail pending determination as to their deportability. Carlson v. Landon, 342 U. S. 524 (1952). In the realm of state power, Maryland was permitted to require all candidates to take an oath that they were not engaged in any attempt to overthrow the Government by force and violence, Gerende v. Board of Supervisors, 341 U. S. 56 (1951); Los Angeles was allowed to require all employees to take a non-Communist oath on penalty of discharge, Garner v. Board of Public Works, 341 U. S. 716 (1951); New York exercised similar powers over public school employees with our approval, Adler v. Board of Education, 342 U. S. 485 (1952); the States were permitted to discharge all teachers and “security agency” employees who refused to answer questions concerning their Communist affiliations, Beilan v. Board of Public Education, 357 U. S. 399 (1958); Lerner v. Casey, 357 U. S. 468 (1958); and California and Illinois were permitted to deny admission to the practice of law of all applicants who refused to answer questions as to their Communist affiliations, Konigsberg v. State Bar, 366 U. S. 36 (1961), and In re Anastaplo, 366 U. S. 82 (1961).

Nor do I subscribe to the loose generalization that individual guilt may be conclusively presumed from membership in the Party. One cannot consider the matter in isolation but must relate it to the subject matter involved and the legislative findings upon which the action is based. It is true that in Scales v. United States, 367 U. S. 203 (1961), the Court found that the intention of the Congress in the Smith Act was “to reach only ‘active' members having also a guilty knowledge and intent.” At 228. But that was a criminal prosecution under the Smith Act which, of course, carried stricter standards. And, in addition, this requirement, as laid down in Scales, was not held to be a constitutional mandate. The Court was merely interpreting a criminal statute which directly prohibits membership in organizations that come within its terms. The Act here does not prohibit membership, but merely restricts members in a field in which the Congress has found danger to our security. Nor is Wieman v. TJpdegraff, 344 U. S. 183 (1952), cited by the majority, apposite here. That case dealt with an oath based on membership in organizations on the Attorney General’s list of subversive groups. The Act condemned the employee who was a member of any listed organization regardless of whether he actually knew the organization was so listed; furthermore, the statute proscribed past membership in the listed organizations. Here proof of actual membership is necessary and notice of registration or entry of a final order directing registration under the Act is required. Finally, the member of the Party here can avoid the Act’s sanctions by terminating his membership, which was not possible in Wieman. Appellants also depend on Adler v. Board of Education, 342 TJ. S. 485 (1952), which upheld a statute with a rebuttable presumption that members of the Party supported Communist objectives. The Court did not hold that the opportunity to rebut was constitutionally required in the circumstances of that case, but even if it had, Adler would not control here. The evidence before Congress as to the danger to national security was of such strength that it warranted the denial of passports, a much less onerous disability than loss of employment.

For these reasons, I would affirm.

Mr. Justice White

joins in Section I of this dissent and for the reasons stated therein would affirm the judgment.

       Paragraph 5 of § 3 of the Act provides that: “For the purposes of this subchapter . . . [t]he term ‘Communist organization’ means any Communist-action organization, Communist-front organization, or Communist-infiltrated organization.” 64 Stat. 990, as amended, 68 Stat. 777, 50 U. S. C. § 782.

       Section 6 (b) provides that:
      “When an organization is registered, or there is in effect a final order of the Board requiring an organization to register, as a Communist-action organization, it shall be unlawful for any officer or employee of the United States to issue a passport to, or renew the passport of, any individual knowing or having reason to believe that such individual is a member of such organization.”
      The criminal penalties for violations of § 6 are specified in § 15 (c) of the Act which provides in pertinent part that:
      “Any individual who violates any provision of section 5, 6, or 10 of this title shall, upon conviction thereof, be punished for each such violation by a fine of not more than $10,000 or by imprisonment for not more than five years, or by both such fine and imprisonment.” 64 Stat. 1003, 50 U. S. C. § 794 (c).

       Appellants do not question that the hearings afforded them procedural due process of law. Cf. Greene v. McElroy, 360 U. S. 474.

         Each complaint further alleged that § 6 was unconstitutional as: “(b) an abridgement of plaintiff’s freedoms of speech, press and assembly, in violation of the First Amendment, (c) a penalty imposed on plaintiff without a judicial trial, and therefore a bill of attainder, in violation of Article I, section 9 of the Constitution, (d) a deprivation of plaintiff’s right to trial by jury as required by the Fifth and Sixth Amendments and Article III, section 2, clause 3 of the Constitution, and (e) the imposition of a cruel and unusual punishment in violation of the Eighth Amendment.”
      Our disposition of this case makes it unnecessary to review these contentions.

       In Bolling v. Sharpe, 347 U. S. 497, 499-500, this Court stated that: “Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”

       See note 1, supra.

        E. g., Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U. S. 1; Gibson v. Florida Legislative Investigation Comm., 372 U. S. 539; NAACP v. Button, 371 U. S. 415; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293; Shelton v. Tucker, 364 U. S. 479; Bates v. City of Little Rock, 361 U. S. 516; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449; Schneider v. State, 308 U. S. 147.

