COLE v. RICHARDSON
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Walter H. Mayo Iii
Chief Justice Warren E. Burger: We will hear arguments next in Cole against Richardson.
Mr. Mayo, you may proceed whenever you are ready.
Mr. Walter H. Mayo Iii: Mr. Chief Justice and may it please the Court.
This is a direct appeal from the decision of a three-judge District Court for the District of Massachusetts, declaring invalid on First and Fourteenth Amendment grounds, the oath required of all state, county and municipal employees in the Commonwealth of Massachusetts, but the facts are not in dispute.
Very briefly they are that the plaintiff was hired as a research sociologist at the Boston State Hospital.
She was on two occasions asked to take the oath required by the statute, and on both occasions she refused.
There upon, she was advised that she could no longer continue her employment at the hospital and the compensation could no longer be paid to her.
Several months later, plaintiff commenced her civil action in the District Court in which she sought a declaration as to the oath’s constitutionality and damages by way of back pay and for breach of contract.
The three-judge court received the stipulation of facts and her arguments of counsel and there upon entered a judgment and injunction declaring that the oath did violate the provisions of the First Amendment of the constitution, but they denied the plaintiff's claim for damages and back pay.
Both the plaintiffs and the defendants appealed to this Court in the 1969 term, and in response to the defendant’s appeal, the plaintiff maintains that that appeal was moot because of a particular job slot for which she had been hired at the Boston State Hospital had been filled subsequent to the District Court’s decision.
The defendants resisted this suggestion of mootness by filing an affidavit of the hospital superintendent, but nevertheless this Court vacated the judgment of the District Court and remanded to that court with directions to determine the question of mootness.
At the hearing on remand before the District Court, the three-judge court received an additional stipulation of facts, and heard oral evidence on the question of damages which it had advised that it would reconsider and at that hearing, the plaintiff retracted her suggestion of mootness which had been made earlier to this Court on the preceding appeal.
There upon, the three-judge court reinstated its judgment and injunction continuing to deny the plaintiff, a claim for damages and back pay.
Now, this time only, the defendant’s appeal, this Court has noted probable jurisdiction and we are therefore here on the narrow issue of whether or not the Commonwealth of Massachusetts may require all of its public employees an oath that they swear or affirm that they will uphold and defend the constitution of United States and of the Commonwealth of Massachusetts, and further they will oppose the overthrow of the government of the United States or of the Commonwealth by force, violence or any illegal or unconstitutional method.
Justice Harry A. Blackmun: Does the back pay issue filed to the case here?
Mr. Walter H. Mayo Iii: No, Mr. Justice.
Yes, it is Mr. Justice Blackmun, it is no longer in the case.
Justice Harry A. Blackmun: How do you characterize the District Court’s opinion here?
Is it based on the First Amendment grounds or on the Fifth and Fourteenth Amendment grounds?
Mr. Walter H. Mayo Iii: Well, the District Court did not mentioned the Fourteenth Amendment in its original opinion on the constitutionality issue and based it entirely on the First Amendment and I believe by virtue of the fact that the First Amendment is applicable to the states or the Fourteenth, we must also characterize it as being a First and Fourteenth Amendment question.
Justice Potter Stewart: You said that this is required to all employees.
The fact is that it is not required of all state employees because physicians or nurses in a hospital or other health care institutions, are not required to take such an oath if there (Inaudible).
Mr. Walter H. Mayo Iii: Yes, excuse me Mr. Justice Stewart, that is correct provision, exception is written in the statute.
Justice Potter Stewart: Yes, even if an Equal Protection argument, based on that exception?
Mr. Walter H. Mayo Iii: No, no equal protection argument.
Justice Potter Stewart: You do not?
Mr. Walter H. Mayo Iii: No.
Plaintiff’s challenge in the District Court was first to the entire oath and the District Court considered this challenge and found plaintiff’s analysis of the language of the first portion of the oath that one will uphold and defend the constitution of the United States and of the Commonwealth to be esoteric.
It said that they could not adopt that argument because any argument after that portion of the oath, had been foreclosed by this Court for carrying an affirmance in Knight versus Board of Regents.
As to the second portion of the oath, the District Court agreed to plaintiff in one respect.
It observed first that plaintiff’s argument, as to this point is equally esoteric, which if the Court would follow it, would make almost any sentence in the English language ambiguous.
However, the Court went on to find the phrase “oppose the overthrow” fairly vague because in the Court of Appeals, the word ‘oppose’ had at least two common meanings, and it therefore concluded the First Amendment was violated in this respect.
Although, the District Court did not suggest in its opinion just how plaintiff’s rights under that amendment were infringed.
