MARSHALL, J., dissenting 408 U.S. protection is "a fundamental principle of the American government." Whitney v. California, supra, at 375. The First Amendment means that Government has no power to thwart the process of free discussion, to "abridge" the freedoms necessary to make that process work. See Lamont v. Postmaster General, 381 U. S. 301, 308 (1965) (BRENNAN, J., concurring, with whom Goldberg and Harlan, JJ., joined). There can be no doubt that by denying the American appellees access to Dr. Mandel, the Government has directly prevented the free interchange of ideas guaranteed by the First Amendment.1 It has, of course, interfered with appellees' personal rights both to hear Mandel's views and to develop and articulate their own views through interaction with Mandel. But as the court below recognized, apart from appellees' interests, there is also a "general public interest in the prevention of any stifling of political utterance." 325 F. Supp. 620, 632 (1971). And the Government has interfered with this as well.2 1 Twenty years ago, the Bulletin of the Atomic Scientists devoted an entire issue to the problem of American visa policy and its effect on the interchange of ideas between American scholars and scientists and their foreign counterparts. The general conclusion of the editors supported by printed statements of such men as Albert Einstein, Hans Bethe, Harold Urey, Arthur Compton, Michael Polanyi, and Raymond Aron-was that American visa policy was hurting the continuing advance of American science and learning, and harmful to our prestige abroad. Vol. 8, No. 7, Oct. 1952, pp. 210-217 (statement of Special Editor Edward Shils). The detrimental effect of American visa policy on the free exchange of ideas continues to be reported. See Comment, Opening the Floodgates to Dissident Aliens, 6 Harv. Civ. Rights-Civ. Lib. L. Rev. 141, 143–149 (1970); 11 Bulletin of the Atomic Scientists, Dec. 1955, pp. 367-373. 2 The availability to appellees of Mandel's books and taped lectures is no substitute for live, face-to-face discussion and debate, just 753 MARSHALL, J., dissenting II What is the justification for this extraordinary governmental interference with the liberty of American citizens? And by what reasoning does the Court uphold Mandel's exclusion? It is established constitutional doctrine, after all, that government may restrict First Amendment rights only if the restriction is necessary to further a compelling governmental interest. E. g., Lamont v. Postmaster General, supra, at 308; NAACP v. Button, 371 U. S. 415, 438 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539, 546 (1963); Shelton v. Tucker, 364 U. S. 479 (1960). A. Today's majority apparently holds that Mandel may be excluded and Americans' First Amendment rights restricted because the Attorney General has given a "facially legitimate and bona fide reason" for refusing to waive Mandel's visa ineligibility. I do not understand the source of this unusual standard. Merely "legitimate" governmental interests cannot override constitutional rights. Moreover, the majority demands only "facial" legitimacy and good faith, by which it means that this Court will never "look behind" any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive, as the availability to us of briefs and exhibits does not supplant the essential place of oral argument in this Court's work. Lengthy citations for this proposition, which the majority apparently concedes, are unnecessary. I simply note that in a letter to Henrik Lorenz, accepting an invitation to lecture at the University of Leiden and to discuss "the radiation problem," Albert Einstein observed that "[i]n these unfinished things, people understand one another with difficulty unless talking face to face." Quoted in Developments in the Law-The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1154 (1972). MARSHALL, J., dissenting 408 U.S. nor can I imagine (nor am I told) the slightest justification for such a rule.3 Even the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham. The Attorney General informed appellees' counsel that the waiver was refused because Mandel's activities on a previous American visit "went far beyond the stated purposes of his trip . . . and represented a flagrant abuse of the opportunities afforded him to express his views in this country." App. 68. But, as the Department of State had already conceded to appellees' counsel, Dr. Mandel "was apparently not informed that [his previous] visa was issued only after obtaining a waiver of ineligibility and therefore [Mandel] may not have been aware of the conditions and limitations attached to the [previous] visa issuance." App. 22. There is no basis in the present record for concluding that Mandel's behavior on his previous visit was a "flagrant abuse" or even willful or knowing departure from visa