William Worthy was a journalist who made a habit of challenging policies that censored the flow of information across the U.S. border. In the 1950s, he defied State Department travel bans to report from Hungary and China. When his passport was stripped in retaliation, he sued to get it back, claiming, unsuccessfully, that travel bans violated the First Amendment. In the 1960s, after he traveled to Cuba without a passport, he won an important case recognizing the rights of citizens to return home even if they lacked the required travel documents. And in the early 1980s, he won damages after the U.S. government seized his bags when he returned from a reporting trip to Iran—he was bringing back copies of classified documents Iran had taken from the U.S. embassy during the revolution, which had since been published in Iran but were unavailable in the U.S. Asked in 1982 to explain his activist journalism, Worthy outlined a fundamental political commitment. “Americans,” he said, “have a right to know what’s going on in the world in their name.”

The idea of a “right to know” has a great deal of political and intellectual appeal—if governance is supposed to reflect the will of the people, then surely the people need to know a lot. But in part because of the very capaciousness of the idea, it has proven difficult to construct, or even identify, a clear and enforceable “right to know” in the law.

In this essay, I want to explore a forgotten front in the history of efforts to construct a right to know—the history of efforts to, as Worthy put it, guarantee the rights of Americans to know about the world. It is a story that reveals the surprising amounts of border censorship that existed in Cold War America: Passports and visas were denied to radicals, foreign “propaganda” was banned from the mail, citizens were barred from travel to entire regions of the world. It is a story, too, that reveals the crucial activism of a neglected wing of the civil liberties movement—the concerted efforts of a small group of radical activists to challenge these forms of border censorship as unconstitutional interferences with the liberties of American citizens. And the uneven successes of that strategy, both in the courts and in the political culture, can teach us a great deal about the evolution of First Amendment rights at the border and about the still unresolved question of whether Americans have a right to know about the world.

In the late 1940s and early 1950s, as Cold War anxieties settled over the American polity, anti-Communist bureaucrats exercised remarkable control over the flow of information across the American border. The tools they used—passport and visa policy, mailing regulations, travel restrictions—do not immediately spring to mind as instruments of censorship. But they were—and reckoning with them is crucial to understanding the history of civil liberties in post-WWII U.S.

Under the broad terms of the immigration laws, especially as interpreted by hawkish bureaucrats, foreigners applying for a visa to enter the U.S. were subject to ideological tests; radicals and those whose entrance was deemed “prejudicial to the public interest” were denied visas. After 1952, visas were also denied to individuals who had either espoused Communist views or were affiliated with an organization that had, unless they received a waiver from the attorney general. For decades, thousands of individuals were denied visas every year under this rule, and while most would ultimately receive a waiver, the process, shot through with delay and humiliation, had a chilling effect. Applying for an individualized waiver was also a form of licensing, one with direct First Amendment implications. For instance, Pierre Courtade, a journalist for the French Communist daily newspaper L’Humanite, had to obtain a waiver to report on the U.N. and French-U.S. diplomacy, and one of the conditions of the waiver was that he would not write anything “un-American.” Meanwhile, an honor roll of 20th century luminaries found themselves flat-out barred from entering the U.S. on ideological grounds: Pablo Neruda, Carlos Fuentes, Charlie Chaplin, Pablo Picasso, Gabriel Garcia Marquez, Czeslaw Milosz, Michael Polanyi. And visa rules wreaked havoc on quotidian forms of intellectual exchange. Something like one in two scientists seeking to enter the U.S. for professional meetings in the early 1950s ran into either visa delays or denials. In 1955, four international science conferences that had been planned to meet in the U.S. moved overseas—policing at the border was simply too much of a burden.

Americans who wanted to travel overseas also needed a travel document: a passport. And based on the broad terms of the 1926 Passport Act, as well as a number of equally broad Executive Orders, the Passport Division in the State Department was denying passports to hundreds of Americans whose international travel it deemed “not in the best interests of the United States.” Since 1928, the Passport Division had been headed by one woman, Ruth Shipley, who had, according The New York Times, “complete discretion” over the travel rights of American citizens. (“You Don’t Go If She Says No,” was the headline of a 1953 Colliersprofile.) “One of the things I believe in,” boasted Shipley, “is refusing passports to Communists.” Her division prevented the travel of W.E.B Du Bois, Paul Robeson, Arthur Miller, Linus Pauling, congressman (!) Leo Isacson, and many lesser-known figures—including the many Americans who chose not to apply for a passport out of fear that they would be subject to what the Saturday Evening Postdescribed as Shipley’s “star-chamber proceedings.” The 1950 Internal Security Act tried to make it illegal for Communists to even apply for a passport—Patrick McCarran credited Shipley for the idea.

At the same time that the State Department was screening travelers for their ideology, it was also preventing all Americans from traveling to certain parts of the world. The first of these so-called “area restrictions” had been adopted in the interwar years to prevent Americans from traveling to China, Ethiopia, and Spain. By the early Cold War, all passports were stamped invalid for travel behind the Iron Curtain.

