Several months after the election in June 1965 to the Georgia
House of Representatives of appellant Bond, a Negro, a civil rights
organization of which he was a staff member issued an anti-war
statement against the Government's Vietnam policy and the operation
of the Selective Service laws. Bond endorsed the statement in a
news interview stating, among other things, that, as "a second
class citizen," he was not required to support the war, as a
pacifist, he was opposed to all war, and he saw nothing
inconsistent with his statement and his taking the oath of office.
House members, in petitions, challenged Bond's right to be seated,
charging that his statements aided our enemies, violated the
Selective Service laws, discredited the House, and were
inconsistent with the legislator's mandatory oath to support the
Constitution. Following the House clerk's refusal to seat him,
Bond, manifesting willingness to take the oath, challenged the
petitions as depriving him of his First Amendment rights and being
racially motivated. At a House committee hearing, Bond amplified
his views and denied having urged draft card burning or other law
violations. Following the hearing, the committee concluded that
Bond should not be seated, and the House thereafter refused to seat
him. Bond brought this action in District Court for injunctive
relief and declaratory judgment. The District Court, holding that
it had jurisdiction to decide the constitutional issue, concluded
that Bond had been accorded procedural due process through the
hearing. It also held that the House had a rational basis for
concluding that Bond's remarks exceeded criticism of national
policy and that he could not in good faith take an oath to support
the State and Federal Constitutions, and thus could not meet a
qualification for membership which the House had the power to
impose. While Bond's appeal to this Court under 28 U.S.C. § 1253
from that decision was pending, he was again elected as a
Representative, in a special election. He was rejected by the House
Page 385 U. S. 117
when he declined to recant, and later was elected again, in the
regular 1966 primary and general elections.
1. This Court has jurisdiction to determine whether a
disqualification for the office of state legislator under color of
a proper constitutional standard violates First Amendment rights.
P. 385 U. S.
2. In disqualifying Bond because of his statements, the State
violated the First Amendment made applicable to the States by the
Fourteenth. Pp. 385 U. S.
(a) A majority of state legislators is not authorized to test
the sincerity with which another duly elected legislator meets the
requirement for holding office of swearing to support the Federal
and State Constitutions. P. 385 U. S.
(b) The State may not apply to a legislator a First Amendment
standard stricter than that applicable to a private citizen. Pp.
385 U. S.
(c) Bond's statements do not show an incitement to violate the
Selective Service statute's prohibition of counseling against
registration for military service. Pp. 385 U. S.
(d) Though a State may impose all oath requirement on
legislators, it cannot limit their capacity to express views on
local or national policy. "[D]ebate on public issues should be
uninhibited, robust, and wide-open." New York Times v.
Sullivan, 376 U. S. 254
376 U. S. 270
Pp. 385 U. S.
Page 385 U. S. 118
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The question presented in this case is whether the Georgia House
of Representatives may constitutionally exclude appellant Bond, a
duly elected Representative, from membership because of his
statements, and statements to which he subscribed, criticizing the
policy of the Federal Government in Vietnam and the operation of
the Selective Service laws. An understanding of the circumstances
of the litigation requires a complete presentation of the events
and statements which led to this appeal.
Bond, a Negro, was elected on June 15, 1965, as the
Representative to the Georgia House of Representatives from the
136th House District. Of the District's 6,500 voters, approximately
6,000 are Negroes. Bond defeated his opponent, Malcolm Dean, Dean
of Men at Atlanta University, also a Negro, by a vote of 2,320 to
On January 6, 1966, the Student Nonviolent Coordinating
Committee, a civil rights organization of which Bond was then the
Communications Director, issued the following statement on American
policy in Vietnam and its relation to the work of civil rights
organizations in this country:
"The Student Nonviolent Coordinating Committee has a right and a
responsibility to dissent with United States foreign policy on an
issue when it sees fit. The Student Nonviolent Coordinating
Committee now states its opposition to United States' involvement
in Viet Nam on these grounds: "
Page 385 U. S. 119
"We believe the United States government has been deceptive in
its claims of concern for freedom of the Vietnamese people, just as
the government has been deceptive in claiming concern for the
freedom of colored people in such other countries as the Dominican
Republic, the Congo, South Africa, Rhodesia and in the United
"We, the Student Nonviolent Coordinating Committee, have been
involved in the black people's struggle for liberation and
self-determination in this country for the past five years. Our
work, particularly in the South, has taught us that the United
States government has never guaranteed the freedom of oppressed
citizens, and is not yet truly determined to end the rule of terror
and oppression within its own borders."