       The purpose of the Act is stated in § 2. 64 Stat. 987, 50 U. S. C. §781. Congress found, as is generally stated in §2 (1), that there “exists a world Communist movement . . . whose purpose it is, by treachery, deceit, infiltration . . . , espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.” Congress concluded, as stated in §2 (15), that the “Communist organization in the United States” and the world Communist movement present a danger to the security of the United States, a danger requiring legislative action. The congressional purpose in adopting § 6 is more specifically stated in § 2 (8):
      “Due to the nature and scope of the world Communist movement, with the existence of affiliated constituent elements working toward common objectives in various countries of the world, travel of Communist members, representatives, and agents from country to country facilitates communication and is a prerequisite for the carrying on of activities to further the purposes of the Communist movement.”

       The provision in question cannot, as the Government admits, be limited by adopting an interpretation analogous to this Court’s interpretation of the so-called “membership clause” in the Smith Act. In Scales v. United States, 367 U. S. 203, the Smith Act, which imposes criminal penalties for membership, was interpreted to include only “ ‘active’ members having also a guilty knowledge and intent.” Id., at 228. The membership clause in that case, however, explicitly required “that a defendant must have knowledge of the organization’s illegal advocacy.” Id., at 221. That requirement was intimately connected with the construction limiting membership to “active” members. With regard to the Control Act, however, as the Government concedes, “neither the words nor history of Section 6 suggests limiting its application to ‘active’ members.”

       In denying appellants passports the Secretary of State made no finding as to their purposes in traveling abroad. The statute, as noted, supports the Secretary’s implicit conclusion that such a finding was irrelevant. Appellants, however, in their respective complaints stated their purposes. Appellant Aptheker alleged that:
      “He desires to travel to countries of Europe and elsewhere for study and recreation, to observe social, political and economic conditions abroad, and thereafter to write, publish, teach and lecture in this country about his observations. He also desires to travel abroad in order to attend meetings of learned societies and to fulfill invitations to lecture abroad.”
      Appellant Flynn alleged that:
      “[She] desires to travel to countries of Europe and elsewhere for recreation and study, to observe social, political and economic conditions abroad, and thereafter to write, publish and lecture about her observations.”

       The abridgment of liberty involved in this ease is more “drastic” than, and distinguishable from, that involved in American Communications Assn. v. Douds, 339 U. S. 382. In Douds the Court upheld § 9 (h) of the National Labor Relations Act as amended by the Taft-Hartley Act, 61 Stat. 136, 146, 29 U. S. C. § 159 (h), which conditions trade-union access to the facilities of the National Labor Relations Board upon the submission of non-Communist affidavits by officers of the union. Although the requirement undoubtedly discouraged unions from choosing officers with Communist affiliations, it did not prohibit their election and did not affect basic individual rights to work and to union membership.

       In 1950 the Assistant to the Attorney General of the United States, Peyton Ford, expressed to Congress the views of the Department of Justice with regard to a proposed government loyalty bill which predicated a conclusive presumption of disloyalty on the fact of organizational membership. Mr. Ford said:
      “A world of difference exists, from the standpoint of sound policy and constitutional validity, between making, as the bill would, membership in an organization designated by the Attorney General a felony, and recognizing such membership, as does the employee loyalty program under Executive Order 9835, as merely one piece of evidence pointing to possible disloyalty. The bill would brand the member of a listed organization a felon, no matter how innocent his membership ; the loyalty program enables the member to respond to charges against him and to show, in a manner consistent with American concepts of justice and fairness, that his membership is innocent and does not reflect upon his loyalty.
      “. . . It does not appear, therefore, necessary, even if constitutionally possible, to add to existing law and regulations at the present time a penal statute such as proposed in the bill.
      “The foregoing comments represent the considered views of this Department, having in mind that it is the duty of the Attorney General to protect the rights of individuals guaranteed by the Constitution, as well as to protect the Government from subversion.” Hearings on H. R. 3903 and H. R. 7595 before the House Committee on Un-American Activities, 81st Cong., 2d Sess., 2125.

       The Government recognizes, however, that: “Membership, or even leadership, in the Communist Party is not automatically a crime.” Brief for Petitioner on Petition for a Writ of Certiorari, p. 11, United States v. Communist Party of the United States, No. 1027, O. T. 1963, cert. denied, 377 U. S. 968.

       For appellants’ alleged purposes in traveling, see note 10, supra.

       See Freund, The Supreme Court of the United States (1961), pp. 67-69; Note, 61 Harv. L. Rev. 1208 (1948); Note, 109 U. Pa. L. Rev. 67, 75-85 (1960).

       Nor in our opinion should the Secretary of State or other government officers be exposed to the risk of criminal penalties for violating § 6 (b) by issuing a passport to a member of a registered Communist-action organization who is subsequently found by a court to be a person whose travel, contrary to the belief of the government officer, could constitutionally be prohibited.

       In the proceeding which led to the order of the Subversive Activities Control Board directing the Communist Party to register, the Board heard evidence that the present leaders of the Communist Party in the United States have traveled to the Soviet Union on Party business, have been indoctrinated and trained in Communist strategy and policies and have acted as couriers between the Communist Parties of the two countries.