Elfbrandt v. Russell, 384 U.S. 11 (1966)

Author: Justice Douglas

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Elfbrandt v. Russell, 384 U.S. 11 (1966)

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This case, which involves questions concerning the constitutionality of an Arizona Act requiring an oath from state employees, has been here before. We vacated the judgment of the Arizona Supreme Court which had sustained the oath (94 Ariz. 1, 381 P.2d 554) and remanded the cause for reconsideration in light of Baggett v. Bullitt, 377 U.S. 360. See 378 U.S. 127. On reconsideration, the Supreme Court of Arizona reinstated the original judgment. 97 Ariz. 140, 397 P.2d 944. The case is here on certiorari. 382 U.S. 810.

The oath reads, in conventional fashion, as follows:{1}

I, (type or print name) do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Arizona; that I will bear true faith and allegiance to the same, and defend them against all enemies whatever, and that I will faithfully and impartially discharge the duties of the office of (name of office) according to the best of my ability, so help he God (or so I do affirm).

The Legislature put a gloss on the oath{2} by subjecting to a prosecution for perjury and for discharge from public office anyone who took the oath and who

knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations

or "any other organization" having for "one of its purposes" the overthrow of the government of Arizona or any of its political subdivisions where the employee had knowledge of the unlawful purpose. Petitioner, a teacher and a Quaker, decided she could not in good conscience take the oath, not knowing what it meant and not having any chance to get a hearing at which its precise scope and meaning could be determined. This suit for declaratory relief followed. On our remand, the Arizona Supreme Court said that the gloss on the oath is "not afflicted" with the many uncertainties found potentially punishable in Baggett v. Bullitt, supra.

Nor does it reach endorsements or support for Communist candidates for office nor a lawyer who represents the Communist Party, or its members, nor journalists who defend the Communist Party, its rights, or its members. Such conduct is neither an act nor in aid of an act attempting to overthrow the government by force and violence.

It is our conclusion that the portions of the Arizona act here considered do not forbid or require conduct in terms so vague that men of common intelligence must necessarily guess at the meaning and differ as to their application.

97 Ariz. at 147, 397 P.2d at 948.

Mr. Justice Bernstein, in dissent, responded that the majority had failed to consider the so-called "membership clause" of the oath and accompanying statutory gloss:

Let us consider a scientist, a teacher in one of our universities. He could not know whether membership is prohibited in an international scientific organization which includes members from neutralist nations and Communist bloc nations -- the latter admittedly dedicated to the overthrow of our government and which control the organization -- even though access to the scientific information of the organization is available only to its members.

* * * *

Though all might agree that the principal purpose of such an organization is scientific, the statute makes his membership a crime if any subordinate purpose is the overthrow of the state government. The vice of vagueness here is that the scientist cannot know whether membership in the organization will result in prosecution for a violation of § 38-231, subd. E, or in honors from his university for the encyclopedic knowledge acquired in his field in part through his membership.

Id. at 147-148, 397 P.2d at 949.

We recognized in Scales v. United States, 367 U.S. 203, 229, that "quasi-political parties or other groups . . . may embrace both legal and illegal aims." We noted that a "blanket prohibition of association with a group having both legal and illegal aims" would pose "a real danger that legitimate political expression or association would be impaired." The statute with which we dealt in Scales -- the so-called "membership clause" of the Smith Act (18 U.S.C. § 2385) -- was found not to suffer from this constitutional infirmity because, as the Court construed it, the statute reached only "active" membership (id. at 222) with the "specific intent" of assisting in achieving the unlawful ends of the organization (id. at 229-230). The importance of this limiting construction from a constitutional standpoint was emphasized in Noto v. United States, 367 U.S. 290, 299-300, decided the same day:

[I]t should also be said that this element of the membership crime [the defendant’s "personal criminal purpose to bring about the overthrow of the Government by force and violence"], like its others, must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes because of other and unprotected purposes which he does not necessarily share.{3}

Any lingering doubt that proscription of mere knowing membership, without any showing of "specific intent," would run afoul of the Constitution was set at rest by our decision in Aptheker v. Secretary of State, 378 U.S. 500. We dealt there with a statute which provided that no member of a Communist organization ordered by the Subversive Activities Control Board to register shall apply for or use a passport. We concluded that the statute would not permit a narrow reading of the sort we gave § 2385 in Scales.See 378 U.S. at 511, n. 9. The statute, as we read it, covered membership which was not accompanied by a specific intent to further the unlawful aims of the organization, and we held it unconstitutional.

The oath and accompanying statutory gloss challenged here suffer from an identical constitutional infirmity. One who subscribes to this Arizona oath and who is, or thereafter becomes, a knowing member of an organization which has as "one of its purposes" the violent overthrow of the government is subject to immediate discharge and criminal penalties. Nothing in the oath, the statutory gloss, or the construction of the oath and statutes given by the Arizona Supreme Court purports to exclude association by one who does not subscribe to the organization’s unlawful ends. Here as in Baggett v. Bullitt, supra, the "hazard of being prosecuted for knowing but guiltless behavior" (id. at 373) is a reality. People often label as "communist" ideas which they oppose; and they often make up our juries. "[P]rosecutors, too, are human." Cramp v. Board of Public Instruction, 368 U.S. 278, 287. Would a teacher be safe and secure in going to a Pugwash Conference?{4} Would it be legal to join a seminar group predominantly Communist, and therefore subject to control by those who are said to believe in the overthrow of the Government by force and violence? Juries might convict though the teacher did not subscribe to the wrongful aims of the organization. And there is apparently no machinery provided for getting clearance in advance.{5}

Those who join an organization but do not share its unlawful purposes, and who do not participate in its unlawful activities, surely pose no threat, either as citizens or as public employees. Laws such as this which are not restricted in scope to those who join with the "specific intent" to further illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization. See Aptheker v. Secretary of State, supra, at 511. The unconstitutionality of this Act follows a fortiori from Speiser v. Randall, 357 U.S. 513, where we held that a State may not even place on an applicant for a tax exemption the burden of proving that he has not engaged in criminal advocacy.