Meanwhile, a surprising thicket of laws prevented American citizens from receiving information from a number of crucial geopolitical fronts. In 1950, Harry Truman placed sanctions on China and North Korea under the Trading with the Enemy Act, which meant that one needed special approval to purchase magazines, books, and art from these nations. The next year, customs officials began a process of intercepting and destroying mail of a “propaganda type” from behind the Iron Curtain—a practice based on an obscure ruling by Attorney General Robert Jackson a decade earlier, which argued that a section of the Espionage Act that barred illegal material from the mail could be read in conjunction with the Foreign Agent Registration Act to imply that all Soviet mailings could be seen as coming from an unregistered foreign agent and hence be barred (the fact that these “agents” had not set foot in the U.S. was described by one contemporary legal commentary as a “neat feat of legal fiction making”). We would very much benefit from more historical research into how this interception program actually operated, but it seemed to involve the destruction of thousands of items, and anecdotal evidence suggests the absurd breadth and arbitrariness of this censorship system: delayed issues of The Economist; the destruction of bound copies of Karl Marx’s correspondence that had been requested by a research student; a customs official in St. Paul, who did not speak Russian, trying to adjudicate which Russian books could be destroyed.

Visa denial, passport denial, postal censorship, area restrictions; all of this border regulation had serious—and deeply underappreciated—effects on the public sphere of Cold War America. It manipulated the flow of information to American citizens, cutting them off from knowledge about vast parts of the world, including some of the most consequential fronts of the Cold War, and slanting the forms of information that were accessible to them—thus undermining both the quality and democratic legitimacy of public opinion about foreign policy. By granting access to foreign information to only certain political factions and perspectives, it allowed those social formations to monopolize knowledge and expertise about foreign nations—granting them an advantage in public debate and policy formation. It interfered with the freedom of citizens to associate with international political allies. And by engaging in ideological screening to police rights to travel and receive information, it had a massive chilling effect on political advocacy and free speech rights more broadly.

An effort to secure the right to access international information was thus a central, if largely forgotten, front of civil liberties activism in the 1950s and 1960s. A serious effort was made to articulate, and go to court to defend, what can be dubbed a “right to know.” Such a right clearly included the right to receive information from abroad. It extended to the right to bring foreign citizens into the country so that Americans could speak and listen to them. And it was intertwined with another new right being articulated in the period—the “right to travel.” The line between the right to know and the right to travel was blurry, but advocates of a right to travel frequently discussed the First Amendment implications of travel control—and in its earliest, and perhaps most powerful forms, the right to travel was seen as a means to ensure and instantiate a more foundational right to know. As one 1954 law review article put it, regulations on the right to travel “conflict with the essential elements of a democracy—the freedom of the citizen to gather information and to associate with whomever he wants.”

This quest to secure a right to know in the courts bore mixed fruit. It had some notable successes, creating important precedent and ending particularly noxious forms of state regulation. But it also had important limitations and some striking failures.

The greatest civil liberties successes came in the field of passport regulation. During the 1950s, political pressure and litigation forced the Passport Division to create greater procedural protections for passport applicants. And in 1958, in Kent v. Dulles, the Supreme Court ruled 5-4 that the State Department did not have the authority to deny a passport to Rockwell Kent—then a famous middlebrow artist and radical political figure—because it disapproved of his politics. It was a great political victory, one that ended ideological screening in the Passport Division.

But Kent v. Dulles did not recognize a First Amendment right to know. Justice William Douglas’ majority opinion focused instead only on a “right to travel,” which existed under the Fifth Amendment and could not be deprived without due process. And Douglas stopped well short of considering the extent to which this right could be curtailed. Instead, based on a selective and not entirely accurate history of passport law, he ruled that Congress had not authorized the State Department to deny passports on ideological grounds. Similarly, in 1964, the Supreme Court ruled that efforts to bar Communists from applying for a passport were unconstitutionally overbroad—but less because they directly interfered with one’s rights to travel and learn than because, by conditioning the grant of a passport on one’s political associations, they unconstitutionally interfered with freedom of association. Noticeably absent was any discussion of a “right to know” implicated in the right to travel.

This narrow defense of the right to travel provided no platform to attack area restrictions, which lived on. Indeed, in 1959, Douglas himself was denied a passport to travel to China, where he wanted to write a story on mountain climbing for National Geographic. And legal challenges to area restrictions were much less successful than Kent. In 1956, William Worthy spent 41 days reporting from China in defiance of a State Department ban. His passport was revoked and because he refused to swear to abide by such area restrictions in the future, his application for a new passport was denied. Drawing on the Kent v. Dulles decision, Worthy argued in 1959 that such a denial violated both the freedom of the press and his right to travel. The court scoffed at the First Amendment claim—“the right here involved is not a right to think or speak; it is a right to be physically present in a certain place.” And while Kent may have ruled that the State Department could not impede one’s right to travel based on the “beliefs and associations” of the applicant, this case involved no consideration of “beliefs, associations or personal characteristics.” Instead, it was a blanket determination by the executive branch that the conduct of American foreign relations required the restriction of travel to parts of the world—a policy decision to which courts and citizens should defer.

