Cole v. Richardson (405 U.S. 676)

Appellee's employment at the Boston State Hospital was terminated when she refused to take the following oath required of all public employees in Massachusetts: "I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method." Appellee challenged the constitutionality of the oath statute. A three-judge District Court concluded that the attack on the "uphold and defend" clause was foreclosed by Knight v. Board of Regents, 390 U.S. 36, but found the "oppose the overthrow" clause "fatally vague and unspecific" and thus violative of the First Amendment. In response to a remand from this Court, the District Court concluded that the case was not moot, and reinstated its earlier judgment.

Held: The Massachusetts oath is constitutionally permissible. Pp. 679-687.


 * (a) The oath provisions of the United States Constitution, Art. II, § 1, cl. 8, and Art. VI, cl. 3, are not inconsistent with the First Amendment. Pp. 681-682.


 * (b) The District Court properly held that the "uphold and defend" clause, a paraphrase of the constitutional oath, is permissible. P. 683.


 * (c) The "oppose the overthrow" clause was not designed to require specific action to be taken in some hypothetical or actual situation but was to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our government. Pp. 683-685.


 * (d) The oath is not void for vagueness. Perjury, the sole punishment, requires a knowing and willful falsehoods, which removes the danger of punishment without fair notice; and there is no problem of punishment inflicted by mere prosecution, as there has been no prosecution under the statute since its enactment nor has any been planned. Pp. 685-686.


 * (e) There is no constitutionally protected right to overthrow a government by force, violence, or illegal or unconstitutional means, and therefore there is no requirement that one who refuses to take Massachusetts' oath be granted a hearing for the determination of some other fact before being discharged. Pp. 686-687.

Reversed and remanded.

BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE, and BLACKMUN, JJ., joined. STEWART and WHITE, JJ., filed a concurring opinion, post, p. 687. DOUGLAS, JJ, filed a dissenting opinion, post, p. 687. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 691. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

Walter H. Mayo III, Assistant Attorney General of Massachusetts, argued the cause for appellants. With him on the brief was Robert H. Quinn, Attorney General.

Stephen H. Oleskey argued the cause for appellee pro hac vice. With him on the brief was Harold Hestnes.