Cases by Issue - Teachers

Connell v. Higginbotham - Oral Argument

Mon, 13 Jul 2009 19:01:12 +0000

Case:

Connell v. Higginbotham

Media File:

79_19701119-argument.mp3

Related Transcript:

79_19701119-argument.xml

Featured:

Keyishian v. Board Of Regents - Oral Argument

Thu, 23 Aug 2012 18:09:52 +0000

Case:

Keyishian v. Board Of Regents

Media File:

105_19661117-argument.mp3

Related Transcript:

105_19661117-argument

Transcript:

Argument of Richard Lipsitz

Chief Justice Earl Warren: Number 105, Harry Keyishian et al., appellants versus Board of Regents of the University of the State of New York.

Mr. Lipsitz.

Mr. Richard Lipsitz: May it please the Court, Your Honors.

This case has come before the Court as a result of a complaint filed on behalf of the class of persons known as the Faculty of the State University of New York at the University of Buffalo, Buffalo, New York.

A complaint was filed following the requirement imposed upon the members of the faculty of that institution when that institution became a state institution in 1962 and previously having done a private plea owned, operated, maintained university at Buffalo, New York known as the University of Buffalo.

When it became a state institution in 1962, the officials of the State University of New York of which this was then a part applied for the first time to these particular faculty persons and others the requirements of what are known as the Feinberg Law of the State of New York.

The Feinberg Law of the State of New York is the subject of course of the Adler decision previously decided by this Court in 1952.

In our complaint, we attack again as was have done in the Adler case but in a much more comprehensive way and in a much broader scope as I might say, the entire complex of statutes administrative regulations procedures and certificates that have become known as the administration and application of Feinberg Law and more specifically we attack in our complaint Section 3021 and 3022 of the New York Education Law, Section 105 of the New York Civil Service Law, Article 18, Section 244 of the Rules of the Regents of the University of the State of New York, the current body over the trustees, the latter whom administered trustee institutions of higher learning, the former of whom the Board of Regents are responsible for the entire state education system.

And also we attack in our complaint the procedures implied -- applied rather by the various defendants to implement the complex statutes known as the Feinberg Law.

The facts of the case are as follows and they have to be, I suppose, discussed on two different levels, if I may.

The first level on which they should be discussed is what happened with the statute following the decision of this Court in the Adler case and in that respect, the facts are these.

As of the time of the decision of the Adler case, the Section 3022, the heart of the Feinberg Law as such was not applicable by its very terms to any employees whether they'd be faculty or other kinds of personnel to institutions of higher education.

The statute was applicable solely and wholly to institutions known as public schools which in New York State and elsewhere in United States are those considered to be elementary and high school.

In 1953 after the Adler decision, the New York State legislature added these words to Section 3022 of the New York Education Law and I quote, “In all other personnel and employees of any college or other institution of higher education owned and operated by the state or any subdivision thereof,” thus, making the statute, for the first time, applicable to university, college and college faculty, professors and other personnel.

Furthermore, this was --

Justice William J. Brennan: Does that make the issue here different than it was in Adler?

Mr. Richard Lipsitz: We say that it makes a different issue.

Yes, Your Honor.

Of course, I think it should be stated at the outset if I haven't made it plain and we are also attacking the entire statutory arrangements even as it was previously before this change in 1953.

Justice William J. Brennan: Yes, but I gather this what you've just said would be the predicate of an argument which you don't have to overrule Adler defined for you as to college --

Mr. Richard Lipsitz: That is -- that is correct.

Yes, sir.

The other changes occurred of which much was made by the decision of the court below, the three men court which heard this case about which we will see more later was that Section 12-a of the New York Civil Service Law that being the statute at the time of the Adler case was in 1958 changed to Section 105 of the New York State Civil Service Law and prior to the time of its change to becoming Section 105, it added a new provision.

That new provision is the second paragraph of 105(c) which may be found, if Your Honors care to look at it, at page 113 of our brief and also of course in the record.

And that Section added these words, “For the purposes of this section, members of the Communist Party of the United States of America or the Communist Party of the State New York shall constitute a prima facie” -- two words prima facie having been emphasized, “evidence of disqualification for appointment to a retention of any officer position in the service of the state or of any city or civil division thereof.”

That section -- that provision rather was not in the then Section 12-a of the Civil Service when the Adler case was before this Court.

It was added to 12-a subsequent to Adler and then was converted in the Section 105 of the Civil Service Law.

At the time it became 105 of the New York State Civil Service Law, there was also added subdivision 3 to formerly 12-a and now 105 and subdivision 3 is found at page 114 of our brief and also of course in the record and rather than quoting it from you, I will tell you that it adds to 105, a provision which -- but for one sentence is almost identical with the provisions of Section 3021 of the New York Education Law.

The one sentence which is added as a reference to a definition of what is meant by any treasonable or seditious act or acts to the New York Penal Law, Sections 160 and 161 but which will not expressly refer to are the sections of the New York Penal Law where the definitions of these terms could be found.

We are not here attacking as such the constitutionality of Section 160 and 161 of the New York Penal Law.

We, however, in our argument will suggest and indeed point out that if the interpretation of this subdivision 3 of Section 105 is dependent upon an interpretation by somebody of this Court or otherwise of 160 and 161 of the Penal Law that Section -- subdivision 3 is of course unconstitutional for being indefinite and a restriction on First Amendment rights.

Now those, Your Honors, are the statutory changes in which I referred to as the level of facts that can be best described in this fashion that have occurred since the Adler case.

I would like to stress one thing which I think -- we do think deserves some mentioned and that is this, that when those words were added to Section 3022, that is to say their application to any personnel or employees of any college or rather institution of higher education, there was no claim by the New York state legislature that there was any present prospective future, potential or otherwise any kind of danger, imminent or about to occur to those institutions.

They didn't even refer to the fact that they have made findings in 1949 relating to the alleged fear, danger and imminence of so called infiltrations of the public schools system by the persons who would be following some subversive course of conduct.

They not only didn't refer to it, they didn't rely upon it.

They just put it in the statute without any legislative reliance, finding or investigation.

Chief Justice Earl Warren: Do they have to do that?

Mr. Richard Lipsitz: As a matter of law.

No, sir.

Chief Justice Earl Warren: Do they have any findings?

Mr. Richard Lipsitz: No, sir.

But as a matter of determining whether or not as we would argue, there is some basis for the state acting in this field that is to say in the field of First Amendment rights, we say that it indicates a lack of any compelling need to allow at the kind of invasion of First Amendment rights which the Court has from time to time allowed because of a demonstration of need but we don't claim that there is any constitutional requirement that a state legislature make a finding.

We say that however that it does have an impact upon whether or not there was any basis for allowing and there is any basis at the present time for allowing an invasion of First Amendment rights of persons who happened to be university and college or teachers and other faculty.

Chief Justice Earl Warren: I suppose you tell us by university students are less subject to submersion and children.

Mr. Richard Lipsitz: If you're suggesting -- if I understand Your Honor, Judge Warren -- Justice Warren, you're asking me to explain it now or you're saying later on?

Chief Justice Earl Warren: Oh, you may take it from due course.

Mr. Richard Lipsitz: No.

Well, we don't make any claim in our brief as such although other briefs do that there is a less susceptibility.

There is no -- I will argue with you and to you that there is less susceptibility.

What I'm saying is that there is no demonstration that there is anybody employed or about to be employed in the state university system from which this alleged danger would have occur that was found to be a fact in regard to the public school system.

It's not a question of whether there is a bigger or less susceptibility on the part of students although that is an issue that can be argued in terms of academic freedom that persons as they grow older become more mature and should be able to accept different points of view much more readily than innocent in younger school children.

Now, the facts that occurred in regard to the particular plaintiffs are these.

Each of these particular plaintiffs had been employed by the then University of Buffalo in one capacity or another at a time when it was the University of Buffalo and private institution.

There were of course was no requirement that they subscribe to anything, signed anything or otherwise provide any information except as to their professional competence or fitness to become employed at the time of hiring.

One of them, plaintiff Starbuck who is treated somewhat differently by the state and therefore has had a different history in respect to what's happened to him was employed as a librarian.

It is claimed by the state and was so found by the court below that his employment was not an academic employment and that therefore his employment was not subject to Section 3021 or 3022 of the Education Law but rather he was in the case of any other civil servant of the State of New York under the provisions of the Civil Service Law to be qualified or disqualified from employment by virtue of the provisions of Section 105 on New York State Civil Service Law.

He was asked after having been employed.

In other words, excuse me, after he became employed, I must show the correction.

He was the one person employed while this institution was a public university.

He became employed after the merger, the only one of the plaintiffs.

And when he was employed, he was employed without any requirement that he signed anything or answer anything but along after several months of employment, he was asked the question that appears at page 65 of our brief and otherwise in the record in which the question based strictly upon the statutory provisions found in Section 105 and that question was, “Have you ever advised or taught or were you ever a member of any society of group of person who taught or advocated the doctrine of the Government of United States or of any political subdivision there shall be -- should be overthrown or overthrown by forced violence or any other unlawful means?”

He declined and refused to answer that question whereupon his employment was threatened to be terminated.

He in fact brought a lawsuit of his own that is as the sole plaintiff in Federal District Court to seek in juncture relief against it.

That lawsuit was thereafter abandoned in favor of his becoming and joining as a plaintiff and this lawsuit which is before the Court.

Justice Potter Stewart: Did he give --

Justice Hugo L. Black: What's the ground of his refusal to answer that question?

Mr. Richard Lipsitz: He stated that he felt it was an infringement upon his conscience and that it was unconstitutional requiring him to answer it.

He did this however not before any --

Justice Hugo L. Black: Unconstitutional under what division?

Mr. Richard Lipsitz: Well Your Honor, I think his answer is in the record.

Justice Hugo L. Black: Well, I just --

Mr. Richard Lipsitz: He gives his own statements which he appended to the answers.

Justice Hugo L. Black: Wasn't that in the Fifth Amendment?

Mr. Richard Lipsitz: No, sir.

That was not the issue at all as far he was concerned.

However, he didn't do to support of any hearing.

On the back -- as I recalled on the back of the form, he put down some reasons why he, George Starbuck declined to answer this question.

Justice Byron R. White: And what was the question?

Mr. Richard Lipsitz: Have you ever advised or taught or were you ever a member of any society of group of persons who taught or advocated the doctrine of the Government of the United States should be overthrown by the course of violence or other unlawful means, and his objections I can point out to you in a minute after we check the record.

The other four plaintiffs --

Justice Potter Stewart: Did he make any request for a hearing on this refusal?

Mr. Richard Lipsitz: He made a request for a hearing.

Yes, sir.

But it was claimed that he's a temporary employee and otherwise that he had no right to a hearing on this issue.

He was temporarily employed, it was claimed by the state and therefore as a temporary employee he had no rights to hearings of any kind.

The answer is it's difficult to read but it's found at exhibit which was contained at portfolio 299 of the record where in his own handwriting, he says that he prefers not to answer or at least into the necessity and relevance of this question is properly explained to me, initials G.S.

That's the answer that he gave them.

The other four plaintiffs, if I may Your Honors, were all persons who are employed as faculty members.

Let us say teachers of one subject or another in the state university and they declined to sign what are known as in this litigation and prior thereto the Feinberg certificates.

Now, the Feinberg certificates, Your Honors, are found in our appendix at pages 122 and 123 and also in the record.

And the Feinberg certificates required when presented to the plaintiffs that they sign after having read the statements which appear thereupon.

Each of the four plaintiffs declined and refused to sign the Feinberg certificates.

They were threatened with the dismissal and I don't use the word threatened in a menacing way, they were told that they were going to be dismissed because there was an obligation on their part to sign this.

They then joined as plaintiffs with Starbuck and this lawsuit was commenced seeking to declare the entire system statutes unconstitutional.

Justice Potter Stewart: Well, is there not?

Justice Byron R. White: Perhaps if you -- do you have a record reference on the Feinberg certificate that you have used everytime --

Mr. Richard Lipsitz: You mean where it's set forth, Your Honor?

Justice Byron R. White: Yes, what the certificate says.

Mr. Richard Lipsitz: It says that at 122 and 123 of the brief, also Your Honor, we reproduced in the appendix.

Justice William J. Brennan: Well, what issues refer this to 212 or it's fully at 125?

Is that one of them?

Mr. Richard Lipsitz: No.

That was the one that Starbuck was required to sandwich the civil service questionnaire.

Justice William J. Brennan: The other one where --

Mr. Richard Lipsitz: It's in our brief which I happened to have the references to page 122 and 123.

Justice William J. Brennan: And?

Mr. Richard Lipsitz: You will also find in the record that the identical documents that you find in 122 and 123.

Justice John M. Harlan: What were the grounds of their refusal to sign certificates?

Mr. Richard Lipsitz: Their grounds are --

Justice John M. Harlan: Same as what --

Mr. Richard Lipsitz: Yes, plus the fact that they felt that it was invasion of First Amendment rights.

Justice John M. Harlan: No claim of the Fifth Amendment.

Mr. Richard Lipsitz: The Fifth Amendment was not involved in this sir.

As a matter of fact Your Honor, to make it perfectly clear, there has never been a claim at any time by anybody in the employment of the state system that there was a fear of apprehension that these people maybe giving evidence against themselves by virtue of having being required to sign this.

They did not rely upon the Fifth Amendment rights except as far as due process of law is concerned and not the self-incrimination.

Now, those are the -- I think perhaps it's really fair to say that the state has through forbearance exercise in its part in taking the position that it would not discharge any of the plaintiffs except Starbuck who was dismissed until this litigation is disposed of through the court system, solely for their failure to have signed the certificates.

Now then, when this action was commenced --

Chief Justice Earl Warren: And they are in the State Service --

Mr. Richard Lipsitz: Well, one of them was an appointment for a year the lead case Keyishian and his employment was not renewed so he is no longer there but it is not an issue in this lawsuit as to whether it wasn't renewed because of his failure to sign it.

The state says that we show under our own procedures not to renew them and one has left voluntarily to take employment at another institution outside of the state system and that's plaintiff Maud and the other two are still there in the sense of any outcome of this lawsuit.

The --

Justice Byron R. White: What are they threatened with, with those two who are still there?

Mr. Richard Lipsitz: They are threatened with discharge but that isn't the whole answer Mr. Justice --

Justice Byron R. White: I thought the state have said -- I thought the state had given up the --

Mr. Richard Lipsitz: I'm going to come to that in a minute.

I'm going to come to that in a minute but nevertheless, they still have this threat discharging over their head.

Justice Byron R. White: On what ground?

Mr. Richard Lipsitz: If I will explain in this fashion.

After this lawsuit was started, it was dismissed for failure to state any substantial question.

It was then appealed to the Court of Appeals of the Second Circuit, a complaint was reinstated by decision written by Justice Marshall and it came back and it was tried before the three men court.

One week before the trial was to have been commenced before the three men court, the state adopted a new policy for administering the so-called Feinberg Law and that new policy is found at pages 124 and 125 of our brief that is also found elsewhere in the record.

And that new policy withdraws the certificates so that as of that time although we don't know and there's no human being can assert with the certainty that the certificate requirement will never again in the future will be reintroduced in the state system.

At that time, the certificates were withdrawn and in there place, the procedure set forth was made -- the manner of administering the Feinberg Law for the state university.

But in answer to your question Justice White, the paragraph which appears in the middle of page 125 reads that and I'm not going to quote it but nevertheless that no presently employed person and that is to say our plaintiffs shall be deemed qualified or ineligible “Solely by reason to such failure”, referring to the failure to sign the so-called Feinberg certificates.

So this isn't out of the case.

This is an element to be considered in terms of their continued future employment when and if the time comes that the state is going to determine as a result of following the conclusion and the decision in this lawsuit what to do with this plaintiffs.

It says it shall not solely be, it doesn't say shall not be so that our answer to the question is they're still threatened and it would be imminence of dismissal if this law should be declared on Constitution.

Justice Byron R. White: Is this paragraph where you rely on now as evidencing an effort of the statement forcibly followed against the particular appellant?

Mr. Richard Lipsitz: No.

We object of course to the new procedure as well as to the old procedure and we claim that the laws are all unconstitutional for the reasons that we will argue in the remaining time and in the brief.

They -- these new procedures, it does not appear on the record have or haven't been applied to the present plaintiffs and if you will remember, they were introduced one week before the case was tried and there's nothing in the record one way or another to indicate what's going to happen to this plaintiffs if the new procedure is to be applied to them.

We don't know what's going to happen to them but they still have to guide themselves according to what they have been told as now the method of enforcing the statute.

That is to say that they must comply with in on all time considered that they are eligible to be retain an employment only if they understand and agree that the rules of the regents in the various statutes are part of their conditions of employment.

That's set forth a new procedure so that we don't rely just upon the words solely.