The Supreme Court declined to hear Worthy’s appeal, but six years later it did hear a case on area restrictions. Following the Cuban revolution, the State Department had declared that passports were invalid for travel to Cuba unless given special approval. Louis Zemel, a leftist owner of a ski resort in Connecticut, sought such an approval—he wanted to travel to Cuba “to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.” When his request was denied, he went to court, claiming his right to travel was being violated. The case ultimately made its way to the Supreme Court, which ruled 6-3 against him. Writing for the majority, Chief Justice Earl Warren distinguished area restrictions from the sort of ideological bans the court had overturned in Kent and Aptheker: “the Secretary has refused to validate appellant's passport not because of any characteristic peculiar to appellant, but rather because of foreign policy considerations affecting all citizens.” Warren conceded that denying passports “renders less than wholly free the flow of information concerning that country” but asserted that the case did not involve First Amendment concerns: “the right to speak and publish does not carry with it the unrestrained right to gather information.” The case concerned instead only the right to travel—a right now fully shorn of its First Amendment implications. And preventing the export of revolution and the “spreading of subversion,” Warren decided, provided justification for the restriction of passports to travel to Cuba—justification sufficient to override whatever Fifth Amendment rights Zemel may have had to freedom of travel.

Nevertheless, as political radicals continued traveling to Cuba to protest the travel ban, new pressure was brought to bear on the regime of area restrictions. In Zemel, Warren had left open the question of whether the State Department could criminally enforce its bar on travel. In 1967, in a case concerning the prosecution of students who had travelled to Cuba without a specially validated passport, the Supreme Court unanimously ruled that the State Department had no authority to prosecute citizens for traveling without authorization. The State Department announced in response that it would rely on administrative sanctions—not criminal sanctions—to enforce its travel bans: it would seize people’s passports when they violated area restrictions. But this effort, too, met with civil disobedience and produced yet another round of judicial narrowing. In January 1966, Staughton Lynd, Herbert Aptheker, and Tom Hayden traveled to North Vietnam on a “fact-finding and investigative mission.” When they returned, their passports were seized, and they claimed the seizure interfered with their rights to travel. The U.S. Court of Appeals for the District of Columbia Circuit now cleverly narrowed the Zemel decision to regulate only the use of the passport itself—the State Department could attach conditions to the use of an official government document, such as preventing passport holders from using the passport in particular countries. But if the individual traveled to a barred country without their passport—depositing it at a U.S. consulate in an allowed country; taking upon themselves the risks of traveling without official documents—they could not be stripped of their passport in retaliation, because this would unfairly impinge on their right to travel to other, allowable, countries in the future. The decision in Lynd v. Rusk, reported The New York Times “appeared to strip away the last remaining sanction available to the State Department to enforce its travel restrictions.”

More than a decade of civil liberties activism had effectively produced a right to international travel. But it was treated as a lesser right under the Fifth Amendment, one that could be subject to reasonable government regulations. Interferences with this right to international travel did not receive the same level of judicial scrutiny as did interferences with either rights to travel within the U.S. or First Amendment rights to speech and expression.

And the way the courts had handled the claim had broken this right into its component pieces. Denial of passports on ideological grounds had been barred—but less because of its impact on the right to gather information overseas than because of its chilling effects on domestic rights of speech and association. And in 1981, the Supreme Court ruled that the denial of a passport to dissident former CIA agent Philip Agee was constitutional because Agee’s speech activity—including threats to name undercover CIA agents—was likely to cause “serious damage to the national security and foreign policy.” It was an isolated and extreme case—but insofar as the majority decision distinguished this logic of passport denial from the practice at question in Kent, it seemed to open the door to a new mechanism of travel control.

Meanwhile, broad area restrictions on all citizens had been upheld as a valid instrument of foreign policy on the grounds that these policies were ostensibly ideologically neutral—though in practice, as The New York Times pointed out in 1966, “those who have been prosecuted have all been political dissenters who violated the ban to express their disagreement with U.S. foreign policy.” And what ultimately undid area restrictions was not a ruling that they unconstitutionally invaded First Amendment rights, but a series of technical rulings that Congress had not clearly delegated authority to the Secretary of State to enforce them. They stayed on the books until the late 1970s, when political pressures forced the end of this Cold War practice. In 1977, President Carter ended bans on travel to Cuba, North Vietnam, North Korea, and Cambodia to bring U.S. policy into alignment with agreements about free movement that had been signed at Helsinki. And the next year, Congress amended the Passport Act to limit the president’s authority to impose area restrictions except during war or to protect the public health or physical safety of citizens. Such a law had first been proposed back in the late 1950s, at the time of the Kent decision; two decades later, its passage seemed to mark the final death of Cold War-era restrictions on the political regulation of travel.