Now, it is the defendant’s position in this Court that the oath survives all Constitutional tests.
First it is not void for vagueness and its provisions are easily understood and are intelligible and further even assuming for the purposes of argument that there are some ambiguities in the oath, but the oath is not thereby invalidated because its provisions do not affect or infringe any of the plaintiff’s First Amendment rights.
As to vagueness, we believe that the oath as a whole should be examined to determine what meaning is reasonably conveyed by it.
The oath should not be separated word by word and examined under microscope.
Justice Potter Stewart: Mr. Mayo, I did not demean in my question to ask you, if you are making that Equal Protection argument on that, do you understand that your brother on the other side makes one?
Mr. Walter H. Mayo Iii: No, I do not believe so Mr. Justice Stewart.
Viewing the oath as a whole, we think that it is a promissory oath of the constitutional support which requires action in the future.
The portion which requires “One to oppose the overthrow” as a corollary of the first portion which requires one to support and defend the Federal and State Constitutions.
But the support to Constitutions is at the same time to oppose the overthrow the constitutions.
The second portion therefore clarifies the first portion and delaying the employees' obligation under it and the second portion can also be said to test whether the first portion of the oath is taken without mental reservation or for purpose of the reservation.
Chief Justice Warren E. Burger: Let me ask you Mr. Mayo, under this oath as it is traced with reference to defending, a person could have a private belief, philosophical and political belief of communism and still conscientiously take this oath to defend against those to overthrow the government, could he not?
Mr. Walter H. Mayo Iii: That is correct Mr. Chief Justice.
Chief Justice Warren E. Burger: So in that part of the oath, it is not a case involving belief.
Is that correct?
Mr. Walter H. Mayo Iii: And we would maintain the second portion of the oath likewise.
There is no question to belief which entered into the determination on this point, but there is certainly no question with beliefs in the first portion of the oath.
Now, whatever maybe the contention is on the vagueness question, and even assuming those questions to be colorable as with Mr. Justice Harlan when the case was here on the prior appeal, we think that on the examination of the effect of the oath on First Amendment freedom dispels any doubt that any of the plaintiff’s freedoms under the First Amendment are infringed by the oath.
First of all, the oath is far different from those oaths which had been struck down by this Court in Baggett, and in Elfbrandt, and Cramp.
Now, the oaths in those cases required specific disclaimers of affiliation with so called subversive organizations, and the instant oath has no such thing.
In our view, it is a forward-looking promissory oath of constitutional support that does not require a statement of belief which is a crucial distinction between this case and the Connell case decided by this Court last term.
No statement as to one’s belief at the time he is asked to take the oath is required.
The oath does not describe freedom of association, for an employee is free to join whatever organizations or political parties he desires.
The oath does not prohibit membership in any organization or political party, nor does the oath infringe on anyone’s religious beliefs or associations.
For instance, if an employee is prohibited by reason of his religious group (Inaudible), he might qualify the oath in that regard and I might add that such a qualification was approved by the Attorney General of Massachusetts in 1967, in this respect.
In short, we think that none of the plaintiff’s First Amendment rights are infringed by this oath.
Now, plaintiff attacks in this case things and the names to be concentrated on very speculative and conjectural possibilities concerning speech and association in the event of a possible overthrow of the government.
Justice Potter Stewart: They declare to you that the phrase “by force, violence or by any illegal or unconstitutional method” modifies or overthrow rather than oppose.
As a matter of pure grammar, you can read this is the same as “he will oppose the overthrow and he will oppose it by force, violence or by any illegal or unconstitutional method?”
Mr. Walter H. Mayo Iii: No, I think Mr. Justice Stewart the language modifies the word “overthrow” and not the word “oppose.”
It is the “overthrow by force, violence or any illegal or unconstitutional method.”
Justice Potter Stewart: As a matter of grammar which you read it, it could be read the other way.
He has an obligation to oppose the overthrow by force, by violence or by any illegal or unconstitutional method, any way just to oppose the overthrow of the government?
Mr. Walter H. Mayo Iii: No, I could not agree, as the rule of grammar, that it would modify the word “oppose” because I do not think that an employee would use any illegal or unconstitutional method to oppose the overthrow.
I do not believe that would be permitted.
Now, the Commonwealth of Massachusetts does not believe that remote conjecture can suffice to invalidate the oath on constitutional grounds.
Now, what is required in this case to reach such a determination is a readily apparent constitutional infirmity.
In other words, it must be clear beyond third dementia that the oath will restrict the plaintiff’s First Amendment freedom and a precise identification of those freedoms must be made.
