This class action was brought by members of the faculty, staff,
and students of the University of Washington for a judgment
declaring unconstitutional 1931 and 1955 state statutes requiring
the taking of oaths, one for teachers and the other for all state
employees, including teachers, a a condition of employment. The
1931 oath requires teachers to swear, by precept and example, to
promote respect for the flag and the institutions of the United
States and the State of Washington, reverence for law and order and
undivided allegiance to the Government of the United States. The
1955 oath for state employees, which incorporates provisions of the
state Subversive Activities Act, requires the affiant to swear that
he is not a "subversive person": that he does not commit, or
advise, teach, abet or advocate another to commit or aid in the
commission of any act intended to overthrow or alter, or assist in
the overthrow or alteration, of the constitutional form of
government by revolution, force or violence. "Subversive
organization" and "foreign subversive organization" are defined in
similar terms, and the Communist Party is declared a subversive
organization. A three-judge District Court held that the 1955
statute and oath were not unduly vague and did not violate the
First and Fourteenth Amendments, and it abstained from ruling on
the 1931 oath until it was considered by the state courts.
Held:
1. The provisions of the 1955 statute and the 1931 Act violate
due process, since they, as well as the oaths based thereon, are
unduly vague, uncertain and broad.
Cramp v. Board of Public
Instruction, 368 U. S. 278,
followed. Pp.
377 U. S.
361-372.
2. A State cannot require an employee to take an unduly vague
oath containing a promise of future conduct at the risk of
prosecution for perjury or loss of employment, particularly where
the exercise of First Amendment freedoms may thereby be deterred.
Pp.
377 U. S.
373-374.
3. Federal courts do not automatically abstain when faced with a
doubtful issue of state law, since abstention involves a
discretionary exercise of equity power. Pp.
377 U. S.
375-379.
Page 377 U. S. 361
(a) There are no special circumstances warranting application of
the doctrine here. P.
377 U. S.
375.
(b) Construction of the 1931 oath cannot eliminate the vagueness
from its terms, and would probably raise other constitutional
issues. P.
377 U. S.
378.
(c) Abstention leads to piecemeal adjudication and protracted
delays, a costly result where First Amendment freedoms may be
inhibited. Pp.
377 U. S.
378-379.
215 F.
Supp. 439, reversed.
MR. JUSTICE WHITE delivered the opinion of the Court.
Appellants, approximately 64 in number, are members of the
faculty, staff and student body of the University of Washington who
brought this class action asking for a judgment declaring
unconstitutional two Washington statutes requiring the execution of
two different oaths by state employees and for an injunction
against the enforcement of these statutes by appellees, the
President of the University, members of the Washington State Board
of Regents and the State Attorney General.
The statutes under attack are Chapter 377, Laws of 1955, and
Chapter 103, Laws of 1931, both of which require employees of the
State of Washington to take the oaths prescribed in the statutes as
a condition of their employment. The 1931 legislation applies only
to teachers who, upon applying for a license to teach or renewing
an existing contract, are required to subscribe to the
following:
"I solemnly swear (or affirm) that I will support the
constitution and laws of the United States of
Page 377 U. S. 362
America and of the State of Washington, and will by precept and
example promote respect for the flag and the institutions of the
United States of America and the State of Washington, reverence for
law and order and undivided allegiance to the government of the
United States."
Wash.Laws 1931, c. 103. The oath requirements of the 1955 Act,
Wash.Laws 1955, c. 377, applicable to all state employees,
incorporate various provisions of the Washington Subversive
Activities Act of 1951, which provides generally that
"[n]o subversive person, as defined in this act, shall be
eligible for employment in, or appointment to any office, or any
position of trust or profit in the government, or in the
administration of the business, of this state, or of any county,
municipality, or other political subdivision of this state."
Wash.Rev.Code § 9.81.060. The term "subversive person" is
defined as follows:
"'Subversive person' means any person who commits, attempts to
commit, or aids in the commission, or advocates, abets, advises or
teaches by any means any person to commit, attempt to commit, or
aid in the commission of any act intended to overthrow, destroy or
alter, or to assist in the overthrow, destruction or alteration of,
the constitutional form of the government of the United States, or
of the state of Washington, or any political subdivision of either
of them by revolution, force, or violence; or who with knowledge
that the organization is an organization as described in
subsections (2) and (3) hereof, becomes or remains a member of a
subversive organization or a foreign subversive organization."
Wash.Rev.Code § 9.81.010(5). The Act goes on to define at
similar length and in similar terms "subversive organization" and
"foreign subversive organization," and to declare the Communist
Party a subversive
Page 377 U. S. 363
organization and membership therein a subversive activity.
[
Footnote 1]
On May 28, 1962, some four months after this Court's dismissal
of the appeal in
Nostrand v. Little, 368 U.
S. 436, also a challenge to the 1955 oath, [
Footnote 2] the University
Page 377 U. S. 364
President, acting pursuant to directions of the Board of
Regents, issued a memorandum to all University employees notifying
them that they would be required to take an oath. Oath Form A
[
Footnote 3] requires all
teaching personnel
Page 377 U. S. 365
to swear to the oath of allegiance set out above, to aver that
they have read, are familiar with and understand the provisions
defining "subversive person" in the Subversive Activities Act of
1951, and to disclaim being a subversive person and membership in
the Communist Party or any other subversive or foreign subversive
organization. Oath Form B [
Footnote
4] requires other state employees to subscribe to all of the
above provisions except the 1931 oath. Both forms provide that the
oath and
Page 377 U. S. 366
statements pertinent thereto are made subject to the penalties
of perjury.