We rely upon the fact that they too as well as any other employee of the state university is now subjective to this new procedure which we don't claim or it's considered as any as more superior in a constitutional sense in the old procedure.

Now, those if I may Your Honors, are the facts that have been involved in these plaintiffs in these cases.

I like to turn now to the --

Justice John M. Harlan: When you come to -- through your protecting (Inaudible) --

Mr. Richard Lipsitz: If the answer to that question Mr. Justice Harlan is that there has been an expression by a substantial number of faculty members some 300 to 400 out of a total faculty at that institution of approximately a thousand that an expression was took place in the form of a resolution condemning the requirement that they have to comply with the Feinberg Law.

Only these persons, the plaintiffs have refused outright to comply with.

They have exceeded.

They have gone along.

That is to say those employed at the time went along with it and said rather than that we will sign.

Now, we claim in our briefs and we argue before the Court that these statutes certainly should be declared to be unconstitutional as an infringement upon First Amendment rights as a bill of attainder and for lacking of due process in regard to all persons affected by these statutes including the plaintiffs.

We particularly argue in this case of course the current constitution in respect to institutions of higher learning or reasons that there has been no demonstration of any need of going or otherwise to invade First Amendment rights and that there is an expression joined quite imminently by this Court in a number of cases since Adler that academic freedom has a right to cherish and to be fully protected under the First Amendment.

As -- on this -- on the question of whether or not the First Amendment rights of these plaintiffs are violated, we of course, rely upon all of the cases on this subject which had been decided since Adler and which without suggesting to Your Honors although the question was asked that it is necessary to overrule Adler nevertheless indicate that this Court has departed in some substantial measure from the standards of Adler and I don't need only to refer to the acknowledgment of the minority of this Court itself in the Elfbrandt decision were it states and at one portion of the Elfbrandt decision that though the majority did not purport to overrule or delimit Adler, at the end of the decision nevertheless the minority decision in effect says but that's about what they did by virtue of the decision.

Now, in what fashion has this Court departed from what appears to have been what was the law at the time of the Adler decision?

The answer is this, we think.

Firstly, Adler states and it states as plainly as can be that there is no right to public employment, that if the person doesn't like what he's required to submit to as an employer of the state, he has a perfectly free choice to go elsewhere.

This Court and I need not to spend the time going into the decisions that have been written on the subject as quite candidly and expressly stated in subsequent decisions that unconditional, that unconstitutional conditions may not be imposed upon public employment anymore than it can be on any other public right.

In the doctrine that if you don't like what you have to do in order to become employed by the state, you can go elsewhere is no longer we think the law as expressed in a number of cases decided subsequent to Adler.

One of which of course Elfbrandt and other which is the case decided from Oregon on the same subject the Baggett and Bullitt case.

In addition to which in other areas, it has been quite clear that the Court has apparently taken this position.

But more importantly than that and we have attempted to analyze the complex questions that are presented by the Section 105 requirements and we do that starting at page 35 through 37 of our brief.

The requirements imposed by Section 105 in New York State Civil Service law just as much now as I work for the time of Adler though not brief nor argued before this Court as our research indicates when Adler was argued, the requirements of 105 are so vague, are so contradictory and indeed are so overreaching in our view that they cannot add by themselves constitutionally be sustained for instance and I won't go into all of the various considerations that are present in Section 105 but it appears that merely embracing the doctrine, the Marx's if you will, the government should be overthrown by force or violence is a ground for disqualifying a person from public employment not by doing of an act but the embracing of a doctrine and this is as clear as clear can be from the provisions of Section 105 if one carefully reads and analyzes them an I refer to the provisions of Section subdivision 1(b).

Section 1(b) of -- subdivision 1(b) of the Civil Service Law Section 105 also makes it unlawful to print, publish, edit, issue or sell any book in which the doctrine is contained.

Well, at the same time advocating or embracing that is to say having the belief of the duty.

Now, we say for a variety of reasons the whole section is unable to be sustained constitutionally based upon present standards of this Court.

I would turn now to the argument that we think is a key to the decision of which -- when it is made in this case and that is this.

The state has taken the position very proudly that unlike other loyalty complexes from other states, New York State has provided the optimum of due process because all that New York State says is that the person who has been or is a member of the subversive organization, in this case the Communist Party, is only prima facie disqualified from either becoming employed or retaining employment.

And by virtue of those two words Your Honors, the state claims that there's nothing wrong with the entire system provided for under Section 3022.

We claim that this doctrine in a sense imposes an impossible burden upon the persons involved who if some of them were to concede or admit that they are members of the Communist Party could over -- only overcome this burden in the words of the United States -- of the New York State Court of Appeals and one of the three cases which became known as Adler.

They can only overcome it in the following fashion, (a) by proving that the organization is not subversive an impossible burden in any hearing because they don't have acknowledgment against the forces of the state which has already proved this to its own satisfaction, the ability of the individual to prove that it is not subversive as an impossible burden or (b) denying membership or (c) denying knowledge of the aims and goals of the organization.

According to the Lederman decision, one of the three cases involved in Adler, these are the three things that are necessary to overcome the presumption.

There is absolutely had been no consideration given to the facts as evidence by the Elfbrandt decision, the Aptheker decision, the Scales decision the Noto decision of this Court that innocent knowing membership cannot be and should not be the grounds for disqualifying anything neither employment as a teacher Elfbrandt nor ability to obtain a passport, Aptheker.

The State of New York has said in its right in the decision.

Justice John M. Harlan: (Inaudible)

Mr. Richard Lipsitz: No, sir.

Scales and Noto merely stood for the doctrine as we understand that it takes more to convict one of being a member under the membership clause than mere knowledge of the aims of the organization.

It must take activity in pursuance of the unlawful aims.

The State of New York doesn't say that.

It says that you -- to overcome this presumption, you have to prove that the organization wasn't subversive that you were a member of it but that you didn't know its aims and to neglects completely to consider what is now the law as we see it in terms of the rights that have been created by these other decisions that innocent knowing membership cannot be the grounds for disqualification which is the Elfbrandt decision.

Now, we say that the so called doctrine of rational connection in this field which has been used to justify the upholding of prima facie presumptions if you will and shifting the burdens to the person seeking employment as a doctrine which not only should not be applied to the field where the First Amendment rights of speech or association that are involved but indeed there is no rational connection between what has being done by the state here and what we claim as the fact by virtue of the fact that the state has never demonstrated that anything involving membership in any organization is the equivalent of disqualifying or should be the equivalent of disqualifying a person from teaching.

Furthermore, it is our claim, as I mentioned at the outset that the -- under the Brown decision, the effect of the state legislature in 1958 now said that members of the Communist Party are ineligible to all office in the state constitutes a bill of attainder and as such it is constitutionally defective.

While it is true that the Court in Adler upheld the proposition that an administrative agency could make a finding, it did it at a time before it was determined how it was going to be done and what manner of means are going to be used as Justice Frankfurter stated in his dissent before the statute had anything but its bare bones on it.

But in any event when the legislature in 1958 said legislatively no person who is a member of the Communist Party shall be eligible or that is to say membership shall be prima facie evidence of ineligibility.

The legislature said as did the Congress in Brown against the United States that this means a person is ineligible to be employed in the state university.

We thank you very much.

Chief Justice Earl Warren: Ms. Iles.

Argument of Ruth V. Iles

Ms Ruth V. Iles: May it please the Court.

I represent the Attorney General of the State of New York appearing in support of the constitutionality of the statutes which are here challenged.

Mr. Crary, the state university counsel will argue the case on behalf of the state university and the procedures adopted by it to implement these statutes.

It is the position of the state in this case that the constitutionality of these statutes, the Feinberg Law that is Education Law Section 3022 has been upheld by this Court in the Adler case and that there have been no changes in the law since that case which would warrant a different decision here.

The Feinberg Law was first enacted in 1949 to eliminate from the states public school system as teachers, persons willfully and deliberately advocating the overthrow of the government by force or violence.

Such persons were already ineligible for service in the public -- in the state employment but the Feinberg Law was intended to implement the disqualification under Civil Service Section 12-a which had been on the book since 1939 by providing procedures whereby the public school teachers and the Board of Regents would implement Section 12-a of the Civil Service Law.

The only change in the Feinberg Law since 1949 and since the Adler case has been the fact that now instead of just public school teachers being covered employees of the state university institutions of higher education of the state had been covered in and a requirement has been added that the Board of Regents report annually to the legislature in the effectiveness of the Act.

Civil Service Law Section 12-a has been amended once since the Adler case, that was in 1958 when they added to Section 12-a, a provision that membership in the Communist Party would be prima facie evidence of disqualification for state service.

The only other change in Section 12-a is that in a general recodification of the Civil Service Law in 1958, Section 12-a of the Civil Service Law was renumbered as subdivisions 1 and 2 of Section 105 of that law.

Appellants in an attempt to avoid the ruling in the Adler case seek to make this case a challenge to the constitutionality of every statute ever enacted in the State of New York having to do with subversive activity.

For example, they challenge the language of Section 160 and 161 of the Penal Law relating to criminal anarchy but this is not a prosecution for criminal anarchy.

What's more, those sections have been repealed by a general revision of the New York State Penal Law and effective in 1967 they will no longer be the law of New York State.

Appellants also challenged the language of Civil Service Law Section 105 subdivision 3 relating to removal from public office for sedition.

But this is not a charge of sedition and these persons have not been charged with treasonable or seditious acts or words.

Section -- Subdivision 3 of Section 105 was formally subdivision, was formally Section 23-a of the Civil Service Law has been on the books a long time was on the books when the Adler case was decided and is not new to the law of the State of New York.

The Feinberg Law and the rules of the Board of Regents however continue to refer only to Civil Service Section 12-a or subdivisions 1 and 2 of Civil Service Law Section 105.

These relate only to the disqualification of persons for service in the state service for advocating deliberately and willfully the overthrow of the government by force.

We are concerned here only with the hiring of personnel of the State University of New York and whether they are qualified or not and we contend that subdivisions 1 and 2 of that section are the only ones with which we are here concerned.

Thus, our inquiry is only whether a state statute may disqualify a person for employment in a state college if he deliberately and willfully advocates the overthrow of our government by force and violence which is all that the Feinberg Law in Section 12-a do as far as these persons are concerned.

Justice Abe Fortas: Ms. Iles, excuse me.

Do I understand that -- do I understand you to say that New York Penal Law Section 161 is not relevant here?

Ms Ruth V. Iles: I contend that it's not relevant.

On page 16 of my brief in a footnote, you will see a reference to the fact that these -- there has been a general revision of the Penal Law of the State of New York.

Sections 160 and 161 have been repealed effective in 1967 and there will be a new provision relating to criminal anarchy with an entirely different definition as of them.

The definition is in the footnote on the bottom of page 16 of the brief.

For this reason, I feel that in interpreting, I don't feel that subdivision 3 of Section 105 of the Civil Service Law is pertinent but certainly even if it is pertinent, it seems to me since it relates to the removal of the persons for sedition, it would be something which this Court would abstain from deciding under the course of New York have interpreted these new Sections and it would certainly seem premature here where no such question is involved in the controversy.

As I say -- said, all we are concern with is an inquiry as to whether a state statute may disqualify a person for employment if he deliberately and willfully advocates the overthrow of the government by force.

This is exactly the same question which was decided in the Adler case where this Court held that a person may be denied the privilege of working for the school system of the state of New York if he advocates unlawful overthrow of the government.

Justice Byron R. White: What about membership -- what about membership in an organization which gave this advocacy?

Ms Ruth V. Iles: In the Adler case, in construing this section of the law which I might add as exactly the same as it was at the time of the Adler case, this Court said they would rely upon the construction placed upon that section by the courts of the State of New York.

The courts of the State of New York said that it had to be knowing membership in the organization but the person must not only know it, he must know its aims and purposes and they interpreted its meaning that the person subscribe to it and that if a person was a member and could explain his membership, he would not be disqualified.

Justice Byron R. White: You mean mere membership is not enough or mere knowing a membership is not enough.

Ms Ruth V. Iles: No.

In the Adler case, they said it had to be ‘knowing membership' -- knowing the aims of the organization.

Justice Byron R. White: Now, let's say -- assume you know the aims of it, is that enough?

Ms Ruth V. Iles: Then there is a hearing to see -- under the Adler case it said, he would then be given an opportunity to explain whether he had ever been a member, whether he was now a member.

Justice Byron R. White: What if he comes in and says, “Well yes, I know exactly the aims of the party.

I just don't have to agree with them.”

Ms Ruth V. Iles: Well, implicit in Section 12-a and I believe in the Feinberg Law is that they advocate.

They must be active and deliberate advocacy and this is one of the tests for advocacy.

Justice Byron R. White: Do you think -- do you think that New York courts construed this to mean that person not only must know the aims but he agrees with them and furthers them.

Ms Ruth V. Iles: Yes, and they say there is a presumption when a person joins an organization knowing of its aims that he subscribes to its aims and this is something the school authorities would then pursuit further once they determine that he was a member of the organization.

Appellants rely upon cases decided by this Court since Adler were proscribed activities and oaths have been stricken down as an infringement upon constitutional guarantees.

We submit that the cases relied upon are distinguishable from our present case.

For example, this Court had stricken down statutes where there was no overriding state concern in the activity the state sought to limit or where the activities were proscribed in such broad terms that other fundamental rights were unnecessarily interfered with or where as in the Elfbrandt case, a person became liable to criminal penalties for knowing membership in an organization without proof that the person subscribed to its unlawful purposes.

Two cases which -- upon which appellant also relies heavily are the Cramp and Baggett cases where the loyalty also were required in language which is so vague that there was no objective way to determine guidelines for conduct.

We have no such vague language here.

We submit that the New York statute declares ineligible for employment only those person who willfully and deliberately advocate, teach or advice the overthrow of government by force, violence or unlawful means and this has been interpreted by the New York courts to be 'knowing advocacy'.

New York has confined itself to a sphere of legitimate inquiry about conduct which is proscribed in narrow and clear terms to accomplish the desired end and we submit that the right of the state to protect the public service from disloyalty in this manner should be sustained again as it was in the Adler case.

In my opponent's reply brief, he has referred to the fact that 105 is now 12-a.

We submit as I did in the argument that 105 is now only subdivisions 1 and 2 of 12-a, and this appears clearly in the note and table of distribution at the end of the Chapter 790 of the laws of 1958 when it was enacted and in such Section 185 of that Section, there is a provision that where there is a reference in any law as there still is in the Feinberg Law and in the Board of Regents rules to Civil Service Law 12-a, it continues to refer only to the subdivisions which were formerly 12-a when it was recodified into the new Civil Service Law.

Justice Byron R. White: Did you -- what state court opinions do you rely on for the construction of these laws to the effect that you stated awhile ago, is it Adler?

Ms Ruth V. Iles: There was -- Adler case and the Thompson against Wallin, and Lederman and Lamado which were the Court of Appeals decisions which were affirmed in Adler case so construed the statute.

There has also been a case since then -- Board of Higher Education against Allen in 6th New York --

Justice Byron R. White: Is in your brief?

Ms Ruth V. Iles: I don't believe that citation is.

6th New York 127 where --

Justice Byron R. White: 6th New York --

Ms Ruth V. Iles: 127 but the Commissioner of Education sent it back to the Board of Higher Education.

Justice Hugo L. Black: Is that 2nd or –-

Justice Byron R. White: 6th New York 2nd --

Ms Ruth V. Iles: 6th New York 127.

Justice Byron R. White: Do you think the three-judge court agreed with you assuming --

Ms Ruth V. Iles: On the revision of this section?

Justice Byron R. White: On the construction of these sections by the state boards.

Ms Ruth V. Iles: That the three-judge court went further than I believe they had to go because they went into the merits of the controversy and they discussed subdivision 3 of Section 105.

It was raised below.

Justice Byron R. White: As I read the three-judge court opinion, it seemed to me that the court thought that the New York law would justify discharge for mere knowing memberships and you say that is not so.

Ms Ruth V. Iles: I say that is not what the Adler case said.

Justice Byron R. White: How about the --

Ms Ruth V. Iles: But --

Justice Byron R. White: -- but what do you mean -- we were talking about the New York law though.

Ms Ruth V. Iles: Well, the Adler case said that they were bound by the construction placed on the New York by the Court of Appeals and in this case, it has been in the federal courts all along and there has been no construction of that by any of the state courts in this case and this Court has said we are bound by the construction --

Justice William J. Brennan: Now but this not the three-judge court here say that the reach of the decisions of the New York courts was to commit the charge for mere knowing members.

Ms Ruth V. Iles: I believe they did -- I do believe they went that far.

Justice William J. Brennan: Well, then they don't agree with your interpretation of what the decisions of New York court --

Ms Ruth V. Iles: I would say that's experimental.

