The opinion of the court was delivered by: FRANKEL
On April 5, 1951, Morton Sobell was given a maximum prison sentence of 30 years for conspiring, between 1944 and 1950, to transmit national defense (atomic bomb) information to the Soviet Union.
On January 14, 1969, upon the basis of "good time" earned, 18 U.S.C. § 4161, he was mandatorily released, 18 U.S.C. § 4163. This means that he is now "deemed as if released on parole until the expiration of the maximum term * * * for which he was sentenced less one hundred and eighty days," 18 U.S.C. § 4164, or, specifically, until September 26, 1980. Thus subjected to the continuing jurisdiction of the United States Parole Board, Sobell was presented upon his release with a "Certificate of Mandatory Release," providing that until the end of the period during which he was to remain "as if on parole" he would be governed by the standard "Conditions of Parole" set out on the reverse side of the Certificate and reproduced here in a footnote.
Sobell refused to sign the Certificate, but that appears to be of no consequence for present purposes. The court has proceeded upon the view that the Conditions, to the extent they may validly do so, govern Sobell until 1980.
Of most direct interest in the case now before the court is the third Condition, under which Sobell was not to go outside the limits of the Southern District of New York "without written permission from the probation officer." On a number of occasions after his release, he sought and obtained permission to travel to, and speak at, various places -- a Philadelphia television guest appearance, a Cleveland radio and television show, and a speech to students at the Massachusetts Institute of Technology. On other occasions, however, similar requests have been denied:
(1) A request for leave to be in Washington, D.C., for a November 15, 1969, demonstration against the war in Vietnam.
(2) A similar request relating to a demonstration on April 15, 1970.
(3) A request for permission to go to Los Angeles, California, to speak on prison conditions at a banquet sponsored by People's World, a newspaper which, as stipulated for purposes of this suit, "is closely identified with the Communist Party * * * and is generally reflective of the positions taken on public issues by the Communist Party."
Early in April of last year Sobell commenced the present suit against the Chairman and Members of the Parole Board in the District Court for the District of Columbia. He charged that defendants' refusal to permit him to travel invaded First Amendment rights. He seeks, to quote the amended complaint now before us, a declaratory judgment and "appropriate equitable relief in the form of injunction or mandamus enforcing plaintiff's rights and defendants' responsibilities under the First and Fifth Amendments to the Constitution of the United States." On defendants' motion the case was transferred to this court.
On October 7, 1970, Judge Ryan denied plaintiff's motion for a preliminary injunction. Recognizing the undisputed fact that nobody was suggesting a prospect of unlawful activities by Sobell on any of the trips forbidden by the Board, Judge Ryan concluded that the denials of permission had been proper exercises of the Board's authority. He said:
"The Board of Parole has broad powers and authority to set the terms of supervision of a released convict. There is no showing that it has abused or exceeded the power granted to it by statute. I hold that there is no showing of any arbitrary act of the Board which supports or justifies judicial intervention."
Two days later that decision was affirmed by the Circuit in open court. The Court of Appeals recorded a brief "Decision" reading in full this way:
"In light of the serious jurisdictional questions and the lack of irreparable injury from inability to make a single speech at a fund raising dinner the court affirms Judge Ryan's denial of a temporary injunction. The issues raised by Sobell and the Government will remain for disposition by the district court after a fuller hearing."
On the following day, Mr. Justice Harlan refused interim relief of the kind both lower courts had denied. Briefly recording his views in the short time available, the Justice said he was "satisfied that at the very least petitioner's appeal to the Court of Appeals, apart from the jurisdictional question, presents novel questions as to the scope of the United States Parole Board's discretion."
In the months since then, there have been a few procedural developments that are no longer of interest. Others, as will appear, are quite interesting. The court is confronted now with what amount to cross-motions for summary judgment. It is agreed all around that the repeated and projected refusals of travel for purposes of speech and assembly present live questions (subject to the dispute considered later as to the court's jurisdiction) and that there is a record of undisputed facts sufficient for decision. Upon a more detailed review of the facts, and for the reasons hereinafter outlined, the court must rule for the plaintiff.
In an affidavit opposing plaintiff's motion for a preliminary injunction last October, Hon. George J. Reed, Chairman of the Board of Parole, gave the following explanation of the refusal to allow Sobell to address the People's World meeting in Los Angeles:
"6) The Parole Executive of the U.S. Board of Parole, James R. Pace, brought the request before me as Chairman of the Board of Parole for consideration; thereafter I conferred with Members of the U.S. Board of Parole and thoroughly discussed the requested permission to travel to attend and address the meeting sponsored by 'The People's World.'
"7) In considering the request the Board took into consideration the same criteria which are considered in acting upon the request of any mandatory releasee under the jurisdiction of this Board for permission to leave his district of supervision. In discussion, we reviewed the nature of Morton Sobell's conviction in light of ...