Pursuant to 28 U.S.C. §§ 2281, 2284, a three-judge District
Court was convened, and a trial was had. That court determined that
the 1955 oath and underlying statutory provisions did not infringe
upon any First and Fourteenth Amendment freedoms and were not
unduly vague. In respect to the claims that the 1931 oath was
unconstitutionally vague on its face, the court held that, although
the challenge raised a substantial constitutional issue,
adjudication was not proper in the absence of proceedings in the
state courts which might resolve or avoid the constitutional issue.
The action was dismissed.
215 F.
Supp. 439. We noted probable jurisdiction because of the public
importance of this type of legislation and the recurring serious
constitutional questions which it presents. 375 U.S. 808. We
reverse.
I
Appellants contend in this Court that the oath requirements and
the statutory provisions on which they are based are invalid on
their face because their language is unduly vague, uncertain and
broad. We agree with this contention and therefore, without
reaching the numerous other contentions pressed upon us, confine
our considerations to that particular question. [
Footnote 5]
In
Cramp v. Board of Public Instruction, 368 U.
S. 278, the Court invalidated an oath requiring teachers
and other employees of the State to swear that they had never lent
their "aid, support, advice, counsel, or influence to the Communist
Party" because the oath was lacking in
Page 377 U. S. 367
"terms susceptible of objective measurement" and failed to
inform as to what the State commanded or forbade. The statute
therefore fell within the compass of those decisions of the Court
holding that a law forbidding or requiring conduct in terms so
vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application violates due process of
law.
Connally v. General Construction Co., 269 U.
S. 385;
Lanzetta v. New Jersey, 306 U.
S. 451;
Joseph Burstyn, Inc. v. Wilson,
343 U. S. 495;
United States v. Cardiff, 344 U.
S. 174;
Champlin Refining Co. v. Corporation Comm'n
of Oklahoma, 286 U. S. 210.
The oath required by the 1955 statute suffers from similar
infirmities. A teacher must swear that he is not a subversive
person: that he is not one who commits an act or who advises,
teaches, abets or advocates by any means another person to commit
or aid in the commission of any act intended to overthrow or alter,
or to assist the overthrow or alteration, of the constitutional
form of government by revolution, force or violence. A subversive
organization is defined as one which engages in or assists
activities intended to alter or overthrow the Government by force
or violence or which has as a purpose the commission of such acts.
The Communist Party is declared in the statute to be a subversive
organization, that is, it is presumed that the Party does and will
engage in activities intended to overthrow the Government.
[
Footnote 6] Persons required
to swear they understand
Page 377 U. S. 368
this oath may quite reasonably conclude that any person who aids
the Communist Party or teaches or advises known members of the
Party is a subversive person because such teaching or advice may
now or at some future date aid the activities of the Party.
Teaching and advising are clearly acts, and one cannot confidently
assert that his counsel, aid, influence or support which adds to
the resources, rights and knowledge of the Communist Party or its
members does not aid the Party in its activities, activities which
the statute tells us are all in furtherance of the stated purpose
of overthrowing the Government by revolution, force, or violence.
The questions put by the Court in
Cramp may with equal
force be asked here. Does the statute reach endorsement or support
for Communist candidates for office? Does it reach a lawyer who
represents the Communist Party or its members or a journalist who
defends constitutional rights of the Communist Party or its members
or anyone who supports any cause which is likewise supported by
Communists or the Communist Party? The susceptibility of the
statutory language to require forswearing of an undefined variety
of "guiltless knowing behavior" is what the Court condemned in
Cramp. This statute, like the one at issue in
Cramp, is unconstitutionally vague. [
Footnote 7]
Page 377 U. S. 369
The Washington statute suffers from additional difficulties on
vagueness grounds. A person is subversive not only if he himself
commits the specified acts, but if he abets or advises another in
aiding a third person to commit an act which will assist yet a
fourth person in the overthrow or alteration of constitutional
government. The Washington Supreme Court has said that knowledge is
to be read into every provision, and we accept this construction.
Nostrand v. Balmer, 53 Wash. 2d
460, 483 484,
335 P.2d
10, 24;
Nostrand v. Little, 58 Wash. 2d
111, 123 124,
361 P.2d
551, 559. But what is it that the Washington professor must
"know"? Must he know that his aid or teaching will be used by
another, and that the person aided has the requisite guilty intent,
or is it sufficient that he knows that his aid or teaching would or
might be useful to others in the commission of acts intended to
overthrow the Government? Is it subversive activity, for example,
to attend and participate in international conventions of
mathematicians and exchange views with scholars from Communist
countries? What about the editor of a scholarly journal who
analyzes and criticizes the manuscripts of Communist scholars
submitted for publication? Is selecting outstanding scholars from
Communist countries as visiting professors and advising, teaching,
or consulting with them at the University of Washington a
subversive activity if such scholars are known to be Communists,
or, regardless of their affiliations, regularly teach students
Page 377 U. S. 370
who are members of the Communist Party, which, by statutory
definition, is subversive and dedicated to the overthrow of the
Government?
The Washington oath goes beyond overthrow or alteration by force
or violence. It extends to alteration by "revolution" which, unless
wholly redundant and its ordinary meaning distorted, includes any
rapid or fundamental change. Would, therefore, any organization or
any person supporting, advocating or teaching peaceful but
far-reaching constitutional amendments be engaged in subversive
activity? Could one support the repeal of the Twenty-second
Amendment or participation by this country in a world government?