Justice William J. Brennan: -- are, is that it?

Chief Justice Earl Warren: Mr. Crary.

Argument of John C. Crary

Mr. John C. Crary: May it please the Court.

I -- I am counsel two and represent the State University of New York.

I distinguish the State University of New York from the University of the State of New York because there is often confusion about it even in New York.

Justice William J. Brennan: I'm confused now.

What is it?

Mr. John C. Crary: The Board of Regents is the governing board of the University of the State of New York.

It is a corporation which has existed since 1784 which is the head of New York Education Department under the New York constitution and which in that capacity have supervisory and regulatory authority overall education public, private, elementary, secondary and higher in the state.

The State University of New York on the other hand is a corporation created in the education department.

A public corporation in the year 1948 for the purpose of administering state operated and supported higher education in the state.

It is the Board of Trustees of that corporation which I represent and which administered these statutes in the manner which had brought this case to this Court.

The -- I also represent administrative officers of the university including its new president, Samuel B. Gould who took off as of 1964 after this case had risen.

I apologize for my cold.

My concern is to -- we rely upon the Attorney General's position, who has the duty of defending the validity of New York statutes and we rely upon and support the position which the Attorney General has taken in this case in support of this statute.

My concern here is to attempt to demonstrate to the Court that the university in carrying out the duties which became imposed upon it by virtue of those statutes has carried them out in accordance with their valid purpose and without imposing, super imposing upon them any requirements which in and of themselves could be construed as being beyond the needs of the statutes or in any way unreasonable or violated of personal rights.

In 1953 after this Court's decision in Adler, the Board of Regents proceeded as the statute required it to do to hold hearings upon others and to make listings of those organizations which you'd found to be subversive within the meaning of the New York statute then 12-a of the Civil Service Law now Section 105 because the only thing which the Feinberg Law did was to implement that statute.

The Feinberg Law itself did not make any definition of subversion.

It merely provided a procedure for implementing that disqualification for employment by the State of New York which had long been contained of Section 12-a of the Civil Service Law and it did interest this Court knows from its consideration in the Adler case by providing or upon notice in hearing listing of organizations found to support those illegal objectives of force to overthrow the government.

After the hearing, the listing -- the organizations listed were two, the Communist Party of the State of New York and the Communist Party of the United States.

The regents duly listed them, promulgated them, put it in their circular in which the Feinberg Law was explained to the schools to which it applied and thereafter the presumption which Adler had said was proper.

It was proper to infer the fact from the facts found, the ultimate fact from the facts found.

Thereafter there was a presumption under the New York statute that those organizations -- that member -- knowing membership in those organizations disqualified – this knowing membership disqualified for employment in the public schools.

Now in as much to answer one of Your Honors question, in as much as all the Feinberg Law does is implement the Civil Service Law and the Civil Service Law itself requires knowing advocacy by the individual.

My own feeling and I think the university's construction of the statute has not been that mere membership susceptible of being innocent is sufficient.

It must be a membership which presumptively supports the objective, the illegal objectives of the party but in which the member individually shares because that's what the Civil Service Law dis -- that's the disqualification of the Civil Service Law individual advocacy of the violence or otherwise unlawful overthrow of government.

Justice William J. Brennan: Well, let me see if I understand it.

You start out with a finding that the two organizations, New York and United States advocate and preach the --

Mr. John C. Crary: The finding not made by my university but by the Board of Regents.

Justice William J. Brennan: That's the finding that's been made under the Civil Service Law, is that it?

Mr. John C. Crary: Yes.

Justice William J. Brennan: And then under the Civil Service Law, a disqualification -- this general disqualification not only for teaching but for all employees.

Mr. John C. Crary: For all public employees.

Justice William J. Brennan: Is only of those persons who personally advocate knowing overthrow.

Mr. John C. Crary: Knowingly, deliberately the unlawful overthrow of the government.

Justice William J. Brennan: And I take you have such persons even though they are not members of these or the other two organizations.

Mr. John C. Crary: Of course, Your Honor.

Justice William J. Brennan: And then you go on and say under 105 that if one -- there is a presumption that if one is a member of a particular of one of the two organizations, is it?

Mr. John C. Crary: Knowing of its objectives, he presumptively supports those objections.

Justice William J. Brennan: So this -- so you arrived at the conclusion that he is an individual who advocates violent overthrow on the basis of a presumption from his membership in one of the two organizations.

Mr. John C. Crary: Yes, and because this is a presumption and only a presumption, it's susceptible of being overcome and in the Thompson against Wallin case which was one of those affirmed in Adler, the Court of Appeals of New York specifically said, because it's only prima facie, this imports the hearing at which the countervailing evidence can be given.

And it says that countervailing evidence goes forth, the presumption disappears.

Justice Byron R. White: But if you -- but if in the proceeding for a discharge or removal, you presented evidence of membership, knowing membership and arrested and he presented no evidence, he would be discharged.

Mr. John C. Crary: I think the presumption then would prevail.

Yes, Your Honor.

Justice Byron R. White: But if he came in and explain to the -- or explained in a way that somebody were to believe that he did not engage in advocacy personally why he would not be discharged.

Mr. John C. Crary: If there were affirmative evidence on his part to that effect, then I think Thompson against Wallin says he has overcome the presumption and the presumption disappeared but then if he is still declared ineligible to be appointed or is then held to the -- is then discharged because of this, the burden he is then entitled to a hearing under Section 105 of the Civil Service Law which is expressly provided for him by that statute in the Supreme Court of the State of New York in which the burden is on the removing officer to show that he is disqualified and I think that to show that he was disqualified would require showing that he did those things which you proscribe by 105 --

Justice Byron R. White: You mean you couldn't rely on the presumptions --

Mr. John C. Crary: Namely person -- what if -- as I read Thompson against Wallin, this Court of Appeals has said, the presumption arises once it appears that he is a knowing member of the organization and when it arises, it imports -- one is relying on the statutory hearing under 105, it imports a right to a hearing at which he may produce evidence to overcome the presumption.

Justice Byron R. White: But if --

Mr. John C. Crary: If he does so and if he is still discharged --

Justice William J. Brennan: That's because he doesn't do so?

That's the question.

Just take Justice White's case.

Mr. John C. Crary: Then I think -- then I think --

Justice William J. Brennan: Then 105 does him no good.

Mr. John C. Crary: -- that the New York statute with its presumption which presumes the fact, which disqualifies him and he doesn't overcome it and because this Court has I submit said the presumption is valid, he may permissibly be discharged.

Now, I'm coming Your Honor to the situation with respect to the university employees who even despite this could not be discharge where they have tenure under university procedure -- university policies even so they could only be discharged by being -- by the procedure provided in the university's policies for terminating a tenure as follows.

And that so, they -- I want to say this before my time expires.

They were not threatened with immediate dismissal.

The only thing that was ever said was that here is the thing which the university has the procedure it has done to comply with its own statutory duties under a statute of New York.

You are asked to comply with it, to give us the information we need to determine whether you are qualified.

When we get this information then either we can find that you are qualified or we can make the further inquiry which may be necessary and give you the opportunity to furnish us any further information which you may wish to but unless you give it to us, we cannot comply with our statutory duty and what was said to them was if you do not do this then we will have to make charges against him of insubordination and refusing to comply with the university --

Justice William J. Brennan: But what must not -- must that not that that procedure is a practical matter in the situation that Justice White pointed out.

You'd have no alternative on one basis or another but to terminate him, would you?

Mr. John C. Crary: Well, he would have -- the thing I think I am trying to make clear here is that those faculty employees who had tenure either term or continues would have a hearing and before a university body in which if they chose to refuse to reply and they could explain --

Justice William J. Brennan: That's when they'd be --

Mr. John C. Crary: -- they could explain it.

Justice William J. Brennan: -- I thought, yes.

Mr. John C. Crary: I think if Your Honor please the only other thing that I would wish to add is that the university having adopted this procedure in 1956.

There's been no precipitant haste by the university here.

There's been no drastic action that it has weighed its procedures carefully.

It's done so in an effort to comply with the state law by which its administrative officers by their own knows their bound and it had done so not by asking any oath because the certificate is not an oath.

It's an oath at all.

It didn't ask anyone to forswear his beliefs.

It didn't ask him to conform to any vaguely specify to ask him the very thing which the New York statute of the regents' procedure may have reckoned it.

Justice William J. Brennan: The sanction of one action from the people.

Mr. John C. Crary: Yes.

Yes, there would be Your Honor because I think under the university procedures which provide for hearing in the dismissal only upon notice of hearing which I have notice some hearing in the event of those who have tenure and temporary in terms -- temporary employees do not, term employees do.

They would get a hearing, yes.

Justice William J. Brennan: But there's no criminal penalty for cancelling purpose.

Mr. John C. Crary: I do not believe it would just to two persons under the New York statute but if he lied, I think this would be misconduct of the time which warrant is removed.

Justice William J. Brennan: You take it --

Chief Justice Earl Warren: I just like to ask one question Mr. Crary.

Suppose he admits his membership in a Communist Party and you rely -- relying on the presumption, require him to show that to overcome it that he isn't a knowing member in the sense that he advocates the overthrow of the Government by force and violence and he takes the stand and says, well, I did belong -- I did belong to it but I didn't subscribe to those things.

I just don't belong because there are certain things in the party that I agreed with and the board just said to him, well, we don't believe you.

You're discharged now.

Is it susceptible to that kind of action?

I don't accuse the university of doing it, but could it be done in that way without anymore testimony than that?

Mr. John C. Crary: I just like to think that the university officials would ever be arbitrary but let's assume actually that Your Honor's question that they were.

If that happened then I think 105 of the Civil Service Law itself say, if he is dismissed on that ground that he is a subversive then 105 says that he can go into the Supreme Court of the State of New York, bring in a proceeding, have that decision reviewed and the burden of showing that he is disqualified is on the university.

Justice Byron R. White: Without a --

Chief Justice Earl Warren: Yes.

Justice Byron R. White: (Inaudible)

Mr. John C. Crary: Without a --

Justice Byron R. White: And they have reason that the perfect evidence as to personal --

Mr. John C. Crary: Assuming that he has before the university brought forth countervailing proof.

Justice Byron R. White: I don't understand that the kind of presumption that he's claiming here is that any evidence that you get --

Mr. John C. Crary: It must be evidence in some proof Your Honor and not any.

Justice Byron R. White: Well, I don't think that you understand there and in saying or what did you do, I just when -- maybe what's the --

Mr. John C. Crary: Of course the state of his mind is only he knows but --

Justice William J. Brennan: Or in the course of situation where he has to, where he takes the stand that he said “I am a member of the Communist Party, I don't deny it but I do not agree with its policy of overthrowing the Government.”

Mr. John C. Crary: I think he --

Justice William J. Brennan: But I agree with the social security and all the other objectives.

That's all I agree with but I am a member of the party.

Mr. John C. Crary: He might be subject to some probing of the validity of that statement but ones that stood under it --

Justice William J. Brennan: Of whichever is subject to --

Mr. John C. Crary: I think it would.

Justice William J. Brennan: (Inaudible)

Mr. John C. Crary: I think it would.

Chief Justice Earl Warren: Suppose he goes before the Civil Service Commission, what -- and has this hearing, what do you reply upon to say that the state no longer can use the presumption against him but must prove its case affirmatively.

Mr. John C. Crary: Well, here of course Your Honor, I'm --

Chief Justice Earl Warren: I beg your pardon.

Mr. John C. Crary: -- I'm bound by what the Court of Appeals said in Thompson against Wallin and what it seems to me to say and again, I point out that the Attorney General is here taking the position that he takes in support of this statute but I read Thompson against Wallin that say that the prima facie nature of the assumption imports a hearing in which proof can be brought forth and that when any proof is brought forth to overcome that presumption that disappeared.

That's what I read out -- that's what I read in Thompson against Wallin.

Of course, the Court only -- the Court knows precisely what it meant but that's the way I read it.

Justice Hugo L. Black: Is that the position the Attorney General takes?

Mr. John C. Crary: With that I prefer to let the Attorney General speak for it.

Justice Hugo L. Black: I understood your argument.

Chief Justice Earl Warren: When you finish I would like to ask Ms. Iles if that is the position of the Attorney General.

Though, I do not want to hurry.

Mr. John C. Crary: I would submit that the judgment should be affirmed, Your Honor.

Chief Justice Earl Warren: Very well.

Rebuttal of Ruth V. Iles

Ms Ruth V. Iles: I think the position of the Attorney General is that once the person being hired comes in and testifies that he doesn't subscribe to those parts of the philosophy of the Communist Party which advocate the overthrow of the government by force but just subscribes to it as a doctrine.

This -- immediately, the presumption would then vanish and then the burden would be upon the person disqualifying them to show that he advocates and willfully advocates the overthrow of the Government by force.

Now when the burden is shifted back to the person hiring him and who has disqualified him, they would have to come in with concrete proof either by statements he had made somewhere or by acts or some other kind of concrete proof which would establish a case against him on disqualification.

This would be the Attorney General's --

Justice Byron R. White: Do you -- do you think they agree with him?

Ms Ruth V. Iles: Right.

Then the burden would shift in the Attorney General or in the disqualifying officer would have the burden of coming in and showing some overt proof that this man is lying when he says he doesn't subscribe to this.

Chief Justice Earl Warren: Now, I would like to ask -- thank you Ms. Iles.

I would like to ask Mr. Lipsitz very briefly to respond to that as to whether that is the law and whether it can be sustained,just very brief.

Rebuttal of Richard Lipsitz

Mr. Richard Lipsitz: My answer is very clear, Your Honor.

It is not the law and we rely upon Lederman versus the Board of Education, one of the three cases constituting the Adler case where it barely clearly says that all he can do is (a) deny membership or (b) that the organization advocates the overthrow that is to challenge the finding of the Board of Regents or that he -- or (c) that he has knowledge of advocacy.

It's all he can do to overcome the presumption.

Justice William J. Brennan: Is that the same case --

Mr. Richard Lipsitz: Yes.

Justice William J. Brennan: With the other side of law?

Mr. Richard Lipsitz: I don't know upon what they rely, Mr. Justice Brennan.

Justice William J. Brennan: You get t hide.

Mr. Richard Lipsitz: That's yes.

It's Lederman versus Board of Education.

Justice William J. Brennan: Now, if that suppose to --

Mr. Richard Lipsitz: It's one of the three that's there involved in the Adler case.

Justice William J. Brennan: Is this another case that we have to decide on?

Mr. Richard Lipsitz: No, sir.

Justice William J. Brennan: You have a quite few (Inaudible).

Mr. Richard Lipsitz: I don't think you have to decide what it meant, Your Honors, because it says so in black and white in their decision and it's also stated at Thompson against Wallin.

It's not as they simply put it that once somebody comes in and says I didn't believe an advocacy that the presumption disappears.

That's just doesn't the way it works.

Literally speaking and I quoted from Lederman against Board of Education.

Chief Justice Earl Warren: Leatherman?

Mr. Richard Lipsitz: Lederman, L-E-D-E-R-M-A-N v. Board of Education, Your Honor.

It's cited to 75 of my brief.

It's one of the three Adler cases.

The Court says quote referring to this procedure.

“He may (a) deny membership; (b) that the organization advocates the overthrow of the government by force; and (c) that he has knowledge of such advocacy.”

This not this business about coming in and saying but I don't believe in the doctrine of advocacy or I don't believe in the doctrine or advocate the doctrine and therefore the presumption disappears.

He's got -- he's very limited in what he can do under the New York Court of Appeals interpretation of this Section.

Justice Potter Stewart: The Lederman case was one of those cases which was affirmed in Adler.

Mr. Richard Lipsitz: Yes, sir.

Justice Potter Stewart: And the case of Thompson --

Mr. Richard Lipsitz: Thompson against Wallin also.

Justice Potter Stewart: I beg your pardon.

Mr. Richard Lipsitz: Thompson against Wallin also.

Justice Potter Stewart: So they were contemporary.

Mr. Richard Lipsitz: They were the two -- the three of them constituted to name otherwise the Adler case.

Justice Potter Stewart: The Adler case.

Well now the case on which your adversaries rely and telling us what the New York law is, that's Thompson against Wallin?

Mr. Richard Lipsitz: And Lederman.

The same case.

Justice Potter Stewart: I know that she mentioned as I understood it not --

Mr. Richard Lipsitz: Yes, she mentioned Thompson against Wallin but they also will tell you that they rely upon Lederman because Lederman is one of the three cases in which the Court of Appeals have stated in the --

Justice Potter Stewart: I want to know what -- how they were decided chronologically.

Mr. Richard Lipsitz: Oh, they are decided the same day and in fact you can find them in the New York reports one page after another.

Justice Potter Stewart: The same day.

