Kent v. Dulles

PETITIONER: Kent
RESPONDENT: Dulles
LOCATION: Hazlehurst Manufacturing Company

DOCKET NO.: 481
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 357 US 116 (1958)
ARGUED: Apr 10, 1958
DECIDED: Jun 16, 1958

Facts of the case

Rockwell Kent applied for and was refused a passport to visit England. In addition to informing him that his application refusal rested on his Communist Party affiliations, the Passport Office Director told Kent that in order for a passport to be issued a hearing would be necessary. The Director instructed Kent to submit an affidavit as to whether he was a current or past Communist. Upon the advice of counsel, Kent refused to sign the affidavit but did participate in a hearing at which he was once more asked to sign an affidavit concerning his Communist affiliations. When he refused the affidavit, the Passport Department advised Kent that no further action would be taken on his passport request until he satisfied the affidavit requirement. On appeal from consecutive adverse rulings in both district and appellate court, the Supreme Court granted Kent certiorari.

Question

Could the Executive's Passport Department defer or refuse the issuance of passports to individuals suspected of being Communists or of traveling abroad to further Communist causes?

Media for Kent v. Dulles

Audio Transcription for Oral Argument - April 10, 1958 (Part 2 - Incomplete audio) in Kent v. Dulles

Audio Transcription for Oral Argument - April 10, 1958 (Part 1) in Kent v. Dulles

Earl Warren:

Number 481, Rockwell Kent and Walter -- Walter Briehl, Petitioner, versus John Foster Dulles.

Mr. Boudin.

Leonard B. Boudin:

Mr. Chief Justice and Your Honors.

These cases which are suits for passports by American citizens against the Secretary of State arose in the District of Columbia and involved the following issue, whether the Secretary of State has the right to deny passports to American citizens on the basis of political standard devised by the Secretary of State and the issues involved are both statutory and constitutional.

So, of course, we address ourselves to the alleged lack of authority on the part of the Secretary of State under any statutes of the United States.

The facts which I actually referred to very briefly are these.

Dr. Walter Briehl is an American psychiatrist who's approximately is 27 years.

He served as a lieutenant colonel in United States Army in charge of Army hospitals at the psychiatric parts of the hospitals.

He is a practicing psychiatrist in Los Angeles and is connected with many medical societies, psychoanalytic, psychiatric and otherwise which I specified in the record.

As a member of the society as a delegate of these medical societies, he has had occasion to travel abroad, most recently in 1953 with an American passport for the purpose of attending international conventions on mental health and on psychoanalysis and reporting back to his medical societies.

He did that in 1953, and when he attempted to renew his passport in 1955 for the same purpose acting as a delegate of his medical societies, he received instead a typical letter from the Director of the Passport Office in which it was said, that certain allegations had been made against Dr. Briehl by persons who are not specified.

The allegations were of course not for him, but we know that he had at one time unspecified been a member of the Communist Party and that he has been a member of a number of organizations on the Attorney General's list, three or four or five, or associated with him and that he had once petitioned to the President of the United States not to prosecute Communists under the Smith Act.

And so, the Department had he made these charges against Dr. Briehl said to him in his letter, “We ask you now for an affidavit as to whether you have ever been a member of the Communist Party, ever, whether you are now, and we ask you also to explain under oath your connections with the Communist-front organizations which we have described in our letter and any other Communist-front organizations?”

Dr. Briehl demanded a hearing, a quasi-judicial hearing in view of a recent decision of the Court of Appeals, Dulles against Nathan, and instead he received an informal hearing in the Passport Office in 1955 and which he was the only witness.

No witnesses were offered by the Government in support of any of the allegations and instead, the Passport Office sought to examine Dr. Briehl with respect to the subject matter of his letter.

He declined to answer the questions with respect to Communist Party membership, Communist-front organizations so-called or his associations.

And the Department refused to issue a passport to him, indeed, refused to act upon his passport application at all.

Now, the case of Mr. Rockwell Kent is essentially the same.

Mr. Kent is well-known explorer, writer and artist, internationally known of course, known -- I assume to the members of this Court.

He has traveled abroad very widely for more than 50 years using passports.

Well, passports were required as they have more recently and I assume traveling without passports in the earlier years when they were not required.

And the great created work manifested in his writings and in his art has been the product of this international travel.

Mr. Kent applied in 1955 for a passport to travel abroad where as he said under oath, "Pleasure and profession."

And I assume that the tour intermingled with him, and he received a similar letter from the Director of the Passport Office stating, “You Mr. Kent are alleged who have been a member of the Communist Party, time, place unspecified.

You Mr. Kent had been connected with many organizations on the Attorney General's list and you have done many other things, some of which we will now specify.

And Your Honors will see and I think the outrage of the kinds of things alleged on page 8 of my brief, alleged against an American citizen as mentioned as a reason for denying him liberty of movement.

For example, it has been alleged if you sought to repeal in the Walter-McCarran law.

It has been alleged that you urge clemency for Rosenberg, so it is.

You urge to release on bail of Steve Nelson who was convicted of sedition in Pennsylvania, he was sponsor of a petition addressed to Attorney General Brownell criticizing the use of paid informants.

I surely, do not have to rely upon the decision of this Court upholding the positions taken by Mr. Kent on many of these issues.