Board of Ed. of Oklahoma City v. National Gay Task Force

PETITIONER:Board of Education of Oklahoma City
RESPONDENT:National Gay Task Force
LOCATION:Board of Education of the City of Oklahoma

DOCKET NO.: 83-2030
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 470 US 903 (1985)
ARGUED: Jan 14, 1985
DECIDED: Mar 26, 1985

ADVOCATES:
Dennis W. Arrow – on behalf of the appellant
Laurence H. Tribe – on behalf of the appellees

Facts of the case

The National Gay Task Force filed a facial constitutional challenge to an Oklahoma Statute that allowed schools to fire teachers who engage in “public homosexual activity” or “public homosexual conduct”. Public homosexual activity encompassed physical sexual acts while public homosexual conduct included advocating for or encouraging public or private homosexual activity. The district court ruled in favor of the Board of Education, holding that the statute did not inhibit First Amendment freedoms, and the right of privacy did not include the activities prohibited by the statute. The U.S. Court of Appeals for the 10th Circuit reversed in part, holding that the part of the statute that prohibited public homosexual conduct was unconstitutionally broad and attempted to regulate speech. The court upheld that part of the statute prohibiting public homosexual activity.

Question

(1) Did the Oklahoma statute unconstitutionally infringe on protected free speech rights of public school teachers?

(2) Was the Oklahoma statute so overbroad that it infringes on the protected free speech rights of public school teachers?

Warren E. Burger:

We will hear arguments next in Board of Education of Oklahoma City against the National Gay Task Force.

Mr. Arrow, I think you may proceed when you are ready.

Dennis W. Arrow:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court, this case involves not only, quite evidently, the First Amendment interests of public school teachers, but it involves as well the privacy interests of students.

It involves, in addition to that, parental interests in the rearing of their children.

Moreover, it involves state interests in effective public education as well.

Perhaps no single governmental goal–

William H. Rehnquist:

Mr. Arrow–

Dennis W. Arrow:

–Yes, Your Honor.

William H. Rehnquist:

–I wonder if it doesn’t involve some judicial interest in seeing that there is a case or controversy.

As I read the record here, or there is no indication that the school board ever applied this particular provision to anyone.

Dennis W. Arrow:

That’s correct, Your Honor.

William H. Rehnquist:

And is I read it there was no threat that it was going to apply it to anyone.

Dennis W. Arrow:

That’s correct, Your Honor.

William H. Rehnquist:

And the only party plaintiff was a national organization.

Dennis W. Arrow:

That’s correct, Your Honor.

We would observe that based on third party standing rationales, that it is certainly arguable that the Gay Task Force has standing.

We would, however, further observe that under the approach of United Public Workers versus Mitchell, there might in fact be a problem with ripeness.

Now, this, of course, has not been resolved in the courts below.

Warren E. Burger:

Is this a case where we ought to have the views of the Supreme Court of the state?

Dennis W. Arrow:

Your Honor, we feel that it is.

We feel that when we are dealing with a statute such as this, which has never been construed, it has never been applied, we certainly do know on the basis of this record that the enforcement policies of the Board of Education of the City of Oklahoma City and of other boards of education in the State of Oklahoma have not been overly exuberant, as has been asserted by the Gay Task Force.

William J. Brennan, Jr.:

Does Oklahoma have a certification statute?

Dennis W. Arrow:

Yes, Your Honor, it does.

That… we have inserted that in the record, in our blue brief.

William J. Brennan, Jr.:

Have you put a copy of it in there?

Dennis W. Arrow:

Of the certification statute?

William J. Brennan, Jr.:

Yes.

Dennis W. Arrow:

Yes, Your Honor.

We have cited it in part.

Dennis W. Arrow:

I can refer you to it.

This would be at Page 16 of the blue brief, Your Honor, of the brief of appellant, down at the bottom of the page.

The citation to that is 20 Oklahoma Statute, Section 1602.

William J. Brennan, Jr.:

Thank you.

Dennis W. Arrow:

You are welcome.

Byron R. White:

Well, have you urged it before?

Dennis W. Arrow:

We have urged the lack of standing before.

That was decided–

Byron R. White:

How about abstention?

Dennis W. Arrow:

–We have not urged abstention.

Byron R. White:

In either court of law?

Dennis W. Arrow:

That’s correct, Your Honor.

Nevertheless, we would assert that at this point this Court certainly could consider it sua sponte.

William J. Brennan, Jr.:

I suppose certification is not the same thing as abstention.

Dennis W. Arrow:

That’s right, Your Honor.

We would assert them as alternative arguments.

We would assert that abstention in the interest of federalism under the Pullman doctrine would be appropriate here.

We would also alternatively assert that should the Court not be persuaded of the Pullman argument in chief, that then the certification statute might easily be invoked.