Mr. Richard Lipsitz: Yes, sir.

There's no -- and there is no inconsistency between them by the way.

Chief Justice Earl Warren: We'll adjourn now.

Featured:

Cramp v. Bd. Of Public Instruction - Oral Argument

Tue, 25 Sep 2012 22:37:38 +0000

Case:

Cramp v. Bd. Of Public Instruction

Media File:

72_19611016-argument

Related Transcript:

72_19611016-argument

Transcript:

Argument of Tobias Simon

Chief Justice Earl Warren: Number 72, David Walter -- Walton Cramp, Jr., Appellant, versus Board of Public Instruction of Orange County, Florida.

Mr. Simon.

Mr. Tobias Simon: Mr. Chief Justice, may it please this Honorable Court.

This is an appeal from the final decision of the Supreme Court of Florida, upholding the validity of Fla. Stat. 876.05 against the contention that this statute violated the provisions of the First and Fourteenth Amendments to the United States Constitution.

This is the Act which requires that all public employees in the State of Florida, including David Walton Cramp, who is a teacher, execute a loyalty or expurgatory oath as a condition of his employment.

The pertinent provisions of that oath other than the ones that were in effect prior to 1949 which at that time simply required all public employees to swear loyalty to the Constitution and to the -- and to the United States, now require that the public employee swear that he is not a member of the Communist Party and I quote, “That I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; and fourth, that I am not a member of any organization or party which believes in or teaches directly or indirectly the overthrow of the Government of the United States by force or violence.”

Now, the appellant, Cramp, had been employed in Orange County as a teacher for nine years when just prior to the institution of this litigation, it was realized that through some administrative oversight, he had not executed the loyalty oath.

He was approached and requested to sign the oath.

Justice Potter Stewart: How long is this statute been on the books?

Mr. Tobias Simon: Since 1949 sir.

Justice Potter Stewart: So it was there when he first became employed as a --

Mr. Tobias Simon: Yes, that is correct.

Cramp refused to sign the oath on the grounds that the State could not validly and constitutionally require that he execute this oath as a condition of his employment and for no other reason.

He brought an action in Orange County under Florida statutes for declaratory relief to declare the statute invalid and to assert his continuing right to teach school without the necessity of executing this oath.

This relief was denied to him by the Circuit Court and this decision was affirmed by the Supreme Court of Florida and this appeal then followed.

I would like to state that the issue before this Court as I understand it is not whether or not Florida is to be required to keep communists in its roles of public employees nor is the question so ably put by my Brother that Florida cannot establish reasonable qualifications for its teaching personnel or other employees.

Because however, there is always and this Court has always recognized the duty of a State with regard to its public employees to establish only and stipulate only those qualifications which are reasonable and which are reasonably designed to fit the man to the job.

Because of that requirement, we state that the issue before this Court is whether or not the qualifications imposed by Florida are reasonable and whether they bear a reasonable relationship to the position itself.

Irrespective, I wish to point out at this point in the argument whether these qualifications were imposed through the procedural device or vehicle of the loyalty oath or whether they were imposed by statute.

I think there is no issue about the fact that a state cannot impose qualifications for employment which violate due process, equal protection and this Court has unanimously stated on many occasions.

Cons --

Justice Felix Frankfurter: You argue the oath in its entirety beyond the power of the state or you emphasize when calling our attention to the oath, a particular clause?

Mr. Tobias Simon: I will emphasize --

Justice Felix Frankfurter: Is that --

Mr. Tobias Simon: I will emphasize three particular clauses of (Voice Overlap) --

Justice Felix Frankfurter: My question is not merely emphasis but do you say that no clause of this oath could stand or some could but it's mixed up with others that couldn't?

Mr. Tobias Simon: It is conceivable and I do not wish to reach the point necessarily that the first of the clauses that one must not be a communist in order to teach in the public schools.

It is conceivable that under present decisions of this Court, Florida could stipulate a qualification that no communist could be a teacher in the Florida schools.

Justice Felix Frankfurter: Well, the first one is the -- to swear to support the Constitution.

What about that, (Inaudible)?

Mr. Tobias Simon: That of course is -- that is the same oath that I am required to take and I believe that the Justices of this Court are required to take it --

Justice Felix Frankfurter: Oh, (Voice Overlap) --

Mr. Tobias Simon: -- there's no quarrel about that.

Justice Felix Frankfurter: I can conceive of even such an oath that you single out nobody in the community except the particular person or particular class that you might have a basis of proposition or question.

The second clause is I'm not a member of the Communist Party.

Would that pass your scrutiny?

Mr. Tobias Simon: We do not at this point contend that this particular qualification would be unconstitutional.

Justice Felix Frankfurter: The next one, you have indicated that it's beyond the power of the State that I have not -- will not lend my aid, support, advice, counsel, influence, you challenge that?

Mr. Tobias Simon: On at least three grounds, if Your Honor please.

Justice Felix Frankfurter: And the next one, that I do not believe in the overthrow of the Government of United States or of the State of Florida by force or violence.

Mr. Tobias Simon: We challenge that, yes sir.

Justice Felix Frankfurter: You do challenge that.

Mr. Tobias Simon: Yes sir.

Justice Felix Frankfurter: The next one, that I am not a member of an -- any organization or party which believes and/or teaches directly or indirectly the overthrow of the Government of United States or Florida by force, you must challenge that if you did the previous one?

Mr. Tobias Simon: We likewise challenge that on additional grounds to all the others.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: If I --

Justice Felix Frankfurter: I just want to get -- focus my mind to what it is that I'm going to listen to.

Mr. Tobias Simon: If I may direct my attention to the first of the clauses which Your Honor has indicated we oppose, and that is the question of that clause of the oath which states that I have not lent aid, support, advice, counsel or influence to the Communist Party?

Now, the State of Florida has specifically interpreted this clause to me that I do not presently lend aid, support, influence, counsel or advice to the Communist Party, but that I have never at any time in the unending test, done such an act.

Now we maintain and contend, regardless of the fact that this is included in a loyalty oath that this particular qualification is beyond the power of the State to require of an employee that he executes and makes such a statement as a condition of employment.

In the first place, it can hardly be alluded to as a qualification of a teacher.

We do not say that a State may not ask to secure this information but Florida has said blanketly that no person who has ever lent aid, support, counsel or advice to the Communist Party is suited to be a teacher or other public employee.

It is immaterial whether 30, 40, 50 years ago, an individual may have joined the Communist Party or lent aid, support, counsel or advice whatever those words mean to the Communist Party for one day and since that time, devoted himself to a program of rabid anti-communism, if you will, spent that time acquiring enumerable college degrees and presented himself on the doorsteps of our capital building in Tallahassee only to be told there that the law of this State disqualifies you from being either a public employee or a teacher.

Justice Felix Frankfurter: May I ask you whether the Communist Party ever appeared on the official voting ballots of Florida?

Mr. Tobias Simon: Not to my knowledge if Your Honor please.

The progressive party was there and that, in some minds, is exactly the same thing in Florida.

Justice John M. Harlan: How do you jump the hurdle, the necessity of your argument of this part, how do you jump the hurdle if the Supreme Court of Florida said in view of the allegations of the complaint, which you said that he has never given any such aid or he had no standing as a matter of state law to raise a question, why isn't that an adequate statement?

Mr. Tobias Simon: Well, Mr. Justice Harlan, what the State of Florida said was that we had no standing to raise this as a matter of ex post facto.

They said that this law was not an ex post facto law with regard to this particular appellant and they may be right.

However, what I am saying here is that this particular qualification cannot be imposed as a matter of due process and he certainly has not waived his rights by merely stating that he has never done this under the Due Process Clause to assume this would mean to say for example that Torcaso had to be an atheist in order to obtain relief from this Court.

Justice John M. Harlan: Yeah, but the Court, the Florida Court as I read its opinion said, you cannot raise your Constitutional objections to this because you have no standing in light of your allegation with your complaint?

Mr. Tobias Simon: I would respectfully submit that this particular question insofar as there is any merit to it and we do not concede that there is merit to the statement, but that any standing to sue is -- we do have standing to sue because this is a matter of due process that a man who states that he is not a communist and has never lent aid, support or counsel or advice to the Communist Party is nevertheless entitled as an American under the Due Process Clause to refuse to execute an oath which requires that he so state this.

A man for example, this Court has stated that a state cannot pass a law that no public employee may go to mass or no person who attends mass can be a public employee.

Now, I may not ever have attended a mass and yet I believe that this law is invalid and that I have a right not to execute such a note and that disqualification cannot be imposed by the State irrespective of my religion.

The fact that a law is bad, the fact that a qualification for employment violates due process, does not depend on whether the individual who is involved in the procedure, so long as he is in the class which is being effective, a non-public employee could not come to this Court and complain, but this man is a public employee.

Justice John M. Harlan: You argue in effect that this certain state ground is not one that we should recognize as an adequate state ground, that's the substance --

Mr. Tobias Simon: That is correct.

Justice John M. Harlan: -- of your argument.

Mr. Tobias Simon: Yes sir.

And I also state that if there is any merit to it whatsoever, it is restricted to the question of whether or not Cramp can claim that he is within the class that can raise the issue that this is an ex post facto law, but we rest primarily on the proposition that the asserted state ground is not a proper one.

Justice Felix Frankfurter: But I think you are casting your net too broadly if I may say so.

This Court has said again and again that if a particular individual himself, a particular individual himself could not be affected by a statute, he can claim injury on behalf of others who might be in the same class, but were not excluded by the record filed.

I think of the case in 204 U.S. I think of a lot of cases to which this Court has said (Inaudible) if somebody who is hurt by this.

I think the ground as you -- as you put it that he represents the class.

He doesn't represent a class if he is in a class by himself.

Why does he put that into his pleading?

I'm not saying -- I'm not suggesting, to be clear about it that -- that an argument can't be made but not your argument.

Mr. Tobias Simon: The --

Justice Felix Frankfurter: That's simply because he is in a class.

The point is he has taken himself out of the class.

Mr. Tobias Simon: No Your Honor.

We submit that he is within the class that is being affected.

He is within the class of public employees who are asked to comply with a particular qualification.

Now, the reason why --

Justice Felix Frankfurter: But to go to the -- perhaps one ought to hear your objection, if you go to the objection of such a class, the objection namely that they can search way back into his life, I don't know how many years back, that's why I asked you when the Communist Party was established.

He is in Florida or he may have been a member of the Communist Party of the United States, suppose he take judicial notice that -- that's got on the way 1919 or 1920 which puts a judicial notice and the litigant party came in to being, your argument then is (Inaudible) that that means that he did anything from 1920.

And thereafter, did everything to oppose that which he did in 1920, he still would be within.

But if a man takes himself out of the class but there's no such danger, then I don't think your answer to Justice Harlan's question is adequate that he is in that class.

The point is he's not in that class because he's taken himself out of that class.

I think there are other objections possibly but not your objection that he's in that class.

Mr. Tobias Simon: Well, we respectfully submit that the mere statement, the mere fact that he has come to this Court as others have not done and have stated what his political beliefs are does not remove him from the protection of the Due Process Clause, Now this Court, I do not believe will take the position that there must be a doubt in the minds of Justices before they will give benefit of the First Amendment and the Fourteenth Amendment to the litigants.

Suppose Torcaso --M

Justice Felix Frankfurter: But there's nothing (Voice Overlap) --

Mr. Tobias Simon: -- had come --

Justice Felix Frankfurter: Isn't a question of doubt in our minds.

It's a question of a litigant asking for a leave on the basis he's hurt by something and he says, “I haven't been hurt by this.”

Mr. Tobias Simon: Well, we submit that we are hurt because this is a man who should not be required to submit to a qualification which offends the Constitution regardless of whether he himself is a person who is being hurt directly.

We submit that there is an indirect hurt to him because he is a public employee.

I refer again to the example of Torcaso.

If Torcaso had come to this Court and stated that he was not an atheist, I suspect that the decision of this Court must necessarily have been exactly the same because Maryland cannot impose a religious test upon public employees whether atheist raised the question or non-atheist raised the question and I suspect that the Due Process Clause under which we are claiming here is as much available to non-communist as it is to those who have a lent aid, influence or support to the Communist Party or to those, I think this is basically the question who do not come and tell this Court as Torcaso did not come, as Garner did not come, as the attorney in the Konigsberg in the following case and test flow did not come and so this Court.

Justice Felix Frankfurter: I don't accept your starting point, you see.

I can well understand that a man like Torcaso can file or his lawyer can file a complaint in which he said this is of no hurt to me.

It couldn't possibly make any difference to me to sign it.

I'd be glad to sign it but I just want to get a ruling from this Court on whether such a statute is constitutional.

Speaking for myself, I have the greatest doubt, but I would think that presents the case of controversy before this Court.

Mr. Tobias Simon: Except that in this case, if Your Honor please, this man did not sign this affidavit and the statements that he made in his complaint were not regarded by the State of Florida as a substitute for this affidavit.

And unless he -- and until he signs this affidavit, he is not in a position to draw on public funds and I would like to add the following.

The statements that he made in his complaint do not foreclose the issue because the language that is used in this particular clause of the oath that he has not lent aid, support, influence, counsel or advice to the Communist Party are so vague, broad, general as to be actually incapable of analysis or interpretation except as in a -- except in a completely subjective manner and the fact that he stated that in his opinion he did not do these things is not a guarantee because of the looseness.

Justice Felix Frankfurter: He's not a guarantee of what?

Mr. Tobias Simon: That some Court will find --

Justice Felix Frankfurter: Now, you're talking so far as I'm concerned (Voice Overlap) --

Mr. Tobias Simon: That some Court would find that he has done exactly the same thing --

Justice Felix Frankfurter: Now, you're talking.

Mr. Tobias Simon: -- or has not done exactly the same thing.

Justice Felix Frankfurter: Now, you talk --

Mr. Tobias Simon: But this another ground why this particular language, the vagueness and Your Honor of course has dissented in both Garner and in the American Communications Association --

Justice Felix Frankfurter: But that's a very different argument --

Mr. Tobias Simon: -- on the same ground.

Justice Felix Frankfurter: -- from the one that you thought was conclusive.

Mr. Tobias Simon: I had not at that point come to that argument Your Honor.

Justice Felix Frankfurter: What you're saying is that he might sign this oath and he might subject himself to prosecution of perjury and then at least would have to litigate whether what he did not 40 years ago but two years ago could be regarded on the appropriate charge by a judge to a jury as bringing himself within these terms support, advice, counsel and influence to deny that and therefore it's a case of perjury.

Now, I understand you.

Mr. Tobias Simon: That is because the language of this particular section is incapable of actual definition and therefore as a matter of due process should not be included among the qualifications for teachers or public employees in Florida or in any other state.

The next clause of the oath is the clause which states that I do not believe in the overthrow of the Government of the United States and also that I am not a member of any organization which believes in, and this of course I think is impossible and so the persons who were at the statute added the words “word teachers, directly or indirectly the overthrow of the Government of the United States by force or violence.”

To my knowledge, there has been but one other case in which the question of belief in terms of violent overthrow of the Government has come before this Court and that was some 10 or 11 years ago in American Communications Association versus Douds.

At that time, the Court by a three-to-three decision affirmed the judgment below.

Nevertheless, Justice Vincent, Mr. Justice Vincent in writing for the majority put a gloss on the word belief and stated that the only thing that this can constitutionally mean is a belief in the objectives of violent overthrow as an immediate objective rather than as a prophecy.

And this concept has come down to us since that time.

In Speiser -- Speiser versus Randall, although that dealt with the question of advocacy, this Court insisted upon and secured from the Attorney General of California the statement that the advocacy therein involved was advocacy not as an immediate objective -- not as a prophecy but as an immediate objective.

And if it is true for advocacy, of course, it must necessarily be true for inner beliefs which this Court Douds and all time subsequently stated are in violence.

This position was urged before the Supreme Court of Florida and was ignored, but we go on to state that regardless in our opinion and we so contend to this Court that regardless of any gloss, any shaving that can be made of this word believe that the concepts of belief and a man's beliefs are not the function or the power of Government to inquire into.

Neither this Court nor any arm of Federal Government, nor the State Government of Florida, can call into play and demand to know what are a man's beliefs as a condition of his employment.

And we submit that any requirement as a qualification for public employment that a man divulge his beliefs must be unconstitutional and invalid under the provisions of the First Amendment.

The old story of Dionysus who had a man killed for dreaming, that he killed somebody would I think follow in this case and I think that this Court should strike down any qualification for employment that requires an individual and especially a teacher fit within a stereotype concept of belief.

And again --

Justice Potter Stewart: Aren't you making a pretty broad argument?

Certainly, if you want to hire a teacher to teach geography, you'd be -- it would be irrelevant if he -- if he happened to believe that the world is flat, wouldn't it?

Mr. Tobias Simon: No sir.

