Disabilities Attaching to Membership in Proscribed Organizations.

The consequences of being or becoming a member of a proscribed organization can be severe. Aliens are subject to deportation for such membership.712 Congress made it unlawful for any member of an organization required to register as a “Communist-action” or a “Communist-front” organization to apply for a passport or to use a passport.713 A now-repealed statute required as a condition of access to NLRB processes by any union that each of its officers must file affidavits that he was not a member of the Communist Party or affiliated with it.714 The Court has sustained state bar associations in their efforts to probe into applicants’ membership in the Communist Party in order to determine whether there was knowing membership on the part of one sharing a specific intent to further the illegal goals of the organization.715 A section of the Communist Control Act of 1954 was designed to keep the Communist Party off the ballot in all elections.716 The most recent interpretation of this type of disability is United States v. Robel,717 in which the Court held unconstitutional under the First Amendment a section of the Internal Security Act that made it unlawful for any member of an organization compelled to register as a “Communist-action” or “Communist-front” organization to work in any defense facility. For the Court, Chief Justice Warren wrote that a statute that so infringed upon freedom of association must be much more narrowly drawn to take precise account of the evils at which it permissibly could be aimed. One could be disqualified from holding sensitive positions on the basis of active, knowing membership with a specific intent to further the unlawful goals of an organization, but that membership that was passive or inactive, or by a person unaware of the organization’s unlawful aims, or by one who disagreed with those aims, could not be grounds for disqualification, certainly not for a non-sensitive position.718

A somewhat different matter is disqualifying a person for public benefits of some sort because of membership in a proscribed organization or because of some other basis ascribable to doubts about his loyalty. The First Amendment was raised only in dissent when in Flemming v. Nestor719 the Court sustained a statute that required the termination of Social Security old-age benefits to an alien who was deported on grounds of membership in the Communist Party. Proceeding on the basis that no one was “entitled” to Social Security benefits, Justice Harlan for the Court concluded that a rational justification for the law might be the deportee’s inability to aid the domestic economy by spending the benefits locally, although a passage in the opinion could be read to suggest that termination was permissible because alien Communists are undeserving of benefits.720 Of considerable significance in First Amendment jurisprudence is Speiser v. Randall,721 in which the Court struck down a state scheme for denying veterans’ property tax exemptions to “disloyal” persons. The system, as interpreted by the state courts, denied the exemption only to persons who engaged in speech that could be criminally punished consistently with the First Amendment, but the Court found the vice of the provision to be that, after each claimant had executed an oath disclaiming his engagement in unlawful speech, the tax assessor could disbelieve the oath taker and deny the exemption, thereby placing on the claimant the burden of proving that he was loyal. “The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken fact-finding— inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens . . . . In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.”722


See 66 Stat. 205 (1952), 8 U.S.C. § 1251(a)(6). “Innocent” membership in an organization that advocates violent overthrow of the government is apparently insufficient to save an alien from deportation. Galvan v. Press, 347 U.S. 522 (1954). Later cases, however, seem to impose a high standard of proof on the government to show a “meaningful association,” as a matter of statutory interpretation. Rowoldt v. Perfetto, 355 U.S. 115 (1957); Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963). back
Subversive Activities Control Act of 1950, § 6, 64 Stat. 993, 50 U.S.C. § 785. The section was declared unconstitutional in Aptheker v. Secretary of State, 378 U.S. 500 (1964), as an infringement of the right to travel, a liberty protected by the Due Process Clause of the Fifth Amendment. But the Court considered the case as well in terms of its restrictions on “freedom of association,” emphasizing that the statute reached membership whether it was with knowledge of the organization’s illegal aims or not, whether it was active or not, and whether the member intended to further the organization’s illegal aims. Id. at 507–14. But see Zemel v. Rusk, 381 U.S. 1, 16–17 (1965), in which the Court denied that State Department area restrictions in its passport policies violated the First Amendment, because the policy inhibited action rather than expression, a distinction the Court continued in Haig v. Agee, 453 U.S. 280, 304–10 (1981). back
This part of the oath was sustained in American Communications Ass’n v. Douds, 339 U.S. 382 (1950), and Osman v. Douds, 339 U.S. 846 (1950). back
Konigsberg v. State Bar of California, 366 U.S. 36 (1961); In re Anastaplo, 366 U.S. 82 (1961); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971). Membership alone, however, appears to be an inadequate basis on which to deny admission. Id. at 165–66; Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). back
Ch. 886, § 3, 68 Stat. 775, 50 U.S.C. § 842. The section was at issue without a ruling on the merits in Mitchell v. Donovan, 290 F. Supp. 642 (D. Minn. 1968) (ordering names of Communist Party candidates put on ballot); 300 F. Supp. 1145 (D. Minn. 1969) (dismissing action as moot); 398 U.S. 427 (1970) (dismissing appeal for lack of jurisdiction). back
389 U.S. 258 (1967). back
389 U.S. at 265–66. See also Schneider v. Smith, 390 U.S. 17 (1968). back
363 U.S. 603 (1960). back
363 U.S. at 612. The passage reads: “Nor . . . can it be deemed irrational for Congress to have concluded that the public purse should not be utilized to contribute to the support of those deported on the grounds specified in the statute.” Id. But see Sherbert v. Verner, 374 U.S. 398, 404–05, 409 n.9 (1963). Although the right-privilege distinction is all but moribund, Flemming was strongly reaffirmed in later cases by emphasis on the noncontractual nature of such benefits. Richardson v. Belcher, 404 U.S. 78, 80–81 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980). back
357 U.S. 513 (1958). back
357 U.S. at 526. For a possible limiting application of the principle, see Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 162–64 (1971), and id. at 176–78 (Justices Black and Douglas dissenting), id. at 189 n.5 (Justices Marshall and Brennan dissenting). back