Cole v. Richardson (405 U.S. 676)/Dissent Douglas

[p687] MR. JUSTICE DOUGLAS, dissenting.

The part of the oath that says "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" is plainly unconstitutional by our decisions. See Board of Education v. Barnette, 319 U.S. 624, 634.

[p688] Advocacy of basic fundamental changes in government, which might popularly be described as "overthrow," is within the protection of the First Amendment even when it is restrictively construed. In Brandenburg v. Ohio, 395 U.S. 444, a case involving criminal syndicalism, this Court ruled that a State may not "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." Id., at 447. The same idea was put in somewhat different words in Noto v. United States, 367 U.S. 290, 297-298, that "abstract teaching" of overthrow as protected activity as contrasted to "preparing a group for violent action and steeling it to such action." And see Yates v. United States, 354 U.S. 298, 318.

The present oath makes such advocacy a possible offense under a restrictive reading of the First Amendment.

The views expressed by Mr. Justice Black and me give the First Amendment a more expansive reading. We have condemned loyalty oaths as "manifestation[s] of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people." Wieman v. Updegraff, 344 U.S. 183, 193 (Black, J., concurring). And see Speiser v. Randall, 357 U.S. 513, 532 (DOUGLAS, J., concurring). We said in Brandenburg that the protection of the First Amendment as applied to the States through the Fourteenth does not depend on the "quality of advocacy," since that "turns on the depth of the conviction." 395 U.S., at 457 (DOUGLAS, J., concurring). The line between the permissible control by a State and the impermissible control is "the line between ideas and overt acts." Id., at 456. "The First Amendment... leaves the way wide open for people to favor, discuss, advocate, or incite causes [p689] and doctrines however obnoxious and antagonistic such views may be to the rest of us." Yates v. United States, supra, at 344 (Black, J., concurring and dissenting). This oath, however, requires that appellee "oppose" that which she has an indisputable right to advocate. Yet the majority concludes that the promise of "opposition"—exacted as a condition of public employment —is a mere redundancy which does not impair appellee's freedom of expression.

[p690] It is suggested, however, that because only the second portion of the oath is unconstitutional we should sever the two clauses and uphold the first. Even on this assumption, the entire oath must fall. This Court should, of course, base its decisions upon local law where, in so doing, we may avoid deciding federal constitutional questions. Here, we have been cited to no evidence of a legislative intent to separate the two clauses of the oath. This case is thus governed by Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N.E. 2d 414 (1967), where the Supreme Judicial Court of Massachusetts was confronted with a two-part test oath similar in effect to the one before us. "The substance of the oath [was] not confined merely to a declaration of support of the Federal and State Constitutions. It equally concern[ed] an undertaking by the plaintiff that 'I will faithfully discharge the duties of the position of assistant professor of mathematics according to the best of my ability.'" Id., at 128-129, 224 N.E. 2d, at 416. Finding the oath to be "altogether too vague a standard to enforce judicially" and being without evidence "whether the Legislature would have enacted [it] without the [invalid] provision," the court was unable to hold that the provisions were severable, and thus unanimously struck down the entire oath. Id., at 129, 224 N.E. 2d, at 416.

I would follow the lead of the Supreme Judicial Court of Massachusetts—the court which has the final word on how the statutes of that State are to be construed—and hold that the entire oath must fall.

[p691] I conclude that whether the First Amendment is read restrictively or literally as Jefferson would have read it, the oath which the District Court struck down, 300 F. Supp. 1321, is plainly unconstitutional. I would affirm its judgment.