I do not believe and we -- and it's our position that a man's beliefs are in violence.

The State cannot call forth any statement from him as to his beliefs as a condition of employment.

I think that persons, I think that Christian Science practitioners are perfectly capable of teaching medicine in a medical school.

I think that persons who are biblical fundamentalist are perfectly capable of teaching --

Justice Potter Stewart: Evolution.

Mr. Tobias Simon: -- evolution in a college.

I think that a catholic president for example is perfectly capable of expressing the viewpoint that there should not be public aid to education or can support a program of birth control in and throughout the nation.

In other words, I do not believe that there is a necessary corollary that what a man believes will obviate or will excuse him from the sworn duty to follow a prescribe curriculum whether he'd be president or whether he'd be a janitor or a public school teacher.

Justice Felix Frankfurter: Are you saying -- are you suggesting it's far a field that --

Mr. Tobias Simon: Yes sir, I -- I --

Justice Felix Frankfurter: -- what I want to know -- what arguments imply.

You're suggesting that a state university could not avow refusing to employ a conscientious believer in Christian Science to its medical faculty, is that what you're saying?

Mr. Tobias Simon: Yes sir.

And I believe that Your Honor said something to the same effect --

Justice Felix Frankfurter: I hope I didn't.

Mr. Tobias Simon: -- in Garner [Attempt to Laughter] where you stated that man cannot be asked to swear about something they cannot be expected to know, such a demand is at war with individual integrity.

It can be no more justified than the inquiry into belief which Mr. Justice Black, Mr. Justice Jackson and I, deemed invalid in American Communications Association versus Douds.

Justice Felix Frankfurter: That means that the State of Florida can't refuse to employ a plumber on its law faculty because he is expected to know about law, is that it?

Mr. Tobias Simon: No sir.

The qualification of knowledge is an entirely different proposition from the qualification of the --

Justice Felix Frankfurter: In the first -- we'll reject the whole basis on which a medical school is conducted for good or bad reasons, is violating -- the state is violating the First Amendment.

I think you'd --

Mr. Tobias Simon: I do not --

Justice Felix Frankfurter: -- you'd get more mileage if you went down with some another argument.

Mr. Tobias Simon: Well, we state that in this particular instance, a man's beliefs as to violent overthrow, do not serve as a basis for excluding him from the faculty in a public school system in Florida for two reasons which we have stated; one, because the concepts of belief are beyond the power of the state to inquire into, and secondly, and certainly, and this Court has held on this point that the only type of belief in this area which can serve as some basis for inquiry is a type of belief or advocacy into the overthrow of the Government as an immediate objective rather than as a question of prophecy.

Justice Felix Frankfurter: I do not -- I do not understand why on your theory, you do not challenge the requirement of denial to become a member of the Communist Party?

Mr. Tobias Simon: Because, I believe that this Court has already foreclosed that question.

I think that the State has the power to prohibit from its employ and I believe Your Honor did so state that a state can prohibit from its employ, Your Honor stated this in your dissent in Garner, any person who seeks to overthrow the Government by force or violence or is -- or are knowingly members of organizations engaged in such endeavor.

Justice Felix Frankfurter: But you are challenging the force and violence part of this oath.

Mr. Tobias Simon: Not the force and violence part. I challenge the --

Justice Felix Frankfurter: I thought you're (Voice Overlap) --

Mr. Tobias Simon: -- ability of the State of Florida to require that a man express his beliefs as distinguished from his actions in membership, as distinguished possibly from his advocacy, written statements or oral statements but I maintain that it has always been the concept of our Constitution and of this Court that individual integrity requires that an individual's unspoken, unadvocated, unwritten beliefs are his and belong to him privately and solely.

Justice Felix Frankfurter: But did I understand you correctly to say that you challenge the clause that, “I do not believe in the overthrow of the Government of United States by force or violence.”

Mr. Tobias Simon: Yes sir because it states the word ‘believe.'

Now, to state that I do not advocate the overthrow of the Government by force or violence is an entirely different matter provided of course, and I make the same proviso on the belief clause, provided that by advocate both legislature and the courts of Florida mean as an immediate objective as distinguished from a prophecy.

Justice Felix Frankfurter: And so Florida can refrain to appoint somebody to teach civics that it has called in so many institutions who says, “I firmly believe -- I do believe in the overthrow of the Government of United States by force or violence.”

Mr. Tobias Simon: I would say --

Justice Felix Frankfurter: Is that right?

Mr. Tobias Simon: -- that the minute -- no sir, because as soon as this is stated, it now becomes a matter of record, it is a matter then of advocacy.

And on this proposition, I think this Court has ruled that you cannot discharge an individual or refuse to hire an individual where advocacy of an idea, as a matter of long-term prophecy as distinguished from an immediate objective is the criteria.

Justice Felix Frankfurter: Well, I don't understand you quite.

Suppose this oath was submitted to somebody who satisfies all the requirements; all the other intellectual requirements for having him to teach civics to the institutions of Florida but he says, “I cannot conscientiously sign the clause concerning the oath if it contains the clause, I do not believe in the overthrow of the Government by force or violence because I do believe in it.”

Mr. Tobias Simon: That I believe also can be an entirely different matter.

The State has the right to inquire of him as to what his beliefs are as a means of measuring his competency and his ability to act as a teacher but to blanketly state that no person who does not sign this oath can be a teacher, I maintain and here we come of course to the distinction --

Justice Felix Frankfurter: You mean -- let's see if I understand, if it -- if a teacher to be hired for civics could be required to sign this, but a teacher of mathematics could not.

Is that the point?

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: What is the --

Mr. Tobias Simon: Neither -- neither a teacher -- no teacher and no public employee can be subjected to a state qualification or employment wherein belief is the sole criterion upon which he is to be hired.

Justice Felix Frankfurter: Well then, I am assuming that they've put him through the ropes as to where he studied and what books he's read and all the rest and also this that you must sign an oath that you do not believe in the overthrow of the Government by force or violence.

You say that's alright, don't you?

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: That's wrong.

Mr. Tobias Simon: That is correct.

That is wrong.

Justice Felix Frankfurter: But when is it alright?

Is any time alright?

Mr. Tobias Simon: It is, in my opinion, never alright for the state to inquire into the man's beliefs as a condition of his employment.

Justice Felix Frankfurter: Well then let me ask you again.

If a person is under consideration to teach and to be employed as a teacher of civics in a Florida institution, high school or college, and he has to sign an oath, I do believe – I do not believe in the oath of the Government of United States by force or violence, may the state exact such an oath or not.

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: Because this involves the man's beliefs.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: And these beliefs cannot be for -- cannot form the basis of an exclusion from public employment.

Now, I have stated that these qualifications, the retrospective qualifications, the matter of belief and advocacy which are contained in the Florida oath are bad.

I maintain that these qualifications are invalid and are unconstitutional because they violate due process, there is no place for penitence or return, they violate the guarantees of the First Amendment which keep I believe a man's beliefs and right to advocate in violence and if these qualifications had been enacted by statute, those qualifications would not have been proper.

We further maintain that because these qualifications are embodied in a loyalty oath which is presented to some 40,000 public school teachers and many more times that number of public employees within the State of Florida, that the requirement of the loyalty oath itself as a procedural device is invalid.

Now, the reason why we maintain that position is because the requirement that a man execute and oath as distinguished from complying with certain qualifications, imposes upon him the necessity of submitting his associations, his beliefs, his concepts to the State in order for him to secure a position.

Unquestionably, the execution of a loyalty oath is a restriction upon the privileges and rights of association, thought and belief guaranteed by the First Amendment.

If we are to say that the interest of a state in prescribing qualifications are so important as to outweigh the interests of the individual then it might be contended that the means of achieving these qualifications, the means of establishing these qualifications in gaining this information, can be utilized through the means of the loyalty oath.

But this, I believe, runs afoul of the concept that was established or utilized in Shelton versus Tucker where this Court stated that where there are alternative means of acquiring information, where there are alternative means of achieving an end desired by the State, a second balance must be struck if one method utilizes less danger and less harm or establishes less harm for the individual's rights then that is the method which must be chosen.

Now, we submit that to -- that to turnover to the entire body of public employees in the State of Florida, an oath requiring that they give their associational ties and an expression of their beliefs and concepts even if for example, this Court were to say that they could have this information in the first place, that this is not the proper method of achieving this, that this has a chilling effect upon their rights, upon their associational rights as guaranteed under the First Amendment and this Court I believe has prescribed and has shown the method that can be utilized to prescribe these qualifications and that is the matter of the employer-employee investigation.

And this Court has on several occasions, in Beilan, Lerner versus Casey, Konigsberg, Anastaplo, Nelson and Globe cases has stated that an employee, if challenged or questioned must come forward and give full and frank answers.

And we submit that this is the method that Florida must utilize because if a teacher -- if there is a question about a teacher or a public employee, then it is well within the province of the State to rid itself of communists or other incompetent personnel to call the individual in.

Some due process at least must be observed, some type of hearing must be given; something is afforded this individual.

The interests of the individual can be protected.

The demands upon the state are small and this method can be utilized far better than the blanket loyalty oath because it is our position that if we give at this time, blanket support for the concept of a loyalty oath, then through this device, each and every employee can be required to submit to doctrines in which the school boards or the government officials feel are important.

We can be required to submit in signing oaths involving beliefs or disbeliefs or membership or nonmembership in organizations which are not the Communist Party, organizations which are unpopular in Florida or elsewhere.

Justice Hugo L. Black: May I ask you a question?

Mr. Tobias Simon: Yes sir.

Justice Hugo L. Black: I haven't quite understood some of the lines you've drawn.

Suppose a man was about to be appointed to a job of this Government, he would have to pass on the jobs desired by others.

He should be asked to swear that I believe that no person should be discriminated against on account of race, color or religion.

Would you see a difference between that and the oath you would take that would be required if it said that I will not discriminate on account of race, color or religion, one being a statement of what he believed and one being a statement of what he would do, is that the line you're drawing?

Mr. Tobias Simon: Yes sir.

Requiring a man's actions are of course -- would -- the state can require a man to act, an employee to act in a way in which he desires, but a state cannot require that a man believe a -- in a particular thing.

We also have laws in our -- in Florida, require -- prohibiting certain types of discrimination based on color, but I do not believe that the State has got the power to make this individual swear that he believes that discrimination is bad.

I think his beliefs are his own and so long as he is doing a proper job then this is all that can be constitutionally required of him.

Justice Felix Frankfurter: Do you think of -- do you think a man's conviction of what he promises to carry out -- about what he promises to carry out has no relation to the reliance one can place upon his capacity to carry out or to be subject to carry out.

Mr. Tobias Simon: Mr. Justice Frankfurter, I have not mentioned --

Justice Felix Frankfurter: I thought we've had a great deal of --

Mr. Tobias Simon: I have not mentioned a man's --

Justice Felix Frankfurter: (Voice Overlap) talk about that to the contrary.

We want people actually to believe certain things as an assurance that they will see to it that having power, they will carry that duty into action.

Do you think men are (Inaudible) like that if they say, “I will do this --” you can count on him to do it although he pleaded the opposite?

Mr. Tobias Simon: No sir.

I think when a man promises or undertakes to do a job than he is required to do it.

But I feel that --

Justice Felix Frankfurter: You can count on that no matter what?

Mr. Tobias Simon: I feel that --

Justice Felix Frankfurter: That's ultimately so.

Mr. Tobias Simon: -- that the danger to this country and to our institutions of having government inquire into a man's beliefs and stipulating that a man must believe in a particular manner as a condition of employment can lead to far greater danger than the possibility that a man might not do a job even though he has sworn to do it because he doesn't feel within himself that this is the way he would like the system to be.

We might all feel very well that a man who is going to be a notary public should believe in God because he must administer an oath, but that is not to say that the State has got the power to require that he believe in God as a condition of this.

Justice Felix Frankfurter: There may be a difference of opinion as to what a man's belief regarding the ultimate mysteries of the universe.

That's a very different thing from saying that a man who is charged with a duty shouldn't be expected while legislation is written.

We have a number of enactments of Congress, the PVA I believe is one, Justice Black will correct me, but I think that's one if the person to be appointed by the President should be a man who has faith and conviction in the particular enterprise and therefore as an extra energetic impulse to carry out that enterprise, isn't that true?

I believe that's true.

Justice Hugo L. Black: I don't know precisely what the position is?

Justice Felix Frankfurter: But there are several such things that the appointees by the President should be people who believe in the policy which they're called upon to execute.

Mr. Tobias Simon: I do not say that it is not desirable to achieve this.

What I -- what I do state, however, is that the State, so long as there is no expression of a man's beliefs and as long as there is no reduction of his duties on the particular job that he has to perform, that the question of belief is not within the realm of Government to inquire into or to prohibit.

Justice Hugo L. Black: Without getting into this, the soundness or the unsoundness of your position that I was just trying to clarify; as I understand, what you're saying is that the Congress would have passed a law requiring all candidates for Congress or the Senate to swear that they believe in the operation of Government without any special discrimination against any group that that would not be a good requirement and -- but that it would be quite different if they required him to swear that he would not conduct his office in such way as to deprive that.

That is the line you're drawing whether good or bad.

Mr. Tobias Simon: That is precisely the line we are drawing, yes sir.

We might state also that going back in this picket of the belief in violent overthrow of the Government that one can, I believe, without being a disloyal American believe that if circumstances and conditions obtained that existed were so bad that the only resort to correction was violent overthrow then this does not necessarily make him a bad American.

It does not necessarily make him unfit today when he states that conditions are good and are favorable and that conditions can be rectified in a proper and constitutional manner.

This does not make him a person who is incapable of holding public office or public employment.

Justice Hugo L. Black: I assume you're taking, arguing literally which maybe a wrong way to argue, a statement made by Mr. Justice Roberts in one of the cases, I've forgotten which one, substantially to the effect that a man's beliefs are empowered, but his conduct can be regulated for the good of society.

Mr. Tobias Simon: Absolutely and I'm also taking up the statements that were made in the Anastaplo to exactly the same effect where this young man as an attorney for example, stated that he would not subscribe to the proposition that he did not believe in the overthrow of the Government by force or violence under certain circumstances that might exist at some long time in the future, but it was quite clear that he believed that these circumstances were not present within our society or our civilization at the present time.

Chief Justice Earl Warren: Mr. Simon, we'll reduce it to very simple terms.

You -- you make a distinction I take it that it is perfectly proper to require a public employee to swear that he will support the Constitution of the United States, but that it is improper to compel him to say that he believes in every article of the -- of the Constitution of the United States as a prerequisite to getting a public job.

Mr. Tobias Simon: Yes Your Honor.

Chief Justice Earl Warren: There -- I point that out because there are a great many people today who are in the news all the time, claiming that the provision for an income tax is the work of communism in this country and he could demand who had that belief could hardly take the kind of an oath that is presented here.

Mr. Tobias Simon: I --

Chief Justice Earl Warren: There are others who believe that the provision allowing women to vote is wrong.

There are people who don't yet believe in the direct election of the United States Senators, but if all those people can -- would be debarred because they believe that way even though they conscientiously would take an oath to support the Constitution of the United States, it would debar a lot of people, wouldn't it?

Mr. Tobias Simon: I hardly need to add Your Honor.

I agree with Your Honor's statement, I hardly need to add that in Florida, there are a great number of people who feel that some of the decisions of this Court are in precisely the same light that you have cast under these other amendments to the Constitution.

Chief Justice Earl Warren: Yes.

Mr. Tobias Simon: And it seems to me that there we have persons throughout our state government, sworn to uphold the Constitution and the decisions of this Court interpreting the Constitution who nevertheless do not believe in the decisions of this Court and believe that they are correct or proper or should have been issued in the first instance.

Justice Felix Frankfurter: Mr. Simon does a (Inaudible) -- if one takes an oath to support the Constitution, he takes an oath to support the whole Constitution.

Mr. Tobias Simon: Yes Your Honor.

Justice Felix Frankfurter: And one of the important provisions of the Constitution is the mode by which things you don't like in the Constitution can be taken out of the Constitution and the mode in the Constitution which is set forth is that changes must be made in an orderly way and not by force and violence.

And you say that a state can say that you must at least agree that the changes that you want to have come into being, the things you don't like -- you don't have to like everything in the Constitution, but there's a provision the Constitution which says if you don't like it then get busy and get it repealed.

Mr. Tobias Simon: But you must support it.

You must --

Justice Felix Frankfurter: And therefore, you say a state cannot ask a man to say, “I believe in the Constitution including that provision of it that the things you want to take out, you should take out by reason and votes and not by force,” isn't that right?

Mr. Tobias Simon: I -- I do not feel that that is anymore consistent than requiring that a man working to amend the Constitution be required to support it during the time that he is amending it.

