Solely because they refused to subscribe oaths that they do not
advocate the overthrow of the Federal or State Government by force,
violence or other unlawful means, or advocate the support of a
foreign government against the United States in event of
hostilities, appellants were denied tax exemptions provided for
veterans by the California Constitution. The filing of such an oath
was required by a California statute as a prerequisite to
qualification for the tax exemption, in order to effectuate a
provision of the State Constitution denying any tax exemption to
any person who advocates such actions, which was construed by the
State Supreme Court as denying tax exemptions only to claimants who
engage in speech which may be criminally punished consistently with
the free speech guarantees of the Federal Constitution.
Held: Enforcement of this provision through procedures
which place the burdens of proof and persuasion on the taxpayers
denied them freedom of speech without the procedural safeguards
required by the Due Process Clause of the Fourteenth Amendment. Pp.
357 U. S.
514-529.
1. A discriminatory denial of a tax exemption for engaging in
speech is a limitation on free speech. Pp.
357 U. S.
518-520.
2. The method chosen by California for determining whether a
claimant is a member of the class to which its Supreme Court has
said that the tax exemption is denied does not provide the
procedural safeguards required by the Due Process Clause of the
Fourteenth Amendment before free speech may be denied, since it
places on the taxpayer the burden of proving that he is not a
member of that class. Pp.
357 U. S.
520-529.
(a) When a State undertakes to restrain unlawful advocacy, it
must provide procedures which are adequate to safeguard against
infringement of constitutionally protected rights. Pp.
357 U. S.
520-521.
(b) The California procedure places upon the taxpayer the burden
of proving that he does not criminally advocate the overthrow
Page 357 U. S. 514
of the Federal or State Government by force, violence, or other
unlawful means or advocate the support of a foreign government
against the United States in the event of hostilities. Pp.
357 U. S.
521-523.
(c) It does not follow that because only a tax liability is here
involved, the ordinary tax assessment procedures are adequate when
applied to penalize speech. Pp.
357 U. S.
523-525.
(d) Since free speech is involved, due process requires in the
circumstances of this case that the State bear the burden of
showing that appellants engaged in criminal speech. Pp.
357 U. S.
525-526.
(e)
Garner v. Board of Public Works, 341 U.
S. 716;
Gerende v. Board of Supervisors,
341 U. S. 56, and
American Communications Assn. v. Douds, 339 U.
S. 382, distinguished. Pp.
357 U. S.
527-528.
(f) When the constitutional right to speak is sought to be
deterred by a State's general taxing program, due process demands
that the speech be unencumbered until the State comes forward with
sufficient proof to justify its inhibition. Pp.
357 U. S.
528-529.
(g) Since the entire statutory procedure violated the
requirements of due process by placing the burdens of proof and
persuasion on them, appellants were not obliged to take even the
first step in such procedure as a condition for obtaining the tax
exemption. P.
357 U. S.
529.
48 Cal. 2d
472,
903, 311 P.2d
544, 546, reversed, and cause remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The appellants are honorably discharged veterans of World War II
who claimed the veterans' property tax
Page 357 U. S. 515
exemption provided by Art. XIII, § 1 1/4, of the California
Constitution. Under California law, applicants for such exemption
must annually complete a standard form of application and file it
with the local assessor. The form was revised in 1954 to add an
oath by the applicant:
"I do not advocate the overthrow of the Government of the United
States or of the State of California by force or violence or other
unlawful means, nor advocate the support of a foreign Government
against the United States in event of hostilities."
Each refused to subscribe the oath and struck it from the form
which he executed and filed for the tax year 1954-1955. Each
contended that the exaction of the oath as a condition of obtaining
a tax exemption was forbidden by the Federal Constitution. The
respective assessors denied the exemption solely for the refusal to
execute the oath. The Supreme Court of California sustained the
assessors' actions against the appellants' claims of constitutional
invalidity. [
Footnote 1] We
noted probable jurisdiction of the appeals. 355 U.S. 880.
Page 357 U. S. 516
Article XX, § 19, of the California Constitution, adopted at the
general election of November 4, 1952, provides as follows:
"Notwithstanding any other provision of this Constitution, no
person or organization which advocates the overthrow of the
Government of the United States or the State by force or violence
or other unlawful means or who advocates the support of a foreign
government against the United States in the event of hostilities
shall:"
"
* * * *"
"(b) Receive any exemption from any tax imposed by this State or
any county, city or county, city, district, political subdivision,
authority, board, bureau, commission or other public agency of this
State."
"The Legislature shall enact such laws as may be necessary to
enforce the provisions of this section."
To effectuate this constitutional amendment, the California
Legislature enacted § 32 of the Revenue and Taxation Code, which
requires the claimant, as a prerequisite to qualification for any
property tax exemption, to sign a statement on his tax return
declaring that he does not engage in the activities described in
the constitutional amendment. [
Footnote 2] The California Supreme Court held that
Page 357 U. S. 517
this declaration, like other statements required of those filing
tax returns, was designed to relieve the tax assessor of "the
burden . . . of ascertaining the facts with reference to tax
exemption claimants."
48 Cal. 2d
419, 432, 311 P.2d 508, 515. The declaration, while intended to
provide a means of determining whether a claimant qualifies for the
exemption under the constitutional amendment, is not conclusive
evidence of eligibility. The assessor has the duty of investigating
the facts underlying all tax liabilities, and is empowered by § 454
of the Code to subpoena taxpayers for the purpose of questioning
them about statements they have furnished. If the assessor believes
that the claimant is not qualified in any respect, he may deny the
exemption and require the claimant, on judicial review, to prove
the incorrectness of the determination. In other words, the factual
determination whether the taxpayer is eligible for the exemption
under the constitutional amendment is made in precisely the same
manner as the determination of any other fact bearing on tax
liability.
The appellants attack these provisions,
inter alia, as
denying them freedom of speech without the procedural safeguards
required by the Due Process Clause of the Fourteenth Amendment.
[
Footnote 3]
Page 357 U. S. 518
I
It cannot be gainsaid that a discriminatory denial of a tax
exemption for engaging in speech is a limitation on free speech.
The Supreme Court of California recognized that these provisions
were limitations on speech but concluded that "by no standard can
the infringement upon freedom of speech imposed by section 19 of
article XX be deemed a substantial one."
48 Cal. 2d
419, 440, 311 P.2d 508, 521. It is settled that speech can be
effectively limited by the exercise of the taxing power.
Grosjean v. American Press Co., 297 U.
S. 233. To deny an exemption to claimants who engage in
certain forms of speech is, in effect, to penalize them for such
speech. Its deterrent effect is the same as if the State were to
fine them for this speech. The appellees are plainly mistaken in
their argument that, because a tax exemption is a "privilege" or
"bounty," its denial may not infringe speech. This contention did
not prevail before the California courts, which recognized that
conditions imposed upon the granting of privileges or gratuities
must be "reasonable." It has been said that Congress may not, by
withdrawal of mailing privileges, place limitations upon the
freedom of speech which, if directly attempted, would be
unconstitutional.
