Appellant, who had been offered a University of Maryland
teaching position, brought this suit for declaratory relief
challenging the constitutionality of a state "loyalty oath," which
he refused to take. The oath, drafted by the Attorney General and
approved by the Board of Regents, contains a certification that an
applicant for public employment is not "engaged in one way or
another in the attempt to overthrow the Government . . . by force
or violence." Section 11 of the Ober Act authorizes state agencies
to fix procedures to ascertain that a prospective employee is not a
"subversive person," a term which, as defined in §§ 1 and 13,
reaches one who is a member of a subversive organization which
would alter, overthrow, or destroy the Government by revolution,
force, or violence. A three-judge District Court dismissed the
complaint.
Held:
1. Since the authority to prescribe oaths is provided by § 11 of
the Ober Act, which is tied to §§ 1 and 13, the oath here must be
considered not in isolation, but with reference to §§ 1 and 13. Pp.
389 U. S.
56-57.
2. Sections 1 and 13 violate due process requirements of the
Fourteenth Amendment, since they are unconstitutionally vague and
overbroad by not distinctly delineating between permissible and
impermissible conduct in the sensitive and important area of
academic freedom. Pp.
389 U. S.
57-62.
(a) In
Gerende v. Election Board, 341 U. S.
56, which involved application of an oath to candidates
in Maryland for public office, this Court did not reach the
question now presented. P.
389 U. S. 58.
(b) In the light of the gloss placed upon the Act by the
Maryland courts, it is uncertain whether only those members of a
"subversive" group are barred who seek to overthrow or destroy the
Government by force or violence. Thus, a prospective employee could
not know, save as he risked a perjury prosecution,
Page 389 U. S. 55
whether as a member of a group aiming through violence to
overthrow the Government he would "in one way or another" be
engaged in an attempt at violent overthrow even though he was
ignorant of the group's real aims. Pp.
389 U. S.
57-62.
258 F. Supp. 589, reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This suit for declaratory relief that a Maryland teacher's oath
required of appellant was unconstitutional was heard by a
three-judge court and dismissed. 258 F. Supp. 589. We noted
probable jurisdiction. 386 U.S. 906.
Appellant, who was offered a teaching position with the
University of Maryland, refused to take the following oath:
"I, _________, do hereby (Print Name -- including middle
initial) certify that I am not engaged in one way or another in the
attempt to overthrow the Government of the United States, or the
State of Maryland, or any political subdivision of either of them,
by force or violence. "
Page 389 U. S. 56
"I further certify that I understand the aforegoing statement is
made subject to the penalties of perjury prescribed in Article 27,
Section 439 of the Annotated Code of Maryland (1957 edition)."
The question is whether the oath is to be read in isolation or
in connection with the Ober Act (Art. 85A, Md.Ann.Code, 1957),
which ,by §§ 1 and 13, defines a "subversive" as
". . . 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 Maryland, or any political subdivision of either of
them,
by revolution, force, or violence; or who is a
member of a subversive organization or a foreign
subversive organization, as more fully defined in this
article."
(Italics supplied.) Section 1 defines the latter terms:
"subversive organization" meaning a group that would,
inter
alia, "alter" the form of government "by revolution, force, or
violence"; "foreign subversive organization" is such a group
directed, dominated, or controlled by a foreign government which
engages in such activities.
The oath was prepared by the Attorney General and approved by
the Board of Regents that has exclusive management of the
university. It is conceded that the Board had authority to provide
an oath, as § 11 of the Act directs every agency of the State which
appoints, employs, or supervises officials or employees to
establish procedures designed to ascertain before a person is
appointed or employed that he or she "is not a subversive person."
And that term is, as noted, defined by § 1 and 13. Our conclusion
is that, since the authority to prescribe oaths is provided by § 11
of the Act, and since it is, in turn, tied to §§ 1 and 13, we must
consider the
Page 389 U. S. 57
oath with reference to §§ 1 and 13, not in isolation. Nor can we
assume that the Board of Regents meant to encompass less than the
Ober Act, as construed, sought to cover.
If the Federal Constitution is our guide, a person who might
wish to "alter" our form of government may not be cast into the
outer darkness. For the Constitution prescribes the method of
"alteration" by the amending process in Article V, and while the
procedure for amending it is restricted, there is no restraint on
the kind of amendment that may be offered. Moreover, the First
Amendment, which protects a controversial as well as a conventional
dialogue (
Terminiello v. Chicago, 337 U. S.
1), is as applicable to the States as it is to the
Federal Government, and it extends to petitions for redress of
grievances (
Edwards v. South Carolina, 372 U.
S. 229,
372 U. S. 235)
as well as to advocacy and debate. So if §§ 1 and 13 of the Ober
Act are the frame of reference in which the challenged oath is to
be adjudged, we have important questions to resolve.