Now, what Your Honor has stated maybe so and the decision of this Court indicated it was so for an applicant to a bar which is of course within the peculiar ability of a Court to set as to the qualifications of membership of attorneys before a bar.

But I do not think that this general requirement should carry over into the hundreds of thousands of public employees throughout the country because I think that then we will obtain and secure a situation in which all manners of beliefs are going to be inquired into and are going to be required to be set forth.

Justice Felix Frankfurter: That's a different argument.

I'm merely suggesting that a man can shout from his -- from the House top that he doesn't like being compelled and he can shout from the House top that he thinks it was a great mistake to give the women to vote, that doesn't mean he can go out and smash things up because the Constitution indicated how he can bring his disagreements with specifics into -- into realization.

Mr. Tobias Simon: I assure Your Honor I am --

Justice Hugo L. Black: I don't understand that you disagree with that.

Mr. Tobias Simon: I'm sorry sir.

Justice Hugo L. Black: I didn't understand if you disagree with that.

Mr. Tobias Simon: No sir.

I --

Unknown Speaker: (Voice Overlap) --

Mr. Tobias Simon: I assure Your Honor that I am not proposing that Mr. Cramp who was a perfectly good teacher until five minutes before he was presented with this oath or five minutes after he go out and smashed things up.

What I am saying is that if he was a good teacher, he was a good teacher for nine years without the state knowing the first thing about his beliefs.

Justice Felix Frankfurter: And knowing everything --

Mr. Tobias Simon: And I --

Justice Felix Frankfurter: -- about Mr. Cramp.

All I'm suggesting is that it doesn't prevent anybody from expressing the most vehement disagreement with any specific provision of the Constitution and yet to require him to say that he wants the change made by the way in which the Constitution has indicated changes should be made.

Mr. Tobias Simon: Well --

Chief Justice Earl Warren: Mr. Simon, but -- also, I think there are some states in -- I'm trying to think my own, I ought to know because I took the oath a good many times, but I think there are a good many of them that require a man to -- to take an oath that he will not only support the Constitution, but the laws of the State of California.

Now, they don't carry, the laws don't carry that implicit thing in them for -- for repeal Mr. Justice Frankfurter has -- has been talking about.

But I suppose that when I took the oath to support the Constitution of the State -- Constitution and laws of the State of California that I wasn't saying that I believe in the wisdom and the policy of every law that was on our statute books.

I took the oath that I would support them because they were on the statute books and there is a difference between belief in what you will -- what you will do as a public official.

Mr. Tobias Simon: I sincerely hope so Your Honor because that is why I am here.

That is what --

Justice Felix Frankfurter: Nobody has been asking you to say that he believes in all the laws of the State but --

Mr. Tobias Simon: But this --

Justice Felix Frankfurter: -- believing in the Constitution is a very different thing because that's an organic document which has the means of some correction within it --

Chief Justice Earl Warren: The dis --

Justice Felix Frankfurter: -- and the statute doesn't.

Mr. Tobias Simon: Oh I --

Chief Justice Earl Warren: So the distinction without a difference.

Justice Hugo L. Black: What percentage of the people do you suppose do believe that every single provision of any state constitution?

Mr. Tobias Simon: I do not understand the -- these concepts of believing it.

Justice Hugo L. Black: I'm not talking about what's supported.

Mr. Tobias Simon: I -- I --

Justice Hugo L. Black: I recall once from the -- many constitutions have provided that there's no liquor should be sold.

I'm just asking what percentage would you make of the people that take an oath soundly and truthfully, they really genuinely believe that every provisions of every state constitution --

Mr. Tobias Simon: Present company excluded of course, Your Honor, I would venture to say that probably nobody does.

I do not think I have much time left.

Justice Felix Frankfurter: Why do you present company?

Mr. Tobias Simon: Well sir I --

Justice Felix Frankfurter: Because every provision the Constitution has an amendment written into it that if you don't like it get it repealed.

That's also part of every provision.

Justice Hugo L. Black: For a man might try to enforce it and still want to -- and get out and try to get it repealed, might he not?

That frequently have been, doesn't it?

Mr. Tobias Simon: Yes Your Honor.

Justice Hugo L. Black: I have known it to happen.

Mr. Tobias Simon: I would like to reserve my final time for rebuttal.

Chief Justice Earl Warren: You may Mr. -- you may Mr. Simon.

Mr. Wells.

We haven't much time but you can get started.

Argument of J. R. Wells

Mr. J. R. Wells: Mr. Chief Justice, may it please the Court.

It will be my purpose to take up the several clauses of this oath one by one but before I do, I want to call particular attention to the fact that we do not have in this case the kind of situation that was involved in the Wieman versus Updegraff where scienter was construed by the Oklahoma Supreme Court as not being implied in the Oklahoma statute because both prior to the time this oath was submitted to Mr. Cramp for execution and in the course of this case, the Supreme Court as well as the trial court here, specifically held that scienter was implicit in the provisions of the statute.

In going back to the Wieman versus Updegraff case, that was in 1952 that this Court held at an Oklahoma statute requiring a specified oath on the basis of -- was in that -- on the basis that the Oklahoma Supreme Court had held that knowledge was not a factor under the Oklahoma statute.

Chief Justice Earl Warren: We'll recess now Mr. Wells.

[Recess]

Mr. J. R. Wells: May it please the Court.

Just before adjournment, I made mention -- excuse me -- of the case of Wieman versus Updegraff decided by this Court in 1952 in which this Court held invalid an Oklahoma statute because scienter had been -- or knowledge had been held by the Oklahoma Court not to be a factor under the statute.

In the -- two times before this Court had decided the Garner case in which this -- in which knowledge was not referred to in the ordinance there under consideration, but the Court had sustained the ordinance stating we assume that scienter is implicit in each clause of the oath.

And in the Wieman case, this Court commented regarding the Garner case of -- that one of the attacks made on the oath in that case, that is the Garner case was that it violated due process because its negation was not limited to organizations known by the employee to be within the prescribed clause and then the Court said that this argument was objected in that case because we thought justified and assumed that scienter was implicit, each clause of the oath.

In 1957, more than two years before the oath was presented to appellant here for execution.

The Florida Supreme Court had before it the case of State versus Diez in which there was involved an indictment for perjury in connection with the making of an oath under a statute.

And in that indictment, there it was not alleged that the statements were willfully false or anything about the employee having the -- particular individual having knowledge of the subversive nature of the activities.

The -- in holding the indictment defective for one of those allegations, the Court said, this conclusion that is that the indictment was defective does not lead us to a decision declaring the act unconstitutional because we think it is inherent in the law that when one takes the oath, that he has not lent aid, advice, counsel and the like to Communist Parties represent an oath he had not done it -- with knowingly.

And the Court in the discussion in the Diez case discussed both the Garner case and the Wieman case when one of the complaints in the -- complaint by appellant here, in his complaint, was that the Florida statute did not have the element of scienter.

The trial judge said that that contention was not well founded and then quoted from the Diez case.

In the --

Chief Justice Earl Warren: Mr. Wells, in that -- in that case, what phase of the oath was alleged to be precarious --

Mr. J. R. Wells: The lend and aid, support and --

Chief Justice Earl Warren: I beg your pardon.

Mr. J. R. Wells: The lending of aid, support and so forth to the Communist Party in the past.

Chief Justice Earl Warren: What did it allege?

Mr. J. R. Wells: What did the indictment allege?

Chief Justice Earl Warren: Yes.

Mr. J. R. Wells: It merely alleged the fact that he had lent aid, support and so forth but there was no allegation regarding the fact that it was knowingly done or the willfully done it.

And --

Chief Justice Earl Warren: What facts were alleged?

Mr. J. R. Wells: Just the --

Chief Justice Earl Warren: The conclusions?

Mr. J. R. Wells: The fact of lending aid and support, but nothing with regard to knowledge or willful.

Chief Justice Earl Warren: Yes, well, was it just conclusory that -- that he lent his aid and support but -- or did they charge -- charge that he had -- had given some specific support.

I just didn't (Voice Overlap) --

Mr. J. R. Wells: My recollection is that it was in general terms, but I have the case here.

Chief Justice Earl Warren: Well, its -- if you don't --

Mr. J. R. Wells: I don't recall exactly but I think it was in general terms.

Justice William J. Brennan: The attack on the indictment alone or was it after a conviction?

Mr. J. R. Wells: It was attack on the indictment.

The indictment is being held to be insufficient by the trial judge and there was an appeal to the Supreme Court from that decision of the trial judge.

And --

Justice Felix Frankfurter: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: Forgive me for interrupting you.

I didn't hear Mr. Simon in the course of the argument raise the question of scienter so I assumed you accept --

Mr. J. R. Wells: That's --

Justice Felix Frankfurter: You accept the state court's decision that scienter is to be read into the statute and therefore the statute comes here with that -- with that authoritative interpretation of your court.

Mr. J. R. Wells: That's my assumption because I don't read any of his -- either his jurisdictional statement or his brief as raising any question of scienter.

Justice Felix Frankfurter: I just wonder whether your appeal must be taking your time to answer an argument that is --

Mr. J. R. Wells: It may be that I am Your Honor.

Justice Felix Frankfurter: Not that it's been abandoned but he just accept (Voice Overlap) --

Mr. J. R. Wells: And if so, I apologize.

I just wanted to make it clear that scienter was not -- the absence of scienter in the Florida statute was not effective.

Chief Justice Earl Warren: But can you apply that rule of scienter to beliefs?

Mr. J. R. Wells: I apply it Your Honor that he's -- it's got to be a willfully and knowingly false.

In other words, that he has not -- that if he does not -- unless he is willfully and corruptly swearing to it that there could be a prosecution on it.

That's a way -- that's the way I apply it Your Honor.

In other words, there has got to be knowledge of the -- the facts that it is a false statement of belief that it's bona fide that there couldn't be a prosecution of it, but turning then to the allegations of the -- of the statements that have to be in the oath under the Florida statute.

I understand no question is raised with regard to the first statement after the support in the Constitution and so forth that I am not a member of the Communist Party that it is conceded by opposing counsel that that is not an invalid requirement in an oath of this kind.

So that brings it to the second clause or the next clause following that that I have not and will not lend my aid, support, advice, counsel and influence to the Communist Party.

Now, as I understand, the question is put -- is quite well eliminated as to any question that could be raised by somebody else, not a party to this suit.

In other words, as to whether this is a bill of attainder on ex post facto law as to somebody else.

It is not involved here where appellant has alleged that he has never lent aid, support, advice, counsel and influence to Communist Party.

But -- and in our brief, we have made the subsidiary contention that even if that were before the Court that that could be sustained but in view of the fact that it is so clear that he can't raise it, I'm not going to take the time on argument of going into that.

But --

Chief Justice Earl Warren: Would it --

Justice Felix Frankfurter: Are you --

Chief Justice Earl Warren: Go ahead please, please.

Justice Felix Frankfurter: Are you going to argue what you call a subsidiary point that in case he is in no position that the stand -- put the standing problem to one side?

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: And assume it weren't in this case, I understood you to say a minute ago that if that were so, you would also defend -- you would defend the power of Florida that as – (Inaudible) anybody else whom it appoint but assume a teacher, but I have not -- will not lend my aid and support, advice to the Communist Party.

Mr. J. R. Wells: I would Your Honor on the same theory on which the Hawker case was decided and the same theory on which --

Justice Felix Frankfurter: In what case?

Mr. J. R. Wells: The Hawker -- the -- involved in --

Justice Felix Frankfurter: New York?

Mr. J. R. Wells: Yes sir, involving the -- not --

Justice Felix Frankfurter: You have to get a license to be a hawker.

Mr. J. R. Wells: He practiced in Madison and he had committed an abortion 15 years before the Act was passed and yet it was held to be valid to prevent him from practicing medicine and on the same theory on which the DeVeau case I believe it was, was decided two or three years ago by this Court involving the union officers on the Waterfront in which ex-felons were precluded from being union officers notwithstanding the fact that they had been convicted many years before.

Now, I realize that the (Inaudible) case involving an attorney in either Illinois, I believe Illinois or one -- some state has to be taken into account in connection with that where there was just the member of the Communist Party many years before.

But I do think that in view of the element of scienter here, and that you can sustain so far as the school teacher is concerned not requiring the pupils around the hazard of whether a reform has been bona fide where he has knowingly aided a subversive organization in years gone by.

Justice Felix Frankfurter: Let me ask you this question Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: I suppose your state university is dependent on state funds for its activities.

Mr. J. R. Wells: Largely so, yes sir.

Justice Felix Frankfurter: Well, suppose Mr. Simon said there never was a Communist Party on the electoral ticket in Florida.

Mr. J. R. Wells: I don't recall that definitely but I don't think there was.

Justice Felix Frankfurter: Well, suppose the Communist Party of United States in 1924 or 1925 found out that there was a campaign on to increase the appropriations for the University of Florida, to double the appropriations of the previous years, I don't know whether they did it one year or two years.

Two years?

Mr. J. R. Wells: Two years Your Honor.

Justice Felix Frankfurter: Suppose there was up a referendum to issue bonds to double the appropriations to the University of Florida, and suppose the Communist Party had sent in its most vocal leaders to support such an amendment and made a lot of noise in support of it.

And suppose some members of the faculties in University of Florida were on the same platform with the Communist Party leader, solely -- had a meeting solely restricted to promoting the adoption of that bond issue amendment.

Now it could be argued that thereby he was aiding -- couldn't it be argued that he was aiding or couldn't it be fairly argued that that was an aid of the Communist Party because he lent his prestige and his respectability, etcetera, etcetera, etcetera. Couldn't that be argued?

Mr. J. R. Wells: I felt that Your Honor that that would come within it for the reason that I don't think parallelism of action would -- I think it would --

Justice Felix Frankfurter: Well it doesn't --

Mr. J. R. Wells: -- be an aid to the Communist Party.

Justice Felix Frankfurter: Well, when you say you doubted it, I -- am I -- is it fair to imply that it would raise a question and a conscientious lawyer could argue that's an aid?

Mr. J. R. Wells: Well, it's hard to --

Justice Felix Frankfurter: At all events, it isn't like the Hawker case or the DeVeau case where the Court had before it the consequences that a state may be allowed to draw from a criminal conviction and the relation of such a criminal conviction to a subsequent position of responsibility.

Mr. J. R. Wells: You don't have the element of a conviction.

No, Your Honor.

Justice Felix Frankfurter: But it only meant words like aid or support, for instance, support if a distinguished member of the University of Florida is on the same platform under the auspicious of the Communist Party sponsoring increased appropriations for the university.

It could be a man wouldn't -- wouldn't look ridiculous or wouldn't be left out of the Court if he was totally supporting the Communist Party, would he?

Mr. J. R. Wells: Well, of course it's -- it's hard to say what a -- a man would be left out of (Inaudible) on various things --

Justice Felix Frankfurter: But (Voice Overlap) --

Mr. J. R. Wells: -- but I don't believe that would be a reasonable (Inaudible) --

Justice Felix Frankfurter: But if --

Justice William O. Douglas: If you had -- if he had six of them or eight of them or ten of them of the same quality, you wouldn't hesitate to take your case on that -- on parallelism, would you?

Mr. J. R. Wells: I don't believe that unless there was a direct element of aiding and supporting in connection with a -- contributing toward the subversive aims, I don't believe that that could reasonably come within it.

Justice Felix Frankfurter: But Mr. -- Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: The trouble is in your -- in your fair mind and conscientious way, you have a like to say you don't believe it, but the difficulties that I had and why, it has simply been -- what was it, Updegraff and Wieman or the other way around or was it a conscientious man taking an oath wouldn't know what he was taking an oath to.

He might say, well, I'm -- he -- I was once on a platform with Foster or what's the other fellow's name, the leader and I don't know if I swear, I never did.

It might hold me up one of these days and said, “Well, weren't you the chairman of the meeting at which -- with you meeting Foster, you made a (Inaudible) haranguing speech?

He wouldn't know, would he?

I mean a conscientious man, particularly if he isn't a lawyer hasn't the great advantage that you and I have of knowing how we play with words in the law, he might pause, wouldn't he?

Mr. J. R. Wells: Well, of course it's possible Your Honor but there are many matters that come up in connection with laws and indefiniteness where arguments can be made one way or the other and yet the laws can be held to be of sufficient depth.

Justice Felix Frankfurter: Yes.

You're asking him to swear to this thing and I'm just putting it to you.

Mr. J. R. Wells: But the element of scienter is in there Your Honor.

Justice Felix Frankfurter: Yes I know, with knowledge.

He has all the knowledge --

Mr. J. R. Wells: But does he -- and does --

Justice Felix Frankfurter: Yes but I was on that platform (Voice Overlap) --

Mr. J. R. Wells: Well, unless he intends to aid the Communist Party as such.