[
Footnote 8]
Page 377 U. S. 371
II
We also conclude that the 1931 oath offends due process because
of vagueness. The oath exacts a promise that the affiant will, by
precept and example, promote respect for the flag and the
institutions of the United States and and State of Washington. The
range of activities which are or might be deemed inconsistent with
the required promise is very wide indeed. The teacher who refused
to salute the flag or advocated refusal because of religious
beliefs might well be accused of breaching his promise.
Cf.
West Virginia State Board of Education v. Barnette,
319 U. S. 624.
Even criticism of the design or color scheme of the state flag or
unfavorable comparison of it with that of a sister State or foreign
country could be deemed disrespectful, and therefore violative of
the oath. And what are "institutions" for the purposes of this
oath? Is it every "practice, law, custom, etc., which is a material
and persistent element in the life or culture of an organized
social group," or every "established society or corporation," every
"establishment, esp[ecially] one of a public character?" [
Footnote 9] The oath may prevent a
professor from criticizing his state judicial system or the Supreme
Court or the institution of judicial review. Or it might be deemed
to proscribe advocating the abolition, for example, of the Civil
Rights Commission, the House Committee on Un-American Activities,
or foreign aid.
It is likewise difficult to ascertain what might be done without
transgressing the promise to "promote . . . undivided allegiance to
the government of the United States." It would not be unreasonable
for the serious-minded oath-taker to conclude that he should
dispense with lectures voicing far-reaching criticism of any old or
new policy followed by the Government of the United
Page 377 U. S. 372
States. He could find it questionable under this language to
ally himself with any interest group dedicated to opposing any
current public policy or law of the Federal Government, for if he
did, he might well be accused of placing loyalty to the group above
allegiance to the United States.
Indulging every presumption of a narrow construction of the
provisions of the 1931 oath, consistent, however, with a proper
respect for the English language, we cannot say that this oath
provides an ascertainable standard of conduct, or that it does not
require more than a State may command under the guarantees of the
First and Fourteenth Amendments.
As in
Cramp v. Board of Public Instruction,
"[t]he vice of unconstitutional vagueness is further aggravated
where, as here, the statute in question operates to inhibit the
exercise of individual freedoms affirmatively protected by the
Constitution."
368 U. S. 368 U.S.
278,
368 U. S. 287.
We are dealing with indefinite statutes whose terms, even narrowly
construed, abut upon sensitive areas of basic First Amendment
freedoms. The uncertain meanings of the oaths require the
oath-taker teachers and public servants to "steer far wider of the
unlawful zone,"
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 526,
than if the boundaries of the forbidden areas were clearly marked.
Those with a conscientious regard for what they solemnly swear or
affirm, sensitive to the perils posed by the oath's indefinite
language, avoid the risk of loss of employment, and perhaps
profession, only by restricting their conduct to that which is
unquestionably safe. Free speech may not be so inhibited. [
Footnote 10]
Page 377 U. S. 373
Smith v. California, 361 U. S. 147;
Stromberg v. California, 283 U. S. 359,
283 U. S. 369.
See also Herndon v. Lowry, 301 U.
S. 242;
Thornhill v. Alabama, 310 U. S.
88; and
Winters v. New York, 333 U.
S. 507.
III
The State labels as wholly fanciful, the suggested possible
coverage of the two oaths. It may well be correct, but the
contention only emphasizes the difficulties with the two statutes;
for if the oaths do not reach some or any of the behavior
suggested, what specific conduct do the oaths cover? Where does
fanciful possibility end and intended coverage begin?
It will not do to say that a prosecutor's sense of fairness and
the Constitution would prevent a successful perjury prosecution for
some of the activities seemingly embraced within the sweeping
statutory definitions. The hazard of being prosecuted for knowing
but guiltless behavior nevertheless remains.
"It would be blinking reality not to acknowledge that there are
some among us always ready to affix a Communist label upon those
whose ideas they violently oppose. And experience teaches us that
prosecutors too are human."
Cramp, supra, at
368 U. S.
286-287. Well intentioned prosecutors and judicial
safeguards do not neutralize the vice of a vague law. Nor should we
encourage the casual taking of oaths by upholding the discharge or
exclusion from public employment
Page 377 U. S. 374
of those with a conscientious and scrupulous regard for such
undertakings.
It is further argued, however, that, notwithstanding the
uncertainties of the 1931 oath and the statute on which it is
based, the oath does not offend due process because the vagaries
are contained in a promise of future conduct, the breach of which
would not support a conviction for perjury. Without the criminal
sanctions, it is said, one need not fear taking this oath,
regardless of whether he understands it and can comply with its
mandate, however understood. This contention ignores not only the
effect of the oath on those who will not solemnly swear unless they
can do so honestly and without prevarication and reservation, but
also its effect on those who believe the written law means what it
says. Oath Form A contains both oaths, and expressly requires that
the signer "understand that this statement and oath are made
subject to the penalties of perjury." Moreover, Wash.Rev.Code §
9.72.030 provides that "[e]very person who, whether orally or in
writing . . . , shall knowingly swear falsely concerning any matter
whatsoever" commits perjury in the second degree. Even if it can be
said that a conviction for falsely taking this oath would not be
sustained, the possibility of a prosecution cannot be gainsaid. The
State may not require one to choose between subscribing to an
unduly vague and broad oath, thereby incurring the likelihood of
prosecution, and conscientiously refusing to take the oath with the
consequent loss of employment, and perhaps profession, particularly
where "the free dissemination of ideas may be the loser."
Smith
v. California, 361 U. S. 147,
361 U. S.
151.
"It is not the penalty itself that is invalid, but the exaction
of obedience to a rule or standard that is so vague and indefinite
as to be really no rule or standard at all."