Legal challenges to postal regulations on importing foreign propaganda were more straightforwardly successful. The first wave of protest came in the form of complaints from Americans who had been denied receipt of material from abroad. In response, postal officials began to develop ad hoc lists and procedures to provide access to this information to particular individuals if they made certain guarantees about their political or intellectual intentions. Perhaps the most effective protest came from the Friends Service Committee, which had ordered copies of a pamphlet on the 1954 coup in Guatemala from a British political organization, never received them, and then worked out that the pamphlets had been detained as foreign propaganda. They threatened to sue, and in a private meeting the postal solicitor agreed not only to release the material but also promised that no more mail from non-Soviet bloc countries would be detained without notifying recipients. And in December 1956, the Justice Department codified what had emerged as an informal policy—it would forward Soviet propaganda to anyone who had ordered or solicited it. In 1961, President Kennedy briefly ended the entire practice of postal detention, but Congress restored it by statute: If Communist propaganda was received from abroad, the post office was to detain it and send a postcard to the addressee asking if they wanted to receive it. If the intended recipient said “no,” the material was destroyed. If they said “yes,” they got it, but their name would be added to a list.

In 1963, Corliss Lamont received a postcard asking him if he would like to receive a copy of Peking Review #12. He sued, and ultimately won a ruling from a unanimous Supreme Court that the 1962 law was an unconstitutional “limitation on the unfettered exercise of the addressee’s First Amendment rights”—it placed an “affirmative obligation” on the addressee to receive mail which “was almost certain to have a deterrent effect.” The majority ruling, written by Douglas, emphasized the chilling effect that the notification requirement created—teachers, those who needed security clearances, anyone worried about the government having their name on a list, might be disinclined to send the notice. The regime of postal censorship was thus “at war with the ‘uninhibited, robust and wide open debate’” that the Court had recently established as the core value of the First Amendment. A concurrence by Justice Brennan went further, claiming that the “right to receive publications” was a fundamental right—“it would be a barren marketplace that had only sellers and no buyers.”

Superficially, Lamont was a great win for the American right to receive information from abroad. It ended a particularly odious form of border censorship, and Brennan’s concurrence is rightly famous as one of the Court’s clearest statements on the rights to receive information. But the ruling proved a thin reed for constructing a broader right to know, largely because the government had done such a poor job of defending its postal censorship program. It had claimed that the system was necessary to prevent citizens from being spammed with unwanted Soviet propaganda and to prevent the state from subsidizing the delivery of such spam (the law applied only to second-class mail). But as Brennan explained in his concurrence, there were more targeted and speech protective ways of accomplishing this task—such as an already existing postal regulation that allowed citizens to request a stop on Communist propaganda.

It would turn out that Lamont would not stand up if the government made a more plausible case for restricting the importation of foreign information. Alongside the postal restrictions at question in Lamont was running a second form of import control. This was based on the Trading with the Enemy Act and a national emergency proclaimed by Harry Truman in 1950. It sought to block the flow of U.S. currency to China and North Korea; in 1964 it was extended to North Vietnam. Publications from these nations would be impounded unless intended recipients had received a license from the Office of Foreign Assets Control. In 1968, anti-war activists challenged the constitutionality of these regulations, claiming a right to receive information. But the U.S. Court of Appeals for the Second Circuit ruled against them. It conceded that the “regulations impinge on First Amendment freedoms” but argued that the restriction was “incidental to the proper general purpose of the regulations: restricting the dollar flow to hostile nations.” Because this was a “vital interest of the government,” the regulations were legitimate. On technical grounds, the Supreme Court declined to hear an appeal—a snowstorm had delayed receipt of the petition until after the deadline to appeal had passed—which led Justices Douglas and Black to issue an angry dissent arguing that the decision was hard to square with Lamont. If anything, they said, this was an even more burdensome restriction than Lamont; they thought OFAC regulations were a “very severe prior restraint on First Amendment rights.” But the right to receive information did not stack up against the government’s interests in controlling the flow of currency, and this new form of border censorship lived on.

The same thing happened to the right to travel—a thin right had been constructed which pruned the excesses of Cold War censorship, but when the logic of travel control shifted to currency regulation, courts were deferential. Indeed, just a few short years after area restrictions had ended, travel control came back. In 1980, in response to the Iranian revolution and the hostage crisis, Carter issued an Executive Order that restricted financial transactions with Iran—restrictions that extended to spending money while traveling. And in 1982, President Reagan issued new regulations that likewise barred the spending of U.S. currency in Cuba. A group of American citizens organized by Ruth Wald challenged the regulations, claiming that they interfered with their rights to travel to Cuba “to learn about its people and culture, and to establish political contact with the Cuban people.” In a 5-4 decision, the Supreme Court drew on the Zemel decision to uphold the constitutionality of the currency regulations: There was no First Amendment right to travel, and one’s Fifth Amendment right could be regulated if “justified by weighty concerns of foreign policy.” “Given the traditional deference to executive judgment” in matters of foreign policy, said Justice Rehnquist for the majority, the president’s desire to regulate the “flow of hard currency to Cuba” was sufficient to restrict the right to travel.

