it is our conclusion that the final adjudication of the Appeal Board reversing determination of the Examiner did not meet this standard of fairness.
Secondly, the withdrawal of plaintiff's security clearance, as a result of his expressions of opinion, is an unconstitutional invasion of his rights under the First Amendment. We do not question the proposition that "the Government can deny access to its secrets to those who would use such information to harm the Nation." United States v. Robel, 389 U.S. 258, 267, 19 L. Ed. 2d 508, 88 S. Ct. 419. It is also true where such power of denial is exercised it must be narrowly prescribed in order to protect the rights of the people to express themselves freely on any subject as guaranteed by the First Amendment. In certain circumstances, this requires a balancing process in which important competing interests are defined and weighed. We do not have such a situation in this case and there is no need to balance competing interests. This is because the claimed threat to national security resulting from plaintiff's continued clearance lacks rational support in the only evidence of record and the deprivation of First Amendment rights to express oneself freely on any matter, no matter how unpopular those views may be, is clear and unambiguous. Although defendant disclaims any emphasis on the fact that plaintiff is an immigrant alien from West Germany, and agrees, as well he must, that he is to be judged by the same standards applicable to a citizen of the United States, born or naturalized, we cannot escape the conclusion that plaintiff's foreign origin and nationality have had a distinct bearing not only on the decision to institute proceedings, but, as the hearing record will show, on the efforts of defendant to sustain the charges contained in the Statement of Reasons. These considerations should not obscure the fact that plaintiff, who is still an immigrant alien who has not completed his naturalization, has the same rights freely to give voice to his opinions as any American citizen in the same circumstances. Bridges v. California, 314 U.S. 252, 86 L. Ed. 192, 62 S. Ct. 190 (1942) and other cases too numerous to cite. Plaintiff's expressions of heterodox political, social and economic views, however distasteful as to content or unwise as to timing, are not only clearly consistent with the national security, but are well within the area of protection provided by the First Amendment.
For all of the foregoing reasons, we deny defendant's motion for summary judgment and grant plaintiff's motion for judgment. An order consistent with the foregoing has been entered this day.
This cause having come before the Court on the cross-motions of the parties for summary judgment, and the Court having considered the pleadings, motions, exhibits, statements, interrogatories and the answers thereto, and memoranda of points and authorities in support of and in opposition thereto, and the administrative record in the Matter of Siegfried Wilhelm Brunnenkant, OSD 69-421, an authenticated copy of which is on file herein, and due deliberation having been had thereon, and it appearing to the Court that there is no genuine issue as to any material fact and that plaintiff is entitled to judgment as a matter of law, it is, therefore, by the Court this 16th day of July, 1973,
Ordered, that defendant's motion for summary judgment be, and the same hereby is, denied; and it is
Further Ordered, that plaintiff's motion for summary judgment be, and the same hereby is, granted.
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