384 U.S. 11 (1966), 656, Elfbrandt v. Russell

Docket Nº:No. 656
Citation:384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321
Party Name:Elfbrandt v. Russell
Case Date:April 18, 1966
Court:United States Supreme Court

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384 U.S. 11 (1966)

86 S.Ct. 1238, 16 L.Ed.2d 321

Elfbrandt

v.

Russell

No. 656

United States Supreme Court

April 18, 1966

Argued February 24, 1966

CERTIORARI TO THE SUPREME COURT OF ARIZONA

Syllabus

State employees in Arizona must take an oath to support the Federal and State Constitutions and state laws. Under a legislative gloss put on the oath, an employee is subject to prosecution for perjury and discharge from office if he "knowingly and willfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations" or "any other organization" having for "one of its purposes" the overthrow of the state government where the employee had knowledge of the unlawful purpose. Petitioner, a teacher, filed suit for declaratory relief, having decided that she could not in good conscience take the oath, not knowing what it meant and being unable to obtain a hearing to determine its precise scope and meaning. The judgment of the Arizona Supreme Court sustaining the oath was vacated by this Court, 378 U.S. 127, and remanded for reconsideration in light of Baggett v. Bullitt, 377 U.S. 360. On reconsideration, the Arizona Supreme Court reinstated the original judgment, finding the oath "not afflicted" with the many uncertainties found potentially punishable in Baggett v. Bullitt.

Held:

1. Political groups may embrace both legal and illegal aims, and one may join such groups without embracing the latter. Pp. 15-17.

2. Those who join an organization without sharing in its unlawful purposes pose no threat to constitutional government, either as citizens or as public employees. P. 17.

3. To presume conclusively that those who join a "subversive" organization share its unlawful aims is forbidden by the principle that a State may not compel a citizen to prove that he has not engaged in criminal advocacy. Speiser v. Randall, 357 U.S. 513 followed. Pp. 17-18.

4. The Arizona Act is not confined to those who join with the "specific intent" to further the illegal aims of the subversive organization; because it is not "narrowly drawn to define and

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punish specific conduct as constituting a clear and present danger," it unnecessarily infringes on the freedom of political association. Pp. 16-19.

97 Ariz. 140, 397 P.2d 944, reversed.

DOUGLAS, J., lead opinion

[86 S.Ct. 1239] MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This case, which involves questions concerning the constitutionality of an Arizona Act requiring an oath from state employees, has been here before. We vacated the judgment of the Arizona Supreme Court which had sustained the oath (94 Ariz. 1, 381 P.2d 554) and remanded the cause for reconsideration in light of Baggett v. Bullitt, 377 U.S. 360. See 378 U.S. 127. On reconsideration, the Supreme Court of Arizona reinstated the original judgment. 97 Ariz. 140, 397 P.2d 944. The case is here on certiorari. 382 U.S. 810.

The oath reads, in conventional fashion, as follows:1

I, (type or print name) do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Arizona; that I will bear true faith and allegiance to the same, and defend them against all enemies whatever, and that I will faithfully and impartially discharge the duties of the office of (name of office) according to the best of my ability, so help he God (or so I do affirm).

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The Legislature put a gloss on the oath2 by subjecting to a prosecution for perjury and for discharge from public office anyone who took the oath and who

knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations

or "any other organization" having for "one of its purposes" the overthrow of the government of Arizona or any of its political subdivisions where the employee had knowledge of the unlawful purpose. Petitioner, a teacher and a Quaker, decided she could not in good conscience take the oath, not knowing what it meant and not having any chance to get a hearing at which its precise scope and meaning could be determined. This suit for declaratory relief followed. On our remand, the Arizona Supreme Court

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said that the gloss on the oath is "not afflicted" with the many uncertainties found potentially punishable in Baggett v. Bullitt, supra.

Nor does it reach endorsements or support for Communist candidates for office nor a lawyer who represents the Communist Party, or its members, nor journalists who defend the Communist Party, its rights, or its members. Such conduct is neither an act nor in aid of [86 S.Ct. 1240] an act attempting to overthrow the government by force and violence.

