Kleindienst v. Mandel/Dissent Marshall

by Thurgood Marshall

[p774] MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.

Dr. Ernest Mandel, a citizen of Belgium, is an internationally famous Marxist scholar and journalist. He was invited to our country by a group of American scholars who wished to meet him for discussion and debate. With firm plans for conferences, colloquia and lectures, the American hosts were stunned to learn that Mandel had been refused permission to enter our country. American consular officials had found Mandel [p775] "ineligible" to receive a visa under §§ 212 (a)(28)(D) and (G)(v) of the Immigration and Nationality Act of 1952, 66 Stat. 185, which bars even temporary visits to the United States by aliens who "advocate the economic, international, and governmental doctrines of world communism" or "who write or publish... any written or printed matter... advocating or teaching" such doctrines. Under § 212 (d)(3), the Attorney General refused to waive inadmissibility.

I, too, am stunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission. I am convinced that Americans cannot be denied the opportunity to hear Dr. Mandel's views in person because their Government disapproves of his ideas. Therefore, I dissent from today's decision and would affirm the judgment of the court below.

I

As the majority correctly demonstrates, in a variety of contexts this Court has held that the First Amendment protects the right to receive information and ideas, the freedom to hear as well as the freedom to speak. The reason for this is that the First Amendment protects a process, in Justice Brandeis' words, "reason as applied through public discussion," Whitney v. California, 274 U.S. 357, 375 (1927) (concurring opinion); and the right to speak and hear—including the right to inform others and to be informed about public issues—are inextricably part of that process. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion. The activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought is the "means indispensable to the discovery and spread of political truth." Ibid.; see Terminiello v. Chicago, 337 U.S. 1, 4 (1949). Its [p776] protection is "a fundamental principle of the American government." Whitney v. California, supra, at 375. The First Amendment means that Government has no power to thwart the process of free discussion, to "abridge" the freedoms necessary to make that process work. See Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (BRENNAN, J., concurring, with whom Goldberg and Harlan, JJ., joined).

There can be no doubt that by denying the American appellees access to Dr. Mandel, the Government has directly prevented the free interchange of ideas guaranteed by the First Amendment.^[1] It has, of course, interfered with appellees' personal rights both to hear Mandel's views and to develop and articulate their own views through interaction with Mandel. But as the court below recognized, apart from appellees' interests, there is also a "general public interest in the prevention of any stifling of political utterance." 325 F. Supp. 620, 632 (1971). And the Government has interfered with that as well.^[2]

II

[p777] What is the justification for this extraordinary governmental interference with the liberty of American citizens? And by what reasoning does the Court uphold Mandel's exclusion? It is established constitutional doctrine, after all, that government may restrict First Amendment rights only if the restriction is necessary to further a compelling governmental interest. E.g., Lamont v. Postmaster General, supra, at 308; NAACP v. Button, 371 U.S. 415, 438 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546 (1963); Shelton v. Tucker, 364 U.S. 479 (1960).

A. Today's majority apparently holds that Mandel may be excluded and Americans' First Amendment rights restricted because the Attorney General has given a "facially legitimate and bona fide reason" for refusing to waive Mandel's visa ineligibility. I do not understand the source of this unusual standard. Merely "legitimate" governmental interests cannot override constitutional rights. Moreover, the majority demands only "facial" legitimacy and good faith, by which it means that this Court will never "look behind" any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive, [p778], nor can I imagine (nor am I told) the slightest justification for such a rule.^[3]

Even the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham. The Attorney General informed appellees' counsel that the waiver was refused because Mandel's activities on a previous American visit "went far beyond the stated purposes of his trip... and represented a flagrant abuse of the opportunities afforded him to express his views in this country." App. 68. But, as the Department of State had already conceded to appellees' counsel, Dr. Mandel "was apparently not informed that [his previous'] visa was issued only after obtaining a waiver of ineligibility and therefore [Mandel] may not have been aware of the conditions and limitations attached to the [previous] visa issuance." App. 22. There is no basis in the present record for concluding that Mandel's behavior on his previous visit was a "flagrant abuse"—or even willful or knowing departure—from visa restrictions. For good reason, the Government in this litigation has never relied on the Attorney General's reason to justify Mandel's exclusion. In these circumstances, the Attorney General's reason cannot possibly support a decision for the Government in this case. But without even remanding for a factual hearing to see if there is any support for the Attorney General's determination, the majority declares that his reason is sufficient to override appellee's First Amendment interests.