William H. Rehnquist:

Well, of course, if there is no real case or controversy, if this is just an abstraction, and there is no real threat to the third party people, the plaintiff, it is not a question for abstention, it is not a question for certification, it is a question for dismissal by the District Court on jurisdictional basis.

Dennis W. Arrow:

We have so urged that in Proposition 1… I believe it is 1B, Your Honor.

Yes.

Turning to the merits, should the Court not be persuaded of the abstention argument, or of the dismissal argument, we would observe the significance of the interests involved are clearly paramount.

Ninety-two percent of all children in the United States of school age attend public schools.

We think that this decision in this case may in fact be a central precedent-setting decision for purposes of what public school teachers may and may not advocate.

In defending the constitutionality of the challenged statute, the appellant board of education will, as time permits, hopefully address five issues central–

John Paul Stevens:

May I ask just one question?

Dennis W. Arrow:

–Yes, Your Honor.

John Paul Stevens:

You say the case will present a test as to what public school teachers may or may not advocate.

Dennis W. Arrow:

Yes, Your Honor.

John Paul Stevens:

As you read the statute, does it prohibit activity by a teacher which is advocacy of, just to use the language of the statute, advocacy of homosexual activity?

Dennis W. Arrow:

Homosexual activity is, of course, defined in very specific terms in the statute, Your Honor, as the commission of an act defined in Section 886 of Title 21, which has been defined as the offense of criminal sodomy.

So the statute does… we admit clearly the statute may be disingenuously written.

Activity is certainly a very broad term to talk about public homosexual activity, but in Section A1 of the statute, the statute goes on very clearly to say what it means by public homosexual activity, and that is the crime of sodomy as defined in Title 21, Section 866.

Warren E. Burger:

Could Oklahoma prohibit a school teacher from smoking in the classroom?

Dennis W. Arrow:

We certainly think that it could.

Yes.

That might be–

Warren E. Burger:

On what grounds?

Dennis W. Arrow:

–On the grounds that it might impair student health, for example.

The medical evidence is unclear for–

Warren E. Burger:

Any other ground besides health?

Dennis W. Arrow:

–Possibly, possibly–

Warren E. Burger:

How about the role model factor?

Dennis W. Arrow:

–Yes.

That is certainly possibly true.

The institution that I teach at certainly precludes me from so doing.

I think, given the role model nature, I think that might be appropriate.

Now, of course, this is within the discretion of the legislature to decide which exact types of activity are worse than other types of activity.

Byron R. White:

Well, the only issue here is conduct, isn’t it?

Isn’t it the conduct part of the statute?

Dennis W. Arrow:

Well, here we are talking about advocacy of the specific crime.

Byron R. White:

I know, but the statute defines activity and conduct differently.

Dennis W. Arrow:

That’s correct, Your Honor.

Byron R. White:

And what is at issue here, activity or conduct?

Dennis W. Arrow:

What is at issue here is public homosexual conduct.

Byron R. White:

That’s what I thought.

Dennis W. Arrow:

That’s correct, Your Honor.

Byron R. White:

All right.

We should talk about that then.

Dennis W. Arrow:

Yes, Your Honor.

Dennis W. Arrow:

I plan on doing that.

John Paul Stevens:

I am still a little puzzled, because the term “conduct” as used in the statute includes advocacy, does it not?

Dennis W. Arrow:

Yes, it does.

John Paul Stevens:

Yes.

So necessarily we have to talk about advocacy.

Dennis W. Arrow:

Absolutely correct, Your Honor.

John Paul Stevens:

And does this statute… would this statute make it dischargeable conduct for a public school teacher to make a speech in which he advocated as a general proposition that private homosexual activity which is prohibited by law–

Dennis W. Arrow:

Yes, Your Honor.

John Paul Stevens:

–is nevertheless a good idea?

Would it be a crime for him to give such a speech?

Dennis W. Arrow:

For him to advocate the commission of the crime would be precluded by the statute.

For him to advocate the decriminalization of the–

John Paul Stevens:

No, to advocate the commission of the crime.

Dennis W. Arrow:

–Advocating the commission of the crime is precluded by the… or at least it is regulated, to be quite specific, depending upon the nexus.

John Paul Stevens:

In your view of the statute, is such a speech prohibited by the statute?

Dennis W. Arrow:

It is regulated by the statute.

It might be prohibited, depending–

John Paul Stevens:

Is it a cause for discharge if a person gives such a statement?

Dennis W. Arrow:

–On a case by case basis, Your Honor, it might be, depending upon the presence or absence of the nexus factors, depending upon the nexus ramifications.

That’s why the–

John Paul Stevens:

I don’t understand that.

Dennis W. Arrow:

–Okay.

Your Honor, the statute has some very specific limiting factors which we would refer you to in Section 6103.15(C), which include, for example, the likelihood that the activity or conduct may adversely affect students or school employees, proximity in time or place, extenuating or aggravating circumstances, repeated or continuing nature of the conduct, whether or not the conduct is likely to dispose school children towards similar conduct or activity.

