Column: Terrorism, the International Border, and the First Amendment (New York Law Journal)

By Christopher Dunn — The recent reports that airplanes headed to the United States from Britain had been targeted for attack by men described as being Muslim, combined with President Bush’s August 10 declaration that the United States is “at war with Islamic fascists,” once again raise the prospect of religious profiling at the international border. Though the federal government has not publicly disclosed implementation of religion-based border controls for either non-citizens or citizens, that they are being considered is likely and that they would be legally challenged is certain.

Surprisingly, the Supreme Court cases has rarely addressed the interplay between national security, the First Amendment, and the international border. Nonetheless, its few cases in the area — all of which arise out of the Communist Era — suggest that invoking terrorism will not grant the government license to disregard the First Amendment at the border, even when it comes to non-citizens.

National Security and the First Amendment Domestically

An appreciation of how claims of terrorism might affect First Amendment challenges to border restrictions based on religious or political association starts with an examination of related domestic law. In this vein the Supreme Court twice has ruled directly on the federal government’s ability to rely on serious national-security concerns to justify targeting associational activity otherwise protected by the First Amendment.

Nearly seventy years ago the Court first recognized that the First Amendment bars the government from penalizing mere association with a political organization, even if there is reason to believe that others associated with the organization may be engaged in unlawful conduct intended to undermine if not destroy the nation. In DeJonge v. Oregon, the Court in 1937 declared unconstitutional the criminal conviction of a member of the Communist Party under Oregon’s “criminal syndicalism” statute, which prohibited, among other things, “presiding at or assisting in conducting a meeting” of a group “which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” The defendant was convicted solely for having spoken at a public meeting sponsored by the Communist Party without further evidence that he had engaged in unlawful activity. Though this case came to the Supreme Court well before the development of modern, expansive First Amendment protections, the Court did not hesitate to invalidate the conviction and in doing so expressly held, in language that has particular relevance to contemporary concerns about terrorism, that the First Amendment barred such “guilt-by-association” penalties on First Amendment activity:

The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.

It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of a meeting for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly as the basis for a criminal charge.

Reflecting a similar view of the First Amendment, the Court in 1967 held in United States v. Robel that compelling national-security concerns could not justify a federal statute that barred all Communist Party members from employment in defense-related industries. As the Court explained, “The statute quite literally establishes guilt by association alone, without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it. The inhibiting effect on the exercise of First Amendment rights is clear.” In so holding, the Court expressly noted that the invocation of “national defense” could not justify sweeping burdens on First Amendment activity:

[T]his 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. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. 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.

National Security and the First Amendment at the Border

While the principles of DeJonge and Robel would preclude sweeping domestic counter-terrorism measures targeting mere association with allegedly subversive Muslim organizations (as well as measures simply targeting Muslims), neither case concerns the specific intersection between the First Amendment, national-security concerns, and the international border. In one case, however, the Supreme Court has applied the First Amendment principles of DeJonge and Robel to strike down a security-based border control. And in a second case, the Court rejected the government’s effort to invoke its nearly plenary authority over the admission of aliens to nullify possible First Amendment protections.

Three years before deciding Robel, the Court addressed the extent to which the government could restrict movement across the border by American citizens based upon their participation in First Amendment activity. In Aptheker v. Secretary of State, decided in 1964, the Court considered the constitutionality of a provision of the Subversive Activities Control Act that forbade citizens from getting United States passports solely because they were members of the Communist Party. At the outset of its constitutional analysis, the Court acknowledged the government’s contention that the restriction was prompted by concerns about national security but made clear the limits of such a contention:

The Government emphasizes that the legislation in question flows, as the statute itself declares, from the congressional desire to protect our national security. That Congress under the Constitution has power to safeguard our Nation’s security is obvious and unarguable. As we said in Mendoza-Martinez, “while the Constitution protects against invasions of individual rights, it is not a suicide pact.” At the same time the Constitution requires that the powers of government “must be so exercised as not, in attaining a permissible end, unduly to infringe” a constitutionally protected freedom.

In light of the requirement that even security-based regimes not unduly infringe of First Amendment protected activity, the Court struck down the statute because of its indiscriminate treatment of those associated with the Communist Party and did so using the same overbreadth analysis used in the domestic cases. Specifically, the statute failed to distinguish between those who might be active members of the party and engaged in unlawful activity and other members engaged in lawful conduct. Similarly, it failed to distinguish between party members seeking to travel for unlawful reasons and those seeking to travel for “wholly innocent purposes.” According to the Court, “Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power.”

One year later the Court, in Lamont v. Postmaster General, invalidated on First Amendment grounds a federal statute prohibiting delivery of foreign mail that constituted “communist political propaganda” unless the American recipient requested delivery in writing. Though Lamont did not involve the control of persons crossing the border, it is notable because, in striking down the statute, the Court invoked a series of domestic First Amendment cases, neither drawing nor suggesting any distinction between the rules governing such cases and those governing expressive activity that implicated the border.

Finally, there is Kleindienst v. Mandel, the Supreme Court’s most recent examination of the First Amendment as it applies to the border. Decided in 1972, that case arose out of the government’s refusal to grant a visa to Ernest Mandel, a Belgian scholar who described himself as “a revolutionary Marxist” and who had been invited to speak at various prestigious academic events in the United States. Federal law at that time barred entry into the country of aliens who advocated or published “the doctrines of world communism or the establishment in the United States of a totalitarian dictatorship,” but the statute provided that the government could waive the bar. When the government refused to grant Mandel a waiver, various academics filed suit, challenging the statutory provision as violating the rights of the academics as American citizens to receive information under the First Amendment.

The Supreme Court rejected the challenge and in doing so emphasized Congress’ virtually plenary power over the entry of aliens into the country. Nonetheless, it refused the government’s invitation to hold that that authority trumped the First Amendment in all circumstances involving aliens. Rather, it ruled more narrowly, finding that the government’s refusal to grant Mandel a waiver was based on factors other than his political beliefs, which was sufficient to defeat the First Amendment challenge. Left for another day was resolution of the First Amendment’s reach to the border in disputes over the entry of non-citizens.

The Future of First Amendment Disputes at the Border

As the federal government responds aggressively to threats of international terrorism — and as it aggressively invokes that terrorism to justify a wide range of measures — the Supreme Court likely will be confronted with fundamental questions about the vitality of the First Amendment at the international border. And when it does, it will be writing on a largely blank slate.

Presumably, the measures most susceptible to First Amendment challenge would be those that targeted, based on religious or political association, American citizens lawfully seeking to leave the country to attend religious or political events. At the other end of the spectrum would be measures that, based on religious or political affiliation, restricted or blocked non-citizens from entering the country. Somewhere between those two poles would be measures targeting American citizens returning to the country or targeting the flow of information or ideas from outside the country to American citizens inside the country.

Regardless of the specific issues that arise, however, any claim that government terrorism contentions must yield to the First Amendment will be a difficult one. Terrorism is placing an enormous strain on constitutional rights and on the federal courts charged with safeguarding those rights, and disputes over border controls would be just one more example of that tension.