I don't see how he could possibly come within it.

Justice Felix Frankfurter: Well, I think from personal experience, I was once a chairman at a meeting in Boston way back, and the purpose of the meeting was to urge the Government of United States to recognize the soviet country, the present regime in Russia long before we did.

And we had all the parts of it or mix bag of speakers.

And I can assure you all sorts of inferences that might seem to you and did to me at the time ludicrous could be drawn from such chairmanship, was drawn.

Now, if I have to swear lawyer that I am, if I had to swear that I never hated the Communist Party because of the communist speaker at that meeting, in Nathaniel Hall or it was Faneuil Hall, the cradle of liberties so-called, I would fall even as a lawyer in saying I don't want to be -- oh yes, I know that I could not know sensible juries convict me but then juries aren't always sensible, no Supreme Court would sustain the conviction but then the Supreme Court aren't always sensible at least in the eyes of the various people in distant times.

It's a problem that confronts the man who's asked to take an oath which has these dubious possibilities.

Mr. J. R. Wells: Well, I realize that a contention can be made that the -- that there's too much of an indebtedness in that Your Honor but I -- when you have the scienter as a factor in it, I don't believe that that is sufficient that the oath should be declared unconstitutional on the basis of indebtedness.

Justice Felix Frankfurter: It wasn't your -- it wouldn't -- doesn't it make a difference how -- how needed this is, how essential this is to protect the interest that you have a right to protect from my point of view.

It means at any time.

Suppose you say -- if it's scienter, suppose you say it makes a difference whether its 40 years or two years or three years or five years, doesn't it?

And when you have a territory where conscientious men may forge long before they sign in the affidavit which has potentialities of perjury in the system, I don't mean conscious perjury but you've got a problem, haven't you?

At least that's what -- that's what's we had in Wieman against Updegraff and you have to hurdle that case, don't you?

Mr. J. R. Wells: Well, in that case though, the knowledge was held not to be a factor under the Oklahoma statute by the -- by the Oklahoma Court.

In other words, that was the difference between that case and our situation that is -- that that --

Justice William O. Douglas: It had no --

Mr. J. R. Wells: -- differences in the statute.

Justice William O. Douglas: You haven't -- maybe you have but I have -- I haven't been able to follow.

Disentangle the -- what we call the illegal purposes of the party and the -- what may be the lawful purposes of the party.

The party as far as I know may be for maternity care, against juvenile delinquency, for disarmament, for peace and all sorts of things.

My question is how an association purposes that may be up -- completely lawful, could be used under this statutory scheme.

Mr. J. R. Wells: I don't believe that those purposes could come within the purport of the activeness to Justice Douglas.

Justice William O. Douglas: Tell me again just why.

Mr. J. R. Wells: On account of the fact that the subversive character --

Justice William O. Douglas: But the statute says by aid, support, advice, counsel or influence to the.

Mr. J. R. Wells: Well --

Justice William O. Douglas: -- Communist Party which may have --

Mr. J. R. Wells: That -- that is construed by the Court to have reference to the subversive character.

Justice William O. Douglas: Where is that precisely?

Mr. J. R. Wells: It is on page 13 of the record Your Honor.

Justice Hugo L. Black: Suppose they knew that the Communist Party intended to be subversive, had full knowledge of it, he attended a meeting such as Mr. Justice Frankfurter mentioned where they talked about various things where this man was the chairman of the meeting or made a speech like De Jonge in Oregon, would you say that the fact that he knew about it would take away from him the protection of the First Amendment of the freedom to be there?

Justice William O. Douglas: Where -- where his advocacy or belief or what not promotes a wholly lawful phase of a subversive organizations' activities.

Mr. J. R. Wells: I think it would depend Your Honor on the motive.

In other words, whether there was a motive to advance the party knowing of its subversive character or whether it was a -- purpose of events and cause.

Justice William O. Douglas: Well, the De Jonge, the man, De Jonge undoubtedly knew about the full scope of the purpose of the party but he was held immune there because the purpose of the meeting it had -- which he attended was to aid strikers or to give relief to picket lines or something in that category that was wholly lawful.

Mr. J. R. Wells: Well, I think that that would be that same distinction here Your Honor.

Justice William O. Douglas: But I don't find it in the case of the report that you -- record that you refer to --

Mr. J. R. Wells: Well it --

Justice William O. Douglas: -- because there it says whether he has been or is or has been innocently and knowingly aligned with a subversive.

Now, De Jonge walks into the meeting knowing what the full scope of the Communist Party program is, but they're there that evening not for blowing up things but for promotion of a local cause.

Would he be caught under your statute?

Mr. J. R. Wells: I don't think he would unless his motive was to advance the cause of the party as distinguished from an advancing the cause that the party was also seeking to advance.

Justice Hugo L. Black: Well suppose a speaker had preceded him who advocated the Communist Party in its aims.

He got up and talked on a perfectly lawful subject.

Mr. J. R. Wells: Well, I don't see how unless in other words, unless the -- what he did was done for the purpose of advancing the Communist Party as distinguished from advancing the cause there that the Communist Party was also seeking to advance at the time.

I --

Justice Hugo L. Black: You mean if he had talked on something that was purposely lawful, advocated the cause that many people before (Inaudible) that the jury could convict him if they thought from the evidence of a speaker preceding him had advocated the Communist Party.

Mr. J. R. Wells: I don't think that that would be --

Justice Hugo L. Black: He too wanted -- he too wanted to aid the Communist Party looking to his motives.

Mr. J. R. Wells: I don't think that that would be sufficient Your Honor.

Justice Hugo L. Black: That -- then you wouldn't look to his motives.

Mr. J. R. Wells: I think you look to his motives but I think you'd have to have more than that to establish his motives.

Justice Felix Frankfurter: Mr. Wells, my narrow point is this that if you were defending this man in the hypothesis put, I'm confident if you let me say so that you get them all but you might not, you might not.

A perfectly clear cut case have reached -- have led the men in the jury box to reach a different conclusion and I'm suggesting that a lot of school teachers who aren't versed in the dialectics of the law might feel queasy and (Inaudible) naturally and justifiably queasy about running an affidavit that might lead them into -- into criminal -- into a criminal prosecution even if they're usually the defendant and whereas such a risk -- such a risk can be unfold upon by the state, it is as narrow as that --

Mr. J. R. Wells: Well, I can understand the point that Your Honor is putting and raising and realize that it's a point that has to be faced in the case, but I don't believe that it should be fatal to the -- to the statute.

Justice Felix Frankfurter: If you have -- it shouldn't be fatal to the statute if you can give a really strong weighty counter consideration why this is the way that a reasonable legislature must deal with the problem with which it has a right to deal with, namely, that puts no time limit, refuses voguish words which is susceptible of ambiguous construction etcetera, etcetera.

Mr. J. R. Wells: Of course, I realize Your Honor that the alternatives are to be taken into account to a brief but I think also that the legislature is not bound to consider the best possible alternative.

Justice Felix Frankfurter: I'm with you on that.

Mr. J. R. Wells: And that if this has a reasonable connection with a purpose which they have a right to achieve that it is something that they could have adopted.

Now, what is the purpose that they have a right to achieve so far as school teachers are concerned?

It is that in this sensitive area that persons not be teaching school where there is an undue hazard that they may be disloyal to the United States Government.

Now, this Court held in the Garner case, I think with seven out of eight of the participating justices agreeing that the provision of the affidavit plan to the effect that they were required to state whether they had ever been a member of the Communist Party, and if so, when?

Now, that went back to the indefinite past and yet that was sustained by -- by this Court, by an overwhelming vote of the justices.

Justice Felix Frankfurter: That's much more definite than this, isn't it Mr. Wells?

Mr. J. R. Wells: Well, it --

Justice Felix Frankfurter: Whether a man has been a member of a party -- there isn't much room for a debate about that.

There is some.

I'm not unaware of it but not -- nothing like aid, support, what is it?

Influence --

Chief Justice Earl Warren: Counsel.

Justice Felix Frankfurter: -- counsel.

Those are -- those of (Inaudible) words.

Those are the grab bag words, aren't they?

I don't mean they were grab bag but they're -- they're words of breadth.

Mr. J. R. Wells: Well, they are words of breadth but I think the words like counsel and advice that they have had a long history of having been used in connection with accessories, words of that kind, accessory before it, in fact on crime and things of that kind and I think all that needs to be taken into account in determining in the meaning to be attached to it as to whether the --

Justice Felix Frankfurter: They made an influence on ethnic -- aren't words of ours, are they, influence?

Mr. J. R. Wells: Well, influence is sometimes used in connection as influence in an act in connection with accessory before the fact but advice and counsel are more.

Justice Felix Frankfurter: Mr. Dale Carnegie uses them in a different sense, doesn't he?

Mr. J. R. Wells: I believe it does Your Honor.

Chief Justice Earl Warren: Mr. Wells, may I ask you this --

Mr. J. R. Wells: Yes sir.

Chief Justice Earl Warren: -- this question?

Assuming for the moment that this oath does invade constitutional rights under certain circumstances, just assuming that?

Mr. J. R. Wells: Yes sir.

Chief Justice Earl Warren: Does that lead you to the conclusion that no redress can be given to an admittedly loyal American citizen just because he asserts his loyalty.

But on the other hand, redress is restricted to communists who are admittedly disloyal.

Mr. J. R. Wells: I don't know that the question can be answered strictly that we -- Your Honor.

Chief Justice Earl Warren: Well, we've got the two extremes, two poles and --

Mr. J. R. Wells: Well, I take it for instance as applied specifically to the past, I think it's quite definite that the -- a party cannot raise a question for someone else on a constitutional question.

Chief Justice Earl Warren: That wasn't the question I asked you.

I asked you admittedly, is -- is redress denied to a man who assertedly and admittedly is a loyal citizen, but on the contrary that any redress open to anyone if there is an invasion of constitutional rights is limited to communists who are admittedly disloyal.

Mr. J. R. Wells: If they are -- to a loyal American, if his rights -- if his constitutional rights have been invaded then there certainly is redress.

Chief Justice Earl Warren: Regardless of whether he claims to be loyal or not.

Mr. J. R. Wells: That's as to whether if his constitutional rights have been invaded.

Chief Justice Earl Warren: That's right.

Mr. J. R. Wells: But the -- I think the -- it does affect whether his constitutional rights has been invaded.

What his position is and what -- how he stands with relation to the oath as to --

Chief Justice Earl Warren: In other words --

Mr. J. R. Wells: -- whether his constitutional rights have been invaded.

Chief Justice Earl Warren: Well, I'll put it this way.

In other words, if he is -- if he is a loyal American citizen and that should close the book, shouldn't it on the situation, he can be compelled to take this kind -- kind of an oath but if he is a communist and is disloyal, he need not -- he need not take it, assuming that there is some invasion of constitutional rights.

Mr. J. R. Wells: Well, that would depend on whether there is an invasion of his constitutional rights.

There's an invasion of his constitutional rights then he can't be required to take it.

I think if it --

Chief Justice Earl Warren: Well, tell me this then.

What rights of a communist can be invaded and be subject to redress without the same invasion giving a loyal American citizen a right to redress?

Mr. J. R. Wells: Well, a communist or a person who has lent aid or support to the Communist Party years ago and has reformed then he would be entitled to raise a question as to whether that was a bill of attainder or ex post facto law as to whether how that -- it would be answered, it would be a different question but he would be entitled to raise that question as to whether there was passed to him a bill of attainder or ex post facto law.

But I don't think that a person who says that he has never lent aid, support and so forth to the Communist Party can raise the question as to whether it's an ex post facto law or bill of attainder because it couldn't possibly be as to him.

Chief Justice Earl Warren: Yes, but suppose a man -- a man like Justice Frankfurter was talking about, a man who had supported certain causes that the Communist Party supports.

Suppose he supported a broad program of public housing, a broad program of maternal care, broad program of let us say public medicine and things of that kind, suppose he supported those things permanently but did not support any of their subversive programs, would he then -- would he -- wouldn't he then have a -- have to stop, look and listen before he signed any such affidavit for fear, three or four half a dozen people would say I saw him on the platform with so and so.

I saw him when the communists were advocating this or advocating that.

He spoke from those very, very things in company with them on the same platform.

Wouldn't a man in that position be in a delicate -- delicate position to sign an affidavit of that kind on the question of beliefs and counsel and aid and so forth?

Mr. J. R. Wells: Oh, I think he would -- he would have the right to raise the question as to whether his constitutional rights had been invaded by the unconstitutionally vague statute as -- but I don't believe --

Chief Justice Earl Warren: Where could he -- when -- where could he raise it?

When he's charged with perjury?

Mr. J. R. Wells: I think he could raise it in advance although I do think --

Chief Justice Earl Warren: Do you have procedure for that in Florida?

Mr. J. R. Wells: Well, I think -- I think he could raise it in a type of procedures that is raised – that's invoked here.

But if I say I think he could raise it in a type of procedure that was invoked to him, declaratory decree if his constitutional rights have been invaded.

But I question that his constitutional rights have been invaded and also, I think that if a person is not in a very good position to say that I could not sign that oath as to whether to the effect that I've never lent aid and support because of doubt as to what might be considered aid-support and yet at the same time square that I have never lent aid or support.

Chief Justice Earl Warren: But suppose the man was in this position.

Suppose he said -- he said, “Yes, I was -- I was very much in favor with all of these things and I have -- have enumerated and I did cooperate with the -- with the Communist Party when they were advocating such things but I have no truck at all with their other -- with their other beliefs but I did counsel with them.

I did advice them, I did -- I did talk with them on the -- on the platform.”

What would his position be then?

Mr. J. R. Wells: Well, that gets to the question as to whether it is fatally indefinite and with the scienter in there, I don't think it is fatally in depth because you've got to show a lack of bona fides in connection with it and I don't think that there -- in order to show that it was false and I don't think that that could ever be shown.

Chief Justice Earl Warren: Was there anything in -- in -- in the statute or in the decisions of your Florida Supreme Court which hold that the -- that the cooperation and the -- and the counseling and assistance and so forth that is contemplated by this oath must be as to those facets of the Communist Party that have to do with overthrowing our government?

Mr. J. R. Wells: I don't -- I think that the statement by the Court in this decision substantially holds that Your Honor.

Chief Justice Earl Warren: Where?

Mr. J. R. Wells: In the statements.

Chief Justice Earl Warren: What does it say?

Where -- where can we find that?

Mr. J. R. Wells: At the bottom of page 13 of the record.

Chief Justice Earl Warren: Of the record.

Mr. J. R. Wells: Yes.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: May I ask you to get there from my mind about this.

Mr. J. R. Wells: Yes sir.

Justice Hugo L. Black: Is it your argument that no man can raise this who is not affected by it and no man can be affected by it unless he's been guilty of the things which it prohibits?

Mr. J. R. Wells: Not exactly Your Honor.

It is --

Justice Hugo L. Black: But it is your idea that in order to challenge it, he must show -- he comes within the class who have either been a communist, is a communist who has advised, aided and abetted communists.

Mr. J. R. Wells: It is my position that where he shows that he has not --

Justice Hugo L. Black: Suppose he hadn't shown he has not?

Suppose he just comes in and says, “I want to raise the question of the constitutionality of this” and they say, “Well, you've got to show you were within the class by denying that you are -- by admitting that you have done some of these things.”

Mr. J. R. Wells: Well, I think that that would be a more questionable --

Justice Hugo L. Black: More questionable?

But if it's the other way, if -- why wouldn't it be here that if a -- is it your argument that this particular man does not have the right standing because he has denied that he's been a communist or is it your idea that a man must show he comes within the class that it touches, which is it?

Mr. J. R. Wells: Well, I think it's necessary that he show that he come within the class Your Honor.

Justice Hugo L. Black: Suppose he (Voice Overlap) --

Mr. J. R. Wells: However -- but -- certainly if he (Voice Overlap) --

Justice Hugo L. Black: Suppose he didn't come (Voice Overlap) --

Mr. J. R. Wells: -- he doesn't come within the class --

Justice Hugo L. Black: Suppose he just comes and says, “I'm not going to answer this.

The laws are unconstitutional.”

And they say, “Well, does it affect you?”

He said, “I won't say it.”

Mr. J. R. Wells: Well --

Justice Hugo L. Black: Would he have standing?

Mr. J. R. Wells: I doubt that he would but of this situation that he --

Justice Hugo L. Black: In other words, he decided to come in -- when he's got to come in and do as I -- your argument, as I understand it, is to come in first and either admit that he is a communist or has done these things under which -- under which circumstances, he would have standing to challenge.

Mr. J. R. Wells: I think it depends on which standing the question what it would be brought.

Justice Hugo L. Black: Standing the question of this Act.

Mr. J. R. Wells: Well, I think he has standing in the question of the act on certain basis of it without regard to that, but I don't think he's got standing to contend that it is an ex post facto law or bill of attainder.