B. Even if the Attorney General had given a [p779] compelling reason for declining to grant a waiver under § 212 (d)(3)(A), this would not, for me, end the case. As I understand the statutory scheme, Mandel is "ineligible" for a visa, and therefore inadmissibly, solely because, within the terms of § 212 (a)(28), he has advocated communist doctrine and has published writings advocating that doctrine. The waiver question under § 212 (d)(3)(A) is totally secondary and dependent, since it is triggered here only by a determination of (a)(28) ineligibility. The Attorney General's refusal to grant a waiver does not itself generate a new statutory basis for exclusion; he has no roving power to set new ad hoc standards for visa ineligibility. Rather, the Attorney General's refusal to waive ineligibility simply has the same effect as if no waiver provision existed; inadmissibility still rests on the (a)(28) determination. Thus, whether or not the Attorney General had a good reason for refusing a waiver, this Court, I think, must still face the question it tries to avoid: under our Constitution, may Mandel be declared ineligible under (a)(28)?

C. Accordingly, I turn to the constitutionality of the sole justification given by the government here and below for excluding Mandel—that he "advocates" and "publish[es]... printed matter... advocating... doctrines of world communism" within the terms of § 212 (a)(28).

Still adhering to standard First Amendment doctrine, I do not see how (a)(28) can possibly represent a compelling governmental interest that overrides appellees' interests in hearing Mandel.^[4] Unlike (a)(27) or (a)(29), [p780] (a)(28) does not claim to exclude aliens who are likely to engage in subversive activity or who represent an active and present threat to the "welfare, safety, or security of the United States." Rather, (a)(28) excludes aliens solely because they have advocated communist doctrine. Our cases make clear, however, that government has no legitimate interest in stopping the flow of ideas. It has no power to restrict the mere advocacy of communist doctrine, divorced from incitement to imminent lawless action. Noto v. United States, 367 U.S. 290, 297-298 (1961); Brandenburg v. Ohio, 395 U.S. 444, 447-449 (1969). For those who are not sure that they have attained the final and absolute truth, all ideas, even those forcefully urged, are a contribution to the ongoing political dialogue. The First Amendment represents the view of the Framers that "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones"—"more speech." Whitney v. California, 274 U.S., at 375, 377 (Brandeis, J., concurring). If Americans want to hear about Marxist doctrine, even from advocates, government cannot intervene simply because it does not approve of the ideas. It certainly may not selectively pick and choose which ideas it will let into the country. But, as the court below put it, § 212 (a)(28) is nothing more than "a means of restraining the entry of disfavored political doctrine," 325 F. Supp., at 626, and such an enactment cannot justify the abridgment of appellees' First Amendment rights.

[p781] In saying these things, I am merely repeating established First Amendment law. Indeed, this Court has already applied that law in a case concerning the entry of communist doctrine from foreign lands. In Lamont v. Postmaster General, 381 U.S. 301 (1965), this Court held that the right of an American addressee to receive communist political propaganda from abroad could not be fettered by requiring the addressee to request in writing its delivery from the Post Office. See id., at 308 (BRENNAN, J., concurring). The burden imposed on the right to receive information in our case is far greater than in Lamont, with far less justification. In Lamont, the challenged law merely regulated the flow of mail, and required the Postmaster General to forward detained mail immediately upon request by the addressee. By contrast, through § 212 (a)(28), the Government claims absolute power to bar Mandel permanently from academic meetings in this country. Moreover, in Lamont, the Government argued that its interest was not to censor content but rather to protect Americans from receiving unwanted mail. Here, Mandel's exclusion is not incident to a legitimate regulatory objective, but is based directly on the subject matter of his beliefs.