The Court must be able to say that the inhibiting effect on speech or association is real and not illusory and we submit that such an inhibiting effect cannot be gleaned from the extremely remote possibilities as to what plaintiff maybe required to say or do in the future.
Now, plaintiff goes on to argue that the due process clause invalidates the oath because it requires a summary dismissal without a hearing, cited in the Connell case decided in the last term.
Again, the crucial distinction between the two cases, is that Floyd which was considered by this Court in Connell contains the word “Believe,” I do not believe in the overthrow of the government.
And the opinion of this Court required Floyd to hold a hearing ascertaining suppose whether the beliefs are are firmly held prior to a final discharge of the employee.
In the case at bar there is no necessity for such a hearing because there is no factual inquiry to be made since the oath involves only promises of future action, a hearing in this regard would be meaningless.
Either a person takes the oath or he does not and such a determination can easily be reached without a hearing.
In this case, I would note, that the Court is confronted with a record that it is absolutely barren of any threat of prosecution to perjury or any hint that plaintiff would be discharged for a failure to live up to the terms of the oath, and in fact since the oath was enacted in 1949, no prosecutions have resulted and no public employee has been discharged for failure to perform his obligations under the oath, and therefore, we think that plaintiff is here as to the infringement of her First Amendment rights, under the circumstances are simply without foundation.
We think that the case can be succinctly summarized in the words of Mr. Justice Harlan who said when the case was here on the earlier appeal subscribing to the oath’s objectiveness to Mrs. Richardson to no more than an amenity.
The defendants would ask that the judgment of the District Court be vacated, this case be remanded for that Court, with direction to dismiss the complaint.
Chief Justice Warren E. Burger: Thank you Mr. Mayo.
Argument of Stephen H. Oleskey
Mr. Stephen H. Oleskey: Mr. Chief Justice --
Chief Justice Warren E. Burger: Do you agree Mr. Oleskey with the response that Mr. Mayo gave to my hypothetical question, perhaps not hypothetical, that a person could be a philosophical believer in communism and yet take the oath, that he would conscientiously takes the oath that he would oppose the overthrow of the government by the force, violence and so forth?
Mr. Stephen H. Oleskey: Well, I am not sure that I do agree Mr. Chief Justice.
Chief Justice Warren E. Burger: You think he might not be a very conscientious communist, perhaps?
Mr. Stephen H. Oleskey: I think that is one possibility.
I thought originally the question was addressed to clause one of the oath, if in fact we are referring to clause two the “to oppose the overthrow,” I think clearly, it could be much more difficult not only for communist, but for anarchist or anyone else who believe under certain circumstances, that violent overthrow of the government ought to be brought about to take that portion of the oath in good conscience.
Chief Justice Warren E. Burger: Well, does that second part of the oath deal with belief per se or does it deal with the plaintiff with respect to future conduct?
Mr. Stephen H. Oleskey: There is no reference as there was in the Connell concededly to belief.
It is a straightforward promissory oath of future intent.
However, I would argue and do argue that --
Chief Justice Warren E. Burger: Future conduct, is it not rather than intent?
Mr. Stephen H. Oleskey: Well, the oath specifies “I will oppose” I would argue that that requires an affirmation of the time the oath has taken, the instance that the potential employee or is it just as someone about to take the witness stand in a trial will be required to swear to the truth of what he is about to say, that he intends from that time or forward, to act in conformity with the words which he repeated. Otherwise the oath cannot have any meaning.
Chief Justice Warren E. Burger: Do you see much distinction between the oath, the first part of the oath before the conjunctive and, and the oath that you took for example when you were admitted to the bar of this Court.
I think the language almost tracks (Voice Overlap) the oath here, it does not include State of Massachusetts of course?
Mr. Stephen H. Oleskey: I must confess with some slight embarrassment since I am appearing pro hac vice being three days short of eligibility for the admission of bar, the court, I have not yet taken that oath.
Chief Justice Warren E. Burger: Then I suppose that in terms of the oath that you will take three-days hence or thereafter, you heard the oath in this courtroom of course?
Mr. Stephen H. Oleskey: I have not Mr. Chief Justice, frankly.
Chief Justice Warren E. Burger: Well, I think it is essentially the same as the first part of the oath if you take out Massachusetts.
So moving to just the second, the second is really a conduct, it is a future conduct, is it not?
Mr. Stephen H. Oleskey: Well, I have tried to suggest that I feel it is more than conduct insofar as it does require, if the oath has to be taken, it has more than amenity and clearly there are those who like my brother Mr. Mayo feel that it is only an amenity, but if it is to me more than an amenity, it has got to comport with your belief at that time as to how you govern your future conduct and of course we just believe in that sense.