See Hannegan v. Esquire, Inc.,
327 U. S. 146;
cf. Milwaukee Publishing Co. v. Burleson, 255 U.
S. 407,
255 U. S.
430-431 (Brandeis, J., dissenting). This Court has
similarly rejected the contention that speech was not abridged when
the
Page 357 U. S. 519
sole restraint on its exercise was withdrawal of the opportunity
to invoke the facilities of the National Labor Relations Board,
American Communications Ass'n v. Douds, 339 U.
S. 382,
339 U. S. 402,
or the opportunity for public employment,
Wieman v.
Updegraff, 344 U. S. 183. So
here, the denial of a tax exemption for engaging in certain speech
necessarily will have the effect of coercing the claimants to
refrain from the proscribed speech. The denial is "frankly aimed at
the suppression of dangerous ideas."
American Communications
Ass'n v. Douds, supra, at page
339 U. S.
402.
The Supreme Court of California construed the constitutional
amendment as denying the tax exemptions only to claimants who
engage in speech which may be criminally punished consistently with
the free speech guarantees of the Federal Constitution. The court
defined advocacy of "the overthrow of the Government . . . by force
or violence or other unlawful means" and advocacy of "support of a
foreign government against the United States in event of
hostilities" as reaching only conduct which may constitutionally be
punished under either the California Criminal Syndicalism Act,
Cal.Stat.1919, c. 188,
see Whitney v. People of State of
California, 274 U. S. 357, or
the Federal Smith Act, 18 U.S.C. § 2385. 48 Cal.2d at page 428, 311
P.2d at page 513. It also said that it would apply the standards
set down by this Court in
Dennis v. United States,
341 U. S. 494, in
ascertaining the circumstances which would justify punishing speech
as a crime. [
Footnote 4] Of
course, the constitutional and statutory provisions here involved
must be read in light of the restrictive construction that the
California court, in the exercise of its function of interpreting
state law, has placed upon them. For
Page 357 U. S. 520
the purposes of this case, we assume without deciding that
California may deny tax exemptions to persons who engage in the
proscribed speech for which they might be fined or imprisoned.
[
Footnote 5]
II
But the question remains whether California has chosen a fair
method for determining when a claimant is a member of that class to
which the California court has said the constitutional and
statutory provisions extend. When we deal with the complex of
strands in the web of freedoms which make up free speech, the
operation and effect of the method by which speech is sought to be
restrained must be subjected to close analysis and critical
judgment in the light of the particular circumstances to which it
is applied.
Kingsley Books, Inc., v. Brown, 354 U.
S. 436,
354 U. S.
441-442;
Near v. State of Minnesota,
283 U. S. 697;
cf. Cantwell v. State of Connecticut, 310 U.
S. 296,
310 U. S. 305;
Joseph Burstyn, Inc., v. Wilson, 343 U.
S. 495;
Winters v. People of State of New York,
333 U. S. 507;
Niemotko v. State of Maryland, 340 U.
S. 268;
Staub v. City of Baxley, 355 U.
S. 313.
To experienced lawyers, it is commonplace that the outcome of a
lawsuit -- and hence the vindication of legal rights -- depends
more often on how the factfinder appraises the facts than on a
disputed construction of a statute or interpretation of a line of
precedents. Thus, the procedures by which the facts of the case are
determined assume an importance fully as great as the validity of
the substantive rule of law to be applied. And the more important
the rights at stake, the more important
Page 357 U. S. 521
must be the procedural safeguards surrounding those rights.
Cf. Powell v. State of Alabama, 287 U. S.
45. When the State undertakes to restrain unlawful
advocacy it must provide procedures which are adequate to safeguard
against infringement of constitutionally protected rights -- rights
which we value most highly and which are essential to the workings
of a free society. Moreover, since only considerations of the
greatest urgency can justify restrictions on speech, and since the
validity of a restraint on speech in each case depends on careful
analysis of the particular circumstances,
cf. Dennis v. United
States, supra; Whitney v. People of State of California,
supra, the procedures by which the facts of the case are
adjudicated are of special importance, and the validity of the
restraint may turn on the safeguards which they afford.
Compare
Kunz v. New York, 340 U. S. 290,
with Feiner v. New York, 340 U. S. 315. It
becomes essential, therefore, to scrutinize the procedures by which
California has sought to restrain speech.
The principal feature of the California procedure, as the
appellees themselves point out, is that the appellants,
"as taxpayers under state law, have the affirmative burden of
proof, in Court as well as before the Assessor. . . . [I]t is their
burden to show that they are proper persons to qualify under the
self-executing constitutional provision for the tax exemption in
question --
i.e., that they are not persons who advocate
the overthrow of the government of the United States or the State
by force or violence or other unlawful means or who advocate the
support of a foreign government against the United States in the
event of hostilities. . . . [T]he burden is on
them to
produce evidence justifying their claim of exemption. [
Footnote 6]
Page 357 U. S. 522
Not only does the initial burden of bringing forth proof of
nonadvocacy rest on the taxpayer, but, throughout the judicial and
administrative proceedings, the burden lies on the taxpayer of
persuading the assessor, or the court, that he falls outside the
class denied the tax exemption. The declaration required by § 32 is
but a part of the probative process by which the State seeks to
determine which taxpayers fall into the proscribed category.
[
Footnote 7] Thus,
Page 357 U. S. 523
the declaration cannot be regarded as having such independent
significance that failure to sign it precludes review of the
validity of the procedure of which it is a part.
Cf. Staub v.
City of Baxley, supra, at
355 U. S.
318-319. The question for decision, therefore, is
whether this allocation of the burden of proof, on an issue
concerning freedom of speech, falls short of the requirements of
due process."
It is, of course, within the power of the State to regulate
procedures under which its laws are carried out, including the
burden of producing evidence and the burden of persuasion,
"unless, in so doing, it offends some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked as fundamental."
Snyder v. Commonwealth of Massachusetts, 291 U. S.
97,
291 U. S.
105.
"[O]f course, the legislature may go a good way in raising . . .
(presumptions) or in changing the burden of proof, but there are
limits. . . . [I]t is not within the province of a legislature
Page 357 U. S. 524
to declare an individual guilty or presumptively guilty of a
crime."
McFarland v. American Sugar Refining Co., 241 U. S.
79,
241 U. S. 86.
The legislature cannot
"place upon all defendants in criminal cases the burden of going
forward with the evidence. . . . [It cannot] validly command that
the finding of an indictment, or mere proof of the identity of the
accused, should create a presumption of the existence of all the
facts essential to guilt. This is not permissible."