Champlin Refining Co. v. Corporation Comm'n of
Oklahoma, 286 U. S. 210,
286 U. S. 243;
cf. Small Co. v. American Sugar Refining Co., 267 U.
S. 233.
Page 377 U. S. 375
IV
We are asked not to examine the 1931 oath statute because,
although on the books for over three decades, it has never been
interpreted by the Washington courts. The argument is that, ever
since
Railroad Comm'n v. Pullman Co., 312 U.
S. 496, the Court on many occasions has ordered
abstention where state tribunals were thought to be more
appropriate for resolution of complex or unsettled questions of
local law.
AFL v. Watson, 327 U.
S. 582;
Spector Motor Service v. McLaughlin,
323 U. S. 101;
Harrison v. NAACP,. Because this Court ordinarily accepts
the construction given a state statute in the local courts and also
presumes that the statute will be construed in such a way as to
avoid the constitutional question presented,
Fox v.
Washington, 236 U. S. 273;
Poulos v. New Hampshire, 345 U. S. 395, an
interpretation of the 1931 oath in the Washington courts in light
of the vagueness attack may eliminate the necessity of deciding
this issue.
We are not persuaded. The abstention doctrine is not an
automatic rule applied whenever a federal court is faced with a
doubtful issue of state law; it rather involves a discretionary
exercise of a court's equity powers. Ascertainment of whether there
exist the "special circumstances,"
Propper v. Clark,
337 U. S. 472,
prerequisite to its application must be made on a case-by-case
basis.
Railroad Comm'n v. Pullman Co., 312 U.
S. 496,
312 U. S. 500;
NAACP v. Bennett, 360 U. S. 471.
[
Footnote 11] Those special
circumstances are not present here. We doubt, in the first place,
that a construction of the oath provisions, in light of the
vagueness challenge, would
Page 377 U. S. 376
avoid or fundamentally alter the constitutional issue raised in
this litigation.
See Chicago v. Atchison, T. & S.F. R.
Co., 357 U. S. 77. In
the bulk of abstention cases in this Court, [
Footnote 12] including those few cases where
vagueness was at issue, [
Footnote 13] the unsettled issue of state law
principally
Page 377 U. S. 377
concerned the applicability of the challenged statute to a
certain person or a defined course of conduct, whose resolution in
a particular manner would eliminate the constitutional issue and
terminate the litigation. Here, the
Page 377 U. S. 378
uncertain issue of state law does not turn upon a choice between
one or several alternative meanings of a state statute. The
challenged oath is not open to one or a few interpretations, but to
an indefinite number. There is no uncertainty that the oath applies
to the appellants, and the issue they raise is not whether the oath
permits them to engage in certain definable activities. Rather,
their complaint is that they, about 64 in number, cannot understand
the required promise, cannot define the range of activities in
which they might engage in the future, and do not want to forswear
doing all that is literally or arguably within the purview of the
vague terms. In these circumstances, it is difficult to see how an
abstract construction of the challenged terms, such as precept,
example, allegiance, institutions, and the like, in a declaratory
judgment action could eliminate the vagueness from these terms. It
is fictional to believe that anything less than extensive
adjudications, under the impact of a variety of factual situations,
would bring the oath within the bounds of permissible
constitutional certainty. Abstention does not require this.
Other considerations also militate against abstention here.
Construction of this oath in the state court, abstractly and
without reference to concrete, particularized situations so
necessary to bring into focus the impact of the terms on
constitutionally protected rights of speech and association,
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S. 341
(Brandeis, J., concurring), would not only hold little hope of
eliminating the issue of vagueness, but also would very likely pose
other constitutional issues for decision, a result not serving the
abstention-justifying end of avoiding constitutional
adjudication.
We also cannot ignore that abstention operates to require
piecemeal adjudication in many courts,
England v. Louisiana
State Board of Medical Examiners, 375 U.
S. 411, thereby delaying ultimate adjudication on the
merits
Page 377 U. S. 379
for an undue length of time.
England, supra; Spector, supra;
Government & Civic Employees Organizing Committee v.
Windsor, 353 U. S. 364,
[
Footnote 14] a result quite
costly where the vagueness of a state statute may inhibit the
exercise of First Amendment freedoms. Indeed, the 1955 subversive
person oath has been under continuous constitutional attack since
at least 1957,
Nostrand v. Balmer, 53 Wash. 2d
460, 463,
335 P.2d
10, 12, and is now before this Court for the third time.
Remitting these litigants to the state courts for a construction of
the 1931 oath would further protract these proceedings, already
pending for almost two years, with only the likelihood that the
case, perhaps years later, will return to the three-judge District
Court and perhaps this Court for a decision on the identical issue
herein decided.
See Chicago v. Atchison, T. & S.F. R.
Co., 357 U. S. 77,
357 U. S. 84;
Public Utilities Comm'n of Ohio v. United Fuel Co.,
317 U. S. 456.
[
Footnote 15] Meanwhile,
where the vagueness of the statute deters constitutionally
protected conduct, "the free dissemination of ideas may be the
loser."
Smith v. California, 361 U.
S. 147,
361 U. S.
151.
V
As in
Cramp v. Board of Public Instruction, supra, we
do not question the power of a State to take proper measures
safeguarding the public service from disloyal conduct.
Page 377 U. S. 380
But measures which purport to define disloyalty must allow
public servants to know what is and is not disloyal.
"The fact . . . that a person is not compelled to hold public
office cannot possibly be an excuse for barring him from office by
state-imposed criteria forbidden by the Constitution."
Torcaso v. Watkins, 367 U. S. 488,
367 U. S.
495-496.
Reversed.