So, in some cases that type of advocacy might well be precluded by the statute, depending upon the presence or absence in whatever measure–

John Paul Stevens:

He gave the speech… he said, I intend to give this speech over and over again.

Dennis W. Arrow:

–Yes.

John Paul Stevens:

Then I suppose it would be prohibited?

Dennis W. Arrow:

Well, depending again upon the adverse effect upon students.

That, I think, is a factor which the statute requires the hearing boards to consider.

Depending upon any other… I suppose, proximity in time or place.

Dennis W. Arrow:

If the speech was given in New York and the teacher was in California, if it was not likely to come to the attention of the students, if it didn’t come to the attention of the students.

Depending upon what age the students are.

We think that would also be an a aggravating or mitigating circumstance.

Clearly the nexus requirements in the statute are flexible, but they have to be flexible given the very broad interests of the state in effective public education.

That, parenthetically, we might add, is one reason why particularly a facial challenge in this case is inappropriate.

We believe that generally a better approach is the case by case adjudication method.

The statute has never been invoked.

It has never been applied.

It is challenged facially.

And yet it is very difficult to analyze in a particular case all the myriad imponderables that may potentially result from a specific advocacy of that specific crime.

Sandra Day O’Connor:

Do we know whether the Oklahoma courts would require finding an adverse effect on students or employees under the statute in order to impose sanctions?

Dennis W. Arrow:

Yes, Your Honor.

Sandra Day O’Connor:

Do we know that?

Dennis W. Arrow:

Yes, Your Honor.

Sandra Day O’Connor:

How do we know that?

Dennis W. Arrow:

We have the Childers case, which I believe is cited in the brief.

This is 645 Pacific 2nd 992.

There is other case law which was referred to in the District Court opinion which does require it.

Sandra Day O’Connor:

The adverse effect on students or employees is a requirement in each case?

Dennis W. Arrow:

Yes, Your Honor, and that was concluded by the District Court.

The District Court noted that in his opinion below.

Turning to the issues, in recognition of the fact that the case is a very multi-faceted case, with numerous issues, the board would like to at least turn its attention briefly to several of the issues that come to mind.

First, the board would like to establish the very multi-faceted nature of the governmental interests, and not only governmental interests in effective public education, but parental and student interests as well.

Second, the board will establish that the balancing standard of review is the appropriate standard of review in teacher speech cases, in recognition of the multifaceted nature of the interests in effective public education.

And pursuant to this analysis concerning the standard of review, the board of education will further establish that the concept of viewpoint neutrality which the Gay Task Force has attempted to enshrine as sacrosanct in every conceivable application, in all possible hypothetical instances, is simply overextended when the premise of viewpoint neutrality is extended to the advocacy of a crime involved in the area, the sensitive area of public school teacher speech.

Third, the board will then proceed to describe the manner in which the challenged statute contributes to the achievement of the governmental, parental, and student interests involved.

Fourth, the board will then proceed to maintain that teacher interests in advocating the specified crime of homosexual sodomy may, and again this is central to the analysis this statute, may on a case by case basis he outweighed by the interests in effective public education described above.

And finally, the board of education will establish that neither the current generic fitness statutes nor other so-called viewpoint neutral alternatives are available to meet the sui generis threat presented by the advocacy of criminal homosexual sodomy by public school teachers.

Turning first of all to the state interests involved, the interests of the state, the board of education would submit, in effective public education are both very compelling and very broad.

I think most obvious is the interest in effective and undisrupted academic education, and clearly the apposite Pickering standard of review contemplates this in the first three factors which the Pickering court articulated.

Dennis W. Arrow:

Second, I think, and no less important is the interest in developing students’ attitudes toward governmental activities, the political process, the obligations of citizenship.

This Court recently reaffirmed in the Pico decision that the goal includes the goal of promoting respect and authority for law, which the board of education would submit would be undermined by teachers advocating specified crimes.

This goal in fact is so important that as we have indicated in our brief, many primary school teachers consider the obligation to abide by school rules, for example, a more important ultimate lesson in the first several grades of education even than academic education itself.

That, we think, is a very clear state interest, the promotion of the respect and authority for law, government, the political process, and the responsibilities of citizenship.

William H. Rehnquist:

Was your answer to the earlier question about whether the statute would be invoked if a teacher simply advocated the repeal of the consensual sodomy statute, would it be invoked then?

Dennis W. Arrow:

No, Your Honor, it would not.

We think that is clearly core political speech.

We have specific Oklahoma case law on that point.

The case is Gay Activist Alliance versus Board of Regents of the University of Oklahoma, in which the Oklahoma Supreme Court, following the unwavering lead of this Court, of course, recognized that in fact that is clearly protected speech.

And we have no reason to doubt that that same line of analysis would not be applied in analyzing the challenged statute here.

William H. Rehnquist:

So the only kind of speech implicated is where a teacher were to advocate the commission of a crime?