Tot v. United States, 319 U. S. 463,
319 U. S. 469.
Of course, the burden of going forward with the evidence at some
stages of a criminal trial may be placed on the defendant, but only
after the State has
"proved enough to make it just for the defendant to be required
to repel what has been proved with excuse or explanation, or at
least that upon a balancing of convenience or of the opportunities
for knowledge the shifting of the burden will be found to be an aid
to the accuser without subjecting the accused to hardship or
oppression."
Morrison v. California, 291 U. S.
82,
291 U. S. 88-89.
In civil cases, too, this Court has struck down state statutes
unfairly shifting the burden of proof.
Western & A.R. Co.
v. Henderson, 279 U. S. 639;
cf. Mobile, J. & K.C.R. Co. v. Turnipseed,
219 U. S. 35,
219 U. S.
43.
It is true that due process may not always compel the full
formalities of a criminal prosecution before criminal advocacy can
be suppressed or deterred, but it is clear that the State which
attempts to do so must provide procedures amply adequate to
safeguard against invasion of speech which the Constitution
protects.
Kingsley Books, Inc., v. Brown, supra. It is, of
course, familiar practice in the administration of a tax program
for the taxpayer to carry the burden of introducing evidence to
rebut the determination of the collector.
Phillips v. Dime
Trust Co., 284 U. S. 160,
284 U. S. 167;
Brown v. Helvering, 291 U. S. 193,
291 U. S. 199.
But while the fairness of placing the burden of proof on the
taxpayer in most circumstances is
Page 357 U. S. 525
recognized, this Court has not hesitated to declare a summary
tax collection procedure a violation of due process when the
purported tax was shown to be in reality a penalty for a crime.
Lipke v. Lederer, 259 U. S. 557;
cf. Helwig v. United States, 188 U.
S. 605. The underlying rationale of these cases is that,
where a person is to suffer a penalty for a crime, he is entitled
to greater procedural safeguards than when only the amount of his
tax liability is in issue. Similarly, it does not follow that,
because only a tax liability is here involved, the ordinary tax
assessment procedures are adequate when applied to penalize
speech.
It is true that, in the present case, the appellees purport to
do no more than compute the amount of the taxpayer's liability in
accordance with the usual procedures, but in fact they have
undertaken to determine whether certain speech falls within a class
which constitutionally may be curtailed. As cases decided in this
Court have abundantly demonstrated, the line between speech
unconditionally guaranteed and speech which may legitimately be
regulated, suppressed, or punished is finely drawn.
Thomas v.
Collins, 323 U. S. 516;
cf. Yates v. United States, 354 U.
S. 298. The separation of legitimate from illegitimate
speech calls for more sensitive tools than California has supplied.
In all kinds of litigation, it is plain that where the burden of
proof lies may be decisive of the outcome.
Cities Service Oil
Co. v. Dunlap, 308 U. S. 208;
United States v. New York, N.H. & H.R. Co.,
355 U. S. 253;
Sampson v. Channell, 110 F.2d 754, 758. There is always in
litigation a margin of error, representing error in factfinding,
which both parties must take into account. Where one party has at
stake an interest of transcending value -- as a criminal defendant
his liberty -- this margin of error is reduced as to him by the
process of placing on the other party the burden of producing a
sufficiency of proof in the first
Page 357 U. S. 526
instance, and of persuading the factfinder at the conclusion of
the trial of his guilt beyond a reasonable doubt. Due process
commands that no man shall lose his liberty unless the Government
has borne the burden of producing the evidence and convincing the
factfinder of his guilt.
Tot v. United States, supra.
Where the transcendent value of speech is involved, due process
certainly requires in the circumstances of this case that the State
bear the burden of persuasion to show that the appellants engaged
in criminal speech.
Cf. Kingsley Books, Inc., v. Brown,
supra.
The vice of the present procedure is that, where particular
speech falls close to the line separating the lawful and the
unlawful, the possibility of mistaken factfinding -- inherent in
all litigation -- will create the danger that the legitimate
utterance will be penalized. The man who knows that he must bring
forth proof and persuade another of the lawfulness of his conduct
necessarily must steer far wider of the unlawful zone than if the
State must bear these burdens. This is especially to be feared when
the complexity of the proofs and the generality of the standards
applied,
cf. Dennis v. United States, supra, provide but
shifting sands on which the litigant must maintain his position.
How can a claimant whose declaration is rejected possibly sustain
the burden of proving the negative of these complex factual
elements? In practical operation, therefore, this procedural device
must necessarily produce a result which the State could not command
directly. It can only result in a deterrence of speech which the
Constitution makes free.
"It is apparent that a constitutional prohibition cannot be
transgressed indirectly by the creation of a statutory presumption
any more than it can be violated by direct enactment. The power to
create presumptions is not a means of escape from constitutional
restrictions."
Bailey v. State of Alabama, 219 U.
S. 219, 239.
Page 357 U. S. 527
The appellees, in controverting this position, rely on cases in
which this Court has sustained the validity of loyalty oaths
required of public employees,
Garner v. Board of Public
Works, 341 U. S. 716,
candidates for public office,
Gerende v. Board of
Supervisors, 341 U. S. 56, and
officers of labor unions,
American Communications Ass'n v.
Douds, supra. In these cases, however, there was no attempt
directly to control speech, but rather to protect, from an evil
shown to be grave, some interest clearly within the sphere of
governmental concern. The purpose of the legislation sustained in
the
Douds case, the Court found, was to minimize the
danger of political strikes disruptive of interstate commerce by
discouraging labor unions from electing Communist Party members to
union office. While the Court recognized that the necessary effect
of the legislation was to discourage the exercise of rights
protected by the First Amendment, this consequence was said to be
only indirect. The congressional purpose was to achieve an
objective other than restraint on speech. Only the method of
achieving this end touched on protected rights and that only
tangentially. The evil at which Congress has attempted to strike in
that case was thought sufficiently grave to justify limited
infringement of political rights. Similar considerations governed
the other cases. Each case concerned a limited class of persons in
or aspiring to public positions by virtue of which they could, if
evilly motivated, create serious danger to the public safety. The
principal aim of those statutes was not to penalize political
beliefs, but to deny positions to persons supposed to be dangerous
because the position might be misused to the detriment of the
public. The present legislation, however, can have no such
justification. It purports to deal directly with speech and the
expression of political ideas. "Encouragement to loyalty to our
institutions . . . [is a doctrine] which the state has plainly
promulgated and intends to foster." 48 Cal.2d
Page 357 U. S. 528
at 439, 311 P.2d at 520. The State argues that veterans as a
class occupy a position of special trust and influence in the
community, and therefore any veteran who engages in the proscribed
advocacy constitutes a special danger to the State. But while a
union official or public employee may be deprived of his position,
and thereby removed from the place of special danger, the State is
powerless to erase the service which the veteran has rendered his
country; though he be denied a tax exemption, he remains a veteran.