[
Footnote 1]
"'Subversive organization' means any organization which engages
in or advocates, abets, advises, or teaches, or a purpose of which
is to engage in or advocate, abet, advise, or teach activities
intended to overthrow, destroy or alter, or to assist in the
overthrow, destruction or alteration of, the constitutional form of
the government of the United States, or of the state of Washington,
or of any political subdivision of either of them, by revolution,
force or violence."
Wash.Rev.Code § 9.81.010(2).
"'Foreign subversive organization' means any organization
directed, dominated or controlled directly or indirectly by a
foreign government which engages in or advocates, abets, advises,
or teaches, or a purpose of which is to engage in or to advocate,
abet, advise, or teach, activities intended to overthrow, destroy
or alter, or to assist in the overthrow, destruction or alteration
of the constitutional form of the government of the United States,
or of the state of Washington, or of any political subdivision of
either of them, and to establish in place thereof any form of
government the direction and control of which is to be vested in,
or exercised by or under, the domination or control of any foreign
government, organization, or individual."
Wash.Rev.Code § 9.81.010(3).
"COMMUNIST PARTY DECLARED A SUBVERSIVE ORGANIZATION."
"The communist party is a subversive organization within the
purview of chapter 9.81 and membership in the communist party is a
subversive activity thereunder."
Wash.Rev.Code § 9.81.083.
[
Footnote 2]
Although the 1931 Act has not been the subject of previous
challenge, an attack upon the 1955 loyalty statute was instituted
by two of the appellants in the present case, Professors Howard
Nostrand and Max Savelle, who brought a declaratory judgment action
in the Superior Court of the State of Washington asking that
Chapter 377, Laws of 1955, be declared unconstitutional and that
its enforcement be enjoined. The Washington Supreme Court held that
one section was unconstitutional but severable from the rest of the
Act, whose validity was upheld.
Nostrand v.
Balmer, 53 Wash. 2d
460,
335 P.2d
10. On appeal to this Court, the decision of the Washington
court was vacated and the case remanded for a determination of
whether employees who refused to sign the oath would be afforded a
hearing at which they could explain or defend the reasons for their
refusal.
Nostrand v. Little, 362 U.
S. 474. The Washington Supreme Court held upon remand
that, since Professors Nostrand and Savelle were tenured
professors, the terms of their contracts and rules promulgated by
the Board of Regents entitled them to a hearing.
Nostrand v.
Little, 58 Wash. 2d
111,
361 P.2d
551. This Court dismissed a further appeal,
Nostrand v.
Little, 368 U. S. 436. The
issue we find dispositive of the case at bar was not presented to
this Court in the above proceedings.
[
Footnote 3]
"
Oath Form A"
"
STATE OF WASHINGTON"
"
Statement and Oath for Teaching Faculty"
"
of the University of Washington"
"I, the undersigned, do solemnly swear (or affirm) that I will
support the constitution and laws of the United States of America
and of the state of Washington, and will by precept and example
promote respect for the flag and the institutions of the United
States of America and the state of Washington, reverence for law
and order, and undivided allegiance to the government of the United
States;"
"I further certify that I have read the provisions of RCW
9.81.010(2), (3), and (5); RCW 9.81.060; RCW 9.81.070; and RCW
9.81.083, which are printed on the reverse hereof; that I
understand and am familiar with the contents thereof; that I am not
a subversive person as therein defined; and"
"I do solemnly swear (or affirm) that I am not a member of the
Communist party or knowingly of any other subversive
organization."
"I understand that this statement and oath are made subject to
the penalties of perjury."
"__________________________________"
"(SIGNATURE)"
"__________________________________"
"(TITLE AND DEPARTMENT)"
"Subscribed and sworn (or affirmed) to before me this ___ day of
_______, 19__."
"NOTARY PUBLIC IN AND FOR THE STATE OF"
"WASHINGTON, RESIDING AT ____________."
"(To be executed in duplicate, one copy to be retained by
individual.)"
"NOTE: Those desiring to affirm may strike the words 'swear' and
'sworn to' and substitute 'affirm' and 'affirmed,'
respectively."
[
Footnote 4]
"
Oath Form B"
"
STATE OF WASHINGTON"
"
Statement and Oath for Staff of the University of
Washington"
"
Other Than Teaching Faculty"
"I certify that I have read the provisions of RCW 9.81.010(2),
(3), and (5); RCW 9.81.060; RCW 9.81.070; and RCW 9.81.083, which
are printed on the reverse hereof; that I understand and am
familiar with the contents thereof; that I am not a subversive
person as therein defined; and"
"I do solemnly swear (or affirm) that I am not a member of the
Communist party or knowingly of any other subversive
organization."
"I understand that this statement and oath are made subject to
the penalties of perjury."
"__________________________________"
"(SIGNATURE)"
"__________________________________"
"(TITLE AND DEPARTMENT OR OFFICE)"
"Subscribed and sworn (or affirmed) to before me this ___ day of
_____, 19__."
"NOTARY PUBLIC IN AND FOR THE STATE OF"
"WASHINGTON, RESIDING AT ____________."
"(To be executed in duplicate, one copy to be retained by
individual.)"
"NOTE: Those desiring to affirm may strike the words 'swear' and
'sworn to' and substitute 'affirm' and 'affirmed,'
respectively."
[
Footnote 5]
Since the ground we find dispositive immediately affects the
professors and other state employees required to take the oath, and
the interests of the students at the University in academic freedom
are fully protected by a judgment in favor of the teaching
personnel, we have no occasion to pass on the standing of the
students to bring this suit.