How could you, consistent with a belief in violent overthrow under some circumstances, take the oath part two as required by Massachusetts and I suggest that --
Chief Justice Warren E. Burger: Back on the same theory, I suppose that lawyers, I disagree with an opinion of a court and yet as the officers of the Court be bound to uphold it?
Mr. Stephen H. Oleskey: Yes, I agree that we are bound to uphold a court and a judicial system, but we are not required as this oath suggests on one interpretation to necessarily undertake arms or take any other action to physically or even verbally oppose the overthrow of the State or Federal Government which is what part two purports to say.
Of course, I have recognized that one of the difficulties here in talking about what part two does purport to require or say is that no one can really provide a satisfactory definition of that language.
Mr. Justice Stewart I think, had pointed a very basic grammatical problem which I would never have been able to resolve to my own satisfaction, which is whether or not the reference two “force, violence, illegal, unconstitutional method” modifies the words “oppose” or the word “overthrow.”
I think it is just one example of the vagueness found in the second portion of the oath, the more fundamental problem being exactly what do those illusive words “oppose the overthrow” mean and the very fact that the Commonwealth of Massachusetts in three years of arguments and again today before this Court is basically unable to offer a satisfactory example of what that language means I think suggests how very vague and illusive it is and therefore does bring it within the purview of such cases in Baggett and Bullitt and Cramp and Board of Public Instruction which were struck down similarly for vagueness.
I would like to respond, if I may, to the Commonwealth position that the appellees’ arguments with regard to First Amendment freedom is speculative and conjectural.
I think the Court, this Court has clearly faced that problem many times before.
Mr. Justice White addressed himself forcedly to that in Baggett and Bullitt, particularly at page 373 when he talked about the dangers of conduct which might be deterred by vague oaths, the control which such an oath gives a prosecutor who might wish to deter speech, association and the like.
I suggest that Mrs. Richardson or any other employee of the Commonwealth of Massachusetts in the 1970 census indicates that approximately 167,000 such employees who would have been exposed sometime during the period of their employment, to require them take this oath.
They have no real way to find out whether or not with these fears about First Amendment freedoms and prosecution for violation of the injunction of the oath or speculative or conjectural, except to go ahead and take the oath and take the risk, and that is exactly why this Court has quite properly struck down such oaths in the past.
The other alternative is of course the one that Mrs. Richardson, in this case, chose.
It has caused her to date a three-year wait since she was fired in November 1968, refusing to take the oath, but that is to refuse to take the oath at all.
Of course, in such cases as Wadmond and Updegraff and later cases, this Court had said that, however you style government employment, whether you consider it a benefit or privilege or what, you cannot justify either exclusion or punishment because of such an oath, where it is unduly vague or over broad.
Justice Byron R. White: How does it work?
It is perfectly clear here in the first part of the oath, the oath reads “to obey the oath,” you have purposely to speak out against “violent overthrow” that one have and secondly physically to oppose by an overthrow, suppose those things are stated there?
Mr. Stephen H. Oleskey: I agree that that would clarify, but I feel that it is equally unconstitutional, clearly following the line of such cases as Barnette and West Virginia Board of Education where it was said that consistent with those school children's beliefs in another duty, in another system, they could not be compelled to take the flag salute.
I do not think that Mrs. Richardson or any employee merely because she becomes an employee, is required to take physical action or to speak out.
Justice Byron R. White: Either one?
Mr. Stephen H. Oleskey: Either one.
Justice Potter Stewart: Well, that it is not your -- it is not the thrust of your argument Mr. Mayo that the vice of this oath lies in its vagueness, unconstitutional vagueness?
I thought it was.
Mr. Stephen H. Oleskey: Yes, it is, Your Honor, Mr. Justice Stewart.
Justice Potter Stewart: Then, I do not understand your answer to my brother White’s question?
Mr. Stephen H. Oleskey: My position essentially is this.
First it is so vague that neither Mrs. Richardson nor in fact the Commonwealth knows what is required, but what it would require --
Justice Byron R. White: But, it would not require anymore than one of those things or close to those two things, would it?
Mr. Stephen H. Oleskey: We would grant your question, Mr. Justice White and to say, alright, this is all the oath does mean.
Justice Byron R. White: What more could it mean in those two things?
Mr. Stephen H. Oleskey: I suggest the sliding scale of possibilities, for example.
Justice Byron R. White: (Inaudible) that is I mentioned would be one end of the scale and one on the other, is it not?
Mr. Stephen H. Oleskey: With a whole range and a host of possibilities in between.
Justice Byron R. White: (Voice Overlap) were a constitutional?
Mr. Stephen H. Oleskey: Were a constitutional?