The State, consequently, can act against the veteran only as it can
act against any other citizen, by imposing penalties to deter the
unlawful conduct.
Moreover, the oaths required in those cases performed a very
different function from the declaration in issue here. In the
earlier cases, it appears that the loyalty oath, once signed,
became conclusive evidence of the facts attested so far as the
right to office was concerned. If the person took the oath, he
retained his position. The oath was not part of a device to shift
to the officeholder the burden of proving his right to retain his
position. [
Footnote 8] The
signer, of course, could be prosecuted for perjury, but only in
accordance with the strict procedural safeguards surrounding such
criminal prosecutions. In the present case, however, it is clear
that the declaration may be accepted or rejected on the basis of
incompetent information or no information at all. It is only a step
in a process throughout which the taxpayer must bear the burden of
proof.
Believing that the principles of those cases have no application
here, we hold that when the constitutional
Page 357 U. S. 529
right to speak is sought to be deterred by a State's general
taxing program due process demands that the speech he unencumbered
until the State comes forward with sufficient proof to justify its
inhibition. The State clearly has no such compelling interest at
stake as to justify a short-cut procedure which must inevitably
result in suppressing protected speech. Accordingly, though the
validity of § 19 of Art. XX of the State Constitution be conceded
arguendo, its enforcement through procedures which place
the burdens of proof and persuasion on the taxpayer is a violation
of due process. It follows from this that appellants could not be
required to execute the declaration as a condition for obtaining a
tax exemption or as a condition for the assessor proceeding further
in determining whether they were entitled to such an exemption.
Since the entire statutory procedure, by placing the burden of
proof on the claimants, violated the requirements of due process,
appellants were not obliged to take the first step in such a
procedure.
The judgments are reversed and the causes are remanded for
further proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE BURTON concurs in the result.
THE CHIEF JUSTICE took no part in the consideration or decision
of this case.
* Together with No. 484,
Prince v. City and County of San
Francisco, also on appeal from the same Court.
[
Footnote 1]
Appellant in No. 483 sued for declaratory relief in the Superior
Court of Contra Costa County. Five judges sitting en banc held that
both § 19 of Art. XX and § 32 of the Revenue and Taxation Code were
invalid under the Fourteenth Amendment as restrictions on freedom
of speech. The California Supreme Court reversed.
48 Cal. 2d
903, 311 P.2d 546.
Appellant in No. 484 sued in the Superior Court for the City and
County of San Francisco to recover taxes paid under protest and for
declaratory relief. The court upheld the validity of both the
constitutional provision and § 32 of the Code. The Supreme Court
affirmed.
48 Cal. 2d
472, 311 P.2d 544.
In both cases, the Supreme Court adopted the reasoning of its
opinion in
First Unitarian Church of Los Angeles v. County of
Los Angeles, 48 Cal. 2d
419, 311 P.2d 508, in which identical issues are discussed at
length. Hereinafter we will refer to that opinion as expressing the
views of the California Supreme Court in the present cases.
[
Footnote 2]
Section 32 provides:
"Any statement, return, or other document in which is claimed
any exemption, other than the householder's exemption, from any
property tax imposed by this State or any county, city or county,
city, district, political subdivision, authority, board, bureau,
commission or other public agency of this State shall contain a
declaration that the person or organization making the statement,
return, or other document does not advocate the overthrow of the
Government of the United States or of the State of California by
force or violence or other unlawful means nor advocate the support
of a foreign government against the United States in event of
hostilities. If any such statement, return, or other document does
not contain such declaration, the person or organization making
such statement, return, or other document shall not receive any
exemption from the tax to which the statement, return, or other
document pertains. Any person or organization who makes such
declaration knowing it to be false is guilty of a felony. This
section shall be construed so as to effectuate the purpose of
Section 19 of Article XX of the Constitution."
[
Footnote 3]
This contention was raised in the complaint and is argued in the
brief in this Court. The California Supreme Court rejected the
contention as without merit.
48 Cal. 2d
472, 475, 311 P.2d 544, 545-546.
Appellants also argue that these provisions are invalid (1) as
invading liberty of speech protected by the Due Process Clause of
the Fourteenth Amendment; (2) as denying equal protection because
the oath is required only as to property tax and corporation income
tax exemptions, but not as to the householder's personal income
tax, gift tax, inheritance tax, or sales tax exemptions; and (3) as
violating the Supremacy Clause because this legislation intrudes in
a field of exclusive federal control,
Commonwealth of
Pennsylvania v. Nelson, 350 U. S. 497. Our
disposition of the cases makes considerations of these questions
unnecessary.
[
Footnote 4]
The California Supreme Court construed these provisions as
inapplicable to mere belief. On oral argument, counsel for the
taxing authorities further conceded that the provisions would not
apply in the case of advocacy of mere "abstract doctrine."
See
Yates v. United States, 354 U. S. 298,
354 U. S.
312-327.
[
Footnote 5]
Appellants contend that under this Court's decision in
Commonwealth of Pennsylvania v. Nelson, 350 U.
S. 497, the State can no longer enforce its criminal
statutes aimed at subversion. We need not decide whether this
contention is sound; nor need we consider whether, if it is, it
follows that California cannot deny tax exemptions to those who in
fact are in violation of the federal and state sedition laws.
[
Footnote 6]
The California Supreme Court held that § 19 of Art. XX of the
State Constitution was, in effect, self-executing.
"[U]nder the tax laws of the state wholly apart from section 32,
it is the duty of the assessor to ascertain the facts with
reference to the taxability or exemption from taxation of property
within his jurisdiction. And it is also the duty of the property
owner to cooperate with the assessor and assist him in the
ascertainment of these facts by declarations under oath."
48 Cal. 2d at 430, 311 P.2d at 514-515.
In all events, if the assessor
"is satisfied from his investigations that the exemption should
not be allowed, he may assess the property as not exempt and if
contested compel a determination of the facts in a suit to recover
the tax paid under protest. In such a case, it would be necessary
for the claimant to allege and prove facts with reference to the
nature, extent and character of the property which would justify
the exemption and compliance with all valid regulations in the
presentation and prosecution of the claim. In any event, it is the
duty of the assessor to ascertain the facts from any legal source
available. In performing this task, he is engaged in the assembly
of facts which are to serve as a guide in arriving at his
conclusion whether an exemption should or should not be allowed.
That conclusion is in no wise a final determination that the
claimant belongs to a class proscribed by section 19 of article XX
or is guilty of any activity there denounced. The presumption of
innocence available to all in criminal prosecutions does not in a
case such as this relieve or prevent the assessor from making the
investigation enjoined upon him by law to see that exemptions are
not improperly allowed. His administrative determination is not
binding on the tax exemption claimant, but it is sufficient to
authorize him to tax the property as nonexempt and to place the
burden on the claimant to test the validity of his administrative
determination in an action at law."