Dennis W. Arrow:

The commission of the specified crime.

That is correct, Your Honor.

William J. Brennan, Jr.:

Suppose a teacher sat down at lunch with a number of other teachers and said, I wish they’d leave these homosexuals alone, they are not hurting anyone except themselves, and that was heard by everybody in the room, students and everybody else.

Dennis W. Arrow:

Yes, sir.

William J. Brennan, Jr.:

Would that violate the statute?

Dennis W. Arrow:

It would not violate the statute, because to say, I wish they’d leave these people alone, I suppose, could be assumed as a sub silentio suggestion that in fact the statute should be repealed.

We think, again, that that is core political speech.

That clearly falls far short of advocacy of the specific–

William J. Brennan, Jr.:

That wouldn’t be encouraging homosexual activity?

Dennis W. Arrow:

–No, Your Honor.

We don’t think so.

We recognize, of course, that the Gay Task Force–

William J. Brennan, Jr.:

How do we know your state court would think that?

Dennis W. Arrow:

–Well, for example, there was a Tennessee case called Jackson versus… I would submit the authority to the Court, Your Honor, but there is a Tennessee case in which an advocating–

William J. Brennan, Jr.:

This isn’t Tennessee.

This is Oklahoma.

Dennis W. Arrow:

–That’s correct, Your Honor, but we certainly think that the Oklahoma court might be persuaded by the Tennessee court’s reasoning.

We certainly think that the Oklahoma Supreme Court would construe the statute in a manner so as to render it certainly immune from facial–

William J. Brennan, Jr.:

The claim here is that this statute is overbroad, isn’t it?

Dennis W. Arrow:

–That’s correct, Your Honor.

Yes.

But we think that that claim–

William J. Brennan, Jr.:

And if my hypothetical is one that would be reached by it, it would be overbroad, wouldn’t it?

Dennis W. Arrow:

–Yes, Your Honor.

If that were precluded by the statute, we think that is core political speech.

We think the Oklahoma Supreme Court would recognize that as well.

Other courts certainly have–

The Oklahoma Supreme Court in the Gay Activist Alliance case recognized that that type of speech is constitutionally protected, and there is no reason to believe it would deviate from that opinion.

John Paul Stevens:

May I ask one other question?

Dennis W. Arrow:

Yes, Your Honor.

John Paul Stevens:

The term “public homosexual activity” is defined as the crime.

Dennis W. Arrow:

Yes, Your Honor.

John Paul Stevens:

Is the term “private homosexual activity” defined?

Because you can’t advocate that, either, as I read the statute.

Dennis W. Arrow:

That’s correct, Your Honor.

It is not in the statute.

John Paul Stevens:

It is not defined?

Dennis W. Arrow:

It is not defined.

John Paul Stevens:

Well, what about a speech then advocating private homosexual activity and said, but be careful not to violate the prohibition against public homosexual activity?

Dennis W. Arrow:

Yes, sir.

I understand, Your Honor.

But in Section A2 of the statute, the statute provides that homosexual conduct means advocating and so forth public or private homosexual activity.

John Paul Stevens:

Right.

Dennis W. Arrow:

So we would certainly concede that the advocacy of private criminal sodomy would also come within the statutory sweep.

John Paul Stevens:

Well, is all private homosexual activity a crime?

Dennis W. Arrow:

Yes, Your Honor, it is in the State of… criminal homosexual… homosexual sodomy, public or private, is illegal in the State of Oklahoma.

John Paul Stevens:

Well, I’m not sure that answered my question.

Dennis W. Arrow:

Okay.

John Paul Stevens:

Is all private homosexual activity–

Dennis W. Arrow:

As defined in this statute?

John Paul Stevens:

–Well, the term isn’t defined in this statute.

Dennis W. Arrow:

Well–

John Paul Stevens:

Private homosexual activity.

Dennis W. Arrow:

–Oh, I see, Your Honor.

Okay.

John Paul Stevens:

Is all private homosexual activity forbidden by law in Oklahoma?

Dennis W. Arrow:

If we take activity in the sense of meaning what it is in Section A1, then yes–

John Paul Stevens:

No, no, because that refers to public.

I am asking about private.

Dennis W. Arrow:

–Well, if we assume that the definition of the activity, Your Honor… that is what I am focusing on, is the definition of activity.

John Paul Stevens:

There is no definition of activity.

There is a definition of public homosexual activity in one.

Dennis W. Arrow:

That’s correct, Your Honor.

We think a reasonable reading of the statute would mean that the activity proscribed was the activity involved in Section 886 of Title 21, and we think that private could easily be interpreted as simply that same activity defined in Section 886, however, which was practiced in private.

John Paul Stevens:

Then the word “private” is really redundant in the statute, isn’t it?

Dennis W. Arrow:

Yes, Your Honor, it would be.

John Paul Stevens:

Your suggest that they could just read those words out of the statute?

