Speiser v. Randall/Concurrence Burton

by Harold Hitz Burton

United States Supreme Court

357 U.S. 513

Speiser  v.  Randall

Mr. Justice BURTON concurs in the result.

THE CHIEF JUSTICE took no part in the consideration or decision of this case. has never even been attempted before. I believe that it constitutes a palpable violation of the First Amendment, which of course is applicable in all its particulars to the States. See, e.g., Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Poulos v. State of New Hampshire, 345 U.S. 395, 396 397, 73 S.Ct. 760, 762, 97 L.Ed. 1105; Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 507, 91 L.Ed. 711; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 880, 87 L.Ed. 1324; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Murdock v. Com. of Pennsylvania, 319 U.S. 105, 109, 63 S.Ct. 870, 873, 87 L.Ed. 1292; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 768, 86 L.Ed. 1031; Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138. The mere fact that California attempts to exact this ill-concealed penalty from individuals and churches and that its validity has to be considered in this Court only emphasizes how dangerously far we have departed from the fundamental principles of freedom declared in the First Amendment. We should never forget that the freedoms secured by that Amendment Speech, Press, Religion, Petition and Assembly-are absolutely indispensable for the preservation of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all, even the most despised minorities. See American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925 (dissenting opinion); Dennis v. United States, 341 U.S. 494, 580, 71 S.Ct. 857, 902, 95 L.Ed. 1137 (dissenting opinion).

This case offers just another example of a wide-scale effort by government in this country to impose penalties and disabilities on everyone who is or is suspected of being a 'Communist' or who is not ready at all times and all places to swear his loyalty to State and Nation. Compare Adler v. Board of Education, 342 U.S. 485, 496, 72 S.Ct. 380, 386, 96 L.Ed. 517 (dissenting opinion); Wieman v. Updegraff, 344 U.S. 183, 193, 73 S.Ct. 215, 219, 97 L.Ed. 216 (concurring opinion) Barsky v. Board of Regents, 347 U.S. 442, 456, 472, 74 S.Ct. 650, 658, 666, 98 L.Ed. 829 (dissenting opinions). Government employees, lawyers, doctors, teachers, pharmacists, veterinarians, subway conductors, industrial workers and a multitude of others have been denied an opportunity to work at their trade or profession for these reasons. Here a tax is levied unless the taxpayer makes an oath that he does not and will not in the future advocate certain things; in Ohio those without jobs have been denied unemployment insurance unless they are willing to swear that they do not hold specific views; and Congress has even attempted to deny public housing to needy families unless they first demonstrate their loyalty. These are merely random samples; I will not take time here to refer to innumerable others, such as oaths for hunters and fishermen, wrestlers and boxers and junk dealers.

I am convinced that this whole business of penalizing people because of their views and expressions concerning government is hopelessly repugnant to the principles of freedom upon which this Nation was founded and which have helped to make it the greatest in the world. As stated in prior cases, I believe 'that the First Amendment grants an absolute right to believe in any governmental system, (to) discuss all governmental affairs and (to) argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment's unequivocal command that freedom of assembly, petition, speech and press shall not be abridged. I happen to believe this was a wise choice and that our free way of life enlists such respect and love that our Nation cannot be imperiled by mere talk.' Carlson v. Landon, 342 U.S. 524, 555-556, 72 S.Ct. 525, 542, 96 L.Ed. 547 (dissenting opinion).

Loyalty oaths, as well as other contemporary 'security measures,' tend to stifle all forms of unorthodox or unpopular thinking or expression-the kind of thought and expression which has played such a vital and beneficial role in the history of this Nation. The result is a stultifying conformity which in the end may well turn out to be more destructive to our free society than foreign agents could ever hope to be. The course which we have been following the last decade is not the course of a strong, free, secure people, but that of the frightened, the insecure, the intolerant. I am certain that loyalty to the United States can never be secured by the endless proliferation of 'loyalty' oaths; loyalty must arise spontaneously from the hearts of people who love their country and respect their government. I also adhere to the proposition that the 'First Amendment provides the only kind of security system that can preserve a free government-one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.' Yates v. United States, 354 U.S. 298, 344, 77 S.Ct. 1064, 1090, 1 L.Ed.2d 1356 (separate opinion).