Id., 48 Cal. 2d at 431-432, 311 P.2d at 515.
[
Footnote 7]
It is suggested that the opinion of the California Supreme Court
be read as holding that "the filing, whether the oath be true or
false, would conclusively establish the taxpayer's eligibility for
an exemption." But the California court expressly states that
"it is the duty of the assessor to see that exemptions are not
allowed contrary to law, and this, of course includes those which
are contrary to the prohibitions provided for in section 19 of
article XX,"
48 Cal. 2d
419, 431, 311 P.2d 508, 515, and that the "mandatory and
prohibitory" provision of § 19 of Art. XX "applies to all tax
exemption claimants."
Id., 48 Cal. 2d at 428, 311 P.2d at
513. Indeed, the tax authorities of California themselves point out
that the signing of the declaration is not conclusive of the right
to the tax exemption. The brief of the taxing authorities in the
companion case,
First Unitarian Church of Los Angeles v. County
of Los Angeles, post at
357 U. S. 545,
states,
"Section 32 is an evidentiary provision. Its purpose and effect
are to afford to the Assessor information
to guide his
compliance with and his enforcement of the Constitution's
prohibition. . . ."
(Emphasis supplied.)
It is also suggested that this Court construe the California
legislation contrary to the clearly expressed construction of the
California Supreme Court, and thus avoid decision of the question
of procedural due process. But this construction would not avoid
decision of constitutional questions, but rather would create the
necessity for decision of the broader constitutional question of
the validity of § 19 of Art. XX. A more fundamental objection to
the suggestion, of course, is that it does violence to the basic
constitutional principle that the construction of state laws is the
exclusive responsibility of the state courts.
[
Footnote 8]
Significantly, the New York statute which this Court upheld in
Adler v. Board of Education, 342 U.
S. 485, provided that public school teachers could be
dismissed on security grounds only after a hearing at which the
official pressing the charges sustained his burden of proof by a
fair preponderance of the evidence.
MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins,
concurring.*
California, in effect, has imposed a tax on belief and
expression. In my view, a levy of this nature is wholly out of
place in this country; so far as I know, such a thing
Page 357 U. S. 530
has never even been attempted before. I believe that it
constitutes a palpable violation of the First Amendment, which, of
course, is applicable in all its particulars to the States.
See, e.g., Staub v. City of Baxley, 355 U.
S. 313;
Poulos v. New Hampshire, 345 U.
S. 395,
345 U. S.
396-397;
Everson v. Board of Education,
330 U. S. 1,
330 U. S. 8, ;
Thomas v. Collins, 323 U. S. 516;
West Virginia State Board of Education v. Barnette,
319 U. S. 624,
319 U. S. 639;
Douglas v. City of Jeannette, 319 U.
S. 157,
319 U. S. 162;
Martin v. City of Struthers, 319 U.
S. 141;
Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 109;
Chaplinsky v. New Hampshire, 315 U.
S. 568,
315 U. S. 571;
Bridges v. California, 314 U. S. 252,
314 U. S. 263;
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 303;
Schneider v. State, 308 U. S. 147,
308 U. S. 160;
Lovell v. City of Griffin, 303 U.
S. 444,
303 U. S. 450;
De Jonge v. Oregon, 299 U. S. 353,
299 U. S. 364;
Gitlow v. New York, 268 U. S. 652,
268 U. S. 666.
The mere fact that California attempts to exact this ill-concealed
penalty from individuals and churches and that its validity has to
be considered in this Court only emphasizes how dangerously far we
have departed from the fundamental principles of freedom declared
in the First Amendment. We should never forget that the freedoms
secured by that Amendment -- Speech, Press, Religion, Petition and
Assembly -- are absolutely indispensable for the preservation of a
free society in which government is based upon the consent of an
informed citizenry and is dedicated to the protection of the rights
of all, even the most despised minorities.
See American
Communications Ass'n v. Douds, 339 U.
S. 382,
339 U. S. 445
(dissenting opinion);
Dennis v. United States,
341 U. S. 494,
341 U. S. 580
(dissenting opinion).
This case offers just another example of a wide-scale effort by
government in this country to impose penalties and disabilities on
everyone who is or is suspected of being a "Communist" or who is
not ready at all times and all places to swear his loyalty to State
and Nation.
Compare Adler v. Board of Education,
342 U. S. 485,
342 U. S. 496
(dissenting
Page 357 U. S. 531
opinion);
Wieman v. Updegraff, 344 U.
S. 183,
344 U. S. 193
(concurring opinion);
Barsky v. Board of Regents,
347 U. S. 442,
347 U. S. 456,
347 U. S. 472
(dissenting opinions). Government employees, lawyers, doctors,
teachers, pharmacists, veterinarians, subway conductors, industrial
workers and a multitude of others have been denied an opportunity
to work at their trade or profession for these reasons. Here, a tax
is levied unless the taxpayer makes an oath that he does not and
will not in the future advocate certain things; in Ohio, those
without jobs have been denied unemployment insurance unless they
are willing to swear that they do not hold specific views; and
Congress has even attempted to deny public housing to needy
families unless they first demonstrate their loyalty. These are
merely random samples; I will not take time here to refer to
innumerable others, such as oaths for hunters and fishermen,
wrestlers and boxers and junk dealers.
I am convinced that this whole business of penalizing people
because of their views and expressions concerning government is
hopelessly repugnant to the principles of freedom upon which this
Nation was founded and which have helped to make it the greatest in
the world. As stated in prior cases, I believe
"that the First Amendment grants an absolute right to believe in
any governmental system, [to] discuss all governmental affairs and
[to] argue for desired changes in the existing order. This freedom
is too dangerous for bad, tyrannical governments to permit. But
those who wrote and adopted our First Amendment weighed those
dangers against the dangers of censorship and deliberately chose
the First Amendment's unequivocal command that freedom of assembly,
petition, speech and press shall not be abridged. I happen to
believe this was a wise choice and that our free way of life
enlists such respect and love that our Nation cannot be imperiled
by mere talk."
Carlson v. Landon, 342 U. S. 524,
342 U. S.
555-556 (dissenting opinion).