D. The heart of appellants' position in this case, and the basis for their distinguishing Lamont, is that the Government's power is distinctively broad and unreviewable because "[t]he regulation in question is directed at the admission of aliens." Brief for Appellants 33. Thus, in the appellants' view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the "political" branches of Government, Congress, and the Executive.

These cases are not the strongest precedents in the United States Reports, and the majority's baroque approach reveals its reluctance to rely on them completely. [p782] They include such milestones as The Chinese Exclusion Case, 130 U.S. 581 (1889), and Fong Yue Ting v. United States, 149 U.S. 698 (1893), in which this Court upheld the Government's power to exclude and expel Chinese aliens from our midst.

But none of these old cases must be "reconsidered" or overruled to strike down Dr. Mandel's exclusion, for none of them was concerned with the rights of American citizens. All of them involved only rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute. "When Congress' exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our 'delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated." United States v. Robel, 389 U.S. 258, 264 (1967). As Robel and many other cases^[5] show, all governmental [p783] power—even the war power, the power to maintain national security, or the power to conduct foreign affairs—is limited by the Bill of Rights. When individual freedoms of Americans are at stake, we do not blindly defer to broad claims of the Legislative Branch or Executive Branch, but rather we consider those claims in light of the individual freedoms. This should be our approach in the present case; even though the Government urges that the question of admitting aliens may involve foreign relations and national defense policies.

The majority recognizes that the right of American citizens to hear Mandel is "implicated" in our case. There were no rights of Americans involved in any of the old alien exclusion cases, and therefore their broad counsel about deference to the political branches is inapplicable. Surely a Court that can distinguish between pre-indictment and post-indictment lineups, Kirby v. Illinois, 406 U.S. 682 (1972), can distinguish between our case and cases which involve only the rights of aliens.

I do not mean to suggest that simply because some Americans wish to hear an alien speak, they can automatically compel even his temporary admission to our country. Government may prohibit aliens from even temporary admission if exclusion is necessary to protect a compelling government interest.^[6] Actual threats to the national security, public health needs, and genuine requirements of law enforcement are the most apparent [p784] interests that would surely be compelling.^[7] But in Dr. Mandel's case, the Government has, and claims, no such compelling interest. Mandel's visa was to be temporary.^[8] His "ineligibility" for a visa was based solely on § 212 (a)(28). The only governmental interest embodied in that section is the Government's desire to keep certain ideas out of circulation in this country. This is hardly a compelling governmental interest. Section (a)(28) may not be the basis for excluding an alien when Americans wish to hear him. Without any claim that Mandel "live" is an actual threat to this country, there is no difference between excluding Mandel because of his ideas and keeping his books out because of their ideas. Neither is permitted. Lamont v. Postmaster General, supra.

III

Dr. Mandel has written about his exclusion, concluding that "[i]t demonstrates a lack of confidence" on the part of our Government "in the capacity of its supporters to combat Marxism on the battleground of ideas." He observes that he "would not be carrying any high explosives, if I had come, but only, as I did before, my revolutionary views which are well known to the public." And he wryly notes that "[i]n the nineteenth century the British ruling class, which was sure of itself, permitted Karl Marx to live as an exile in England for almost forty years." App. 54.

It is undisputed that Dr. Mandel's brief trip would involve nothing but a series of scholarly conferences and lectures. The progress of knowledge is an [p785] international venture. As Mandel's invitation demonstrates, individuals of differing world views have learned the ways of cooperation where governments have thus far failed. Nothing is served—least of all our standing in the international community—by Mandel's exclusion. In blocking his admission, the Government has departed from the basic traditions of our country, its fearless acceptance of free discussion. By now deferring to the Executive, this Court departs from its own best role as the guardian of individual liberty in the face of governmental overreaching. Principles of judicial restraint designed to allow the political branches to protect national security have no place in this case. Dr. Mandel should be permitted to make his brief visit.

I dissent.