We are asked to treat §§ 1 and 13 as if they barred only those
who seek to overthrow or destroy the Government by force or
violence. Reference is made to
Gerende v. Election Board,
341 U. S. 56,
where, in considering the definition of "subversive" person
applicable to § 15 of the Act, governing candidates for office, we
accepted the representation of the Attorney General that he would
advise the proper authorities in Maryland to take and adopt the
narrower version of the term "subversive." The Court of Appeals of
Maryland had indicated in
Shub v. Simpson, 196 Md. 177, 76
A.2d 332, that the purpose of the Act was to reach that group, and
that the words "revolution, force, or violence" in § 1 did not
include a peaceful revolution but one accomplished by force or
violence.
Id. at 190-191, 76 A.2d at 337-338. In that view
the "alteration" defined would be an alteration
Page 389 U. S. 58
by force and violence. That construction had not yet been
fashioned into an oath or certificate when
Gerende reached
us. That case involved an attempt by a candidate for public office
in Maryland to require the election officials to dispense with an
oath that incorporated the statutory language. The Court of Appeals
refused the relief asked. We referred to the narrow construction of
§§ 1 and 15 given in the
Shub case saying:
"We read this decision to hold that to obtain a place on a
Maryland ballot a candidate need only make oath that he is not a
person who is engaged 'in one way or another 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. [196] Md. at [192], 76 A.2d at 338. 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."
341 U.S. at
341 U. S.
56-57.
As we said in
Baggett v. Bullitt, 377 U.
S. 360,
377 U. S. 368,
n. 7, we did not pass upon or approve the statutory definition of a
"subversive" person in the
Gerende case. Rather, we
accepted the narrowing construction tendered by the Attorney
General during oral argument so as to avoid the constitutional
issue that was argued.
It is, however, urged that § 18 of the Act which contains a
severability clause makes it possible for the Maryland Attorney
General and for us to separate the wheat from the chaff that may be
in §§ 1 and 13. The District Court found merit in the point. 258 F.
Supp. at 596. But our difficulty goes deeper. As we have said in
like situations, the oath required must not be so
Page 389 U. S. 59
and broad as to make men of common intelligence speculate at
their peril on its meaning.
Baggett v. Bullitt, supra;
Elfbrandt v. Russell, 384 U. S. 11;
Keyishian v. Board of Regents, 385 U.
S. 589. And so we are faced with the kind of problem
which we thought we had avoided in
Gerende.
As we have seen, §§ 1 and 13 reach (1) those who would "alter"
the form of government "by revolution, force, or violence" and (2)
those who are members of a subversive organization or a foreign
subversive organization.
The prescribed oath requires, under threat of perjury, a
statement that the applicant is not engaged "in one way or another"
in an attempt to overthrow the Government by force or violence.
Though we assume
arguendo that the Attorney General and
the Board of Regents were authorized so to construe the Act as to
prescribe a narrow oath (1) that excluded "alteration" of the
Government by peaceful "revolution" and (2) that excluded all
specific reference to membership in subversive groups, we still are
beset with difficulties. Would a member of a group that was out to
overthrow the Government by force or violence be engaged in that
attempt "in one way or another" within the meaning of the oath,
even though he was ignorant of the real aims of the group and
wholly innocent of any illicit purpose? We do not know; nor could a
prospective employee know, save as he risked a prosecution for
perjury.
We are in the First Amendment field. The continuing surveillance
[
Footnote 1] which this type of
law places on teachers is
Page 389 U. S. 60
hostile to academic freedom. As we said in
Sweezy v. New
Hampshire, 354 U. S. 234,
354 U. S.
250:
"The essentiality of freedom in the community of American
universities is almost self-evident. No one should underestimate
the vital role in a democracy that is played by those who guide and
train our youth. To impose any straitjacket upon the intellectual
leaders in our colleges and universities would imperil the future
of our Nation. No field of education is so thoroughly comprehended
by man that new discoveries cannot yet be made. Particularly is
that true in the social sciences, where few, if any, principles are
accepted as absolutes. Scholarship cannot flourish in an atmosphere
of suspicion and distrust. Teachers and students must always remain
free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and
die."
The restraints on conscientious teachers are obvious. As we
noted in the
Elfbrandt case, even attendance at an
international conference might be a trap for the innocent if that
conference were predominantly composed of those who would overthrow
the Government by force or violence. 384 U.S. at
384 U. S. 16-17.
"Juries might convict though the teacher did not subscribe to the
wrongful aims of the organization."
Id. at
384 U. S.
17.
In sum, we read the oath as an integral part of the Ober Act,
and we undertake to read §§ 1 and 13 of that Act in light of the
gloss that the Maryland courts have placed on it. We know that the
Shub case says that
"[a] person who
advocates the overthrow of the
Government of the United States . . . through force or violence
could scarcely in good faith, take the constitutional oath of
office. . . ."
196 Md. at 190, 76 A.2d at 337. (Italics supplied.) Yet that
case does little more than
Page 389 U. S. 61
afford the basis for argument that membership in a subversive
organization means that the member must advocate a violent
overthrow. This, however, is speculation, not certainty. Another
Maryland case bearing on the question is
Character Committee v.