Dennis W. Arrow:

Which words are we–

John Paul Stevens:

And that the statute does not in fact prohibit… the words A2.

As I understand your reading, they are totally redundant.

Dennis W. Arrow:

–That’s correct, Your Honor.

They would be.

Yes.

In order to just briefly wrap up the point about state interests involved here, the third and, I think, one which is crucial to the resolution of this case also is providing an appropriate introduction to traditional, fundamental cultural values, and we think that is no less of a significant value of public education than the academic education side.

The Court has recognized, for example, this Court, in Pico that students must be assisted in adjusting normally to their environment.

They must have traditional, fundamental cultural values promoted, and this Court has continuously respected the significance of that interest, and has also recognized that the duty to promote traditional fundamental cultural values extends whether those… I am quoting from this Court’s opinion in Pico…

“be they social, moral, or political. “

We think that is a crucial state interest involved.

And then, finally, given the fact that the state is acting in loco parentis in taking charge of students for specified times in each day… 92 percent of students do so attend… we think there is also an additional duty there to provide for the psychological as well as the pyhsical welfare of children which are in its custody pursuant to the in loco parentis doctrine.

Dennis W. Arrow:

We think cumulatively these interests are compelling, though they need not be under the Pickering balancing approach.

With these goals in mind, the Court has, of course, adopted a balancing standard of review ever since the landmark watershed opinion in Pickering in 1968, nor, we would submit, pursuant to the Pickering balancing approach, are state and teacher interests the only interests to be weighed in the balance.

We would further submit that student interests of the sort recognized by this Court in Ginsberg, Ferber, and FCC versus Pacifica Foundation, should be weighed in the Pickering balance as well.

We would further suggest, and the Gay Task Force certainly has suggested a virtually limitless marketplace of ideas approach to be applied pursuant to its analysis of First Amendment teacher speech rights.

However, the board of education would submit that teachers may have restrictions placed on their speech, as was recognized, not specifically, but analogously in other cases.

The Court, for example, noted in Ginsberg that a state may permissibly determine that at least in some areas a child, like someone in a captive audience, is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.

The board of education therefore submits that the Pickering approach and not the impressionistic and incomplete approach adopted by the Tenth Circuit majority below should guide analysis in the instant case.

The Gay Task Force has suggested an absolute principle of viewpoint neutrality to be applied under all circumstances and in all contexts, including teacher speech.

The board of education submits that this promise is overextended in light of the crucial value orientation function which public schools and public school teachers, who obviously act as role models to impressionable youth, are called upon to fulfill.

In the educational context, we would submit, the premise is overextended, although viewpoint neutrality as a general premise is certainly legitimate.

We would pose a couple of hypotheticals at this juncture.

For example, let’s suppose that the State of Oklahoma hypothetically passed a statute precluding teachers from advocating the use of heroine, which is also a felony in the State of Oklahoma, as is criminal sodomy.

We certainly would suggest that viewpoint neutrality would not suggest that because viewpoints antithetical to heroine use could be presented, that therefore viewpoint neutrality would also mean that viewpoints favorable to it should be presented.

This might conceivably be extended in other circumstances even past criminal conduct, but of course the Court would not need to go that far, but for example let’s suppose we had another Oklahoma statute in which the court, for example, or in which the legislature decided that teachers should not be permitted to advocate racial bigotry in public in a way which is likely to come to the attention of the students.

Clearly racial bigotry is not criminal.

This statute involves criminal activity.

But we certainly think viewpoint neutrality would not go that far.

Consequently, we assert that that premise is simply overextended as applied to teacher speech in public education, especially when the nexus factors and the appropriate hearings would permit the determinations to be made on a case by case basis.

Pursuant to the applicable Pickering balancing standard of review, the Oklahoma legislature has elected to regulate not a flat ban, as is asserted by the Gay Task Force, the manner in which public school teachers advocate the specified crime of homosexual sodomy.

The statute, we would submit, in terms of its nexus factors, is as narrowly drawn as can reasonably be expected without the necessity of writing another Napoelonic Code, given the breadth of the interests in effective public education, given the need on a case by case basis to determine whether in a particular case there has been a material or substantial disruption in the educational process.

William H. Rehnquist:

The Napoleonic Code is actually very short.

Dennis W. Arrow:

Pardon me, Your Honor?

William H. Rehnquist:

I say, the Napoleonic Code is actually very short.

It just treats tort law in one sentence.

Dennis W. Arrow:

That is true Your Honor.

Point well taken.

Perhaps the United States Code would be a better example.

In short, we would submit, pursuant to this analysis, that the target clearly… that the statute does clearly target the aforementioned goals of producing effective public education, making sure that student morality is not corrupted, ensuring that the students are protected in their psychological as well as physical well-being and that the obligations of citizenship, which include the obligation to obey the law, and we might again parenthetically point out here what is essentially asserted by the Gay Task Force is that the laws against criminal homosexual sodomy are uncommonly silly laws, but certainly one of the obligations of citizenship is to obey the law whether the law is uncommonly silly or not, provided that the right of core political speech to advocate that the law should be changed is preserved, and we would submit that that is in fact preserved under the instant statute.

