Aptheker v. Secretary of State
The Supreme Court struck down a Cold War-era law that made it a crime for members of registered Communist organizations to apply for or use a U.S. passport, ruling that the ban swept too broadly and violated the constitutional right to travel abroad.
The decision means passport denials based purely on Communist Party membership can no longer stand, even for top party leaders, because the law ignored whether a person actually knew about the group's aims, was actively involved, or wanted to travel for entirely innocent reasons.
“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.”
The core constitutional principle the Court used to strike down the passport ban.
How it got here: A three-judge federal district court upheld the law and granted summary judgment for the Secretary of State; the plaintiffs appealed directly to the Supreme Court.
The Case in Depth
What happened
Herbert Aptheker, editor of the Communist Party's theoretical journal, and Elizabeth Gurley Flynn, the Party's chairwoman, had their U.S. passports revoked after the Party was ordered to register as a Communist organization. A federal law made it a crime for members of such registered groups to apply for or use passports, regardless of their individual conduct or travel purpose.
The question before the Court
Could Congress make it a crime for members of a Communist organization to get or use a U.S. passport, just because of their membership?
Why it matters
Americans cannot be barred from getting a passport solely because of membership in a disfavored political organization, without any inquiry into their individual knowledge, activity, or purpose for traveling. The ruling limits how far Congress can go in restricting travel abroad in the name of national security, protecting a liberty the Court said is closely tied to free speech and association.
What changes now
The case was reversed and remanded to the district court for further proceedings consistent with the Supreme Court's ruling, which effectively required that the passport denials be undone since the underlying statute was invalid. The decision is a final ruling on the constitutional question, though it left open how Congress might write a narrower travel restriction and did not decide claims under the First, Sixth, or Eighth Amendments raised earlier in the litigation.
What this does not decide
The Court did not decide whether Congress could ever pass a more narrowly tailored law restricting travel by Communist Party members, nor did it reach the plaintiffs' separate claims that the law was an unconstitutional bill of attainder or violated free speech, jury trial, or cruel-and-unusual-punishment guarantees.
Concurrences and dissents
Concurrence — Justice Black
Justice Black agreed the law was unconstitutional but not because the Due Process Clause alone guarantees a right to travel abroad; he thought Congress could regulate passports under its foreign commerce power. He argued the entire Subversive Activities Control Act, including this section, was invalid because it functioned as a bill of attainder, punished people without a proper judicial trial, and violated First Amendment rights of speech, press, and association.
Concurrence — Justice Douglas
Justice Douglas joined the majority but wrote separately to emphasize that freedom of movement is a fundamental right belonging to everyone, including Communists, and that only actual illegal conduct—not mere group membership or the risk of future wrongdoing—can justify restricting it. He argued the right to travel is essential to exercising other freedoms like speech and association.
Dissent — Justice Clark
“which Communist Party member is worthy of trust?”Clark's rhetorical defense of treating all Communist Party members alike for passport purposes.
Justice Clark argued the Court should have decided only whether the law was constitutional as applied to these two top Communist Party leaders, both of whom admittedly knew of the organization's registration and aims, rather than striking the law down on its face. He contended Congress had ample evidence that Communist Party members' foreign travel threatened national security, that the restriction was reasonably tailored to that danger, and that the law was distinguishable from precedents like Wieman because it required proof of actual knowing membership and let members escape its reach by quitting the Party.
Dissent — Justice White
Justice White joined only the first section of Justice Clark's dissent, agreeing that the law was constitutional as applied to these particular top-ranking Communist Party leaders and that the case should not have been resolved on a facial basis.
How the Court got there
The legal reasoning, step by step
- The Court applied the principle that even a legitimate government purpose cannot be pursued through means that sweep so broadly they needlessly invade constitutionally protected freedoms, when a narrower approach could achieve the same goal.
- The Court found the travel ban applied to all members of a registered organization regardless of whether they personally knew the group's illegal aims, how active they were, or what they intended to accomplish by traveling.
- Because the law treated innocent and knowing members alike and barred travel for reasons entirely unrelated to national security, such as visiting a sick relative, the Court held it created an irrebuttable presumption of danger from bare membership alone.
- The Court noted that less restrictive alternatives existed, such as treating organizational membership as one factor among several in a broader loyalty determination, showing that Congress's security goals could be met without such a sweeping ban.
- Because the statute's language could not be narrowed through case-by-case interpretation without substantially rewriting it, the Court evaluated the law on its face rather than only as applied to the two Communist Party leaders before it.
- Applying these standards, the Court concluded the law's broad and indiscriminate restriction on travel could not be reconciled with the liberty protected by the Fifth Amendment's Due Process Clause.
Doctrinal impact
Cases affected by this decision
Reaffirms Kent v. Dulles (357 U.S. 116)
Reaffirms that the right to travel abroad is part of the liberty protected by the Fifth Amendment's Due Process Clause.
Distinguishes Communist Party of the United States v. Subversive Activities Control Board (367 U.S. 1)
Notes that case upheld only the registration requirement and expressly left open the passport restriction's constitutionality.
Reaffirms Wieman v. Updegraff (344 U.S. 183)
Relies on its rule that punishing innocent and knowing group members alike is an arbitrary exercise of power.