And Lamont’s recognition of the right to receive foreign information was likewise insufficient to challenge the practice of denying visas to foreign radicals. In 1969, Belgian Marxist theorist Ernest Mandel applied for a visa to give a series of invited lectures at U.S. universities. He was denied a visa on ideological grounds, and then, unlike on previous visits in 1962 and 1968, was also denied a waiver because he had unknowingly violated the conditions attached to his earlier waivers. (He had spoken at more universities than had been approved, and spoken at an event at which posters were later sold to raise funds for French protestors, violating a ban on speaking at venues in which funds for political causes were raised. Mandel was apparently never informed that these conditions had been attached to his waiver.) A group of academics who had invited Mandel to speak challenged the ban, arguing they were being deprived an opportunity to “hear his views and engage him in a free and open academic exchange.” And in 1971, a three-judge panel of the U.S. District Court in New York agreed with them. Drawing on Lamont, it ruled that ideological policing at the border interfered with First Amendment rights, particularly the rights of U.S. citizens to hear the ideas of foreigners. For a moment, it appeared that a right to know would begin to undermine ideological restrictions on visas.

The next year the decision was overturned by the Supreme Court, which argued that in this case, unlike Lamont, the government had broad plenary powers over immigration and had provided a justification for denying Mandel’s waiver. In an act of astonishing deference, the Court said that when provided with a “facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those seeking personal communication with the [foreigner.]” The result was that visa denial lived on. Or, as Douglas put it in dissent, “the Attorney General stands astride out international terminals that bring people here to bar those whose ideas are not acceptable to him.”

Reform to visa denials and currency regulations came not in the form of judicial mobilization of the Lamont precedent but in the form of legislative amendments inspired by the shifting geopolitical climate. In 1977, in response to the Helsinki Accords, a McGovern Amendment instructed the attorney general to make greater use of the waiver program to issue visas to individuals who had been members of proscribed organizations. Similarly, as the Cold War came to a close, the 1988 Berman Amendment sought to exempt informational products from currency regulations, and the 1994 Free Trade in Ideas Act prevented the president from restricting “travel or exchanges for informational, educational, religious, cultural, or humanitarian purposes or for public performances or exhibitions, between the United States and any other country.” As is typical of such legislative fixes, problems, loopholes, and ambiguities remained. Older forms of travel regulation were, once again, grandfathered in; OFAC tended to take a narrow view of “informational products”; and the State Department continued to deny visas to hundreds of individuals, including Hortensia Allende (Salvador’s widow), Tomas Borge (Nicaragua’s interior minister), Cuban experts on family policy, and 340 Japanese delegates to a conference on nuclear disarmament. Border censorship continued; so did litigation and contestation.

But if the state continued to regulate the flow of information across the U.S. border in some forms, we should nevertheless recognize that the rolling back of passport, visa, propaganda and travel restrictions from their Cold War heights was a significant victory for First Amendment values. Courts may have recognized a “right to know” about foreign affairs in only tepid and partial ways, but in practice, border controls had been contained and channeled into increasingly narrow, technocratic modes.

Credit for this accomplishment belongs primarily to a small coalition of radical civil liberties activists. The central cases in the period were brought by a surprisingly tight-knit circle. Radical lawyer Leonard Boudin—most famous for representing Daniel Ellsberg in the Pentagon Papers case—represented Kent, Lamont, Zemel, Mandel and Regan in their efforts to challenge border censorship; he had also represented himself when his own passport was stripped in 1955. Lamont, who won the great victory against postal censorship, and who had also been stripped of a passport in the 1950s, helped to fund Louis Zemel’s challenge to area restrictions through his Bill of Rights Fund. We would benefit from a more detailed history of this network of activists, but they clearly constituted a central front and central phase in the history of American civil liberties activism.

Their greatest success, moreover, came in pushing the U.S. to live up to its own rhetorical commitments to allowing information to flow freely across the U.S. border. “The U.S. believes a concerted effort must be made to break down the barriers to a free flow of information among the nations of the world,” President Harry Truman had announced to the opening session of the UN General Assembly in 1946: “the U.S. therefore attaches great importance to all activities designed to break down barriers to mutual understanding to wider tolerance.” Indeed, the idea of a global flow of free information was close to the central project of liberal internationalism in the post-WWII era.

But there was always a self-interested, instrumental side to such liberal rhetoric. The 1948 UN Freedom of Information Conference—which had drafted Article 19 of the U.N. Declaration of Human Rights, guaranteeing the “right … to receive and impart information and ideas by any means and regardless of frontiers”—had been seen by U.S. news agencies primarily as a way of opening foreign markets to them. Similarly, the Helsinki Accords of the 1970s, whose Basket 3 guaranteed “broader dissemination of information” across the Iron Curtain, were embraced in the U.S. primarily as a way to critique the censorship practices of the Soviet Bloc. For much of the Cold War, American commitments to a free flow of information mainly meant pulling down foreign bars to the spread of U.S. culture; U.S. bars to the importation of foreign ideas were much less of a concern. This was more than simple hypocrisy; it had serious political and geopolitical costs. It was U.S. insistence on denying visas to Communist journalists, for instance, which helped kill any prospect that the U.S. would successfully achieve its policy goal at that 1948 Freedom of Information conference—the signing of a binding, multilateral treaty to allow the free movement of journalists around the world.