We would next assert that teacher interests may on a case by case basis be outweighed by interests of the state, of parental rights, and of the students themselves of the privacy nature that we have just described, and again, we would assert that clearly the statute does not overbroadly preclude teachers from advocating legislative change.

The Gay Task Force has asserted that joining the National Democratic Party might somehow indirectly encourage or promote criminal sodomy because the National Democratic Party does have a plank which does advocate the decriminalization of any forms of homosexual activity.

Dennis W. Arrow:

We think that that reading of the statute is simply not a fair reading.

We think that that reading of the statute attempts to insert the word “indirectly” prior to the words “indirectly advocating”, or “indirectly promoting”, or “indirectly encouraging”.

We don’t think that’s a fair reading of the statute.

We don’t think that that’s the reading that would be given to that statute should the statute ever be invoked and should the Supreme Court of Oklahoma be called upon to construe it in any context.

The last argument I’d like to address is the argument asserted by the Gay Task Force that other viewpoint neutral alternatives may be available as less restrictive alternatives to the present system of regulation of speech.

And we would attempt to first of all put this argument in context, of course.

The less restrictive alternative as applied to teacher speech is not an individually dispositive first amendment standard of review when applied to teacher speech.

This Court made very clear in the Pickering decision that in fact the balancing test was to be applied.

The Court waxed eloquent on the dangers of mechanistic jurisprudence.

Certainly heeding that caution, the board of education would not attempt to itself fall victim to mechanistic jurisprudence by asserting that the Picketing factors are exclusive.

And as a result of that, the board of education would concede arguendo that the question of the availability of a less restrictive alternative should be considered, but only as a factor in applying the Picketing balancing approach.

It should not be held to be an individually dispositive criterion here.

It therefore becomes appropriate to examine the other availabilities, the other statutes, for example, the generic Oklahoma teacher fitness statute, in an attempt to ascertain whether or not activity which can clearly constitutionally be prescribed might also not be prescribed by a viewpoint neutral generic statute such as that which is in place currently in the State of Oklahoma.

We would refer the Court to Title 70, Oklahoma Statute, 5-103, the main generic teacher fitness statute, which includes, for example, among reasons for dismissal of public school teachers, immorality, wilfull neglect of duty, incompetency, cruelty, and moral turpitude, as well as the commission of a felony.

Well, of course, beginning at the end, advocacy of criminal sodomy is not a felony in Oklahoma, so it certainly wouldn’t come under the condition of a felony.

Moral turpitude case law has been somewhat obscure.

In the case of Kelly versus City of Tulsa, for example, the criteria were given as involving an act, an offense, which is actually a crime, committed with criminal intent, and in that case the court concluded, the Oklahoma Supreme Court concluded that being a public drunk was not an act of moral turpitude since by definition it was not committed with criminal intent.

We don’t think moral turpitude stretches to cover the conduct which is precluded under the instant challenged statute.

Wilfull neglect of duty has been very narrowly interpreted.

The Childers case, which I have cited before to the Court, talks about knowingly and purposefully.

In any case, the question of neglect of duty doesn’t seem to be applicable to the challenged statute.

Byron R. White:

Did you cite Childers in your brief?

Dennis W. Arrow:

Yes, we did, Your Honor.

I believe we did.

We did not, Your Honor.

Byron R. White:

That’s what I thought.

So what is the citation?

Dennis W. Arrow:

The citation on this is 645 Pacific 2nd 992.

Byron R. White:

Thank you.

Dennis W. Arrow:

You are welcome, Your Honor.

Harry A. Blackmun:

Incidentally, did you cite Pico in your brief?

Dennis W. Arrow:

I believe it is, yes, Your Honor, I believe it is in a footnote in the yellow brief, I believe.

Harry A. Blackmun:

Not in the blue brief?

Dennis W. Arrow:

That’s correct, Your Honor.

In short, because of the sui generis nature of the threat to student morality, to proper traditional cultural values, the threat which goes further and may under certain circumstances in specific cases also affect the effectiveness of teacher performance in the classroom, as Justice Frankfurter noted long ago, the law of imitation operates, and non-conformity is not an outstanding of young children, we think therefore that all of the goals of public education may be threatened by teacher advocacy of this specific crime.

We think, given the breadth of the interests of the state, of the family, and of the child himself, in effective public education and the preservation of student morality, we therefore think that these interests simply outbalance any teacher interest in advocacy of this specific crime.

Byron R. White:

Well, in order to violate this statute or to be a reason for his discharge, there has to be a finding that even though he… that the conduct, the public homosexual conduct that is charged has rendered him unfit.

Dennis W. Arrow:

That is correct, Your Honor.