"We ourselves have often been victims of violence and
confinement executed by United States government officials. We
recall the numerous persons who have been murdered in the South
because of their efforts to secure their civil and human rights,
and whose murderers have been allowed to escape penalty for their
"The murder of Samuel Young in Tuskegee, Ala., is no different
than the murder of peasants in Viet Nam, for both Young and the
Vietnamese sought, and are seeking, to secure the rights guaranteed
them by law. In each case, the United States government bears a
great part of the responsibility for these deaths."
"Samuel Young was murdered because United States law is not
being enforced. Vietnamese are murdered because the United States
is pursuing an aggressive policy in violation of international law.
The United States is no respecter of persons or law
Page 385 U. S. 120
when such persons or laws run counter to its needs and
"We recall the indifference, suspicion and outright hostility
with which our reports of violence have been met in the past by
"We know that, for the most part, elections in this country, in
the North as well as the South, are not free. We have seen that the
1965 Voting Rights Act and the 1964 Civil Rights Act have not yet
been implemented with full federal power and sincerity."
"We question, then, the ability and even the desire of the
United States government to guarantee free elections abroad. We
maintain that our country's cry of 'preserve freedom in the world'
is a hypocritical mask behind which it squashes liberation
movements which are not bound, and refuse to be bound, by the
expediencies of United States cold war policies."
"We are in sympathy with, and support, the men in this country
who are unwilling to respond to a military draft which would compel
them to contribute their lives to United States aggression in Viet
Nam in the name of the 'freedom' we find so false in this
"We recoil with horror at the inconsistency of a supposedly
'free' society where responsibility to freedom is equated with the
responsibility to lend oneself to military aggression. We take note
of the fact that 16 percent of the draftees from this country are
Negroes called on to stifle the liberation of Viet Nam, to preserve
a 'democracy' which does not exist for them at home."
"We ask, where is the draft for the freedom fight in the United
Page 385 U. S. 121
"We therefore encourage those Americans who prefer to use their
energy in building democratic forms within this country. We believe
that work in the civil rights movement and with other human
relations organizations is a valid alternative to the draft. We
urge all Americans to seek this alternative, knowing full well that
it may cost their lives -- as painfully as in Viet Nam."
On the same day that this statement was issued, Bond was
interviewed by telephone by a reporter from a local radio station,
and, although Bond had not participated in drafting the statement,
he endorsed the statement in these words:
"Why, I endorse it, first, because I like to think of myself as
a pacifist, and one who opposes that war and any other war, and
eager and anxious to encourage people not to participate in it for
any reason that they choose, and secondly, I agree with this
statement because of the reason set forth in it -- because I think
it is sorta hypocritical for us to maintain that we are fighting
for liberty in other places and we are not guaranteeing liberty to
citizens inside the continental United States."
"* * * *"
"Well, I think that the fact that the United States Government
fights a war in Viet Nam, I don't think that I, as a second class
citizen of the United States, have a requirement to support that
war. I think my responsibility is to oppose things that I think are
wrong if they are in Viet Nam or New York, or Chicago, or Atlanta,
When the interviewer suggested that our involvement in Vietnam
was because "if we do not stop Communism
Page 385 U. S. 122
there, that it is just a question of where will we stop it
next," Bond replied:
"Oh, no, I'm not taking a stand against stopping World
Communism, and I'm not taking a stand in favor of the Viet Cong.