It is our conclusion that the portions of the Arizona act here considered do not forbid or require conduct in terms so vague that men of common intelligence must necessarily guess at the meaning and differ as to their application.

97 Ariz. at 147, 397 P.2d at 948.

Mr. Justice Bernstein, in dissent, responded that the majority had failed to consider the so-called "membership clause" of the oath and accompanying statutory gloss:

Let us consider a scientist, a teacher in one of our universities. He could not know whether membership is prohibited in an international scientific organization which includes members from neutralist nations and Communist bloc nations -- the latter admittedly dedicated to the overthrow of our government and which control the organization -- even though access to the scientific information of the organization is available only to its members.

* * * *

Though all might agree that the principal purpose of such an organization is scientific, the statute makes his membership a crime if any subordinate

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purpose is the overthrow of the state government. The vice of vagueness here is that the scientist cannot know whether membership in the organization will result in prosecution for a violation of § 38-231, subd. E, or in honors from his university for the encyclopedic knowledge acquired in his field in part through his membership.

Id. at 147-148, 397 P.2d at 949.

We recognized in Scales v. United States, 367 U.S. 203, 229, that "quasi-political parties or other groups . . . may embrace both legal and illegal aims." We noted that a "blanket prohibition of association with a group having both legal and illegal aims" would pose "a real danger that legitimate political expression or association would be impaired." The statute with which we dealt in Scales -- the so-called "membership clause" of the Smith Act (18 U.S.C. § 2385) -- was found not to suffer from this constitutional infirmity because, as the Court construed it, the statute reached only "active" membership (id. at 222) with the "specific intent" of assisting in achieving the unlawful ends of the organization (id. at 229-230). The importance of this limiting construction from a constitutional standpoint was emphasized in Noto v. United States, 367 U.S. 290, 299-300, decided the same day:

[I]t should also be said that this element of the membership crime [the defendant's "personal criminal purpose to bring about the overthrow of the Government by force and violence"], like its others, must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and

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constitutionally protected purposes because of other and unprotected purposes which he does not necessarily share.3

Any lingering doubt that proscription of mere knowing membership, without any showing of "specific intent," would run afoul of the Constitution was set at rest by our decision in Aptheker v. Secretary of State, 378 U.S. 500. We dealt there with a statute which provided that no member of a Communist organization ordered by the Subversive Activities Control Board to register shall apply for or use a passport. We concluded that the statute would not permit a narrow [86 S.Ct. 1241] reading of the sort we gave § 2385 in Scales. See 378 U.S. at 511, n. 9. The statute, as we read it, covered membership which was not accompanied by a specific intent to further the unlawful aims of the organization, and we held it unconstitutional.

The oath and accompanying statutory gloss challenged here suffer from an identical constitutional infirmity. One who subscribes to this Arizona oath and who is, or thereafter becomes, a knowing member of an organization which has as "one of its purposes" the violent overthrow of the government is subject to immediate discharge and criminal penalties. Nothing in the oath, the statutory gloss, or the construction of the oath and statutes given by the Arizona Supreme Court purports to exclude association by one who does not subscribe to the organization's unlawful ends. Here as in Baggett v. Bullitt, supra, the "hazard of being prosecuted for knowing but guiltless behavior" (id. at 373) is a reality. People often label as "communist" ideas which they oppose; and they often make up our juries. "[P]rosecutors, too, are human." Cramp v. Board of Public Instruction, 368 U.S. 278, 287. Would a teacher be safe and secure

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in going to a Pugwash Conference?4 Would it be legal to join a seminar group predominantly Communist, and therefore subject to control by those who are said to believe in the overthrow of the Government by force and violence? Juries might convict though the teacher did not subscribe to the wrongful aims of the organization. And there is apparently no machinery provided for getting clearance in advance.5

Those who join an organization but do not share its unlawful purposes, and who do not participate in its unlawful activities, surely pose no threat, either as citizens or...

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