[
Footnote 6]
The drafters of the 1951 Subversive Activities Act stated to the
Washington Legislature that
"[t]he [Communist Party] dovetailed, nationwide program is
designed to . . . create unrest and civil strife, and impede the
normal processes of state and national government, all to the end
of weakening and ultimately destroying the United States as a
constitutional republic and thereby facilitating the avowed Soviet
purpose of substituting here a totalitarian dictatorship."
First Report of the Joint Legislative Fact-Finding Committee on
Un-American Activities in Washington State, 1948, p. iv.
[
Footnote 7]
The contention that the Court found no constitutional
difficulties with identical definitions of subversive person and
subversive organizations in
Gerende v. Board of
Supervisors, 341 U. S. 56, is
without merit. It was forcefully argued in
Gerende that
candidates for state office in Maryland were required to take an
oath incorporating a section of the Maryland statutes defining
subversive person and organization in the identical terms
challenged herein. But the Court rejected this interpretation of
Maryland law and did not pass upon or approve the definitions of
subversive person and organization contained in the Maryland
statutes. Instead, it made very clear that the judgment below was
affirmed solely on the basis that the actual oath to be imposed
under Maryland law requires one to swear that he is not a person
who is engaged "
in the attempt to overthrow the government
by force or violence,' and that he is not knowingly a
member of an organization engaged in such an attempt." Id.
at 341 U. S. 56-57
(emphasis in original). The Court said:
"At the bar of this Court, the Attorney General of the State of
Maryland declared that he would advise the proper authorities to
accept an affidavit in these terms as satisfying in full the
statutory requirement. Under these circumstances and with this
understanding, the judgment of the Maryland Court of Appeals is
affirmed."
Id. at
341 U. S.
57.
[
Footnote 8]
It is also argued that § 2 of the Smith Act, 18 U.S.C. § 2385,
upheld over a vagueness challenge in
Dennis v. United
States, 341 U. S. 494,
proscribes the same activity in the same language as the Washington
statute. This argument is founded on a misreading of § 2 and
Dennis v. United States, supra.
That section provides:
"Whoever knowingly or willfully advocates, abets, advises, or
teaches the duty, necessity, desirability, or propriety of
overthrowing or destroying the government of the United States or
the government of any State . . . by force or violence. . . ."
The convictions under this provision were sustained in
Dennis, supra, on the construction that the statute
means
"teaching and advocacy of action for the accomplishment of
[overthrowing or destroying organized government] by language
reasonably and ordinarily calculated to incite persons to such
action . . . as speedily as circumstances would permit."
Id. at
341 U. S.
511-512. In connection with the vagueness attack, it was
noted that
"[t]his is a federal statute which we must interpret as well as
judge. Herein lies the fallacy of reliance upon the manner in which
this Court has treated judgments of state courts. . . ."
Id. at
341 U. S.
502.
In reversing convictions under this section in
Yates v.
United States, 354 U. S. 298, the
Court made quite clear exactly what al the above terms do and do
not proscribe: "[T]he Smith Act reaches only advocacy of action for
the overthrow of government by force and violence."
Id. at
354 U. S.
324.
[
Footnote 9]
Webster's New Int. Dictionary (2d ed.) at 1288.
[
Footnote 10]
"The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will
of the people and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system. A statute
which, upon its face . . . , is so vague and indefinite as to
permit the punishment of the fair use of this opportunity is
repugnant to the guaranty of liberty contained in the Fourteenth
Amendment."
Stromberg v. California, 283 U.
S. 359,
283 U. S.
369.
"[S]tatutes restrictive of or purporting to place limits to
those [First Amendment] freedoms must be narrowly drawn to meet the
precise evil the legislature seeks to curb . . . and . . . the
conduct proscribed must be defined specifically so that the person
or persons affected remain secure and unrestrained in their rights
to engage in activities not encompassed by the legislation."
United States v. Congress of Industrial Organizations,
335 U. S. 106,
335 U. S.
141-142 (Rutledge, J., concurring).
[
Footnote 11]
"When the validity of a state statute, challenged under the
United States Constitution, is properly before a United States
District Court for adjudication, reference to the state courts for
construction of statute should not automatically be made."
NAACP v. Bennett, 360 U. S. 471.
See also United States v. Livingston, 179 F. Supp.
9, 12-13 (D.C.E.D.S.C.),
aff'd, Livingston v. United
States, 364 U. S. 281:
"Though never interpreted by a state court, if a state statute
is not fairly subject to an interpretation which will avoid or
modify the federal constitutional question, it is the duty of a
federal court to decide the federal question when presented to
it."
Shelton v. McKinley, 174 F.
Supp. 351 (D.C.E.D.Ark.) (abstention inappropriate where there
are no substantial problems of statutory construction and delay
would prejudice constitutional rights);
All American Airways,
Inc. v. Village of Cedarhurst, 201 F.2d 273 (C.A.2d Cir.);
Sterling Drug v. Anderson, 127 F.
Supp. 511, 513 (D.C.E.D.Tenn.).
[
Footnote 12]
See, e.g., Railroad Comm'n of Texas v. Pullman Co.,
312 U. S. 496;
Chicago v. Fieldcrest Dairies, Inc., 316 U.
S. 168;
Spector Motor Service, Inc., v.
McLaughlin, 323 U. S. 101;
Alabama State Federation of Labor v. McAdory, 325 U.
S. 450;
American Federation of Labor v. Watson,
327 U. S. 582;
Stainback v. Mo Hock Ke Lok Po, 336 U.
S. 368;
Shipman v. DuPre, 339 U.
S. 321;
Albertson v. Millard, 345 U.