What I'm saying that is, first, that I don't believe in that war.
That particular war. I'm against all war. I'm against that war in
particular, and I don't think people ought to participate in it.
Because I'm against war, I'm against the draft. I think that other
countries in the World get along without a draft -- England is one
-- and I don't see why we couldn't, too."
"* * * *"
". . . I'm not about to justify that war, because it's stopping
International Communism, or whatever -- you know, I just happen to
have a basic disagreement with wars for whatever reason they are
fought . . . fought to stop International Communism, to promote
International Communism, or for whatever reason. I oppose the Viet
Cong fighting in Viet Nam as much as I oppose the United States
fighting in Viet Nam. I happen to live in the United States. If I
lived in North Viet Nam, I might not have the same sort of freedom
of expression, but it happens that I live here -- not there."
The interviewer also asked Bond if he felt he could take the
oath of office required by the Georgia Constitution, and Bond
responded that he saw nothing inconsistent between his statements
and the oath. Bond was also asked whether he would adhere to his
statements if war were declared on North Vietnam and if his
statements might become treasonous. He replied that he did not know
"if I'm strong enough to place myself in a position where I'd be
guilty of treason."
Page 385 U. S. 123
Before January 10, 1966, when the Georgia House of
Representatives was scheduled to convene, petitions challenging
Bond's right to be seated were filed by 75 House members. These
petitions charged that Bond's statements gave aid and comfort to
the enemies of the United States and Georgia, violated the
Selective Service laws, and tended to bring discredit and
disrespect on the House. The petitions further contended that
Bond's endorsement of the SNCC statement
"is totally and completely repugnant to and inconsistent with
the mandatory oath prescribed by the Constitution of Georgia for a
Member of the House of Representatives to take before taking his
For the same reasons, the petitions asserted that Bond could not
take an oath to support the Constitution of the United States. When
Bond appeared at the House on January 10 to be sworn in, the clerk
refused to administer the oath to him until the issues raised in
the challenge petitions had been decided.
Bond filed a response to the challenge petitions in which he
stated his willingness to take the oath and argued that he was not
unable to do so in good faith. He further argued that the challenge
against his seating had been filed to deprive him of his First
Amendment rights, and that the challenge was racially motivated. A
special committee was appointed to report on the challenge, and a
hearing was held to determine exactly what Bond had said and the
intentions with which he had said it.
At this hearing, the only testimony given against Bond was that
which he himself gave the committee. Both the opponents Bond had
defeated in becoming the Representative of the 136th District
testified to his good character and to his loyalty to the United
States. A recording of the interview which Bond had given to the
reporter after the SNCC statement was played, and Bond was called
to the stand for cross-examination. He there admitted his
statements and elaborated his views. He
Page 385 U. S. 124
stated that he concurred in the SNCC statement "without
reservation," and, when asked if he admired the courage of persons
who burn their draft cards, responded:
"I admire people who take an action, and I admire people who
feel strongly enough about their convictions to take an action like
that knowing the consequences that they will face, and that was my
original statement when asked that question."
"* * * *"
"I have never suggested or counseled or advocated that any one
other person burn their draft card. In fact, I have mine in my
pocket, and will produce it if you wish. I do not advocate that
people should break laws. What I simply tried to say was that I
admired the courage of someone who could act on his convictions
knowing that he faces pretty stiff consequences."
Tapes of an interview Bond had given the press after the clerk
had refused to give him the oath were also heard by the special
committee. In this interview, Bond stated:
"I stand before you today charged with entering into public
discussion on matters of National interest. I hesitate to offer
explanations for my actions or deeds where no charge has been
levied against me other than the charge that I have chosen to speak
my mind and no explanation is called for, for no member of this
House, has ever, to my knowledge, been called upon to explain his
public statements for public postures as a prerequisite to
admission to that Body. I therefore, offer to my constituents a
statement of my views. I have not counseled burning draft cards,
nor have I burned mine. I have suggested that congressionally
outlined alternatives to military service be extended to
Page 385 U. S. 125
building democracy at home. The posture of my life for the past
five years has been calculated to give Negroes the ability to
participate in formulation of public policies. The fact of my
election to public office does not lessen my duty or desire to
express my opinions even when they differ from those held by
others. As to the current controversy, because of convictions that
I have arrived at through examination of my conscience, I have
decided I personally cannot participate in war."