I suggest that under this Court’s construction --
Justice Byron R. White: Do you argue those vagueness (Voice Overlap)?
Mr. Stephen H. Oleskey: I suggest that under this Court’s construction of the cases, none of those things could be required, but I say if the oath read as you have just suggested --
Justice Byron R. White: (Inaudible).
Mr. Stephen H. Oleskey: Well, in my reading of the cases, I think this Court has frequently talked about both of them as different sides of the same coin, that coin being basically First Amendment freedoms, particularly speech and association and the deterrence which very frequently results when an employee like Mrs. Richardson or anyone else is faced with necessity of taking such an oath.
Justice Byron R. White: Do you think “oppose” as declared in their report, I mean, is it anymore vague in the clause?
Mr. Stephen H. Oleskey: Well, the District Court suggested, as my brother Mayo has said, a range of meanings for “oppose” from actively oppose as to do something to merely refraining from some conduct themselves, to get on the different ends of the spectrum.
Justice Byron R. White: What about “support” though, in the first part?
Mr. Stephen H. Oleskey: Support is quite close.
In fact it is the same word that this Court approved in Connell and Higginbotham.
Justice Byron R. White: Well, why is that “oppose” anymore vague than “support” which is not constitutionally vague?
Mr. Stephen H. Oleskey: Well, the line of cases which include Connell and Higginbotham and before that Knight and Ohlson which were both procuring affirmances do not really discuss the question you have read and I admit it is a troubling and puzzling one.
I think that the only real and fair answer is that the constitution itself in Article 6, Section 3 has a general requirement in support of the constitution.
And I think, if in fact as Mr. Mayo appears to argue at one point in his brief, if the oath merely said “and I oppose the overthrow” it would be a tougher case, but it does not say, “I oppose the overthrow.”
It says, “I will oppose the overthrow.”
The key there I think being “will,” meaning that only Mrs. Richardson, perhaps on one construction, got to refrain from action herself or wonder in her-(Inaudible)
Justice Byron R. White: Mr. Oleskey, you said that (Inaudible) required to take an oath that “I oppose,” would that be contrary or not?
Mr. Stephen H. Oleskey: I think that “I oppose” would have the same constitutional defect of vagueness, but I suggest that it might be an easier case than “I will oppose” which requires a public employee in Massachusetts to assess somebody else’s conduct, not just his own, not just to govern his own conduct as “I support the constitution” does, but to go out and make a judgment.
Let us say as he passes the State House of the Boston Common during the day, he is a speaker urging violent revolution.
Is this overthrow of the government, am I required to do something, if so, what is it?
A whole host of possibilities are there.
I do not think any fair choice can be made by that employee consistent with the First Amendment.
Chief Justice Warren E. Burger: You are speaking now the second part?
Mr. Stephen H. Oleskey: Yes.
Chief Justice Warren E. Burger: After the oath?
Mr. Stephen H. Oleskey: Yes.
The problem with the whole oath is that the two parts, at least that the Attorney General argues and this is a plausible construction, do appear to be linked.
There is no indication, but they are particularly separable. I think for that reason, the District Court properly struck down the entire oath.
Chief Justice Warren E. Burger: I think, it is usually separable in this context when they are divided or separated by “and?”
Mr. Stephen H. Oleskey: Grammatically it is separable.
I think in its intent, particularly if the word “defend” in the first portion of the oath is linked with “oppose” in the second portion, they are not necessarily separable.
We are not favoring with any legislative history here by the Commonwealth of the Massachusetts to help us unfortunately.
And the Supreme Judicial Court, in its closet pronouncement, the Supreme Judicial Court of Massachusetts, several years ago suggested that in construing a Teacher’s Oath which was not too dissimilar, it would prefer to leave such ultimate constitutional questions interestingly enough to this Court rather than pronounce on the point itself.
Justice Thurgood Marshall: Mr. Oleskey, for the offset, I am against “the overthrow of the government.”
I am trying to use some plain English?
Mr. Stephen H. Oleskey: The entire oath or the second portion?
Justice Thurgood Marshall: After the “and,” “and that I am against the overthrow of the government” etcetera?
Mr. Stephen H. Oleskey: I think that would clearly conflict with belief Mr. Justice Marshall.
Justice Thurgood Marshall: Why?
Mr. Stephen H. Oleskey: Because the person might or might not in fact be against the overthrow consistent with decisions of this Court including the bar admission cases decided last term.
Justice Thurgood Marshall: As of this moment, which means that immediately I have not taken my oath, I might change my mind, does it not?
Mr. Stephen H. Oleskey: But, it does require and compel expression of belief as of that moment (Voice Overlap) which I do not think.
