The Supreme Court decision in United States v. Robel, 389 U.S. 258 (1967), affirmed a federal district court decision dismissing an indictment against a machinist and member of the Communist Party who had been charged under the Subversive Activities Control Act, also known as the McCarran Internal Security Act of 1950.

Robel had been indicted for continuing to engage in employment at a shipyard after the secretary of defense had declared it a defense facility.

Supreme Court upholds dismissal of indictment of Communist member based on right of association

Chief Justice Earl Warren wrote the majority opinion. Whereas the district court had based its decision on the failure of the indictment to show active membership and “specific intent,” Warren based his decision on the First Amendment right of association.

Warren found that the statute at issue “sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership.” Warren rejected the government’s plea to accept the law under its war power. He observed that “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.”

Justice William J. Brennan Jr. authored a concurring opinion that focused on the fact that “the congressional delegation of authority to the Secretary of Defense to designate ‘defense facilities’ creates the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of protected freedoms and therefore . . . renders this statute invalid.”

Dissent argues government interest in providing security during time of war was substantial

Justice Byron R. White authored a dissent, joined by John Marshall Harlan II, questioning the scope of the right of association. White observed that “the right of association is not mentioned in the Constitution.” The Court needed to accommodate the right to association to “the public interest.” In this case, “the national interest asserted by the Congress is real and substantial.”

John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.


Send Feedback on this article