"I stand here with intentions to take an oath -- that oath they
just took in there -- that will dispel any doubts about my
convictions or loyalty."
The special committee gave general approval in its report to the
specific charges in the challenge petitions that Bond's endorsement
of the SNCC statement and his supplementary remarks showed that he
"does not and will not" support the Constitutions of the United
States and of Georgia, that he "adheres to the enemies of the . . .
State of Georgia" contrary to the State Constitution, that he gives
aid and comfort to the enemies of the United States, that his
statements violated the Universal Military Training and Service
Act, § 12, 62 Stat. 622, 50 U.S.C.App. § 462, and that his
statements "are reprehensible, and are such as tend to bring
discredit to and disrespect of the House." On the same day, the
House adopted the committee report without findings and without
further elaborating Bond's lack of qualifications, and resolved by
a vote of 184 to 12 that
"Bond shall not be allowed to take the oath of office as a
member of the House of Representatives and that
Representative-Elect Julian Bond shall not be seated as a member of
the House of Representatives."
Bond then instituted an action in the District Court for the
Northern District of Georgia for injunctive relief
Page 385 U. S. 126
and a declaratory judgment that the House action was
unauthorized by the Georgia Constitution and violated Bond's rights
under the First Amendment. A three-judge District Court was
convened under 28 U.S.C. § 2281. All three members of the District
Court held that the court had jurisdiction to decide the
constitutionality of the House action because Bond had asserted
substantial First Amendment rights. [Footnote 1
] On the merits, however, the court was
Judges Bell and Morgan, writing for the majority of the court,
addressed themselves first to the question of whether the Georgia
House had power under state law to disqualify Bond based on its
conclusion that he could not sincerely take the oath of office.
They reasoned that separation of powers principles gave the
Legislature power to insist on qualifications in addition to those
specified in the State Constitution. The majority pointed out that
nothing in the Georgia Constitution limits the qualifications of
the legislators to those expressed in the constitution.
Having concluded that the action of the Georgia House was
authorized by state law, the court considered whether Bond's
disqualification violated his constitutional right of freedom of
speech. It reasoned that the decisions of this Court involving
particular state political offices supported an attitude of
restraint in which the principles of separation of powers and
federalism should be balanced against the alleged deprivation of
individual constitutional rights. On this basis, the majority below
fashioned the test to be applied in this case as being whether the
refusal to seat Bond violated procedural or what it termed
substantive due process. The court held that the hearing which had
been given Bond by the House satisfied procedural due process. As
Page 385 U. S. 127
what it termed the question of substantive due process, the
majority concluded that there was a rational evidentiary basis for
the ruling of the House. It reasoned that Bond's right to dissent
as a private citizen was limited by his decision to seek membership
in the Georgia House. Moreover, the majority concluded, the SNCC
statement and Bond's related remarks went beyond criticism of
national policy and provided a rational basis for a conclusion that
the speaker could not in good faith take an oath to support the
State and Federal Constitutions:
"A citizen would not violate his oath by objecting to or
criticizing this policy or even by calling it deceptive and false,
as the statement did."
"But the statement does not stop with this. It is a call to
action based on race; a call alien to the concept of the
pluralistic society which makes this nation. It aligns the
organization with '. . . colored people in such other countries as
the Dominican Republic, the Congo, South Africa, Rhodesia. . . .'
It refers to its involvement in the black people's 'struggle for
liberation and self-determination. . . .' It states that
'Vietnamese are murdered because the United States is pursuing an
aggressive policy in violation of international law.' It alleges
that Negroes, referring to American servicemen, are called on to
stifle the liberation of Viet Nam."
