Control Act, which barred members of communist organizations from employment in United States defense facilities. The Court flatly rejected the argument that Congress' plenary powers in matters of national defense justified a departure from the overbreadth doctrine. As the Court explained:
This concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideals which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties -- the freedom of association -- which makes the defense of the Nation worthwhile.
Id. at 263-64.
It has long been settled that aliens within the United States enjoy the protection of the First Amendment;
"once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders . . . . including those protected by the First . . . Amendment [which does not] acknowledge any distinction between citizens and permanent residents." Bridges, 326 U.S. at 161 (Murphy, J. concurring). No reason exists now to limit a permanent resident's rights. Plaintiff is entitled to the same First Amendment protections as United States citizens, including the limitations imposed by the overbreadth and vagueness doctrines.
The overbreadth doctrine requires that statutes encompassing "'a substantial amount of constitutionally protected conduct'" be struck down as violative of the First Amendment. City of Houston v. Hill, 482 U.S. 451, 458, 96 L. Ed. 2d 398 , 107 S. Ct. 2502 (1987) (quoting Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 71 L. Ed. 2d 362 , 102 S. Ct. 1186 (1982)). As the Supreme Court articulated the rationale underlying the doctrine, "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405 , 83 S. Ct. 328 (1963).
Section 1182(a)(28)(F) plainly reaches a substantial amount of expression protected by the First Amendment. Speech that advocates the use of force or of the violation of laws is constitutionally protected "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430 , 89 S. Ct. 1827 (1969). Advocacy of a "philosophy of violence and disruption" is an insufficient ground on which to restrict First Amendment liberties. Healy v. James, 408 U.S. 169, 187, 33 L. Ed. 2d 266 , 92 S. Ct. 2338 (1972). By the same token, guilt by association alone is an impermissible basis upon which to deny First Amendment rights. Id. at 186.
Section 1182(a)(28)(F), however, permits the INS to exclude an alien if the alien "advocates or teaches," or is a "member of or affiliated with any organization that advocates or teaches" one of several proscribed political doctrines, including overthrow of the government, assaulting government officers, destruction of property, and sabotage. By "advocate," Congress has indicated it means "advises, recommends, furthers by overt act, and admits belief in," including "the giving, loaning or promising of support or of money or any other thing of value to be used for advocating any doctrine . . . but nothing in this paragraph shall be construed as an exclusive definition of advocating." 8 U.S.C. §§ 1101(a)(2), 1101(e)(1). Although the government plainly may have a legitimate interest in regulating subversive conduct, it cannot broadly prohibit teaching or advocating unpopular tenets, or association with an organization that teaches or advocates such doctrines. See Brandenburg, 395 U.S. at 447 (1969); Healy, 408 U.S. at 187. The statute simply does not require that the threat of lawlessness be "imminent" or that the advocacy be "directed to" inciting lawless action and, therefore, does not distinguish between constitutionally permissible and impermissible activities.
The void-for-vagueness doctrine requires that if a statute's provisions are not clearly defined, they must be invalidated. Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222 , 92 S. Ct. 2294 (1972). The Supreme Court has explained in detail the rationale for and the values underlying the void-for-vagueness doctrine:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . . . Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. . . . Third, but related, where a vague statute "abuts upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of (those) freedoms."
Id. at 108-09 (1972) (citations omitted).
The undefined terms of the statute -- "activities," "prejudicial," "endanger" -- are so broad and vague as to deny plaintiff a reasonable opportunity to know what he may or may not say or do. As President Truman noted in an analogous context: "Some of these provisions would empower the Attorney General to deport any alien who has engaged or has had a purpose to engage in activities 'prejudicial to the public interest' . . . . No standards or definitions are provided to guide discretion in the exercise of powers so sweeping. To punish undefined 'activities' departs from traditional American insistence on established standards of guilt. To punish an undefined 'purpose' is thought control." President's Message to Congress Vetoing the Immigration and Nationality Act, 1952-53 Pub. Papers 441, 445 (June 25, 1952). Because 8 U.S.C. § 1182(a)(27) fails to convey a "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,"
the Court must strike down the provision as an abridgement of the freedom of speech.
For the reasons expressed above, it is hereby
ORDERED that plaintiff's motion for summary judgment is granted in part and denied in part; it is
FURTHER ORDERED that defendants' motion for judgment on the pleadings is granted in part and denied in part; it is
FURTHER ORDERED that judgment shall be entered in favor of defendants as to Count One of the complaint; it is
FURTHER DECLARED that defendants' conduct of exclusion proceedings against plaintiff under 8 U.S.C. § 1225(c) have, thus far, violated the due process clause of the Fifth Amendment of the Constitution; it is
FURTHER DECLARED that 8 U.S.C. §§ 1182(a)(27) and (a)(28)(F) violate the First Amendment of the Constitution; it is
FURTHER ORDERED that Counts Three, Five, and Six are dismissed without prejudice; and it is
FURTHER ORDERED that this case stands dismissed.
IT IS SO ORDERED.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 795 F. Supp. 13.
May 28, 1992.
JOYCE HENS GREEN
United States District Judge
JUDGMENT - May 28, 1992, Filed
In accordance with the Memorandum Opinion issued this date, judgment is hereby entered in part in favor of plaintiff Fouad Yacoub Rafeedie ("Rafeedie") and against defendants and in part in favor of defendants and against Rafeedie.
IT IS SO ORDERED.
May 28, 1992.
JOYCE HENS GREEN
United States District Judge