Justice Thurgood Marshall: That one moment.
Mr. Stephen H. Oleskey: Yes, which I do not think consistent with the First Amendment, it cannot be compelled.
Justice William J. Brennan: May I ask, if Mrs. Richardson were now asked to take the oath for stopping the word Massachusetts state violating the injunction which the District Court granted?
Mr. Stephen H. Oleskey: I believe that it would Mr. Justice Brennan because I believe that the injunction and the decision both go to the entire oath.
Justice William J. Brennan: What if the decision and the opinion seems to treat the two parts separately and indicate that the first part used in the authority in Knight is constitutional and that revises then the “I will oppose” part.
Of course, the injunction that was entered and the declaratory judgment was likewise that the whole oath is invalid, Section is invalid and the injunction is against a prohibition based upon her refusal to take the oath required by the Section, so that the Massachusetts will though say well, we would not ask you to take the oath required by the Section, but only an oath ending up with the word “Massachusetts.”
Do you still think that would violate the (Inaudible)?
Mr. Stephen H. Oleskey: I think it would, because of the specific language, first of all in the judgment injunction, that Section 14 of chapter 264 violates the First Amendment, not Section 14, Clause 2 of the oath.
Justice Byron R. White: What would Massachusetts will be enforcing would no longer be the oath required by Section 14, but a different oath?
Mr. Stephen H. Oleskey: If the legislature reenacted such an oath, it is conceivable that -- it is obvious that Mrs. Richardson could be again asked to do it.
Justice Byron R. White: I guess, what they are really saying is that the injunction is vague?
Chief Justice Warren E. Burger: Do you think there is any impediment to a court amending the oath?
Mr. Stephen H. Oleskey: I think first of all this oath as I suggested is not clearly severable.
Secondly there is no indication --
Justice William J. Brennan: You mean that, that is a matter of the Massachusetts legislature?
Mr. Stephen H. Oleskey: Yes.
Justice William J. Brennan: That said it was, and therefore, it cannot be treated as severable?
Mr. Stephen H. Oleskey: Yes.
I think the most proper course if you are going to sustain the judgment of the three-judge Court as I hope you would and the injunction would be again to affirm striking down the entire oath and let the legislature in Massachusetts do with this oath or any other oath what it chooses in light of the decision.
I think it should be made clear that the second portion of this oath which I suggest is tied firmly to the first portion is constitutionally defective.
I would like to make one more point with regard to freedom of association, which again my brother suggested, is speculative and conjectural.
I think clearly under the -- within the problems created by the part two of the oath, someone like Mrs. Richardson, any state employee in Massachusetts, might well wish to join any group even the so called fun group, which had stated purposes, something very innocent like preserving forest in Massachusetts, one of the other aims of this group could obviously be violent overthrow of the government and the decisions of this Court, as I understand them, Mrs. Richardson could not be convicted of attempting the violent overthrow of the government unless there was Skiyente (ph) precedent, unless she herself had the actual intent to overthrow the government.
But, I think in terms of part two of the oath, the “I will oppose” she could clearly be deemed in conflict by a prosecutor at anytime, notwithstanding what my brother says, the 20-year history of non-prosecution in Massachusetts.
The test is not I think lack of prosecution.
It is deterrence of the First Amendment conduct and I think that is the crucial issue here.
Justice Potter Stewart: That is quite, purely in personal terms.
It is not put at all in associational or membership terms, just as the first part of the oath is put, purely in personal terms and in the future tense?
Mr. Stephen H. Oleskey: I agree that it is personal and future, but I do not think that any bar through a prosecutor going out to Mrs. Richardson for violation of at least the second portion if she were found to be a member of a group like the one I suggested, which in fact had as one of its tenants, though she might be unaware of it, or although she might be a passive or inactive member or not even in favor of it as this Court suggested in United States and Noble (ph) decided several years ago, she can still be prosecuted.
There is an additional --
Justice Potter Stewart: But, you say there are some cases holding that?
Mr. Stephen H. Oleskey: I say that --
Justice Potter Stewart: What is your theory for that.
I think it seems to me quite more appealing from the words of this particular oath?
Mr. Stephen H. Oleskey: My proposition is only that, in terms of the words of the oath requiring a future promise of opposition.
Justice Potter Stewart: What she will do in the future?
Mr. Stephen H. Oleskey: Yes.
Justice Potter Stewart: She personally will do?
Mr. Stephen H. Oleskey: Yes.
A future association or even an association at the time she took the oath which was inconsistent because of some aim of that group which was in fact in favor of a violent overthrow of the government or by illegal unconstitutional methods.
A Massachusetts prosecutor could prosecute Mrs. Richardson under the oath.