S. 242;
Leiter Minerals, Inc., v. United
States, 352 U. S. 220;
Government & Civic Employees Organizing Committee, CIO v.
Windsor, 353 U. S. 364;
City of Meridian v. Southern Bell Tel. & Tel. Co.,
358 U. S. 639.
[
Footnote 13]
Musser v. Utah, 333 U. S. 95, the
appellants were convicted of committing "acts injurious to public
morals." The vagueness challenge to the statute, either as applied
or on its face, was raised for the first time in oral argument
before this Court, and the Court vacated the conviction and
remanded for a determination of whether the conviction for urging
persons to commit polygamy rested solely on this broad-challenged
provision. In
Albertson v. Millard, 345 U.
S. 242, the Communist Party of the State of Michigan and
its secretary sought to enjoin on several constitutional grounds
the application to them of a state statute, five days after its
passage, requiring registration, under pain of criminal penalties,
of
"any organization which is substantially directed, dominated or
controlled by the Union of Soviet Socialist Republics or its
satellites, or which . . . acts to further, the world communist
movement,"
and of members of such an organization. They argued that the
definitions were vague and failed to inform them if a local
Communist organization and its members were required to register.
The lower court took judicial notice of the fact that the Communist
Party of the United States, with whom the local party was
associated, was a part of the world Communist movement dominated by
the Soviet Union, and held the statute constitutional in all other
respects. This Court vacated the judgment and declined to pass on
the appellants' constitutional claims until the Michigan courts, in
a suit already pending, construed the statutory terms and
determined if they required the local Party and its secretary,
without more, to register. The approach was that the constitutional
claims, including the one founded on vagueness, would be wholly
eliminated if the statute, as construed by the state court, did not
require all local Communist organizations without substantial ties
to a foreign country and their members to register. Stated
differently, the question was whether this statute applied to these
plaintiffs, a question to be authoritatively answered in the state
courts.
In
Harrison v. NAACP, 360 U. S. 167, the
NAACP and the NAACP Legal Defense and Education Fund sought a
declaratory judgment and injunction on several constitutional
grounds in respect to numerous recently enacted state statutes. The
lower court enjoined the implementation of three statutes,
including one provision on vagueness grounds, and ordered
abstention as to two others, finding them ambiguous. This Court
ordered abstention as to all the statutes, finding that they were
all susceptible of constructions that would limit or eliminate
their effect on the litigative and legal activities of the NAACP
and construction might thereby eliminate the necessity for passing
on the many constitutional questions raised. The vagueness issue,
for example, would not require adjudication if the state courts
found that the challenged provisions did not restrict the
activities of the NAACP or require the NAACP to register. Unlike
the instant case, the necessity for deciding the federal
constitutional issues in the above and other abstention cases
turned on whether the restrictions or requirements of an uncertain
or unclear state statute were imposed on the persons bringing the
action or on their activities as defined in the complaint.
[
Footnote 14]
See Clark, Federal Procedural Reform and States'
Rights, 40 Tex.L.Rev. 211 (1961); Note, 73 Harv.L.Rev. 1358, 1363
(1960).
[
Footnote 15]
"Where the disposition of a doubtful question of local law might
terminate the entire controversy and thus make it unnecessary to
decide a substantial constitutional question, considerations of
equity justify a rule of abstention. But where, as here, no state
court ruling on local law could settle the federal questions that
necessarily remain, and where, as here, the litigation has already
been in the federal courts an inordinately long time,
considerations of equity require that the litigation be brought to
an end as quickly as possible."
317 U. S. 317 U.S.
456 at
317 U. S.
463.
MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN joins,
dissenting.
The Court strikes down, as unconstitutionally vague, two Acts of
the State of Washington. The first, the Act of 1955, requires every
state employee to swear or affirm that he is not a "subversive
person" as therein defined. The second, the Act of 1931, which
requires that another oath be taken by teachers, is declared void
without the benefit of an opinion of either a state or federal
court. I dissent as to both, the first on the merits and the latter
because the Court refuses to afford the State an opportunity to
interpret its own law.
I
The Court says that the Act of 1955 is void on its face because
it is "unduly vague, uncertain and broad." The Court points out
that the oath requires a teacher to
"swear that he is not a subversive person: that he is not one
who commits an act or who advises, teaches, abets or advocates by
any means another person to commit or aid in the commission of any
act intended to overthrow or alter, or to assist the overthrow or
alteration, of the constitutional from of government by revolution,
force or violence."
The Court further finds that the Act declares the Communist
Party to be a subversive organization. From these premises, the
Court then reasons that, under the 1955 Act, "any person who aids
the Communist Party
Page 377 U. S. 381
or teaches or advises known members of the Party is a subversive
person" because, "at some future date," such teaching may aid the
activities of the Party. This reasoning continues with the
assertion that
"one cannot confidently assert that his counsel, aid, influence
or support which adds to the resources, rights and knowledge of the
Communist Party or its members does not aid the Party . . . in
furtherance of the stated purpose of overthrowing the Government by
revolution, force, or violence."
The Court then interrogates itself: does the statute reach
"endorsement or support for Communist candidates for office? . .
. a lawyer who represents the Communist Party or its members? . . .
[defense of the] constitutional rights of the Communist Party or
its members . . . [or support of] any cause which is likewise
supported by Communists or the Communist Party?"
Apparently concluding that the answers to these questions are
unclear, the Court then declares the Act void, citing
Cramp v.
Board of Public Instruction, 368 U. S. 278
(1961). Let us take up this reasoning in reverse order.