Page 357 U. S. 532
Loyalty oaths, as well as other contemporary "security
measures," tend to stifle all forms of unorthodox or unpopular
thinking or expression -- the kind of thought and expression which
has played such a vital and beneficial role in the history of this
Nation. The result is a stultifying conformity which in the end may
well turn out to be more destructive to our free society than
foreign agents could ever hope to be. The course which we have been
following the last decade is not the course of a strong, free,
secure people, but that of the frightened, the insecure, the
intolerant. I am certain that loyalty to the United States can
never be secured by the endless proliferation of "loyalty" oaths;
loyalty must arise spontaneously from the hearts of people who love
their country and respect their government. I also adhere to the
proposition that the
"First Amendment provides the only kind of security system that
can preserve a free government -- one that leaves the way wide open
for people to favor, discuss, advocate, or incite causes and
doctrines however obnoxious and antagonistic such views may be to
the rest of us."
Yates v. United States, 354 U.
S. 298,
354 U. S. 344
(separate opinion).
If it be assumed however, as MR. JUSTICE BRENNAN does for
purposes of this case, that California may tax the expression of
certain views, I am in full agreement with him that the procedures
it has provided to determine whether petitioners are engaged in
"taxable" advocacy violate the requirements of due process.
[NOTE: This opinion applies also to No. 382,
First Unitarian
Church v. County of Los Angeles, and No. 385,
Valley
Unitarian-Universalist Church v. County of Los Angeles, post,
p.
357 U. S.
545.]
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK agrees,
concurring.
While I substantially agree with the opinion of the Court, I
will state my reasons more fully and more explicitly.
I. The State by the device of the loyalty oath places the burden
of proving loyalty on the citizen. That procedural
Page 357 U. S. 533
device goes against the grain of our constitutional system, for
every man is presumed innocent until guilt is established. This
technique is an ancient one that was denounced in an early period
of our history.
Alexander Hamilton, writing in 1784 under the name Phocion,
said:
". . . let it be supposed that, instead of the mode of
indictment and trial by jury, the Legislature was to declare that
every citizen who did not swear he had never adhered to the King of
Great Britain should incur all the penalties which our treason laws
prescribe. Would this not be . . . a direct infringement of the
Constitution? . . . it is substituting a new and arbitrary mode of
prosecution to that ancient and highly esteemed one, recognized by
the laws and the Constitution of the State -- I mean the trial by
jury."
4 The Works of Alexander Hamilton (Fed. ed. 1904) 269-270.
Hamilton compared that hypothetical law to an actual one passed
by New York on March 27, 1778, whereby a person who had served the
King of England in enumerated ways was declared "to be utterly
disabled disqualified and incapacitated to vote either by ballot or
viva voce at any election" in New York. N.Y.Laws
1777-1784, 35. An oath was required [
Footnote 2/1] in enforcement of that law. [
Footnote 2/2]
Page 357 U. S. 534
Hamilton called this "a subversion of one great principle of
social security, to-wit, that every man shall be presumed innocent
until he is proved guilty." 4 The Works of Alexander Hamilton (Fed.
ed. 1904) 269. He went on to say,
"This was to invert the order of things, and, instead of
obliging the State to prove the guilt in order to inflict the
penalty, it was to oblige the citizen to establish his own
innocence to avoid the penalty. It was to excite scruples in the
honest and conscientious, and to hold out a bribe to perjury."
Ibid.
Page 357 U. S. 535
If the aim is to apprehend those who have lifted a hand against
the Government, the procedure is unconstitutional.
If one conspires to overthrow the government, he commits a
crime. To make him swear he is innocent to avoid the consequences
of a law is to put on him the burden of proving his innocence. That
method does not square with our standards of procedural due
process, as the opinion of the Court points out.
The Court in
Cummings v.
Missouri, 4 Wall. 277,
71 U. S. 328,
denounced another expurgatory oath that had some of the vices of
the present one.
"The clauses in question subvert the presumptions of innocence,
and alter the rules of evidence, which heretofore, under the
universally recognized principles of the common law, have been
supposed to be fundamental and unchangeable. They assume that the
parties are guilty; they call upon the parties to establish their
innocence; and they declare that such innocence can be shown only
in one way -- by an inquisition, in the form of an expurgatory
oath, into the consciences of the parties."
II. If the aim of the law is not to apprehend criminals, but to
penalize advocacy, it likewise must fall. Since the time that
Alexander Hamilton wrote concerning these oaths, the Bill of Rights
was adopted; and then, much later, came the Fourteenth Amendment.
As a result of the latter, a rather broad range of liberties was
newly guaranteed to the citizen against state action. Included were
those contained in the First Amendment -- the right to speak
freely, the right to believe what one chooses, the right of
conscience.
Stromberg v. California, 283 U.
S. 359;
Murdock v. Pennsylvania, 319 U.
S. 105;
Staub v. City of Baxley, 355 U.
S. 313. Today what one thinks or believes, what one
utters and says, have the full protection
Page 357 U. S. 536
of the First Amendment. It is only his actions that government
may examine and penalize. When we allow government to probe his
beliefs and withhold from him some of the privileges of citizenship
because of what he thinks, we do indeed "invert the order of
things," to use Hamilton's phrase. All public officials -- state
and federal -- must take an oath to support the Constitution by the
express command of Article VI of the Constitution.
And see
Gerende v. Election Board, 341 U. S. 56. But
otherwise the domains of conscience and belief have been set aside
and protected from government intrusion.
Board of Education v.
Barnette, 319 U. S. 624.
What a man thinks is of no concern to government. "The First
Amendment gives freedom of mind the same security as freedom of
conscience."
Thomas v. Collins, 323 U.
S. 516,
323 U. S. 531.
Advocacy and belief go hand in hand. For there can be no true
freedom of mind if thoughts are secure only when they are pent
up.
In
Murdock v. Pennsylvania, supra, we stated,
"Plainly a community may not suppress, or the state tax, the
dissemination of views because they are unpopular, annoying or
distasteful."
319 U.S. at
319 U. S. 116.
If the Government may not impose a tax upon the expression of ideas
in order to discourage them, it may not achieve the same end by
reducing the individual who expresses his views to second-class
citizenship by withholding tax benefits granted others. When
government denies a tax exemption because of the citizen's belief,
it penalizes that belief. That is different only in form, not
substance, from the "taxes on knowledge" which have had a notorious
history in the English-speaking world.
See Grosjean v. American
Press Co., 297 U. S. 233,
297 U. S.
246-247.
We deal here with a type of advocacy which, to say the least,
lies close to the "constitutional danger zone."
Yates v. United
States, 354 U. S. 298,
354 U. S. 319.
Advocacy which is in no way brigaded with action should always be
protected
Page 357 U. S. 537
by the First Amendment. That protection should extend even to
the ideas we despise. As Mr Justice Holmes wrote in dissent in
Gitlow v. New York, 268 U. S. 652,
268 U. S.
673,
"If, in the long run, the beliefs expressed in proletarian
dictatorship are destined to be accepted by the dominant forces of
the community, the only meaning of free speech is that they should
be given their chance and have their way."
It is time for government -- state or federal -- to become
concerned with the citizen's advocacy when his ideas and beliefs
move into the realm of action.