This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States through the Fourteenth Amendment. Baggett v. Bullitt, supra; Cramp v. Board of Public Instruction, supra.Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 et seq.; Gibson v. Florida Legislative Committee, 372 U.S. 539, 543-546. And, as a committee of the Arizona Legislature which urged adoption of this law itself recognized, public employees of character and integrity may well forgo their calling rather than risk prosecution for perjury or compromise their commitment to intellectual and political freedom:

The communist trained in fraud and perjury has no qualms in taking any oath; the loyal citizen, conscious of history’s oppressions, may well wonder whether the medieval rack and torture wheel are next for the one who declines to take an involved negative oath as evidence that he is a True Believer.{6}

A statute touching those protected rights must be "narrowly drawn to define and punish specific conduct at constituting a clear and present danger to a substantial interest of the State." Cantwell v. Connecticut, 310 U.S. 296, 311. Legitimate legislative goals "cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488. And see Louisiana v. NAACP, 366 U.S. 293, 296-297. As we said in NAACP v. Button, 371 U.S. 415, 432-433:

The objectionable quality of . . . overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. . . . These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. . . .

A law which applies to membership without the "specific intent" to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of "guilt by association," which has no place here. See Schneiderman v. United States, 320 U.S. 118, 136; Schware v. Board of Bar Examiners, 353 U.S. 232, 246. Such a law cannot stand.


1. Ariz.Rev.Stat. § 38-231 (1965 Supp.).

2. Id., § E, reads as follows:

Any officer or employee as defined in this section having taken the form of oath or affirmation prescribed by this section, and knowingly or wilfully at the time of subscribing the oath or affirmation, or at any time thereafter during his term of office or employment, does commit or aid in the commission of any act to overthrow by force or violence the government of this state or of any of its political subdivisions, or advocates the overthrow by force or violence of the government of this state or of any of its political subdivisions, or during such term of office or employment knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations or any other organization having for one of its purposes the overthrow by force or violence of the government of the state of Arizona or any of its political subdivisions, and said officer or employee as defined in this section prior to becoming or remaining a member of such organization or organizations had knowledge of said unlawful purpose of said organization or organizations, shall be guilty of a felony and upon conviction thereof shall be subject to all the penalties for perjury; in addition, upon conviction under this section, the officer or employee shall be deemed discharged from said office or employment and shall not be entitled to any additional compensation or any other emoluments or benefits which may have been incident or appurtenant to said office or employment.

3. Cf. Rowoldt v. Perfetto, 355 U.S. 115, 120; Gastelum-Quinones v. Kennedy, 374 U.S. 469.

4. The Pugwash Conferences, A Staff Analysis, Subcommittee to Investigate the Administration of the Internal Security Act, Senate Committee on the Judiciary, Committee Print, 87th Cong., 1st Sess. (1961); Rabinowitch, Pugwash -- History and Outlook, 13 Bull.Atomic Sci. 243 (1957); Topchiev, Comments on Pugwash: From the East, 14 Bull.Atomic Sci. 118 (1958); Thirring, Comments on Pugwash: From the West, id. at 121; Rabinowitch, The Stowe Conferences, 17 Bull.Atomic Sci. 382 (1961); Statement of International Pugwash Continuing Committee: Pugwash XIII, Bull.Atomic Sci. 43-45 (December 1964); Documents of Second Pugwash Conference of Nuclear Scientists (March 31-April 11, 1958).

5. Petitioner would, of course, have a hearing at a perjury trial, after the event. And one member of the Arizona Supreme Court felt that petitioner, having tenure, would be entitled to a hearing before she was discharged from her teaching position. See Elfbrandt v. Russell, 94 Ariz. 1, 17-18, 381 P.2d 554, 565 (Bernstein, C.J., concurring). But even that is not authoritatively decided by the court; indeed, another opinion states this to be a minority view, 94 Ariz. at 18, 381 P.2d at 566 (separate opinion of Jennings, J.).

6. Report of the Judiciary Committee in Support of the Committee Amendment to H.B. 115, Journal of the Senate, 1st Reg.Sess., 25th Legislature of the State of Arizona, p. 424 (1961).


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Chicago: Douglas, "Douglas, J., Lead Opinion," Elfbrandt v. Russell, 384 U.S. 11 (1966) in 384 U.S. 11 384 U.S. 13–384 U.S. 19. Original Sources, accessed March 18, 2019, http://www.originalsources.com/Document.aspx?DocID=DBSB5SY7MC6DS47.

MLA: Douglas. "Douglas, J., Lead Opinion." Elfbrandt v. Russell, 384 U.S. 11 (1966), in 384 U.S. 11, pp. 384 U.S. 13–384 U.S. 19. Original Sources. 18 Mar. 2019. www.originalsources.com/Document.aspx?DocID=DBSB5SY7MC6DS47.

Harvard: Douglas, 'Douglas, J., Lead Opinion' in Elfbrandt v. Russell, 384 U.S. 11 (1966). cited in 1966, 384 U.S. 11, pp.384 U.S. 13–384 U.S. 19. Original Sources, retrieved 18 March 2019, from http://www.originalsources.com/Document.aspx?DocID=DBSB5SY7MC6DS47.