"The call to action, and this is what we find to be a rational
basis for the decision which denied Mr. Bond his seat, is that
language which states that SNCC supports those men in this country
who are unwilling to respond to a military draft. [Footnote 2
Chief Judge Tuttle dissented. [Footnote 3
] He reasoned that the question of the power of
the Georgia House under the
Page 385 U. S. 128
State Constitution to disqualify a Representative under these
circumstances had never been decided by the state courts, and that
federal courts should construe state law, if possible, so as to
avoid unnecessary federal constitutional issues. Since Bond
satisfied all the stated qualifications in the State Constitution,
Chief Judge Tuttle concluded that his disqualification was beyond
the power of the House as a matter of state constitutional law.
Bond appealed directly to this Court from the decision of the
District Court under 28 U.S.C. § 1253. While this appeal was
pending, the Governor of Georgia called a special election to fill
the vacancy caused by Bond's exclusion. Bond entered this election
and won overwhelmingly. The House was in recess, but the Rules
Committee held a hearing in which Bond declined to recant his
earlier statements. Consequently, he was again prevented from
taking the oath of office, and the seat has remained vacant. Bond
again sought the seat from the 136th District in the regular 1966
election, and he won the Democratic primary in September, 1966, and
won an overwhelming majority in the election of November 8, 1966.
The Georgia Constitution sets out a number of specific
provisions dealing with the qualifications and eligibility of state
legislators. These provide that Representatives shall be citizens
of the United States, at least 21 years of age, citizens of Georgia
for two years, and residents for one year of the counties from
which elected. [Footnote 5
Page 385 U. S. 129
Georgia Constitution further provides that no one convicted of
treason against the State, or of any crime of moral turpitude, or
of a number of other enumerated crimes, may hold any office in the
State. [Footnote 6
] Idiots and
insane persons are barred from office, [Footnote 7
] and no one holding any state or federal office
is eligible for a seat in either house. [Footnote 8
] The State Constitution also provides:
"Election, returns, etc.; disorderly conduct. -- Each House
shall be the judge of the election, returns and qualifications of
its members and shall have power to punish them for disorderly
behavior, or misconduct, by censure, fine, imprisonment, or
expulsion; but no member shall be expelled, except by a vote of
two-thirds of the House to which he belongs. [Footnote 9
These constitute the only stated qualifications for membership
in the Georgia Legislature, and the State concedes that Bond meets
all of them. The Georgia Constitution also requires Representatives
to take an oath stated in the Constitution:
"Oath of members. -- Each senator and Representative, before
taking his seat, shall take the following oath, or affirmation,
to-wit: 'I will support the Constitution of this State and of the
United States, and on all questions and measures which may come
before me, I will so conduct myself, as will, in my judgment, be
most conducive to the interests and prosperity of this State.'
Page 385 U. S. 130
The State points out in its brief that the latter part of this
oath, involving the admonition to act in the best interests of the
State, was not the standard by which Bond was judged.
The State does not claim that Bond refused to take the oath to
support the Federal Constitution, a requirement imposed on state
legislators by Art. VI, cl. 3, of the United States
"The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this
Constitution; but no religious Tests shall ever be required as a
Qualification to any Office or public Trust under the United
Instead, it argues that the oath provisions of the State and
Federal Constitutions constitute an additional qualification.