I think that she would not, even though she might be sustained by this Court or some other Court, eventually she would not be in very effective position to argue as my brother has suggested that well, after all the oath is only an amenity, it did not mean very much, the state considers it only as an amenity.
So I do not really have an obligation to live up for the terms of that future promise.
If the oath, this oath or any other oath is going to mean anything in this country, then I think that has to be clear, not vague, not broad, and straight forward and this one is not.
Justice Potter Stewart: What do you suggest, what language would you suggest that might meet your standards of clarity and lack of vagueness and lack of broadness?
Mr. Stephen H. Oleskey: The only standards which it would appear to be consistent that this Court has said would be the language of the Connell Oath part one or the language required by the constitution support and uphold.
Justice Potter Stewart: This is “uphold and defend,” do you think those words have any more precise meaning than the word “oppose,” “Uphold and defend?”
Mr. Stephen H. Oleskey: I think that support --
Justice Potter Stewart: Well, that is not in this?
Mr. Stephen H. Oleskey: -- or uphold have come to be traditional words associated with the kind of minimal residual loyalty which we have decided under the constitution, in fact, in Article 6, Section 3 from the very beginning.
We have allowed the constitution to be exacted from public employees and public officers and the like.
Something beyond that, creates clearly under the decisions of this Court in the past, questions of unconstitutionality.
Justice Potter Stewart: But is this a matter of words?
Do you think the words uphold and defend or uphold or defend have more definitive and precise content than the word oppose?
Well, there are antonyms, but it is one more precise than the other?
Mr. Stephen H. Oleskey: I think that uphold or support which have been read by the Court below and by this Court I think is roughly synonymous, have this historical context.
What you are saying is, you believe in the system for which you are working under which you live.
Justice Potter Stewart: Well, that I thought you told us would be very, very constitutionally invalidated, if you are inquiring about somebody’s beliefs.
This is not doing that.
Mr. Stephen H. Oleskey: If the question were open to me for the first time today, I think I would make a strong argument that support and uphold certainly requires, some affirmation of belief.
However, I think this Court's recent pronouncements, including Connell and Higginbotham leave that question closed.
Justice Byron R. White: And that does not involve (Inaudible) “oppose” is a different word?
Mr. Stephen H. Oleskey: I think in terms of the future conduct, in terms of the number of variance of acquired conduct which the state itself has suggested in three years of this case, that “oppose” appears to be much more illusive for all of us than “support or uphold.”
Chief Justice Warren E. Burger: We will try another one on you then Mr. Oleskey.
What would you think of the oath that “I do solemnly swear that as an attorney and a counselor of this Court, I will conduct myself uprightly and according to law and that I will support the Constitution of the United States, do you think that is any less vague than --
Mr. Stephen H. Oleskey: At least the last part of that “That I will support the Constitution of the United States” clearly does not go any farther than the Connell language or the constitutional language which (Voice Overlap)
Chief Justice Warren E. Burger: The language “I will conduct myself uprightly.”
Mr. Stephen H. Oleskey: It seems to me that is a simple promise of conduct consistent with being an officer of the bar.
It does not necessarily go with ultimate philosophical or political beliefs about the utility of this Court or any other Court.
Chief Justice Warren E. Burger: Well, if this doctor -- your client were required to take that oath, would you have any trouble with it?(Voice Overlap)
Mr. Stephen H. Oleskey: I personally would take the oath.
I do not feel it is inconsistent with (Voice Overlap)
Chief Justice Warren E. Burger: (Inaudible) advise her that there was any difficulty about taking that oath “conduct yourself uprightly” as a physician, a surgeon or whatever she may be?
Mr. Stephen H. Oleskey: I do not think that is what it tells us.
I think that goes to your conduct in a particular profession, the rules of the game.
If Massachusetts were suggesting here that they are trying to regulate all employees because of some security sensitivity involved as the Federal Government and other state governments have argued in other cases, it would be a different situation, but there is no suggestion by the Commonwealth today.
I do not find any in this brief that such a broad oath across the board affecting all employees is necessary to security sensitivity or for the effective, orderly working of state government or any other compelling state interest.
Record that the Commonwealth has made seems to be peculiarly bare of any suggestion that the compelling state interest for this oath.
In fact, they suggested it is an amenity as I say, strange things that they require in that case.
Justice Harry A. Blackmun: Let me try another one on you.
What is your reaction to an oath to this effect “That I will to the best to my ability preserve, protect and defend the Constitution of the United States,” preserve, protect and defend?
Mr. Stephen H. Oleskey: Well, I think clearly, in light of our discussion in the last half-hour, that becomes a narrower case, particularly it would be use of the word “defend.”