First,
Cramp is not apposite. The majority has failed
to recognize that the statute in
Cramp required an oath of
much broader scope than the one in the instant case:
Cramp
involved an oath "that I have not and will not lend my aid,
support, advice, counsel or influence to the Communist Party. . .
." That oath was replete with defects not present in the Washington
oath. As Mr. Justice Stewart pointed out in
Cramp:
"The provision of the oath here in question, it is to be noted,
says nothing of advocacy of violent overthrow of state or federal
government. It says nothing of membership or affiliation with the
Communist Party, past or present. The provision is completely
lacking in these or any other terms susceptible of objective
measurement."
At
368 U. S.
286.
Page 377 U. S. 382
These factors which caused the Court to find the
Cramp
oath unconstitutionally vague are clearly not present in the
Washington oath. Washington's oath proscribes only the commission
of an act of overthrow or alteration of the constitutional form of
government by revolution, force, or violence; or advising,
teaching, abetting or advocating by any means another person to
commit or aid in the commission of any act intended to overthrow or
alter or to assist the overthrow or alteration of the
constitutional form of government by revolution, force or violence.
The defects noted by the Court when it passed on the
Cramp
oath have been cured in the Washington statute.
It is strange that the Court should find the language of this
statute so profoundly vague when, in 1951, it had no such trouble
with the identical language presented by another oath in
Gerende v. Board of Supervisors of Elections, 341 U. S.
56. There, the constitutionality of Maryland's Ober Law,
written in language identical to Washington's 1955 Act, was
affirmed by a unanimous Court against the same attack of vagueness.
It is unfortunate that
Gerende is overruled so quickly.
* Other state laws
have been copied from the Maryland Act, just as Washington's 1955
Act was, primarily because of our approval of it, and now this
Court would declare them void. Such action cannot command the
dignity and respect due to the judicial process. It is, of course,
absurd to say that, under the words of the Washington Act,
Page 377 U. S. 383
a professor risks violation when he teaches German, English,
history, or any other subject included in the curriculum for a
college degree to a class in which a Communist Party member might
sit. To so interpret the language of the Act is to extract more
sunbeams from cucumbers than did Gulliver's mad scientist. And to
conjure up such ridiculous questions, the answers to which we all
know or should know are in the negative, is to build up a whimsical
and farcical straw man which is not only grim, but Grimm.
In addition to the Ober Law, the Court has also found that other
statutes using similar language were not vague. An unavoidable
example is the Smith Act, which we upheld against an attack based
on vagueness in the landmark case of
Dennis v. United
States, 341 U. S. 494
(1951). The critical language of the Smith Act is again in the same
words as the 1955 Washington Act.
"Whoever knowingly or willfully
advocates, abets,
advises, or
teaches the duty, necessity,
desirability, or propriety of overthrowing or destroying the
government of the United States. . . ."
18 U.S.C. § 2385. (Emphasis supplied.) The opinion of the Court
in
Dennis uses this language in discussing the vagueness
claim:
"We agree that the standard as defined is not a neat,
mathematical formulary. Like all verbalizations, it is subject to
criticism on the score of indefiniteness. . . . We think [the
statute] well serves to indicate to those who would advocate
constitutionally prohibited conduct that there is a line beyond
which they may not go -- a line which they, in full knowledge of
what they intend and the circumstances in which their activity
takes place, will well appreciate and understand."
At
341 U. S.
515-516.
Page 377 U. S. 384
It appears to me from the statutory language that Washington's
1955 Act is much more clear than the Smith Act. Still, the Court
strikes it down. Where does this leave the constitutionality of the
Smith Act?
II
Appellants make other claims. They say that the 1955 Act
violates their rights of association an free speech as guaranteed
by the First and Fourteenth Amendments. But, in light of
Konigsberg v. State Bar of California, 366 U. S.
36 (1961);
In re Anastaplo, 366 U. S.
82 (1961);
Adler v. Board of Education,
342 U. S. 485
(1952);
Garner v. Board of Public Works, 341 U.
S. 716 (1951); and
American Communications Ass'n v.
Douds, 339 U. S. 382
(1950), this claim is frivolous. Likewise, in view of the decision
of Washington's highest court that tenured employees would be
entitled to a hearing,
Nostrand v. Little, 58 Wash. 2d
111, 131,
361 P.2d
551, 563, the due process claim is without foundation. This
conclusion would also apply to those employees without tenure,
since they would be entitled to a hearing under Washington's Civil
Service Act, Rev.Code Wash. § 41.04
et seq., and its
Administrative Procedure Act, Rev.Code Wash. § 34.04.010
et
seq.
III
The Supreme Court of Washington has never construed the oath of
allegiance required by the 1931 Act. I agree with the District
Court that Washington's highest court should be afforded an
opportunity to do so. As the District Court said:
"The granting or withholding of equitable or declaratory relief
in federal court suits which seek to limit or control state action
is committed to the sound discretion of the court. Accordingly, in
the absence
Page 377 U. S. 385
of a concrete factual showing that any plaintiff or any member
of the classes of state employees here represented has suffered
actual injury by reason of the application of the oath of
allegiance statute (Chapter 103, Laws of 1931), this court will
decline to render a declaratory judgment as to the
constitutionality of that statute in advance of an authoritative
construction by the Washington Supreme Court."
215 F.
Supp. 439, 455.
For these reasons, I dissent.
* It has been contended that the crucial section of Maryland's
Ober Act, that which is identical to the Washington Act, was not
before the Court in
Gerende, but a review of the record in
that case conclusively demonstrates to the contrary. Further, while
the
Gerende opinion was stated with a qualification, the
fact remains that the Court approved the judgment of the Maryland
court, and rejected the argument that the Act was
unconstitutionally vague.