Because, under state law, the legislature has exclusive
jurisdiction to determine whether an elected Representative meets
the enumerated qualifications, it is argued that the legislature
has power to look beyond the plain meaning of the oath provisions,
which merely require that the oaths be taken. This additional power
is said to extend to determining whether a given Representative may
take the oath with sincerity. The State does not claim that it
should be completely free of judicial review whenever it
disqualifies an elected Representative; it admits that, if a State
Legislature excluded a legislator on racial or other clearly
unconstitutional grounds, the federal (or state) judiciary would be
justified in testing the exclusion by federal constitutional
standards. [Footnote 11
the State argues that there can be no
Page 385 U. S. 131
doubt as to the constitutionality of the qualification involved
in this case, because it is one imposed on the State Legislatures
by Article VI of the United States Constitution. Moreover, the
State contends that no decision of this Court suggests that a State
may not ensure the loyalty of its public servants by making the
taking of an oath a qualification of office. Thus, the State argues
that there should be no judicial review of the legislature's power
to judge whether a prospective member may conscientiously take the
oath required by the State and Federal Constitutions.
We are not persuaded by the State's attempt to distinguish, for
purposes of our jurisdiction, between an exclusion alleged to be on
racial grounds and one alleged to violate the First Amendment. The
basis for the argued distinction is that, in this case, Bond's
disqualification was grounded on a constitutional standard -- the
requirement of taking an oath to support the Constitution. But
Bond's contention is that this standard was utilized to infringe
his First Amendment rights, and we cannot distinguish, for purposes
of our assumption of jurisdiction, between a disqualification under
an unconstitutional standard and a disqualification which, although
under color of a proper standard, is alleged to violate the First
We conclude, as did the entire court below, that this Court has
jurisdiction to review the question of whether the action of the
Georgia House of Representatives deprived Bond of federal
constitutional rights, and we now move to the central question
posed in the case -- whether Bond's disqualification because of his
Page 385 U. S. 132
the free speech provisions of the First Amendment as applied to
the States through the Fourteenth Amendment.
The State argues that the exclusion does not violate the First
Amendment because the State has a right, under Article VI of the
United States Constitution, to insist on loyalty to the
Constitution as a condition of office. A legislator, of course, can
be required to swear to support the Constitution of the United
States as a condition of holding office, but that is not the issue
in this case, as the record is uncontradicted that Bond has
repeatedly expressed his willingness to swear to the oaths provided
for in the State and Federal Constitutions. Nor is this a case
where a legislator swears to an oath pro forma
declaring or manifesting his disagreement with or indifference to
the oath. Thus, we do not quarrel with the State's contention that
the oath provisions of the United States and Georgia Constitutions
do not violate the First Amendment. But this requirement does not
authorize a majority of state legislators to test the sincerity
with which another duly elected legislator can swear to uphold the
Constitution. Such a power could be utilized to restrict the right
of legislators to dissent from national or state policy or that of
a majority of their colleagues under the guise of judging their
loyalty to the Constitution. Certainly there can be no question but
that the First Amendment protects expressions in opposition to
national foreign policy in Vietnam and to the Selective Service
system. The State does not contend otherwise. But it argues that
Bond went beyond expressions of opposition, and counseled
violations of the Selective Service laws, and that advocating
violation of federal law demonstrates a lack of support for the
Constitution. The State declines to argue that Bond's statements
would violate any law if made by a private citizen, but it does
argue that, even though such
Page 385 U. S. 133
a citizen might be protected by his First Amendment rights, the
State may nonetheless apply a stricter standard to its legislators.
We do not agree.
Bond could not have been constitutionally convicted under 50
U.S.C.App. § 462(a), which punishes any person who "counsels, aids,
or abets another to refuse or evade registration." [Footnote 12
] Bond's statements were, at
worst, unclear on the question of the means to be adopted to avoid
the draft. While the SNCC statement said "We are in sympathy with,
and support, the men in this country who are unwilling to respond
to a military draft," this statement alone cannot be interpreted as
a call to unlawful refusal to be drafted. Moreover, Bond's
supplementary statements tend to resolve the opaqueness in favor of
legal alternatives to the draft, and there is no evidence to the
contrary. On the day the statement was issued, Bond explained that
he endorsed it
"because I like to think of myself as a pacifist and one who
opposes that war and any other war and eager and anxious to
Page 385 U. S. 134
encourage people not to participate in it for any reason that
In the same interview, Bond stated categorically that he did not
oppose the Vietnam policy because he favored the Communists; that
he was a loyal American citizen, and supported the Constitution of
the United States. He further stated "I oppose the Viet Cong
fighting in Viet Nam as much as I oppose the United States fighting
in Viet Nam." At the hearing before the Special Committee of the
Georgia House, when asked his position on persons who burned their
draft cards, Bond replied that he admired the courage of persons
who "feel strongly enough about their convictions to take an action
like that knowing the consequences that they will face." When
pressed as to whether his admiration was based on the violation of
federal law, Bond stated:
"I have never suggested or counseled or advocated that any one
other person burn their draft card. In fact, I have mine in my
pocket, and will produce it if you wish. I do not advocate that
people should break laws. What I simply try to say was that I
admired the courage of someone who could act on his convictions
knowing that he faces pretty stiff consequences."