If it be assumed however, as Mr. Justice BRENNAN does for purposes of this case, that California may tax the expression of certain views, I am in full agreement with him that the procedures it has provided to determine whether petitioners are engaged in 'taxable' advocacy violate the requirements of due process.

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK agrees, concurring.

California, in effect, has imposed a tax on belief and expression. In my view, a levy of this nature is wholly out of place in this country; so far as I know such a thing

While I substantially agree with the opinion of the Court, I will state my reasons more fully and more explicitly.

I. The State by the device of the loyalty oath places the burden of proving loyalty on the citizen. That procedural device goes against the grain of our constitutional system, for every man is presumed innocent until guilt is established. This technique is an ancient one that was denounced in an early period of our history.

Alexander Hamilton, writing in 1784 under the name Phocion, said:

'* * * let it be supposed that instead of the mode of indictment and trial by jury, the Legislature was to declare, that every citizen who did not swear he had never adhered to the King of Great Britain, should incur all the penalties which our treason laws prescribe. Would this not be * * * a direct infringement of the Constitution? * * * it is substituting a new and arbitrary mode of prosecution to that ancient and highly esteemed one, recognized by the laws and the Constitution of the State,-I mean the trial by jury.' 4 The Works of Alexander Hamilton (Fed. ed. 1904) 269-270.

Hamilton compared that hypothetical law to an actual one passed by New York on March 27, 1778, whereby a person who had served the King of England in enumerated ways was declared 'to be utterly disabled disqualified and incapacitated to vote either by ballot or viva voce at any election' in New York. N.Y.Laws 1777 1784, 35. An oath was required ^[1] in enforcement of that law. ^[2]

Hamilton called this 'a subversion of one great principle of social security: to wit, that every man shall be presumed innocent until he is proved guilty.' 4 The Works of Alexander Hamilton (Fed. ed. 1904) 269. He went on to say 'This was to invert the order of things; and, instead of obliging the State to prove the guilt in order to inflict the penalty, it was to oblige the citizen to establish his own innocence to avoid the penalty. It was to excite scruples in the honest and conscientious, and to hold out a bribe to perjury.' Ibid.

If the aim is to apprehend those who have lifted a hand against the Government, the procedure is unconstitutional.

If one conspires to overthrow the government, he commits a crime. To make him swear he is innocent to avoid the consequences of a law is to put on him the burden of proving his innocence. That method does not square with our standards of procedural due process, as the opinion of the Court points out.

The Court in Cummings v. State of Missouri, 4 Wall. 277, 328, 18 L.Ed. 356, denounced another expurgatory oath that had some of the vices of the present one.

'The clauses in question subvert the presumptions of innocence, and alter the rules of evidence, which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable. They assume that the parties are guilty; they call upon the parties to establish their innocence; and they declare that such innocence can be shown only in one way-by an inquisition, in the form of an expurgatory oath, into the consciences of the parties.'

II. If the aim of the law is not to apprehend criminals but to penalize advocacy, it likewise must fall. Since the time that Alexander Hamilton wrote concerning these oaths, the Bill of Rights was adopted; and then much later came the Fourteenth Amendment. As a result of the latter a rather broad range of liberties was newly guaranteed to the citizen against state action. Included were those contained in the First Amendment-the right to speak freely, the right to believe what one chooses, the right of conscience. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 891, 87 L.Ed. 1292; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. Today what one thinks or believes, what one utters and says have the full protection of the First Amendment. It is only his actions that government may examine and penalize. When we allow government to probe his beliefs and withhold from him some of the privileges of citizenship because of what he thinks, we do indeed 'invert the order of things,' to use Hamilton's phrase. All public officials state and federal-must take an oath to support the Constitution by the express command of Article VI of the Constitution. And see Gerende v. Board of Sup'rs of Elections, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. But otherwise the domains of conscience and belief have been set aside and protected from government intrusion. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. What a man thinks is of no concern to government. 'The First Amendment gives freedom of mind the same security as freedom of conscience.' Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430. Advocacy and belief go hand in hand. For there can be no true freedom of mind if thoughts are secure only when they are pent up.