Those are the nexus factors, the determination of unfitness.

The advocacy is the only condition present.

Byron R. White:

And does the conclusion that he is unfit have to come within one of the reasons in that general statute about fitness?

Dennis W. Arrow:

Yes, Your Honor, we think it does.

The statute does say… the factors, of course, of mitigating circumstances and occupational performance are very broad, and would require and would necessitate that the hearing officers consider a multiplicity of–

Byron R. White:

But after they consider these four factors in Paragraph C, they still have to arrive at a bottom line on fitness.

Dennis W. Arrow:

–That’s correct, Your Honor.

Byron R. White:

That has to be one of the reasons in that general statute?

Dennis W. Arrow:

That is correct, Your Honor.

Thank you.

Warren E. Burger:

Mr. Tribe.

Laurence H. Tribe:

Mr. Chief Justice, and may it please the Court, writing for the California Supreme Court nearly a decade ago, the late Justice Tobriner recognized that the modern struggle for homosexual rights in this country is truly a struggle for civil rights, and he said, like other such struggles, it incites heated political debate.

The issue in this case is how open that debate will be, and it was in addressing that issue that the Court of Appeals held that Oklahoma’s teacher fitness law is unconstitutional, and I quote,

“insofar as it punishes advocating, encouraging, or promoting public or private homosexual activity. “

the latter term, as Justice Stevens points out, not even being defined.

Warren E. Burger:

Do you suppose Justice Tobriner would embrace in that general statement the laws on drugs, murder?

Laurence H. Tribe:

I think he would have said that the right advocate change in those laws, to express therefore misgivings about the views they take, is a fundamental protected right.

Warren E. Burger:

A right to decriminalize them?

Laurence H. Tribe:

The right to decriminalize anything.

That is, those who advocated violent overthrow of the government, as long as they didn’t incite imminently to it, were exercising protected First Amendment rights.

It is not how much we disagree with the view, but whether it imminently incites.

Warren E. Burger:

Now, bringing it away from his general statement down to the framework of this case–

Laurence H. Tribe:

Yes.

Warren E. Burger:

–suppose the prohibition was against advocating drug use, private or public, murder.

Laurence H. Tribe:

Well, I suppose if a teacher were foolish enough to say, you know, I think these murder laws are silly, I think, to use Justice Brennan’s example, murder is really a pretty good idea, that teacher would probably be civilly committable, but I doubt that that teacher would be violating… that teacher would be going across the Brandenburg line.

The Brandenburg line does not depend on how silly or how disagreeable the view is.

Warren E. Burger:

What if the advocacy is of theft, rape?

The same proposition–

Laurence H. Tribe:

Well, Mr. Chief Justice, however long the list, the principle for which this case, I think, ought to stand is that if one is simply expressing misgivings about the law, whether sub silentio or expressly, one should not be punished.

For example, Justice Stewart about 25 years ago in a case also involving trying to make what was then criminal activity, sex outside of marriage, appear attractive, in the case of Kingsley Pictures, made clear that the right to make what was then a crime seem perfectly normal and attractive was a form of protected advocacy every bit as much, he said, as advocacy of socialism or the single tax.

But I want to make clear that the lines they are attempting to draw, though perhaps responsive to the Chief Justice’s concern, are lines not drawable at all.

It was this Court that recognized in Wrightman v. Mulkie about a decade before Oklahoma’s law was passed that the repeal of any legal prohibition may be said to encourage the activity formerly prohibited.

So, the result is that if someone says, I am in favor of repeal of the sodomy laws, or I believe we should pass gay rights laws, that person could obviously be said to encourage homosexual activity, and that is not an abstract matter.

The abstract discussion would subject that teacher to this entire statutory scheme in which there are so many uncertainties, and what it means is concrete.

William H. Rehnquist:

–Mr. Tribe, I think the abstraction in this case is that, if you agree, the statute has never been applied to anyone, no one is being threatened with its application, it has never been construed by the state courts.

Are all three of those points true?

Laurence H. Tribe:

It is threatening every day, which is why–

William H. Rehnquist:

Has the Oklahoma City School Board in this record threatened to apply the statute to any particular individual?

Laurence H. Tribe:

–No particular individual has asked, but because the chilling effect is so thorough… there is no question in this record.

The complaint alleges that the members of the Gay Task Force, not third parties but members of the plaintiff, are afraid openly to discuss homosexuality.

The Attorney General of Oklahoma says that the reason this statute should be kept on the books is that they have a right to get rid of gay rights activities.

William H. Rehnquist:

Well, but there is no allegation as I read it that this particular regulation of the Oklahoma City School Board has ever been applied to a single living soul.

Laurence H. Tribe:

Because they are all–

William H. Rehnquist:

I am not interested in why.

Laurence H. Tribe:

–You are right, Mr. Justice Rehnquist.

There is no allegation that it has ever been applied.