The California oath is not related to unlawful action. To get
the tax exemption, the taxpayer must swear he
"does not advocate the overthrow of the Government of the United
States or of the State of California by force or violence or other
unlawful means nor advocate the support of a foreign government
against the United States in event of hostilities. [
Footnote 2/3]"
The Court construes the opinion of the California Supreme Court
as applying the same test of illegal advocacy as was sustained
against constitutional challenge in
Dennis v. United
States, 341 U. S. 494.
That case held that advocacy of the overthrow of government by
force and violence was not enough, that incitement to action, as
well as clear and present danger, were also essential ingredients.
Id., at
341 U. S. 512,
341 U. S.
509-510. As
Yates v. United States, supra,
makes clear, there is still a clear constitutional line between
advocacy of abstract doctrine and advocacy of action. The
California Supreme Court said, to be sure, that the oath in
question "is concerned" with that kind of advocacy. [
Footnote 2/4] But it nowhere says that oath
is limited to that kind of advocacy. It seemed to think that
advocacy was itself action for it said,
"What one may merely believe is not prohibited.
Page 357 U. S. 538
It is only advocates of the subversive doctrines who are
affected. Advocacy constitutes action and the instigation of
action, not mere belief or opinion. [
Footnote 2/5]"
However the California opinion may be read, these judgments
should fall. If the construction of the oath is the one I prefer,
then the Supreme Court of California has obliterated the line
between advocacy of abstract doctrine and advocacy of action. If
the California oath has been limited by judicial construction to
the type of advocacy condemned in
Dennis, it still should
fall. My disagreement with that decision has not abated. No
conspiracy to overthrow the Government was involved. Speech and
speech alone was the offense. I repeat that thought and speech go
hand in hand. There is no real freedom of thought if ideas must be
suppressed. There can be no freedom of the mind unless ideas can be
uttered.
I know of no power that enables any government under our
Constitution to become the monitor of thought, as this statute
would have it become.
[
Footnote 2/1]
The oath was prescribed by the Council in charge of the Southern
District of New York. The Council, authorized by the Act of October
23, 1779, was composed of the Governor, President of the Senate,
Chancellor, Supreme Court judges, Senators, Assemblymen, Secretary
of State, Attorney General, and County Court judges. The Council
was to assume authority "whenever the enemy shall abandon or be
dispossessed of the same, and until the legislature can be
convened," N.Y.Laws 1777-1784, 192. The Council governed from
November 25, 1783, to February 5, 1784.
See Barck, New
York City 1776-1783 (1931), 220-221. Among the powers of the
Council was control of elections.
The election oath prescribed by the Council read as follows:
"I _________ do solemnly, without any mental Reservation or
Equivocation whatsoever, swear and declare, and call God to witness
(or if of the People called Quakers, affirm) that I renounce and
abjure all Allegiance to the King of Great Britain; and that I will
bear true Faith and Allegiance to the State of New York, as a Free
and Independent State, and that I will in all Things, to the best
of my Knowledge and Ability, do my Duty as a good and faithful
Subject of the said State ought to do. So help me God."
Independent Gazette, Dec. 13, 1783.
The Council further provided:
"That if any Person presenting himself to give his Vote shall be
suspected of or charged with having committed any of the Offences
above specified, it shall be Lawful for the Inspectors, or
Superintendents (as the Case may be) to inquire into and determine
the Fact whereof such Person shall be suspected, or wherewith he
shall be charged, as the Cause of Disqualification, on the Oath of
one or more Witnesses, or on the Oath of the Party so suspected or
charged, at their Discretion; and if such Fact shall, in the
Judgement of the Inspectors or Superintendents, be established, it
shall be lawful for them, and they are hereby required, to reject
the Vote of such Person at such Election."
Independent Gazette, Dec. 13, 1783.
[
Footnote 2/2]
Other loyalty oaths appeared during this early period. Suspected
persons were required to take a loyalty oath. N.Y.Laws 1777-1784,
87. The same was required of lawyers.
Id. at 155, 420.
And see Flick, Loyalism in New York During the American
Revolution, 14 Studies in History, Economics and Public Law
(Columbia Univ. 1901) 9 (
passim).
[
Footnote 2/3]
Calif.Rev. & Tax Code § 32;
and see Calif.Const.,
Art XX, § 19.
[
Footnote 2/4]
48 Cal. 2d
419, 440, 311 P.2d 508, 520.
[
Footnote 2/5]
48 Cal. 2d at 434, 311 P.2d at 517.
MR. JUSTICE CLARK, dissenting.
The decision of the Court turns on a construction of California
law which regards the filing of the California tax oath as
introductory, not conclusive, in nature. Hence, once the oath is
filed, it may be "accepted or rejected on the basis of incompetent
information or no information at all." And the filing is "only a
step in a process throughout which the taxpayer must bear the
burden of proof."
No California case, least of all the present one, compels such
an understanding of § 32 of the California Revenue and Taxation
Code. Neither appellant here filed the required oath, so the
procedural skeleton of this case is not enlightening. If anything,
the opinion of the state
Page 357 U. S. 539
court indicates that the filing, whether the oath be true or
false, would conclusively establish the taxpayer's eligibility for
an exemption. Thus, in explaining the effect of § 32, the
California court stated:
"For the obvious purpose, among others, of avoiding litigation,
the Legislature, throughout the years has sought to relieve the
assessor of the burden, on his own initiative and at the public
expense, of ascertaining the facts with reference to tax exemption
claimants. In addition to the means heretofore and otherwise
provided by law the Legislature, with special reference to the
implementation of section 19 of article XX, has enacted section 32.
That section provides a direct, time saving and relatively
inexpensive method
of ascertaining the facts."
(Emphasis added.)
48 Cal. 2d
419, 432, 311 P. 508, 515-516.
Moreover, the recourse of the State in the event a false oath is
filed is expressly provided by § 32: "Any person or organization
who makes such declaration knowing it to be false is guilty of a
felony." The majority relies heavily on the duty of the assessor to
"[investigate] the facts underlying all tax liabilities," as well
as his subpoena power incident thereto under § 454 of the
California Tax Code. But the California court adverts to those
matters only under a hypothetical state of facts, namely, in the
absence of the aid provided by § 32. 48 Cal.2d, at 430-432, 311
P.2d at 515. The essential point is that, whatever the assessor's
duty, § 32 provides for its discharge on the basis of the
declarations alone.
On the other hand, if it be thought that the Supreme Court of
California is ambiguous on this matter, then it is well established
that our duty is to so construe the state oath as to avoid conflict
with constitutional guarantees of due process.
Garner v. Board
of Public Works, 341 U. S. 716,
341 U. S.
723-724;
Gerende v. Board
of
Page 357 U. S. 540
Supervisors of Elections, 341 U. S.
