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

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.”

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.”

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