The plaintiff Elizabeth Gurley Flynn filed suit on November 6, 1962, and the plaintiff Herbert Eugene Aptheker on December 14, 1962. The facts of each case are practically identical, and the cases were consolidated by order of the Court on April 29, 1963.
Section 6 of the Subversive Activities Control Act, provides, in pertinent part, as follows:
'(a) When a Communist organization as defined in paragraph (5) of section 782 of this title, is registered, or there is in effect a final order of the Board requiring such organization to register, it shall be unlawful for any member of such organization, with knowledge or notice that such organization is so registered or that such order has become final --
'(1) to make application for a passport, or the renewal of a passport, to be issued or renewed by or under the authority of the United States; or '(2) to use or attempt to use any such passport.'
For the purposes of the questions here presented, the above section of the Act became effective October 20, 1961, when the Communist Party of the United States was ordered to register by a final order of the Subversive Activities Control Board, pursuant to the authority of section 7 of the Act, 50 U.S.C. § 786, said section 7 having been previously upheld by the Supreme Court in Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625 (1961).
On January 22, 1962, the Acting Director of the Passport Office notified both plaintiffs that their passports were revoked because of the belief by the Department of State that use of their passports would be in violation of the Subversive Activities, control Act. Plaintiffs were also informed of their right to a hearing. Subsequently, both passports expired: Mr. Aptheker's on December 9, 1962, and Mrs. Flynn's on March 9, 1963.
'there is a preponderance of evidence in the record to show that at all material times (each plaintiff) was a member of the Communist Party of the United States with knowledge or notice that such organization had been required to register as a Communist organization under the Subversive Activities Control Act.'
The matter is now before the Court on cross-motions for summary judgment, both parties stipulating that all administrative remedies have been exhausted. The plaintiffs agree that for the purpose of these proceedings, the Secretary of State had an adequate evidentiary basis for finding that plaintiffs were members of the Communist Party. The plaintiffs further agree that the Secretary of State made findings on all matters required by section 6. The Secretary is not required, under the terms of the statute, to make any findings as to the purpose of the travel for which the passport is requested and he in fact made none.
The validity of section 6 has not been determined by the courts, but such determination was reserved for future consideration in Communist Party v. Subversive Activities Control Board, supra, 367 U.S. at 79, 81 S. Ct. at 1401. The Supreme Court stated:
'It is wholly speculative now to foreshadow whether, or under what conditions, a member of the Party may in the future apply for a passport * * *. None of these things may happen. If they do, appropriate administrative and judicial procedures will be available to test the constitutionality of applications of particular sections of the Act to particular persons in particular situations. Nothing justifies previsioning those issues now.'
Plaintiffs allege that they wish the travel abroad for recreation and study in pursuit of their profession as writers. They contend that section 6 of the Act is unconstitutional as applied to them for the following reasons:
(1) Plaintiffs are deprived without due process of law of their constitutional liberty to travel abroad, in violation of the Fifth Amendment to the Constitution of the United States;
(2) Plaintiffs' rights to freedom of speech, press and assembly are abridged in violation of the First Amendment.
(3) A penalty is imposed on plaintiffs without a judicial trial, and therefore constitutes a bill of attainder, in violation of article I, section 9 of the Constitution;
(4) Plaintiffs are deprived of the right to trial by jury as required by the Fifth and Sixth Amendments and article III, section 2, clause 3 of the Constitution; and
(5) The action of the Secretary of State under section 6 constitutes imposition of a cruel and unusual punishment in ...