Justice Hugo L. Black: Why not, what's the difference?

Mr. J. R. Wells: On account of the fact that it cannot be an ex post facto or bill of attainder unless it adversely affects him.

Justice Hugo L. Black: Well, is that the only one you claim that he doesn't have standing to raise here?

Mr. J. R. Wells: Well, I think that it's affected seriously where he -- on the -- in the question of vagueness.

Justice Hugo L. Black: Do you think he doesn't have the right to raise that?

Mr. J. R. Wells: I doubt that he has the right to raise the question of vagueness where he comes in and swears to the facts that he says, the oath is too vague with regard to.

Justice Hugo L. Black: Well, I don't quite get what a man would have the right to challenge.

I've always -- suppose that the only -- that the man had have a right to challenge the law, he's accused of doing something under it and that he wouldn't have to come in and admit that he'd done it before he'd have standing to sue -- to challenge it.

He doesn't have to do that, does he?

Mr. J. R. Wells: No sir, no sir.

I don't think that's been (Voice Overlap) --

Justice Hugo L. Black: But he doesn't have to admit he comes within the class that covers, does he, so far as his conduct is concerned?

Mr. J. R. Wells: I don't think he does, generally speaking, no.

But if he shows that he --

Justice Hugo L. Black: Do you think he does under communist act but not generally, is that it?

Mr. J. R. Wells: No sir.

I don't think that that is our position Your Honor.

Justice Felix Frankfurter: Mr. Wells, there is a difference, isn't there between a man coming in to court and say, “I'm asked to sign a document.

You have no business to ask me.

I signed it and therefore I ask you to strike it down” and a man saying, “You're asking me to sign a document.

I'm perfectly ready to sign it or it doesn't cause me any kind of recognizable harm to sign it but I'd like to have the Court to make a ruling on this question.”

There is a difference between those two situations.

Mr. J. R. Wells: Well, that was the --

Justice Felix Frankfurter: I'm not saying that this is a good situation --

Mr. J. R. Wells: -- the point I was trying to make Your Honor.

Justice Felix Frankfurter: -- I don't think it is but there is a difference.

Justice Hugo L. Black: I -- I was just going to ask you if you don't think that's happened here, do you?

He hadn't come in and said that I can't possibly be touched by this Act.

Mr. J. R. Wells: I think he has to in large measure Your Honor where he says, “I have not lent aid, support and so forth to the Communist Party.

I'm not a communist.

I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence and I'm not a member of an organization or parties that believes in or teaches the overthrow and --”

Justice Felix Frankfurter: Mr. Wells, isn't the truth of the matter just as interpreting what this really means, I haven't -- I don't live inside of the mind or the threat or with the constraints but he's trying, quite understandably, he's trying to ride through horses which is a feat that's not too impossible.

He's trying to say, “It's none of your business to ask me these questions but I don't want to appear -- I want to appear in the best possible life.

So I disavow having done any of the things that are disapproved by the oath.

He decides to do both those things.”

Isn't that right?

Mr. J. R. Wells: Well, to -- I think in large measure Your Honor that is right.

And I think --

Justice Hugo L. Black: Suppose he has -- suppose he has, how does he know that the state must -- that he hasn't done would not be disapproved by a group of informers or group of other people, how could you know?

Mr. J. R. Wells: Well, of course that gets to --

Justice Felix Frankfurter: That's the vice of (Inaudible) --

Mr. J. R. Wells: That gets to the question of whether it is fatally indefinite and if the statute is fatally indefinite then I don't question that the statute is invalid but that gets back to the question as to whether it is fatally indefinite.

Justice Felix Frankfurter: When you say fatally indefinite, I think if I may say so you're conjoining two very different things.

The statute isn't indefinite to defend that -- one doesn't know what it means.

It's often when one does know what it means, it raises difficulties which -- while we're here which raises a constitutional question whether you have a right to put a man in that situation.

It's perfectly plain what it means namely that you mustn't have been guilty of -- you mustn't have conducted yourself or to bring yourself within any of these rubrics.

The trouble is, as is pointed out several times in the course of this argument, this may subject him in a lawsuit and everybody knows that the lawsuit is a gamble.

Mr. J. R. Wells: I realize that there is that possibility Your Honor.

Well, the next clause of the oath --

Justice Charles E. Whittaker: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Charles E. Whittaker: This is the heart of the case for me here.

Here is an averment either that one can or that he cannot make such an affidavit in such a case ever relevant in such a case?

Mr. J. R. Wells: I believe it is Your Honor.

I believe it's relevant.

You mean as to whether he can make the --

Justice Charles E. Whittaker: Whether he could -- whether he is able by reason of his past conduct to make the affidavit or he is not able, is that ever a relevant averment in a complaint in the case like this?

I'm thinking that if it is then one who doesn't say as this plaintiff did say, “I can honestly make the affidavit” would be presumed to be unable to make it.

So is it ever relevant such an allegation?

Mr. J. R. Wells: I don't know.

I'm sorry that I'm --

Justice John M. Harlan: I thought your position was that it might be relevant on the question of the state rule that says that you cannot come in and raise a constitutional claim if this appears in the face of your complaint, the -- if you don't claim here, that'd be personal injury -- personally injured by the claim if it's -- if by the statute if it's enforced against you and all you want is a general declaration of rights under the law.

I thought that's what you state the Supreme Court had said.

Mr. J. R. Wells: I think that that is -- is what enforced.

Justice Charles E. Whittaker: Well, isn't that quite another thing even if these averments of the kind made by here by this petitioner in paragraph 6 on page 2 of this record are irrelevant and are not necessary.

Yet by making them, is it true as I understand your court has held that he has reduced his complaint to a request for an advisory opinion and therefore has shown its non-justiciability?

Mr. J. R. Wells: I think that --

Justice Charles E. Whittaker: That's a different question isn't it?

Mr. J. R. Wells: I would have thought it was at least to the clause and relief question Your Honor.

Justice Charles E. Whittaker: Well, even if such an averment could never be relevant yet one might voluntarily by allegations like those in paragraph 6 of this complaint, show that he could not be injured by them and say, “I can make” as he says he can make this very affidavit and therefore reduced his complaint to a mere request upon the Court to render to him an advisory opinion.

Mr. J. R. Wells: Well, I -- I think that's -- I think that's correct Your Honor.

That's correct.

Justice Hugo L. Black: Suppose it is true that a person has no standing to sue in the Florida Court, do you think he's having a standing to raise this constitutional question in any way?

Mr. J. R. Wells: I think the --

Justice Hugo L. Black: And so where would it be but the federal courts.

Mr. J. R. Wells: I think the Florida rule on that is that has been referred to as a state rule is similar to a rule that this Court has announced as to the necessity of a person injured in -- a necessity of a person being injured in order to get a decision on the constitutional question.

Justice Hugo L. Black: But that's -- that's arguing the merits of the rule not what I understood Justice Harlan to be talking about that this is a Florida rule.

Mr. J. R. Wells: Well, if -- if that is --

Justice Hugo L. Black: What about Mooney and Holohan that Florida won't let him raise?

Mr. J. R. Wells: I beg your pardon.

Justice Hugo L. Black: What about the rule in Mooney and Holohan that Florida will not let him raise this constitutional question?

Mr. J. R. Wells: You mean as to --

Justice Hugo L. Black: The right to raise it in the federal court.

Mr. J. R. Wells: Well, it's entirely possible that there might be the right.

I haven't --

Justice Hugo L. Black: Is it your idea that your Florida rule is intended to be played that whether the federal rule required to be not -- this man shall not be allowed to raise this constitutional question in the Florida Court under the circumstances here?

Mr. J. R. Wells: I think so far as this case is concerned Your Honor that if the -- if the Florida Court has announced a rule which is a sufficient rule of state law to decide this case then as to whether there's any other redress I think would be a question for another case.

Justice Hugo L. Black: Well, are you arguing that it's still the Florida rule or that you're following the federal court to say it has no chance to -- suppose you're wrong on the federal rule --

Mr. J. R. Wells: Well, I'm saying --

Justice Hugo L. Black: -- do you still say that Florida will deny him relief?

Mr. J. R. Wells: I feel like Your Honor that the Florida rule is sufficient to deny him relief.

Justice Hugo L. Black: In Florida.

Mr. J. R. Wells: In Florida.

Now, I'm under the general impression that the federal rule is not too much different from the Florida rule in that regard but I'm --

Justice Hugo L. Black: But that would result in -- meaning that the man can have his constitutional right violated with no possible remedy in the federal or state court.

I thought Mooney and Holohan held different.

Mr. J. R. Wells: Well, I don't --

Justice Hugo L. Black: I thought --

Mr. J. R. Wells: I'm not familiar with those two decisions that the --

Justice Hugo L. Black: Mooney versus Holohan where the question was whether California has failed to give a remedy where there was a charge that the man had been convicted on perjurious evidence knowing that the evidence was -- the state knowing it was fault.

That was (Voice Overlap) --

Mr. J. R. Wells: I remember something out of the case now Your Honor.

I didn't recall it (Inaudible)

Justice Hugo L. Black: And this Court held that it would not have -- as I recall it.

I haven't read it yet, (Inaudible) it would not assume that California would not give a relief in the federal constitution is violated, the man is condemned from the consideration on that basis.

I think that was (Inaudible) --

Justice Felix Frankfurter: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: The -- I think I've been talking a little bit at large as to what the complaint says and what the courts held.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: To be sure, paragraph 7, the complaint says, the plaintiff is a loyal American and does not decline to execute (Inaudible) oath of fear of the penalty provided by law of false oath.

And then it goes on in the next paragraph and says, “nevertheless he objects to it” because to require him to swear that he has not lent aid, support etcetera, brings him in the violation of the due process of law.

He doesn't spell out why it's a due process of law, but he has a right not to foreclose in making any proper inferences drawn from the (Inaudible) of what he does.

Now, your Supreme Court didn't say, which for me would make a very difference -- it'd be a different case, your Supreme Court doesn't -- hasn't said that in view of paragraph 7, despite his reliance on due process, he has said in effect that I have no concern with the consequences of signing this oath.

I'm not worried that any jury in Florida would -- could construe such an oath by lending aid and support, except to mean that I was a member of the Communist Party, that I have a definite organic relation with the party.

And if he wanted to say that then under Florida law, it should have been more particular.

For myself, I think Florida can -- if he chooses to continue the common law pleading which strict -- with all the strict technicalities of that system of pleading.

All your Supreme Court had said was this, “By the allegations of his complaint, the appellant under oath affirmatively denied any present or past associations which would preclude him from executing the subject oath.”

He stated in his complaint quote, “That he has not, does not and will not lend aid, support or advice, counsel or influence the Communist Party.”

That's all I find in the opinion of the court that you point out some things that I've missed as well I might have.

And therefore, all they gather from his disavow is that he was not -- that he did not have present or past association with the Communist Party.

Now, that for me still leaves open the danger he runs of having perfectly innocent constitutionally allowable conduct interpreted by a jury with the finding that he did give aid or support.

Mr. J. R. Wells: Oh, did Your Honor read from the bottom of page 18 and top of page 19?

Justice Felix Frankfurter: That's what I've been reading from.

Mr. J. R. Wells: I didn't --

Justice Felix Frankfurter: That's just what I've been reading from Mr. Wells and that's all I find.

For myself, I think states can be as pugnacitive as they want to be so long as they don't use pugnacities as a means of defeating federal rights because they can be as exacting as they plead in pleadings, but I don't find that the Supreme Court here has made any such ruling.

Mr. J. R. Wells: Well, I see that my time is nearly up and I'll just briefly refer to the clause of the oath.

I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence.

I would like to call your particular attention to the fact that the language there does not contain the words that Mr. Justice Frankfurter felt to be particularly obnoxious in the Douds case with regard to where -- by unconstitutional or illegal means that they are not in the Florida statute and that this is limited to the violent overthrow by force or violence which I think would go far to eliminate the objections that was dealt in part in the Douds case.

Now, I think the -- on that clause, the validity of the oath might well depend on what is to be meant, considered to be meant by that expression.

In other words, does that refer to a belief in the abstract doctrine of the overthrow of Government by force or violence or does that have reference to the overthrow as an objective of the Government as presently constituted by force and violence.

And I think that it definitely has reference to the overthrow as an objective of the Government by force or violence -- as presently constituted and does not refer to any plea within the -- for some conceivable set of circumstances not now existing or some dictatorship or something of that kind.

Thank you Your Honors.

Chief Justice Earl Warren: Mr. Simon.

Rebuttal of Tobias Simon

Mr. Tobias Simon: The Court will note from the brief that this action was brought in Orange County, Florida pursuant to the provisions of Florida statute 87.01 which under Florida law permits an individual who is in doubt as to his status and his rights under a Florida statute to bring an action for declaratory relief.

Now, this is not a procedure that is available in every state.

It is available within the federal system.

And while this does not give an individual the right to ask for and secure an advisory opinion, it is something very close to that.

It does give him the right to have the Court adjudicate for him whether he is required to sign -- in this case, sign this oath or not.

I think it is important to point out to this Court that there were at least and not less than six points raised on our appeal to the Florida Supreme Court and the Florida Supreme Court answered all six points, five of them in a substantive manner.

They said, for example, that the question of scienter was no longer in the case.

They said that the question of preemption of subversion under the Nelson case is no longer in the case.

They ruled specifically on the question of whether we had to take this oath or whether the Constitution of Florida limited public employees to a constitutional oath.

They ruled and said specifically that anybody who can read English as to the requirements of the statute knows exactly what it means on the question of the so-called vice of vagueness.

They also said that due process and First Amendment provisions were not applicable and then and only then on pages 17, 18 and 19 of the record did they come to the question of ex post facto and bill of attainder and they said with regard to these questions and only these questions do we maintain that there is no standing to sue.

Florida did not say that there was no standing to sue with regard to the other questions.

Justice Charles E. Whittaker: May I ask you Mr. Simon.

Is the effect of that argument to regard paragraphs 6 and 7 of the complaint as surplusage?

What effect have they under this argument?

Mr. Tobias Simon: It is not surplusage according to the Florida Supreme Court with regard to the questions of ex post facto and bill of attainder.

They said that this man cannot raise the question whether -- and they said specifically on page 19 of the record, there could not and I quote, “There could not possibly be a legislative adjudication of guilt for the simple reason that the complaint on which the appellant stands and set up firmly points out.”

They said the same thing that this statute could not constitute an ex post facto law as to this appellant but they did not say that this appellant was not permitted to raise the due process question and they did not say that this appellant -- of course they said that there was no denial of due process, but they ruled on that and they did not answer the other questions on this ground which if they have wanted to, they could have dismissed our entire brief and our entire complaint raising six assignments of error on this last one and they did not do it for the simple reason that the Florida Supreme Court did not hold that there was no standing to sue.

We submit that where this man's rights are being invaded as we maintain they are by forcing him to do something as a condition of his employment which he is not required to do, the fact that he is willing to show himself in a good life to this Court.

To come in as a sheep rather than as a goat does not destroy his rights.

Justice Felix Frankfurter: Mr. Simon before you sit down, in view of the breadth of your argument remain, I would like to ask you namely that no belief can constitutionally be inquired as to anybody who seeks office under the United States or state government, is that right?

Mr. Tobias Simon: Mr. Justice Frankfurter, I do not feel that my argument has to reach that point.

There may be cases wherein a guard of the president may be inquired -- one may require him to express his belief --

Justice Felix Frankfurter: Let me -- let me put a case that is in regard to the President.

The thing I referred to you but I didn't have the text before me.

The TVA Act has this provision, all members of the board shall be persons who profess a belief, just listen in what (Inaudible) this professor believes in, you must profess a belief in the feasibility and wisdom of this Act.

I gather from your argument as an unconstitutional assertion of power by the President -- by the Congress.

Mr. Tobias Simon: I have not represented the TVA nor the (Voice Overlap) of the Act and I would --

Justice Felix Frankfurter: I know but our argument either -- argument either have relevance or they don't have relevance.

Mr. Tobias Simon: And --

Justice Felix Frankfurter: And the lawyer says that a government can't ask its appointees whether they have a belief in the Constitution of the United States and its entirety or a belief in an Act under which they're supposed to act or belief in the law and the members of the law faculty then I have a right to put you a concrete case in order to test your argument.

Mr. Tobias Simon: My answer to that sir is that that particular provision in my opinion and based upon what I understand to be the decisions of this Court is that the federal government nor the government of Florida can reach into a man's mind and require it to be divulged as the condition of any governmental favor or employment.

Justice Felix Frankfurter: So that that's an unconstitutional provision in the TVA.

Mr. Tobias Simon: It was so here sir, yes sir.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: Thank you Your Honor.

Featured: