Aptheker v. Secretary of State

Aptheker v. Secretary of State, 378 U.S. 500 (1964), argued 21 Apr 1964, decided 22 June 1964 by vote of 6 to 3; Goldberg for the Court, Clark, Harlan, and White in dissent. The Passport Act of 1926 authorized the secretary of state to grant passports, required for foreign travel, to American citizens. Under pressure of the Cold War following World War II, the State Department adopted a policy of refusing passports to American communists or persons whose travel abroad would prejudice the interests of the United States. This policy generated widespread controversy, and many persons were denied passports who asserted they were not communists. In Kent v. Dulles (1958), the Supreme Court ruled that the right of American citizens to travel across national frontiers was a part of the “liberty” protected by the Fifth Amendment, and that the secretary of state was not authorized by the Passport Act to promulgate regulations denying passports.

Another statute was available, however. The Internal Security Act of 1950 (see McCarran Act) required all “communist‐action” organizations to register with the attorney general and denied passports to members of such organizations. The registration provisions were upheld by the Supreme Court in Communist Party v. Subversive Activities Control Board (1961). But the State Department's effort to resume passport denials under this authorization was rejected in Aptheker v. Secretary of State (1964), involving two leading members of the American Communist party. Justice Arthur Goldberg recognized that the right to travel was not absolute but held that the language of the Internal Security Act was too broad, taking no account of individual communists' degree of activity in the organization or the purposes of their travel. However, restrictions on travel to particular countries or specific areas were subsequently upheld in Zemel v. Rusk (1965).

See also Communism and Cold War; Subversion; Travel, Right to.

C. Herman Pritchett