Elfbrandt v. Russell (384 U.S. 11)/Dissent White

Mr. Justice WHITE, with whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice STEWART concur, dissenting.

According to unequivocal prior holdings of this Court, a State is entitled to condition public employment upon its employees abstaining from knowing membership in the Communist Party and other organizations advocating the violent overthrow of the government which employs them; the State is constitutionally authorized to inquire into such affiliations and it may discharge those who refuse to affirm or deny them. Gerende v. Board of Supervisors of Elections, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745; Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 432 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494; see also Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. The Court does not mention or purport to overrule these cases; nor does it expressly hold that a State must retain, even in its most sensitive positions, those who lend such support as knowing membership entails to those organizations, such as the Communist Party, whose purposes include the violent destruction of democratic government.

Under existing constitutional law, then Arizona is free to require its teachers to refrain from knowing membership in the designated organizations and to bar from employment all knowing members as well as those who refuse to establish their qualifications to teach by executing the oath prescribed by the statute. Arizona need not retain those employees on the governor's staff, in the Phoenix police department or in its schools who insist on holding membership in and lending their name and influence to those organizations aiming at violent overthrow. Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517.

It would seem, therefore, that the Court's judgment is aimed at the criminal provisions of the Arizona law which expose an employee to a perjury prosecution if he swears falsely about membership when he signs the oath or if he later becomes a knowing member while remaining in public employment. But the State is entitled to condition employment on the absence of knowing membership; and if an employee obtains employment by falsifying his present qualifications, there is no sound constitutional reason for denying the State the power to treat such false swearing as perjury. Alire v. United States, 10 Cir., 313 F.2d 31; Ogden v. United States, 9 Cir., 303 F.2d 724. By the same token, since knowing membership in specified organizations is a valid disqualification, Arizona cannot sensibly be forbidden to make it a crime for a person, while a state employee, to join an organization knowing of its dedication to the forceful overthrow of his employer and knowing that membership disqualifies him for state employment. The crime provided by the Arizona law is not just the act of becoming a member of an organization but it is that membership plus concurrent public employment. If a State may disqualify for knowing membership and impose criminal penalties for falsifying employment applications, it is likewise within its powers to move criminally against the employee who knowingly engages in disqualifying acts during his employment. If a government may remove from office, 5 U.S.C. § 118i (1964 ed.), United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, and criminally punish, 18 U.S.C. § 607 (1964 ed.), its employees who engage in certain political activities, it is unsound to hold that it may not, on pain of criminal penalties, prevent its employees from affiliating with the Communist Party or other organizations prepared to employ violent means to overthrow constitutional government. Our Constitution does not require this kind of protection for the secret proselyting of government employees into the Communist Party, an organization which has been found to be controlled by a foreign power and to be dedicated to the overthrow of the government by any illegal means necessary to achieve this end. Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.

There is nothing in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836, or Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, dictating the result reached by the Court. Scales involved the construction of the Smith Act and a holding that the membership clause did not reach members who knew of the illegal aims of the Party but lacked an active membership and an intent to further the illegal ends. Noto also involved a construction of the Smith Act, the conviction there being reversed for insufficient evidence. Aptheker struck down a provision denying passports to members of the Communist Party which applied 'whether or not one knows or believes that he is associated with an organization operating to further aims of the world Communist movement * *  *. The provision therefore sweeps within its prohibition both knowing and unknowing members.' 378 U.S., at 510, 84 S.Ct. at 1666. In any event, Scales, Noto and Aptheker did not deal with the government employee who is a knowing member of the Communist Party. They did not suggest that the State or Federal Government should be prohibited from taking elementary precautions against its employees forming knowing and deliberate affiliations with those organizations who conspire to destroy the government by violent means. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, also relied upon by the majority, carefully preserved Gerende and Garner for reasons which I think are equally applicable to the Arizona oath and statute. In my view, therefore, the Court errs in holding that the Act is overbroad because it includes state employees who are knowing members but who may not be active and who may lack the specific intent to further the illegal aims of the Party.

Even if Arizona may not take criminal action against its law enforcement officers or its teachers who become Communists knowing of the purposes of the Party, the Court's judgment overreaches itself in invalidating this Arizona statute. Whether or not Arizona may make knowing membership a crime, it need not retain the member as an employee and is entitled to insist that its employees disclaim, under oath, knowing membership in the designated organizations and to condition future employment upon future abstention from membership. It is, therefore, improper to invalidate the entire statute in this declaratory judgment action. If the imposition of criminal penalties under the present Act is invalid, the Court should so limit its holding and remand the case to the Arizona courts to determine the severability of the criminal provisions under the severability provisions of the Act itself. Arizona Communist Control Act of 1961, Ariz. Laws 1961, c. 108, § 8.