restrictions. For good reason, the Government in this litigation has never relied on the Attorney General's reason to justify Mandel's exclusion. In these circumstances, the Attorney General's reason cannot possibly support a decision for the Government in this case. But without even remanding for a factual hearing to see if there is any support for the Attorney General's determination, the majority declares that his reason is sufficient to override appellees' First Amendment interests. B. Even if the Attorney General had given a com 3 As Judge Frankel has taught us, even the limited requirement of facially sufficient reasons for governmental action may be significant in some contexts; but it can hardly insulate the government from subsequent challenges to the actual good faith and sufficiency of the reasons. Frankel, Bench Warrants Upon the Prosecutor's Demand: A View From the Bench, 71 Col. L. Rev. 403, 414 (1971). 753 MARSHALL, J., dissenting pelling reason for declining to grant a waiver under § 212 (d) (3) (A), this would not, for me, end the case. As I understand the statutory scheme, Mandel is "ineligible" for a visa, and therefore inadmissible, solely because, within the terms of § 212 (a) (28), he has advocated communist doctrine and has published writings advocating that doctrine. The waiver question under § 212 (d) (3)(A) is totally secondary and dependent, since it is triggered here only by a determination of (a) (28) ineligibility. The Attorney General's refusal to grant a waiver does not itself generate a new statutory basis for exclusion; he has no roving power to set new ad hoc standards for visa ineligibility. Rather, the Attorney General's refusal to waive ineligibility simply has the same effect as if no waiver provision existed; inadmissibility still rests on the (a) (28) determination. Thus, whether or not the Attorney General had a good reason for refusing a waiver, this Court, I think, must still face the question it tries to avoid: under our Constitution, may Mandel be declared ineligible under (a) (28)? C. Accordingly, I turn to consider the constitutionality of the sole justification given by the Government here and below for excluding Mandel-that he "advocates and "publish [es] . . . printed matter. . . advocating . . . doctrines of world communism" within the terms of § 212 (a) (28). Still adhering to standard First Amendment doctrine, I do not see how (a) (28) can possibly represent a compelling governmental interest that overrides appellees' interests in hearing Mandel. Unlike (a) (27) or (a)(29), 4 The majority suggests that appellees "concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212 (a) (28) (D) and (G)(v) and that First Amendment rights could not override that decision." This was certainly not the view of the court below, whose judgment the appellants alone have challenged here and appellees have moved to MARSHALL, J., dissenting 408 U.S. (a) (28) does not claim to exclude aliens who are likely to engage in subversive activity or who represent an active and present threat to the "welfare, safety, or security of the United States." Rather, (a) (28) excludes aliens solely because they have advocated communist doctrine. Our cases make clear, however, that government has no legitimate interest in stopping the flow of ideas. It has no power to restrict the mere advocacy of communist doctrine, divorced from incitement to imminent lawless action. Noto v. United States, 367 U. S. 290, 297-298 (1961); Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969). For those who are not sure that they have attained the final and absolute truth, all ideas, even those forcefully urged, are a contribution to the ongoing political dialogue. The First Amendment represents the view of the Framers that "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones"-"more speech." Whitney v. California, 274 U. S., at 375, 377 (Brandeis, J., concurring). If Americans want to hear about Marxist doctrine, even from advocates, government cannot intervene simply because it does not approve of the ideas. It certainly may not selectively pick and choose which ideas it will let into the country. But, as the court below put it, § 212 (a) (28) is nothing more than "a means of restraining the entry of disfavored political doctrine," 325 F. Supp., at 626, and such an enactment cannot justify the abridgment of appellees' First Amendment rights. affirm. It is true that appellees have argued to this Court a ground of decision alternative to that argued and adopted below; but they have hardly conceded the incorrectness of what they successfully argued below. They have simply noted, at 16-17 of their brief, that even if this Court rejects the broad decision below, there would nevertheless be a separate and narrower basis for affirmance. See Tr. of Oral Arg. 24, 25-26, 41-42. |