Communist Party of Indiana v. Whitcomb 8212 1040

• Decision Date: 09 January 1974
• Docket Number: No. 72,72
• Citation: 414 U.S. 441,38 L.Ed.2d 635,94 S.Ct. 656
• Parties: COMMUNIST PARTY OF INDIANA et al., Appellants, v. Edgar D. WHITCOMB, etc., et al. —1040
• Court: U.S. Supreme Court

414 U.S. 441

94 S.Ct. 656

38 L.Ed.2d 635

COMMUNIST PARTY OF INDIANA et al., Appellants,

v Edgar D. WHITCOMB, etc., et al.

No. 72—1040.

Argued Oct. 16, 1973.

Decided Jan. 9, 1974.

Rehearing Denied Feb. 25, 1974.

See 415 U.S. 952, 94 S.Ct. 1476.

Syllabus

The application of appellants (the Communist Party of Indiana, certain of its officers and potential voters, and its candidates for President and Vice President) for a place on the Indiana ballot for the 1972 general election was rejected for failure to submit a statutory loyalty oath stating that the Party 'does not advocate the overthrow of local, state or National Government by force or violence.' Appellants, contending that the statute was unconstitutional, thereupon filed this action in the District Court for injunctive and declaratory relief. On September 28, 1972, a three-judge court declared the statute constitutional and ordered the Election Board to place the Party on the ballot, but only if the required oath was submitted. After a qualified oath submitted by the Party was rejected, appellats on October 3 sought a District Court order directing the Board to accept such oath, and on the same day the Board requested reconsideration of the September 28 order. The next day the District Court denied both motions. On October 10 appellants filed a notice of appeal to this Court, which it later sought to withdraw so that the District Court might act on appellants' motion of the same day that the September 28 order be amended in certain respects. On October 31, the District Court allowed withdrawal of the appeal notice but denied the motion to amend. Appellants refiled their notice of appeal to this Court on November 29, which appellees contend is untimely. Held:

1. Appellants' notice of appeal was within the 60-day appeal period prescribed by 28 U.S.C. § 2101(b), since appellees' October 3 motion for reconsideration suspended the finality of the September 28 judgment until the District Court's denial of such motion on October 4 restored it, so that the time for appeal thus began to run from October 4. Pp. 445—446.

2. The loyalty oath requirement of the Indiana statute violates the First and Fourteenth Amendments. Pp. 446—450.

(a) The principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action, applies to state regulation burdening access to the ballot, rights of association in the political party of one's choice, casting an effective ballot, and in running for office, which are interests as substantial as those in other areas that this Court has protected against statutory schemes contrary to the First and Fourteenth Amendments. Pp. 448—449.

(b) For purposes of determining whether for grant a place on the ballot, a group advocating violent overthrow as abstract doctrine need not be regarded as necessarily advocating unlawful action. P. 449—450.

Reversed.

Sanford Jay Rosen, New York City, for appellants.

Theodore L. Sendak, Crown Point, Ind., for appellees.

Mr. Justice BRENNAN delivered the opinion of the Court.

This is a loyalty oath case. The question for decision is whether the First and Fourteenth Amendments are violated by Indiana's requirement, Ind.Ann.Stat. § 29—3812 (1969), IC 1971, 3 1—11—12, that '(n)o existing or newly-organized political party or organization shall be permitted on or to have the names of its candidates printed on the ballot used at any election until it has filed an affidavit, by its officers, under oath, that it does not advocate the over- throw of local, state or national government by force or violence . . ..'¹

Appellants are the Communist Party of Indiana, a new political party in Indiana, certain of its officers and potential voters, and its candidates for President and Vice President in the 1972 election. Appellees are the Indiana State Election Board and its members. When appellants applied to the Election Board in August 1972 for a place on Indiana's National Ballot for the 1972 general election without submitting the required oath, the Board, on the advice of the Attorney General of Indiana, rejected the application. Appellants thereupon filed this action in the District Court for the Northern District of Indiana seeking a declaration of the uncon- stitutionality of § 29—3812, and an injunction requiring that the Election Board place the Party on the ballot. A three-judge court was convened and that court, on September 28, 1972, in an unreported opinion, declared the provision of § 29—3812 that is challenged on this appeal constitutional and issued an order requiring the Election Board to place the Communist Party and its nominees on the National Ballot only '(i)n the event that the Communist Party of Indiana shall submit an affidavit in keeping with this memorandum and order. . . .'² The Communist Party submitted an affidavit that, in addition to the statutory language, added the following:

'The term advocate as used herein has the meaning given it by the Supreme Court of the United States in Yates v. United States, 354 U.S. 298 at 320 (77 S.Ct. 1064, 1 L.Ed.2d 1356), 'the advocacy and teaching of concrete action for the forcible overthrow of the government, and not of principles divorced from action."

The Election Board rejected the affidavit and appellants, on October 3, returned to the District Court, seeking an order directing the Board to accept it. On the same day the Election Board filed a motion requesting reconsideration of the order of September 28.³ The District Court, on October 4, denied both motions by order entered that day. Appellants on October 10 filed a notice of appeal to this Court to enable them to seek emergency relief. That effort was abandoned, and appellants then sought leave of the District Court to withdraw the notice of appeal in order that the District Court might act on a motion of appellants, also filed October 10, that the District Court amend its September 28 order to include a determination that § 29—3812 was constitutional 'only insofar as it proscribes advocacy directed at promoting unlawful action, as distinguished from advocacy of abstract doctrine.' On October 31, the District Court entered an order granting leave to withdraw the notice of appeal of October 10 but denying the motion to amend the September 28 memorandum.

Appellants refiled their notice of appeal on November 29. Appellees moved to dismiss the appeal as jurisdictionally untimely, arguing that the 60-day period for appeal, 28 U.S.C. § 2101(b), expired on November 27. We postponed consideration of the question of our jurisdiction to the merits. 410 U.S. 981, 93 S.Ct. 1504, 36 L.Ed.2d 176 (1973). We hold that the appeal was timely. Appellees' motion for reconsideration of October 3 suspended the finality of the judgment of September 28 until the District Court's denial of the motion on October 4 restored it. Time for appeal thus began to run from October 4 and the notice of appeal filed November 29 was timely.⁴ As to the merits, we hold that the loyalty oath requirement of § 29—3812 violates the First and Fourteenth Amendments,⁵ and therefore reverse the judgment of the District Court.⁶

Loyalty oath cases are not strangers to this Court, see Note, Loyalty Oaths, 77 Yale L.J. 739. (1968), but the constitutional questions presented in earlier cases arising from their use to limit access to the ballot have not had plenary consideration.⁷ The District Court decided this case under the pressure of a ballot-printing deadline, and its memorandum opinion states no reasons and cites no authorities to support the court's holding that 'that portion of the statute providing 'that it does not advocate the overthrow of local, state or national government by force or violence,' is constitutional and hence enforceable by Indiana.'

Appellees do not deny that § 29—3812 exacts a broad oath embracing advocacy of abstract doctrine as well as advocacy of action. Yet this Court has held in many contexts that the First and Fourteenth Amendments render invalid statutes regulating advocacy that are not limited to advocacy of action. And, as we have so often emphasized, '(p)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).

We most recently summarized the constitutional prin- ciples that have evolved in this area in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). We expressly overruled the earlier holding of Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), that 'without more, 'advocating' violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it.' 395 U.S., at 447, 89 S.Ct., at 1829. For, we said:

'(L)ater decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290, 297—298 (81 S.Ct. 1517, 1520—1521, 6 L.Ed.2d 836) (1961), 'the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct....