Kleindienst v. Mandel

408 U.S. 753 (1972)

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Nature of the Case

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Facts

P resides in Belgium, and is a Belgian citizen. He is a professional journalist and is editor-in-chief of the Belgian Left Socialist weekly La Gauche. He is the author of a two-volume work entitled Marxist Economic Theory published in 1969. P asserted in his visa applications that he is not a member of the Communist Party. He has described himself as 'a revolutionary Marxist.' P advocates the economic, governmental, and international doctrines of world communism. P was admitted to the United States temporarily in 1962 and again in 1968. On the first visit, he came as a working journalist. On the second he accepted invitations to speak at a number of universities and colleges. P's admission followed a finding of ineligibility under § 212 (a)(28), and the Attorney General's exercise of discretion to admit him temporarily, on the recommendation of the Secretary of State, as § 212 (d)(3)(A) permits. On September 8, 1969, P applied to the American Consul in Brussels for a nonimmigrant visa to enter the United States in October for a six-day period, during which he would participate in a conference on Technology and the Third World at Stanford University. P had been invited to Stanford by the Graduate Student Association there. John Kenneth Galbraith would present the keynote address and P would be expected to participate in an ensuing panel discussion and to give a major address the following day. The University, 'heartily endorsed' the invitation. Additional invitations for lectures and conference participation came to him from members of the faculties at Princeton, Amherst, Columbia, and Vassar, from groups in Cambridge, Massachusetts, and New York City, and from others. One conference, to be in New York City, was sponsored jointly by the Bertrand Russell Peace Foundation and the Socialist Scholars Conference; Mandel's assigned subject there was 'Revolutionary Strategy in Imperialist Countries.' Mandel then filed a second visa application proposing a more extensive itinerary and a stay of greater duration. P's application was rejected under § 212 (a)(28) in 1962, the waivers in that year and in 1968, and the current denial of a waiver. The Department of State, by a letter dated November 6 from its Bureau of Security and Consular Affairs to P's New York attorney, asserted that the earlier waivers had been granted on condition that P conforms to his itinerary and limit his activities to the stated purposes of his trip, but that on his 1968 visit he had engaged in activities beyond the stated purposes. Despite reconsideration, P’s visa was disapproved. The Department of State recommended to the Attorney General that P's ineligibility be waived. The Immigration and Naturalization Service stated that it had determined that P's 1968 activities 'went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country.' P's temporary admission was not authorized. P's address was delivered by transatlantic telephone. P and six of the others instituted the present action against the Attorney General and the Secretary of State. All the appellees who joined P in this action are United States citizens and are university professors in various fields of the social sciences. They are persons who invited P to speak at universities and other forums in the United States or who expected to participate in colloquia with him so that, as the complaint alleged, 'they may hear his views and engage him in a free and open academic exchange.' Ps claim that the statutes are unconstitutional on their face and as applied in that they deprive the American plaintiffs of their First and Fifth Amendment rights. Ps claim that the statutes prevent them from hearing and meeting with P in person for discussions, in contravention of the First Amendment; that § 212 (a)(28) denies them equal protection by permitting entry of 'rightists' but not 'leftists' and that the same section deprives them of procedural due process; that § 212 (d)(3)(A) is an unconstitutional delegation of congressional power to the Attorney General because of its broad terms, lack of standards, and lack of prescribed procedures; and that application of the statutes to P was 'arbitrary and capricious' because there was no basis in fact for concluding that he was ineligible, and no rational reason or basis in fact for denying him a waiver once he was determined ineligible. Two judges of a three-judge district court held that, although P had no personal right to enter the United States, citizens of this country have a First Amendment right to have him enter and to hear him explain and seek to defend his views. The court then entered a declaratory judgment that § 212 (a)(28) and § 212 (d)(3)(A) were invalid and void insofar as they had been or might be invoked by Ds to find P ineligible for admission. D appealed.