56. Two years ago, we construed filing of the
non-Communist affidavit required by § 9(h) of the National Labor
Relations Act, 29 U.S.C.A. § 159(h), as being conclusive in
character, holding that the criminal sanction provided in that
section was the exclusive remedy for the filing of a false
affidavit.
Leedom v. International Union of Mine, Mill &
Smelter Workers, 352 U. S. 145.
That Act bars issuance of a complaint or conducting an
investigation upon the application of a union unless the prescribed
non-Communist affidavit is filed by each officer of the union.
Article XX, § 19, of the California Constitution expressly
prohibits a tax exemption to any person or organization that
advocates violent overthrow of either the California or the United
States Governments, or advocates the support of a foreign
government against the United States in the event of hostilities,
and provides for legislative implementation thereof. By § 32, the
California Legislature has required only the filing of the
affidavit. The terms of § 9(h) of the National Labor Relations Act
and § 32 of the California Tax Code, therefore, establish identical
procedures. That identity points up the inappropriateness of the
Court's construction of § 32.
Even if the Court's interpretation of California law is correct,
I cannot agree that due process requires California to bear the
burden of proof under the circumstances of this case. This is not a
criminal proceeding. Neither fine nor imprisonment is involved. So
far as Art. XX, § 19, of the California Constitution and § 32 of
the California Tax Code are concerned, appellants are free to speak
as they wish, to advocate what they will. If they advocate the
violent and forceful overthrow of the California Government,
California will take no action against them under the tax
provisions here in question. But it
Page 357 U. S. 541
will refuse to take any action for them, in the sense of
extending to them the legislative largesse that is inherent in the
granting of any tax exemption or deduction. In the view of the
California court,
"An exemption from taxation is the exception and the unusual. .
. . It is a bounty or gratuity on the part of the sovereign and
when once granted may be withdrawn."
48 Cal. 2d at 426, 311 P.2d at 512. The power of the sovereign
to attach conditions to its bounty is firmly established under the
Due Process Clause.
Cf. Ivanhoe Irrigation District v.
McCracken, 357 U. S. 275.
Traditionally, the burden of qualifying rests upon the one seeking
the grace of the State. The majority suggests that traditional
procedures are inadequate when "a person is to suffer a penalty for
a crime." But California's action here, declining to extend the
grace of the State to appellants, can in no proper sense be
regarded as a "penalty." The case cited by the majority,
Lipke
v. Lederer, 259 U. S. 557,
involves an altogether different matter, imposition of a special
tax upon one who engaged in certain illegal conduct, by a statute
that described the levy as a "tax
or penalty." (Emphasis
added.) 259 U.S. at
259 U. S.
561.
The majority, however, would require that California bear the
burden of proof under the circumstances of this case because "the
transcendent value of speech is involved." This is a wholly novel
doctrine, unsupported by any precedent, and, so far as I can see,
inapposite to several other decisions of this Court upholding the
application of similar oaths to municipal employees,
Garner v.
Board of Public Works, 341 U. S. 716;
public school teachers,
Adler v. Board of Education,
342 U. S. 485;
candidates for public office,
Gerende v. Board of
Supervisors, 341 U. S. 56; and
labor union officials,
American Communications Ass'n
v. Douds, 339
Page 357 U. S. 542
U.S. 382.
See also Davis v. Beason, 133 U.
S. 333, as to voters in territorial elections. All of
those decisions, by virtue of the oath involved, put the burden on
the individual to come forward and disavow activity involving "the
transcendent value of speech." The majority attempts to distinguish
them on the basis of their involving a greater state interest in
justification of restricting speech, and also on the ground that
the oaths there involved were conclusive in nature. The first
distinction, however, seems pertinent only to the validity of an
oath requirement in the first place, not to burden of proof under
such a requirement. The second distinction, which,
arguendo, I accept as true at this point, seems
exceedingly flimsy, since even an oath that is conclusive in nature
forces the applicant to the burden of coming forward and making the
requisite declaration. So far as impact on freedom of speech is
concerned, the further burden of proving the declarations true
appears close to being
de minimus.
The majority assumes, without deciding, that California may deny
a tax exemption to those in the proscribed class. I think it
perfectly clear that the State may do so, since only that speech is
affected which is criminally punishable under the Federal Smith
Act, 18 U.S.C. § 2385, or the California Criminal Syndicalism Act,
Cal.Stat., 1919, c. 188. And California has agreed that its
interpretation of criminal speech under those Acts shall be in
conformity with the decisions of this Court,
e.g., Yates v.
United States, 354 U. S. 298;
Dennis v. United States, 341 U. S. 494;
Whitney v. California, 274 U. S. 357. The
interest of the State that justifies restriction of speech by
imposition of criminal sanctions surely justifies the far less
severe measure of denying a tax exemption, provided the lesser
sanction bears reasonable relation to the evil at which the
State
Page 357 U. S. 543
aims.
Cf. American Communications Ass'n v. Douds,
supra. The general aim of the constitutional and legislative
provisions in question is to restrict advocacy of violent or
forceful overthrow of State or National Government; the particular
aim is to avoid state subsidization of such advocacy by refusing
the State's bounty to those who are so engaged. The latter has been
denominated the "primary purpose" by the California Supreme Court.
48 Cal. 2d at 428, 311 P.2d at 513. In view of that, reasonable
relation is evident on the face of the matter.
Refusal of the taxing sovereign's grace in order to avoid
subsidizing or encouraging activity contrary to the sovereign's
policy is an accepted practice. We have here a parallel situation
to federal refusal to regard as "necessary and ordinary," and hence
deductible under the federal income tax, those expenses deduction
of which would frustrate sharply defined state policies.
See
Tank Truck Rentals, Inc., v. Commissioner, 356 U. S.
30.
If the State's requirement of an oath in implementing denial of
this exemption be thought to make an inroad upon speech over and
above that caused by denial of the exemption, or even by criminal
punishment of the proscribed speech, I find California's interest
still sufficient to justify the State's action. The restriction
must be considered in the context in which the oath is set --
appeal to the largesse of the State. The interest of the State, as
before pointed out, is dual in nature, but its primary thrust is
summed up in an understandable desire to insure that those who
benefit by tax exemption do not bite the hand that gives it.
Appellants raise other issues -- preemption of security
legislation under
Pennsylvania v. Nelson, 350 U.
S. 497, and denial of equal protection because the oath
is not required for all types of tax exemptions -- which the
majority does not pass upon. I treat of them only so far
Page 357 U. S. 544
as to say that I think neither has merit, substantially for the
reasons stated in the opinion of the Supreme Court of
California.
If my interpretation of § 32 is correct, I assume that
California will afford appellants another opportunity to take the
oath, this time knowing that its filing will have conclusive
effect. For the reasons stated above, I would affirm the
judgment.