Certainly this clarification does not demonstrate any incitement
to violation of law. No useful purpose would be served by
discussing the many decisions of this Court which establish that
Bond could not have been convicted for these statements
consistently with the First Amendment. See, e.g., Wood v.
Georgia, 370 U. S. 375
(1962); Yates v. United States, 354 U.
(1957); Terminiello v. Chicago,
337 U. S. 1
Nor does the fact that the District Court found the SNCC statement
to have racial overtones constitute a reason for holding it
Page 385 U. S. 135
the protection of the First Amendment. In fact, the State
concedes that there is no issue of race in the case.
The State attempts to circumvent the protection the First
Amendment would afford to these statements if made by a private
citizen by arguing that a State is constitutionally justified in
exacting a higher standard of loyalty from its legislators than
from its citizens. Of course, a State may constitutionally require
an oath to support the Constitution from its legislators which it
does not require of its private citizens. But this difference in
treatment does not support the exclusion of Bond, for while the
State has an interest in requiring its legislators to swear to a
belief in constitutional processes of government, surely the oath
gives it no interest in limiting its legislators' capacity to
discuss their views of local or national policy. [Footnote 13
] The manifest function of
Page 385 U. S. 136
the First Amendment in a representative government requires that
legislators be given the widest latitude to express their views on
issues of policy. The central commitment of the First Amendment, as
summarized in the opinion of the Court in New York Times Co. v.
Sullivan, 376 U. S. 254
376 U. S. 270
(1964), is that "debate on public issues should be uninhibited,
robust, and wide-open." We think the rationale of the New York
case disposes of the claim that Bond's statements fell
outside the range of constitutional protection. Just as erroneous
statements must be protected to give freedom of expression the
breathing space it needs to survive, so statements criticizing
public policy and the implementation of it must be similarly
protected. The State argues that the New York Times
principle should not be extended to statements by a legislator
because the policy of encouraging free debate about governmental
operations only applies to the citizen-critic of his government. We
find no support for this distinction in the New York Times
case or in any other decision of this Court. The interest of the
public in hearing all sides of a public issue is hardly advanced by
extending more protection to citizen critics than to legislators.
Legislators have an obligation to take positions on controversial
political questions so that their constituents can be fully
informed by them, and be better able to assess their qualifications
for office; also so they may be represented in governmental
Page 385 U. S. 137
by the person they have elected to represent them. We therefore
hold that the disqualification of Bond from membership in the
Georgia House because of his statements violated Bond's right of
free expression under the First Amendment. Because of our
disposition of the case on First Amendment grounds, we need not
decide the other issues advanced by Bond and the amici.
The judgment of the District Court is
The opinion of the District Court is reported at 251 F.
A question was raised in oral argument as to whether this case
might not be moot, since the session of the House which excluded
Bond was no longer in existence. The State has not pressed this
argument, and it could not do so, because the State has stipulated
that, if Bond succeeds on this appeal, he will receive back salary
for the term from which he was excluded.
Georgia Const., Art. 3, § 6 (§ 2-1801, Ga.Code Ann.).