In Murdock v. Commonwealth of Pennsylvania, supra, we stated, 'Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful.' 319 U.S. at page 116, 63 S.Ct. at page 876. If the Government may not impose a tax upon the expression of ideas in order to discourage them, it may not achieve the same end by reducing the individual who expresses his views to second-class citizenship by withholding tax benefits granted others. When government denies a tax exemption because of the citizen's belief, it penalizes that belief. That is different only in form, not substance, from the 'taxes on knowledge' which have had a notorious history in the English-speaking world. See Grosjean v. American Press Co., 297 U.S. 233, 246-247, 56 S.Ct. 444, 447-448, 80 L.Ed. 660.

We deal here with a type of advocacy which, to say the least, lies close to the 'constitutional danger zone.' Yates v. United States, 354 U.S. 298, 319, 77 S.Ct. 1064, 1077, 1 L.Ed.2d 1356. Advocacy which is in no way brigaded with action should always be protected by the First Amendment. That protection should extend even to the ideas we despise. As Mr. Justice Holmes wrote in dissent in Gitlow v. People of State of New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138, 'If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.' It is time for government-state or federal-to become concerned with the citizen's advocacy when his ideas and beliefs move into the realm of action.

The California oath is not related to unlawful action. To get the tax exemption the taxpayer must swear he 'does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in event of hostilities.' ^[3] The Court construes the opinion of the California Supreme Court as applying the same test of illegal advocacy as was sustained against constitutional challenge in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. That case held that advocacy of the overthrow of government by force and violence was not enough, that incitement to action, as well as clear and present danger, were also essential ingredients. Id., 341 U.S. at pages 512, 509-510, 71 S.Ct. at pages 867, 868. As Yates v. United States, supra, makes clear, there is still a clear constitutional line between advocacy of abstract doctrine and advocacy of action. The California Supreme Court said, to be sure, that the oath in question 'is concerned' with that kind of advocacy. ^[4] But it nowhere says that oath is limited to that kind of advocacy. It seemed to think that advocacy was itself action for it said, 'What one may merely believe is not prohibited. It is only advocates of the subversive doctrines who are affected. Advocacy constitutes action and the instigation of action, not mere belief or opinion.' ^[5]

However the California opinion may be read, these judgments should fall. If the construction of the oath is the one I prefer, then the Supreme Court of California has obliterated the line between advocacy of abstract doctrine and advocacy of action. If the California oath has been limited by judicial construction to the type of advocacy condemned in Dennis, it still should fall. My disagreement with that decision has not abated. No conspiracy to overthrow the Government was involved. Speech and speech alone was the offense. I repeat that thought and speech go hand in hand. There is no real freedom of thought if ideas must be suppressed. There can be no freedom of the mind unless ideas can be uttered.

I know of no power that enables any government under our Constitution to become the monitor of thought, as this statute would have it become.

Mr. Justice CLARK, dissenting.

Notes

1. The oath was prescribed by the Council in charge of the Southern District of New York. The Council, authorized by the Act of October 23, 1779, was composed of the Governor, President of the Senate, Chancellor, Supreme Court judges, Senators, Assemblymen, Secretary of State, Attorney General, and County Court judges. The Council was to assume authority 'whenever the enemy shall abandon or be dispossessed of the same, and until the legislature can be convened,' N.Y.Laws 1777-1784, 192. The Council governed from November 25, 1783, to February 5, 1784. See Barck,
2. Other loyalty oaths appeared during this early period. Suspected persons were required to take a loyalty oath. N.Y.Laws 1777-1784, 87. The same was required of lawyers. Id., at 155, 420. And see Flick, Loyalism in New York During the American Revolution, 14 Studies in History, Economics and Public Law (Columbia Univ. 1901) 9 (passim).
3. Calif.Rev. & Tax Code § 32; and see Calif.Const., Art XX, § 19.
4. 48 Cal.2d 419, 440, 311 P.2d 508, 520.
5. 48 Cal.2d at page 434, 311 P.2d at page 517.