Madras, 233 Md. 285, 196 A.2d 630. There an applicant for
admission to the Maryland bar answered "No" to the question "Are
you now or have you ever been a subversive person as defined by the
[Ober Act]?" He had apparently at one time been a member of the
Communist Party. At a hearing he testified he had joined the party
because he was interested in the candidacy of Henry Wallace and in
the cause of civil liberties; but he denied he had been a
subversive person or that he had advocated violent overthrow of the
Government. The Court of Appeals affirmed the Board of Law
Examiners, finding that the applicant was not a subversive person.
So it can be argued that passive membership as a matter of Maryland
law does not make a person a subversive. Yet, as we read §§ 1 and
13 of the Ober Act, the alteration clause and membership clause are
still befogged. [
Footnote 2]
The
Page 389 U. S. 62
lines between permissible and impermissible conduct are quite
indistinct. Precision and clarity are not present. Rather we find
an overbreadth that makes possible oppressive or capricious
application as regimes change. That very threat, as we said in
another context (
NAACP v. Button, 371 U.
S. 415,
371 U. S.
432-433), may deter the flowering of academic freedom as
much as successive suits for perjury.
Like the other oath cases mentioned, we have another classic
example of the need for "narrowly drawn" legislation (
Cantwell
v. Connecticut, 310 U. S. 296,
310 U. S. 311) in
this sensitive and important First Amendment area.
Reversed.
[
Footnote 1]
There is not only the provision for perjury prescribed in § 11,
but also § 14 which provides in part that "Reasonable grounds on
all the evidence to believe that any person is a subversive person,
as defined in this article, shall be cause for discharge" of the
employee.
See Anti-Fascist Committee v. McGrath,
341 U. S. 123,
341 U. S. 175,
n. 1 (concurring opinion).
[
Footnote 2]
Art. 15, § 11, of the Maryland Constitution reads:
"No person who if n member of an organization that advocates the
overthrow of the Government of the United States or of the State of
Maryland through force or violence shall be eligible to hold any
office, be it elective or appointive, or any other position of
profit or trust in the Government of or in the administration of
the business of this State or of any county, municipality or other
political subdivision of this State."
Shub tells us that the Ober Act was enacted pursuant to
this state constitutional provision. 196 Md. at 192, 76 A.2d at
338. Our attention is not drawn to, nor have we found, any
severability clause applicable to this constitutional provision. It
is certainly dubious, then, whether the severability clause of the
Ober Act can operate to "sever" the membership clause in the
definition of subversive person so that it reads more narrowly than
the constitutional provision upon which the Ober Act rests.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE
WHITE join, dissenting.
Maryland will doubtless be surprised to learn that its
meticulous efforts to conform the state "loyalty oath" to the
requirements of
Gerende v. Election Board, 341 U. S.
56, have been to no avail. It will also be entitled to
feel baffled by an opinion which, while recognizing the continuing
authority of
Gerende, undertakes to bypass that decision
by a process of reasoning that defies analysis.
Appellant Whitehill was denied employment in the state
university as a temporary lecturer by reason of his refusal to sign
an oath that more than meets the requirements of
Gerende.
He was asked only whether he is now, in one way or another,
engaged in an attempt to overthrow the Government
by
force or violence. [
Footnote
2/1] References to international conferences, controversial
discussions, support of minority candidates, academic freedom and
the like cannot disguise the fact that Whitehill was asked simply
to disclaim actual, present activity,
Page 389 U. S. 63
amounting in effect to treasonable conduct. Allusions to the
constitutional amending process cannot obscure the fact that this
oath makes no reference to "alteration" of our form of government
or to "believing in" or "being a member of" anything whatsoever.
The oath itself, then, in no way violates, jeopardizes, or beclouds
appellant's freedom of speech or of association. So much, indeed,
the Court's opinion appears to concede.
The Court concludes, however, that the oath must be read "in
connection with" certain sections of the Ober Law because, as a
state matter, the authority of the Board of Regents to require an
oath derives from that law. The Court does not pause to tell us
what the "connection" is, or to explain how it serves to invalidate
the unambiguous oath required of this appellant. On the one hand,
it is plain, as the Court artistically avoids conceding, that the
only effect of the law on this appellant is to deny him state
employment if he refuses to sign an oath which, in itself, he can
have no constitutional objection to signing. On the other hand,
nowhere does the Court suggest that the character of the oath
itself is altered by any language in the statute authorizing the
Regents to impose it. The oath does not refer to the statute
[
Footnote 2/2] or otherwise
incorporate it by reference. It contains no terms that are further
defined in the statute. In short, the oath must be judged on its
own bottom.
The only thing that does shine through the opinion of the
majority is that its members do not like loyalty oaths. Believing
that it is not within the province of this Court to pass upon the
wisdom or unwisdom of Maryland's policy in this regard, and finding
nothing
unconstitutional about the oath tendered to this
appellant, I would affirm the judgment of the court below.
[
Footnote 2/1]
The oath did not even include the limited sort of "membership"
clause also approved in Gerende.
See the Court's opinion,
ante at
389 U. S. 55-56,
389 U. S.
57-58.
[
Footnote 2/2]
The document submitted to appellant for his signature did
contain the notation customary to government documents of the
authority under which it was promulgated.