Over time, however, politicians came to believe that U.S. border controls also undermined the American politics of international liberalism. Instrumental and idealistic logics fused. The Free Trade in Ideas Act of 1994, explained Howard Berman, its sponsor, was a “perfect example of self-interest corresponding with our deepest principles.” Liberalizing one’s own border allowed the U.S. to speak “with greater moral clarity” in the international arena. And it was perhaps “not totally coincidental,” Berman observed, “that where travel was not restricted, totalitarian regimes toppled. Where travel was restricted, we still face totalitarian regimes.” Confidence in the American project required an end to regulations on international informational regulation—both abroad and at home.

Seen in historical perspective, the key point is that in the 1950s and 1960s, these arguments were made by civil liberties activists well in advance of their embrace by Congress. It was these political radicals—Leonard Boudin, William Worthy, Corliss Lamont—who took most seriously the international policy commitments of the U.S. It was their activism—unpopular, costly, relatively isolated—that revealed the underlying hypocrisy of U.S. regulations of informational flows across the border. Whatever the uneven successes of their efforts to construct a right to know in the courts, their legal cases crystallized the problems of border censorship, drew attention to them, and led Congress to adopt reforms that brought American law into better alignment with its political values and democratic commitments.

And while this could be seen as a comforting story about the self-righting mechanisms of American democracy, it is important to remember how extended and drawn out this process was, how many individual liberties were sacrificed along the way, and how steep the toll was for American politics. The Supreme Court ended ideological control of passport issuance in the late 1950s; cold comfort to the many radicals who lost their passports for years. Area restrictions ended only in the 1970s, after decades of shaping American knowledge of the world, decades in which the U.S. made tragic foreign policy errors. And because of the piecemeal ways in which Congress and the courts rolled back restrictions on the right to know about the world, some forms of border censorship linger on, and channels remain open for new forms of border policing to arise.

There remains a central place, therefore, for litigation to protect the right to know. In the final section of this essay, I therefore want to consider why Cold War efforts to secure this right had so little purchase in the courts.

At the broadest level, the courts dismissed claims of a right to know out of deference to the foreign policy decisions of the executive. The cases reflect not simply a posture of extremist, formal deference to foreign policy powers—as in the Mandel and Regan decisions—but also the ways that judges internalized quotidian fears about international politics. In the William Worthy case in 1959, Judge Prettyman provided a classic example of anxious Cold War jurisprudence:

Unless almost the whole of our foreign policy and the titanic domestic burdens being presently borne by our people are devoid of factual foundation, there is presently in the world a deadlock of antagonistic forces, susceptible of erupting into a fatal cataclysm. … A blustering inquisitor avowing his own freedom to go and do as he pleases can throw the whole international neighborhood into turmoil.

In Zemel, Warren similarly justified deference because of the “changeable and explosive nature of contemporary international relations.” Delivering his opinion from the bench, he ad-libbed that restriction on travel were particularly needed “in these turbulent times when explosion after explosion occur in the world.”

The problem, of course, is that in treating foreign policy as a domain of exceptional, existential threats, such logics rule out the possibility of normal processes of democratic opinion formation. Rather than determining policy through debate and the formation of public opinion, courts rely on the technocratic expertise of the administration of the day. The Worthy judgment made quite plain the hollowing out of democratic commitments involved in such an approach: “Judgment on what course of action will best promote our foreign relations has been entrusted to the President, not to the courts, journalists, scholars, or even ‘public opinion.’”

There is a dangerous circularity to deferring to executive decisions that limit the rights of American citizens to make their own assessments of global conditions and the facts and context underlying U.S. foreign policy. After all, if expertise and knowledge is monopolized by the executive branch, courts will be even more inclined to defer to their judgments. Indeed, one of the grounds for deference has always been the informational disadvantages suffered by the judiciary (Two examples from travel control cases: The “executive is immediately privy to information which cannot be swiftly presented” to other branches of government; government decisions were based on “information gleaned through diplomatic sources and channels … as well as on the basis of information received from all other parts of the Executive branch … if we [the courts] had all this information, [we] might reach a different decision.” ) Regulation of knowledge and information thus produces its own legitimacy. On democratic grounds, therefore, there is a good case to be made that deference to foreign policy regulations should be lowest when they impinge on the capacity of American citizens to form opinions about that policy. The courts in the 1950s and 1960s right to know cases were offered an opportunity to make this clear, but largely declined to do so.

The reason for this, I think, is because the courts in these cases tended to conceptualize the right to know as an individual right—focusing on its benefits for the solitary citizen rather than its role in broader processes of collective opinion formation. The two rights are intertwined, but they involve a different image of the citizen and a different logic, as can be seen if we consider two ways that the Supreme Court has conceptualized the right to receive information in domestic cases. In Stanley v. Georgia, a 1969 case about the right to receive obscene materials, the court asserted that “if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” The image here is of an isolated, atomized consumer—the rights involved are private and psychological, and the communicative act is conceptualized as a one-off, ending with the recipient’s satisfied consumption at home. But in 1982’s Pico, a case about the censorship of books in a high school library, the Court emphasized that “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press and political freedom … access prepares students for active and effective participation in the pluralistic, often contentious society.” The image here is of an active, engaged citizen—the rights involved are public and political, and the communicative act is imagined as but a link in an ongoing chain of dialogue and debate.