Notes

1. Twenty years ago, the Bulletin of the Atomic Scientists devoted an entire issue to the problem of American visa policy and its effect on the interchange of ideas between American scholars and scientists and their foreign counterparts. The general conclusion of the editors—supported by printed statements of such men as Albert Einstein, Hans Bethe, Harold Urey, Arthur Compton, Michael Polanyi, and Raymond Aron—was that American visa policy was hurting the continuing advance of American science and learning, and harmful to our prestige abroad. Vol. 8, No. 7, Oct. 1952, pp. 210-217 (statement of Special Editor Edward Shils). The detrimental effect of American visa policy on the free exchange of ideas continues to be reported. See Comment, Opening the Floodgates to Dissident Aliens, 6 Harv. Civ. Rights-Civ. Lib. L. Rev. 141, 143-149 (1970); 11 Bulletin of the Atomic Scientists, Dec. 1955, pp. 367-373.
2. The availability to appellees of Mandel's books and taped lectures is no substitute for live, face-to-face discussion and debate, just as the availability to us of briefs and exhibits does not supplant the essential place of oral argument in this Court's work. Lengthy citations for this proposition, which the majority apparently concedes, are unnecessary. I simply note that in a letter to Henrik Lorenz, accepting an invitation to lecture at the University of Leiden and to discuss "the radiation problem," Albert Einstein observed that "[i]n these unfinished things, people understand one another with difficulty unless talking face to face." Quoted in Developments in the law-The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1154 (1972).
3. As Judge Frankel has taught us, even the limited requirement of facially sufficient reasons for governmental action may be significant in some contexts; but it can hardly insulate the government from subsequent challenges to the actual good faith and sufficiency of the reasons. Frankel, Bench Warrants Upon the Prosecutor's Demand: A. View From the Bench, 71 Col. L. Rev. 403, 414 (1971).
4. The majority suggests 'that appellees "concede that. Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212 (a)(28)(D) and (G)(v) and that First Amendment rights could not override that decision." This was certainly not the view of the court below, whose judgment the appellants alone have challenged here and appellees have moved to affirm. It is true that appellees have argued to this Court a ground of decision alternative to that argued and adopted below; but they have hardly conceded the incorrectness of what they successfully argued below. They have simply noted, at 16-17 of their brief, that even if this Court rejects the broad decision below, there would nevertheless be a separate and narrower basis for affirmance. See Tr. of Oral Arg. 24, 25-26, 41-42.
5. In United States v. Robel, 389 U.S. 258 (1967), this Court struck down a statute making it a criminal offense for any employee of a "defense facility" to remain a member of the Communist Party, in spite of Government claims that the enactment came within the "war power." In Aptheker v. Secretary of State, 378 U.S. 500 (1964), the Government unsuccessfully sought to defend the denial of passports to American members of the Communist Party, in spite of claimed threats to the national security. In Zemel v. Rusk, 381 U.S. 1 (1965), the passport restriction on travel to Cuba was upheld because individual constitutional rights were overridden by the "weightiest considerations of national security"; but the Court rejected any assumption "that simply because a statute deals with foreign relations, it can grant the Executive totally unrestricted freedom of choice." Id., at 16, 17. In Schneider v. Rusk, 377 U.S. 163 (1964), the Government unsuccessfully attempted to justify a statutory inequality between naturalized and native-born citizens under the foreign relations power. And in Lamont v. Postmaster General, 381 U.S. 301 (1965), itself, as MR. JUSTICE BRENNAN noted, the Government urged that the statute was "justified by the object of avoiding the subsidization of propaganda of foreign governments which bar American propaganda"; MR. JUSTICE BRENNAN answered that the Government must act "by means and on terms which do not endanger First Amendment rights." Id., at 310.
6. I agree with the majority that courts should not inquire into such things as the "probity of the speaker's ideas." Neither should the Executive, however. Where Americans wish to hear an alien, and their claim is not a demonstrated sham, the crucial question is whether the Government's interest in excluding the alien is compelling.
7. It goes without saying, of course, that, once he has been admitted, any alien (like any citizen) can be punished if he incites lawless acts or commits other crimes.
8. Such "nonimmigrants" are not covered by quotas. C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.6 (1971).