Aptheker v. Secretary of State, 378 U.S. 500 (1964), was a landmark decision of the US Supreme Court on the right to travel and passport restrictions as they relate to Fifth Amendment due process rights and First Amendment free speech, freedom of assembly and freedom of association rights. It is the first case in which the US Supreme Court considered the constitutionality of personal restrictions on the right to travel abroad.
In Aptheker, the petitioner challenged Section 6 of the Subversive Activities Control Act of 1950, which made it a crime for any member of a Communist organization to attempt to use or obtain a passport.
Background
Appellants Herbert Aptheker and Elizabeth Gurley Flynn were native born citizens and residents of the United States and had held valid passports. Aptheker was editor of Political Affairs, the 'theoretical organ' of the Communist Party in the United States and appellant Flynn was chairman of the Party. 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 of the Subversive Activities Control Act of 1950 which provided that it was unlawful for any member of a Communist party to apply for or to renew a US passport or to use such a passport.
Appellants requested and received hearings to review the revocations of their passports. 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.
Appellants thereupon filed separate complaints seeking declaratory and injunctive relief in the United States District Court for the District of Columbia. The complaints asked that judgments be entered declaring § 6 unconstitutional and ordering the Secretary of State to issue passports to appellants. Appellant-plaintiffs 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."
The three-judge District Court rejected appellants' contentions, sustained the constitutionality of § 6 of the Control Act, and granted the Secretary's motion for summary judgment, concluding that the enactment by Congress of § 6 was a valid exercise of the power of Congress to protect and preserve the Government against the threat posed by the world Communist movement and that the regulatory scheme bore a reasonable relation thereto.
In the US Supreme Court, appellants attacked § 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, contended that the Due Process Clause does not prevent the reasonable regulation of liberty and that § 6 was a reasonable regulation because of its relation to the danger the world Communist movement presented for national security. Alternatively, the Government argued 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.
Opinion of the Court
Justice Goldberg held, with Justices Black and Douglas concurring, that § 6 of the Control Act too broadly and indiscriminately restricted the right to travel and thereby abridged the liberty guaranteed by the Fifth Amendment and that § 6 of the Control Act was unconstitutional on its face. As to the government's alternative theory, the clarity and preciseness of the provision in question made it impossible to narrow its indiscriminately cast and overly broad scope without substantial judicial rewriting which was beyond the power of the Court in this case.