When the courts considered the cases about border control, they tended to conceptualize the rights involved in the first image as involving only individual rights. In part, this was because of how the cases were presented to the courts. Louis Zemel, for instance, argued that he wanted to go to Cuba “to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.” That made him sound like an isolated individual, but in truth Zemel was an active political figure, committed to broader communicative politics. He had organized rallies for socialist politician Norman Thomas, held countercultural rock festivals and planned both a Black Panther rally and a civil liberties fundraiser at his ski resort. He would later run for the Senate as a member of the leftist Citizens’ Party. Moreover, he originally instituted his lawsuit to travel to Cuba not simply to scratch an intellectual itch but because he “felt people-to-people contacts across potentially hostile borders could strengthen world peace.” One imagines that the decision to present Zemel as simply a curious voter was intended to make his case less controversial, but it had the effect of subtly undermining the political significance of his desire to travel. Similarly, the Court considered Corliss Lamont’s general rights as a citizen. One could just as easily have emphasized his role as a public intellectual, or as a manager of a small publishing house, and thus the ways that, à la Pico, his rights to receive information would structure his rights to expression and communication thereafter.

Beyond the ways the facts of the cases were presented to the courts, the justices struggled to differentiate between these two aspects of the right to know. Justice Thurgood Marshall’s dissent in Mandel was an example of what happened when one put the public interest in democratic dialogue at the center of one’s analysis. While the majority decision considered only the rights of the particular appellants who wanted to speak to Mandel, and thus dismissed their appeal, Marshall argued, quoting from the lower court, that there was also “a general public interest in the prevention of the stifling of any stifling of political utterance”—one that justified overturning the denial of Mandel’s visa.

But this was unusual. The right to travel, for instance, was primarily addressed as an individual right—a right to possess a passport, a right to move freely. In his decision in Kent, his concurrence in Aptheker, and his dissent in Zemel, Douglas paid more attention to the First Amendment implications of the right to travel than perhaps any other judge. But he frequently described the right to free movement in terms of individual self-fulfillment—“it may be as close to the heart of the individual as the choice of what he eats, or wears or reads;” “freedom of movement, at home and abroad, is important for job and business purposes—for cultural, political and social activities—for all the commingling which gregarious man enjoys.” In Kent, Douglas did quote from Zechariah Chafee to outline the “large social values” which flow from freedom of movement, but the passage slides between individual and collective benefits together in intriguing ways:

Foreign correspondents and lecturers on public affairs need first-hand information. Scientists and scholars gain greatly from consultations with colleagues in other countries. Students equip themselves for more fruitful careers in the United States by instruction in foreign universities. Then there are reasons close to the core of personal life—marriage, reuniting families, spending hours with old friends. Finally, travel abroad enables American citizens to understand that people like themselves live in Europe and helps them to be well-informed on public issues. An American who has crossed the ocean is not obliged to form his opinions about our foreign policy merely from what he is told by officials of our government or by a few correspondents of American newspapers.

The passage begins with the idea of knowledge workers but seems to focus on their personal ambition as much as their contributions to collective life; it then switches to purely personal benefits before returning to the idea of an informed citizenry—but here conceptualizes travel primarily as an input to the formation of individual opinions. It was only in his dissent in Zemel that Douglas seemed to focus on the fact that the right to travel could add to collective deliberation, and even here the discussion remained vague—“the right to know, to converse with others, to consult with them, to observe social, physical, political and other phenomena abroad as well as at home gives meaning and substance to freedom of expression.” But while he spoke dramatically of the need to “understand this pluralistic world, filled with clashing ideologies … as a prerequisite of citizenship if we and other peoples of the world are to avoid the nuclear holocaust” he still considered these rights “peripheral” to the First Amendment. Rather than strengthening the power of the right to travel, Douglas’ omnibus approach made its logic blurry, preventing a clear discussion of its role in collective self-governance.

Conceptualizing the right to know in these more individualistic terms made it more likely that the courts would dismiss challenges to border regulations. In the first instance, rights of individual conscience and curiosity simply couldn’t stack up against structural arguments about the security of America’s place in the world or the imperatives of the government’s foreign policy agenda. They made the rights involved seem self-indulgent. But as William Worthy put it, Americans needed to “dispel the superficial notion that the right to travel is nothing more than the right to go away on a pleasant vacation.” “Travel control,” he argued, “is thought control and intellectual control”—a weightier set of constitutional concerns.

And in a more technical sense, part of the reason the courts upheld visa restrictions and area restrictions from constitutional challenges was that they were concerned that recognizing a right to know would open the floodgates to frivolous challenges that would undermine the possibility of all governance in the field. “There are few restrictions on action,” said Warren in Zemel, “which could not be clothed by ingenious argument in the garb of decreased data flow.” Given what we have since learned about the weaponization of First Amendment claims and their ability to undermine collectively determined democratic policy, these were prophetic concerns. One could easily imagine that recognizing a universal right to travel would undermine the possibility of legitimate regulations on travel. As we know too well, restrictions on nonessential travel can be a crucial tool to protect public health during a pandemic. And there is a strong case, too, for restricting the travel of individuals to conflict zones, where they might come to harm that would risk ensnaring the entire population in a war.