Georgia Const., Art. 2, § 2 (§ 2-801, Cl.Code Ann.).
Georgia Const., Art. 3, § 4 (§ 2-1606, Ga.Code Ann.).
Georgia Const., Art. 3, § 7 (§ 2-1901, Ga.Code Ann.).
Georgia Const., Art. 3, § 4 (§ 2-1605, Ga.Code Ann.).
See Gomillion v. Lightfoot, 364 U.
(1960), in which the Court stated:
"When a State exercises power wholly within the domain of state
interest, it is insulated from federal judicial review. But such
insulation is not carried over when state power is used as an
instrument for circumventing a federally protected right."
364 U.S. at 364 U. S.
The pertinent provisions of § 462(a) are as follows:
"[A]ny person who shall knowingly make, or be a party to the
making, of any false statement or certificate regarding or bearing
upon a classification or in support of any request for a particular
classification, for service under the provisions of this title . .
or rules, regulations, or directions made pursuant thereto, or who
otherwise evades or refuses registration or service in the armed
forces or any of the requirements of this title . . . or who
knowingly counsels, aids, or abets another to refuse or evade
registration or service in the armed forces or any of the
requirements of this title . . . or of said rules, regulations, or
directions, . . . or any person or persons who shall knowingly
hinder or interfere or attempt to do so in any way, by force or
violence or otherwise, with the administration of this title . . .
or the rules or regulations made pursuant thereto, or who conspires
to commit any one or more of such offenses, shall, upon conviction
in any district court of the United States of competent
jurisdiction, be punished by imprisonment for not more than five
years or a fine of not more than $10,000, or by both such fine and
imprisonment. . . ."
Madison and Hamilton anticipated the oppressive effect on
freedom of expression which would result if the legislature could
utilize its power of judging qualifications to pass judgment on a
legislator's political views. At the Constitutional Convention of
1787, Madison opposed a proposal to give to Congress power to
establish qualifications in general. Warren, The Making of the
Constitution 420-422 (1937). The Journal of the Federal Convention
of 1787 states:
"Mr. Madison was opposed to the Section as vesting an improper
& dangerous power in the Legislature. T he qualifications of
electors and elected were fundamental articles in a Republican
govt., and ought to be fixed by the Constitution. If the
Legislature could regulate those of either, it can by degrees
subvert the Constitution. . . . Qualifications founded on
artificial distinctions may be devised by the stronger in order to
keep out partizans of a weaker faction."
"* * * *"
"Mr. Madison observed that the British Parliamt. possessed the
power of regulating the qualifications both of the electors and the
elected, and the abuse they had made of it was a lesson worthy of
our attention. They had made the changes in both cases subservient
to their own views, or to the views of political or Religious
2 Farrand, The Records of the Federal Convention of 1787, pp.
249-250 (Aug. 10, 1787).
Hamilton agreed with Madison that:
"The qualifications of the persons who may choose or be chosen .
. . are defined and fixed in the constitution, and are unalterable
by the legislature."
The Federalist, No. 60, p. 409 (Cooke ed.1961).
Bond argues that the action of the Georgia House was not
authorized by state law, that, if the State Constitution allows
this exclusion, it does so pursuant to an oath which is
unconstitutionally vague, that the exclusion was based on
statements protected by the First Amendment, and that the exclusion
is a bill of attainder and an ex post facto
briefs filed in support of appellant Bond
add the arguments that the decision not to seat him was
inextricably involved with race prejudice, and that it violated the
guarantee of a republican form of government clause.
Similarly, we need not pass on the standing of two of Bond's
constituents who joined in the suit below. The majority below
dismissed the complaint as to these two constituents because the
lacked a sufficiently direct interest in the controversy as would
give them standing. The majority noted that it was appropriate to
dismiss the case as to Bond's constituents because Bond's complaint
would resolve every issue necessary to a decision in the case. We
express no opinion on the question of whether Bond's constituents
can claim that concrete adverseness which would be necessary to
give them standing.