I see vagueness, difficulty is there as I do in the word “defend” in Clause 1 of the Massachusetts oath.
Justice Harry A. Blackmun: You see vagueness difficulties.
Would it disturb you if I told you that I was reading from Article 2 of the Constitution?
Mr. Stephen H. Oleskey: I think I would elude now to my previous conversation with Mr. Justice White and say that there are certain oaths or general terms of support which had been with us since the beginning.
Justice Potter Stewart: And that certainly is not the only vague provision of the constitution, is it?
Mr. Stephen H. Oleskey: No, it is not.
Chief Justice Warren E. Burger: Justice Blackmun was reading the oath that the Constitution requires of President of the United States to take as you perhaps recognize?
Mr. Stephen H. Oleskey: I can only suggest again that in all honesty, the range of meanings of word “oppose” when set aside as it is here in Clause 2 and not linked by implication with “support and uphold” as in the Presidential oath that you read does create much greater difficulties both in terms of vagueness and in terms of broadness deterring both speech and association.
Justice Byron R. White: So, you are -- if it is just an oath that says “I will defend the Constitution,” you have no vague problems with that at this point?
Mr. Stephen H. Oleskey: I think an oath that says “I will defend the Constitution” is quite close to an oath that simply says “I will support the Constitution,” they are really the same.
Justice Byron R. White: And that you would find trouble if it said, “I will defend the Constitution of the United States against all enemies and against this overthrow by force and violence.”
Mr. Stephen H. Oleskey: Yes.
Justice Byron R. White: Then you have trouble with “defend”?
Mr. Stephen H. Oleskey: Yes, because I think then we have imported more language.
We have imported, as in this case, the government of Massachusetts, the United States government, force, violence, illegal, unconstitutional methods, all of which in the connection like the present one, meaning that someone like Mrs. Richardson, as I say, not only has to assess her own conduct, but has got to make an assessment of somebody else's conduct, and action and speech.
Justice Byron R. White: So really it is the context in which the word “defend” is used?
Mr. Stephen H. Oleskey: Yes, it can be and I think it is in this oath, although it is particularly the words “oppose the overthrow” with which we find fault in this oath, not the word “defend”.
Justice Harry A. Blackmun: You are not suggesting that the Article 2 oath became unconstitutional by the adoption of the First Amendment?
Mr. Stephen H. Oleskey: No, Your Honor.
Justice Harry A. Blackmun: Alright.
Mr. Stephen H. Oleskey: Very briefly, in making our brief, I would make today, two other arguments.
One I have I think touched on essentially the vagueness argument and the difficulty.
For example, in a situation where Mrs. Richardson or any other employees of the state, were to sit in by militants of the State House in Massachusetts or at the Federal Courthouse or the Federal Building in Boston which just happened frequently in the years passed.
Is this an attempted overthrow?
How does she know?
Is she required the act?
Is she required to go and get a policeman?
Just what is she supposed to do?
I think the vagueness problems are clear enough to need, I hope not for just the exposition.
Final point is that the statute violates due process as the Connell case construed in last term and that provides for no hearing for Mrs. Richardson or any other employee show, why she refuses to take the oath.
No opportunity to make a record to show that she is merely a, let us say a scrupulous conscientious woman who feels because the vagueness and overbreadth problem in this oath that she cannot in good conscious take it.
Justice Byron R. White: (Inaudible) in a three-judge Court?
Mr. Stephen H. Oleskey: The particular problem of --
Justice Byron R. White: No hearing?
Mr. Stephen H. Oleskey: No hearing.
I do not think it was, Your Honor.
Justice Potter Stewart: Is there a provision, either explicit or implicit, that under the statute for somebody who objects to take an oath generally to affirm rather than to take an oath?
Mr. Stephen H. Oleskey: The only provisions in the oath are those finally open it.
It does say in the first sentence, “I do solemnly swear or affirm.”
Justice Potter Stewart: Or affirm, so that is not an issue in the case?
Mr. Stephen H. Oleskey: No, it could be an affirmance rather than a swearing, nonetheless as I see it that double penalty under the Massachusetts statute, both for prosecuting for perjury which Section 14 explicitly refers to, and under Section 15 of the same Chapter 264 for violation of the terms of the oath, whatever that may be, still remain.
Chief Justice Warren E. Burger: Thank you. Mr. Mayo, do you have any comments?
Rebuttal of Walter H. Mayo Iii
Mr. Walter H. Mayo Iii: No, Mr. Chief Justice, I do not have rebuttal.
Chief Justice Warren E. Burger: Very well gentlemen, thank you.
The case is submitted.