An obvious solution to this problem would be to try to differentiate between purely individualistic claims of a right to travel and those claims made in the interests of informing broader public debate. One could imagine courts granting more weight to the claims of a working journalist to travel to a war zone than the claims of a tourist or importer of knickknacks. Courts and First Amendment scholars are understandably anxious about creating these sorts of tiers within the First Amendment. For good reason, there is little enthusiasm for recognizing a special class of rights for journalists or intellectuals, and then making decisions about which individuals fall into which categories.

It was considerations of these difficulties that led the Court in Mandel to reject the idea of a court-enforced right to bring a foreign citizen into the country. “In almost every instance of an alien excludable [under the law],” said Justice Blackmun for the majority, “there are probably those who would wish to meet and speak with him.” They might not be as “articulate, well-known and popular” as the individuals who wanted to meet with Mandel, but the First Amendment would protect their rights too. And so recognizing a right to speak to Mandel would mean either completely eroding the executive’s power to enforce Congress’ law or requiring the courts in each case “to weigh the strength of the audiences interests against that of the Government.” For Blackmun, the “dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker’s ideas are obvious.” The problem is that such determinations were nevertheless being made, just not by the courts. And it was not clear why it was a more legitimate or desirable outcome for the government to make those waiver decisions unilaterally, and without any effort by the court to balance foreign policy interests with the public interest in free flows of information.

Indeed, it is helpful to remember that U.S. travel policy has been shot through with these kinds of discriminatory classifications. Since the late 1950s, in the wake of William Worthy’s travel to China, area restrictions on travel have routinely provided exemptions for journalists. These have not been without their problems. The reason William Douglas’ passport was denied for China was because the government did not think his freelance assignment for National Geographic qualified as journalism. But the policies persisted. In 1994, for instance, Clinton-era restrictions on travel to Cuba provided a general exemption only for journalists “regularly employed in that capacity by a news reporting organization”—freelancers needed to apply for a specific license, which raised all sorts of questions about licensing.

We could certainly benefit from further study of how various administrations have implemented these sorts of classificatory schemes, and of their consequences for the U.S. public sphere. Interestingly, the history of these practices has led to at least two cases in which courts have ruled that newsgathering exemptions from travel bans can be constitutional even though they require discriminating between those who can receive the exemption and those who cannot. And in Worthy v. Herter, the district court seemed to announce the existence of “a newspaperman’s right to travel [a]s a part of the freedom of the press”—a right distinct to, and presumably more expansive, than the generic “right to travel [which] is a part of the right to liberty.”

If one put public interests in receiving information from abroad as the center of one’s analysis of border censorship, then one could imagine a multilayered set of First Amendment tests. Some forms of regulation, like the postal regulations in Lamont, could be ruled wholly unconstitutional for their unjustified interferences with First Amendment rights. Regulations with more valid policy justifications—such as restricting travel to a combat zone or the site of an epidemic—could be ruled constitutional only if they provide sufficient carve-outs for those traveling to bring knowledge to the American public. And then the administration of those carve-outs could be scrutinized to see if they are being administered in keeping with First Amendment values of nondiscrimination, neutrality, and fairness.

But the Cold War courts did not begin to develop these lines of thinking because they did not clearly focus on the public right to know about the world. That meant they did not make any particularly serious effort to balance the public interest in knowledge against genuine policy needs to regulate travel or informational flows. The result was that an individualistic right to receive information or to travel was sufficient to displace particularly censorial policies at the border, especially when they were poorly justified. But this delimited vision of the right to know was inadequate to challenge policies if they could be justified as part of the foreign or national security policy of the U.S. Thinking more carefully about the public interest protected by the public right to know might prove a more productive way to approach the questions in the future.

If we are indeed on the cusp of a new era of geopolitical conflict, there is every reason to expect that new forms of border censorship may soon arise. This history of the Cold War quest to secure the rights of American citizens to know about the world provides, I think, three lessons to help us make sense of them. The first is that under conditions of geopolitical conflict, governments will pass expansive measures to regulate the flow of information across the border—the net effect of which will be to seriously impair First Amendment rights and the quality of democratic public opinion, even if courts are disinclined to focus on these sorts of First Amendment questions. The second is that social movements and civil liberties activists should resist these regulations, and that litigation can lead to political victories even if it fails to secure judicial recognition of the importance of First Amendment rights to know about the world. And finally, this history suggests that if a right to know is to be secured in the future, it will be important to stress its structural benefits to democracy over its benefits to the individual.

 

© 2025, Sam Lebovic

Cite as: Sam Lebovic, Do Americans Have a Right to Know About the World?, 25-02 Knight First Amend. Inst. (Feb. 10, 2025), https://knightcolumbia.org/content/do-americans-have-a-right-to-know-about-the-world[https://perma.cc/QDB4-J5S9].