Elfbrandt v. Russell (384 U.S. 11)/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, 84 S.Ct. 1316, 12 L.Ed.2d 377. See 378 U.S. 127, 84 S.Ct. 1658, 12 L.Ed.2d 744. 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, 86 S.Ct. 116, 15 L.Ed.2d 59.

The oath reads in conventional fashion as follows:

'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).' The Legislature put a gloss on the oath 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 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 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 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, 81 S.Ct. 1469, 1486, 6 L.Ed.2d 782, 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, 81 S.Ct. at 1482) with the 'specific intent' of assisting in achieving the unlawful ends of the organization (id., at 229-230, 81 S.Ct. at 1522). The importance of this limiting construction from a constitutional stand-point was emphasized in Noto v. United States, 367 U.S. 290, 299-300, 81 S.Ct. 1517, 6 L.Ed.2d 836, 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 constitutionally protected purposes, because of other and      unprotected purposes which he does not necessarily share.'

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, 84 S.Ct. 1659, 12 L.Ed.2d 992. 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 reading of the sort we gave § 2385 in Scales. See 378 U.S., at 511, n. 9, 84 S.Ct. at 1666. 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., 377 U.S. at 373, 84 S.Ct. at 1323) 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, 82 S.Ct. 275, 281, 7 L.Ed.2d 285. Would a teacher be safe and secure in going to a Pugwash Conference? 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.

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 as public employees. Laws such as this which are not restricted in scope to those who join with the 'specific intent' to further illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization. See Aptheker v. Secretary of State, supra, 378 U.S. at 511, 84 S.Ct. at 1666. The unconstitutionality of this Act follows a fortiori from Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, where we held that a State may not even place on an applicant for a tax exemption the burden of proving that he has not engaged in criminal advocacy.

This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States through the Fourteenth Amendment. Baggett v. Bullitt, supra; Cramp v. Board of Public Instruction, supra. Cf. N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 460 et seq., 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488; Gibson v. Florida Legislative Committee, 372 U.S. 539, 543-546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929. And, as a committee of the Arizona Legislature which urged adoption of this law itself recognized, public employees of character and integrity may well forgo their calling rather than risk prosecution for perjury or compromise their commitment to intellectual and political freedom:

'The communist trained in fraud and perjury has no qualms in     taking any oath; the loyal citizen, conscious of history's      oppressions, may well wonder whether the medieval rack and      torture wheel are next for the one who declines to take an      involved negative oath as evidence that he is a True      Believer.'

A statute touching those protected rights must be 'narrowly drawn to define and punish specific conduct at constituting a clear and present danger to a substantial interest of the State.' Cantwell v. State of Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213. Legitimate legislative goals 'cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. And see State of Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 296-297, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301. As we said in N.A.A.C.P. v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405:

'The objectionable quality of * *  * overbreadth does not      depend upon absence of fair notice to a criminally accused or      upon unchanneled delegation of legislative powers, but upon      the danger of tolerating, in the area of First Amendment      freedoms, the existence of a penal statute susceptible of      sweeping and improper application. * *  * These freedoms are      delicate and vulnerable, as well as supremely precious in our      society. The threat of sanctions may deter their exercise     almost as potently as the actual application of sanctions. *     *  * '

A law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of 'guilt by association' which has no place here. See Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796; Schware v. Board of Bar Examiners of State of N.M., 353 U.S. 232, 246, 77 S.Ct. 752, 760, 1 L.Ed.2d 796. Such a law cannot stand.

Reversed.

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