Zemel v. Rusk/Dissent Douglas

by William O. Douglas

United States Supreme Court

381 U.S. 1

Zemel  v.  Rusk

 Argued: March 1, 1965. --- Decided: May 3, 1965

Mr. Justice DOUGLAS, with whom Mr. Justice GOLDBERG concurs, dissenting.

Appellant, the holder of a valid United States passport, requested that his passport be validated for travel to Cuba: he wished to make the trip 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.' The need for validation arose from the Department of State's prior elimination of Cuba from the area for which passports were not required, 22 CFR § 53.3(b), and from its issuance of a public notice declaring all outstanding passports invalid for travel to Cuba unless specifically endorsed for such travel under the authority of the Secretary of State, 26 Fed.Reg. 492. A companion press release of January 16, 1961, stated that such travel would be permitted by 'persons whose travel may be regarded as being in the best interests of the United States, such as newsmen or businessmen with previously established business interests.' The Passport Office denied appellant's request for validation. Referring to the press release, the Deputy Director of the Passport Office informed appellant that it was 'obvious that your present purpose of visiting Cuba does not meet the standards for validation of your passport.'

We held in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, that the right to travel overseas, as well as at home, was part of the citizen's liberty under the Fifth Amendment. That conclusion was not an esoteric one drawn from the blue. It reflected a judgment as to the peripheral rights of the citizen under the First Amendment. The right to know, to converse with others, to consult with them, to observe social, physical, political and other phenomena abroad as well as at home gives meaning and substance to freedom of expression and freedom of the press. Without those contacts First Amendment rights suffer. That is why in Kent v. Dulles, supra, we said that freedom of movement has 'large social values.' Id., at 126, 78 S.Ct., at 1118.

The ability to understand this pluralistic world, filled with clashing ideologies, is a prerequisite of citizenship if we and the other peoples of the world are to avoid the nuclear holocaust. The late Pope John XXIII in his famous encyclical Pacem in Terris stated the idea eloquently.

'Men are becoming more and more convinced that disputes which arise between States should not be resolved by recourse to arms, but rather by negotiation.

'It is true that on historical grounds this conviction is based chiefly on the terrible destructive force of modern arms; and it is nourished by the horror aroused in the mind by the very thought of the cruel destruction and the immense suffering which the use of those armaments would bring to the human family; and for this reason it is hardly possible to imagine that in the atomic era war could be used as an instrument of justice.

'Nevertheless, unfortunately, the law of fear still reigns among peoples, and it forces them to spend fabulous sums for armaments: not for aggression, they affirm-and there is no reason for not believing them-but to dissuade others from aggression.

'There is reason to hope, however, that by meeting and negotiating, men may come to discover better the bonds that unite them together, deriving from the human nature which they have in common; and that they may also come to discover that one of the most profound requirements of their common nature is this: that between them and their respective peoples it is not fear which should reign but love, a love which tends to express itself in a collaboration that is loyal, manifold in form and productive of many benefits.'

'From the fact that human beings are by nature social, there arises the right of assembly and association.'

Since we deal with rights peripheral to the enjoyment of First Amendment guarantees, restrictive legislation must be 'narrowly drawn' (Cantwell v. State of Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 905, 84 L.Ed. 1213) to meet a precise evil. Only last Term, in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, we reaffirmed that when we struck down a provision of the Subversive Activities Control Act of 1950 (64 Stat. 987) because it 'too broadly and indiscriminately' restricted the right to travel. Id., at 505, 84 S.Ct., at 1663. We should do the same here.

I agree that there are areas to which Congress can restrict or ban travel. Pestilences may rage in a region making it necessary to protect not only the traveler but those he might infect on his return. A theatre of war may be too dangerous for travel. Other like situations can be put. But the only so-called danger present here is the Communist regime in Cuba. The world, however, is filled with Communist thought; and Communist regimes are on more than one continent. They are part of the world spectrum; and if we are to know them and understand them, we must mingle with them, as Pope John said. Keeping alive intellectual intercourse between opposing groups has always been important and perhaps was never more important than now.

The First Amendment presupposes a mature people, not afraid of ideas. The First Amendment leaves no room for the official, whether truculent or benign, to say nay or yea because the ideas offend or please him or because he believes some political objective is served by keeping the citizen at home or letting him go. Yet that is just what the Court's decision today allows to happen. We have here no congressional determination that Cuba is an area from which our national security demands that Americans be excluded. Nor do we have a congressional authorization of the Executive to make such a determination according to standards fixed by Congress. Rather we have only the claim that Congress has painted with such a 'broad brush' that the State Department can ban travel to Cuba simply because it is pleased to do so. By permitting this, the Court ignores the 'familiar and basic principle,' Aptheker v. Secretary of State, supra, at 508, 84 S.Ct., at 1664, that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325.

As I have said, the right to travel is at the periphery of the First Amendment, rather than at its core, largely because travel is, of course, more than speech: it is speech brigaded with conduct. 'Conduct remains subject to regulation for the protection of society. * * * (But i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' Cantwell v. State of Connecticut, supra, 310 U.S. at 304, 60 S.Ct. at 903. Restrictions on the right to travel in times of peace should be so particularized that a First Amendment right is not precluded unless some clear countervailing national interest stands in the way of its assertion. ^[*]

Notes

↑ Time after time, this Court has been alert to protect First Amendment rights which are exercised in a context of overt action which is subject to governmental regulation.

"In a series of decisions, this Court has held that, even 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."

Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488. See, e.g., Lovell v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, supra; Martin v. Struthers, 319 U. S. 141; Saia v. New York, 334 U. S. 558; Kunz v. New York, 340 U. S. 290; Schware v. Board of Bar Examiners, 353 U. S. 232, 353 U. S. 239; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293; NAACP v. Button, 371 U. S. 415; Aptheker v. Secretary of State, supra.