In that sense, this case is on all fours with Pecunier v. Martinez, involving prison censorship, never applied, but the scheme held invalid by this Court–

William H. Rehnquist:

Well, it is also on all fours with Poe against Ullman, it seems to me.

Laurence H. Tribe:

–But in Poe v. Ullman, it seems to me, Mr. Justice, the issue of ripeness was a serious one.

Here the allegation is that these teachers are ready to discuss this issue now but are afraid to do so.

When summary judgment was entered, it was entered on a stipulation saying that there was no genuine dispute of fact.

William H. Rehnquist:

Yes, but there was no allegation in the complaint that this statute was ever… had ever been applied.

Laurence H. Tribe:

Because the allegation is that they were afraid to test it.

Justice Rehnquist, I–

William H. Rehnquist:

Well, but how far can you back up from a statute and still challenge it?

Laurence H. Tribe:

–Well, if you have to nudge yourself right up against it and risk your job to challenge it, then this Court, I think, clearly has to overrule Baggett v. Bullitt and Paishe.

William H. Rehnquist:

Well, in Baggett against Bullitt, the principal had circulated a memorandum saying that those teachers were going to have to take the oath.

There was not the total absence of enforcement there that there is here.

Laurence H. Tribe:

Well, they could have taken the oath, but then you see their argument was, the argument of the other side was, it is perfectly harmless to take the oath.

All you have to do is then never cross the forbidden line, and it could have been said then, no one was ever threatened with being pushed over the cliff, and the answer was, because they were afraid to get close to the line.

This Court, I think, has made clear in, for example, not only Pecunier, which applied to prisoners, but Virginia Board of Pharmacy, which applied in the commercial speech context, that if a law is void on its face and controls pure speech, then you needn’t push the authorities into applying it to you before you get a facial test of it.

Surely that principle, that there can be anticipatory attacks on laws that facially invalidly regulate speech can’t be limited to prisoners and commercial speech.

Byron R. White:

The defendant was the board, wasn’t it?

Laurence H. Tribe:

The defendant was the board of education of the City of Oklahoma.

Byron R. White:

And is it true that it has a statutory obligation to enforce it?

Laurence H. Tribe:

It has a full statutory obligation, Justice White, to enforce it.

Byron R. White:

It had no discretion but to enforce it?

Laurence H. Tribe:

There appears to have been none.

That is why they were the ones who were sued rather than any other state officer.

Byron R. White:

I suppose… and the complaint did allege that.

Laurence H. Tribe:

That’s right.

The complaint alleged it, and that was, in fact, among the things that the defendants admitted rather than questioning.

But I think we can come close to the specific threat Justice Rehnquist wants if we go back a little in time to February 12th, 1981, when there was a colloquy between counsel for the board of education and counsel for the National Gay Task Force before the District Court on the motion to dismiss on exactly the ground that you are raising, Justice Rehnquist.

At that point, the position of the board was, you guys are free to discuss anything you want as long as you don’t cross this line that we understand, that is, as long as you don’t intentionally urge anyone to go out and commit criminal sodomy.

Counsel for plaintiff, the National Gay Task Force, then said, fine, we will drop this entire lawsuit if the board enters into a binding decree, a binding consent decree restricting the law’s enforcement to that extent.

In other words, remove the threat.

Well, counsel for the board perhaps was nonplussed.

He said, I’m not sure I can do that.

I am working for a political body.

And then he refused.

This is in Volume 3 of the Court of Appeals record, at Pages 24, 34, and 40.

So that the Oklahoma law itself on its face continues to threaten protected speech across the full range of the law’s literal reach.

Sandra Day O’Connor:

Mr. Tribe, do you agree with the narrow interpretation of this statute described by your opponent today?

Laurence H. Tribe:

Well, I certainly don’t agree with any narrow interpretation I have heard before.

The one described today is a little hard for me to follow.

He says in answer to Justice Brennan’s question, what if a teacher says, perhaps in a discussion with fellow employees or let say at a PTA meeting, or on a local talk show, I wish they’d leave these homosexuals alone, they are not hurting anybody else, would that teacher then be subject to immediate suspension while they tried to figure out what this law meant?

And I think with commendable candor counsel was really unable to answer.

He said, well, maybe that is a kind of sub silentio advocacy of repeal.

Well, if all they are talking about is soliciting homosexual activity, or imposing it, I think it is very clear from the opinion below that teachers even after the decision of the Court of Appeals can still be fired for soliciting or imposing.

They are obviously talking about expressing the point of view that homosexual activity shouldn’t be made subject to criminal laws, that homosexuals shouldn’t be harassed or stigmatized.

Thurgood Marshall:

Mr. Tribe, isn’t that the reason you should give the state an opportunity to limit its own laws?

Laurence H. Tribe:

Well, Justice Marshall, I would love to have the state do that if it could be done in a single plausible construction, but this Court has–

Thurgood Marshall:

Well, couldn’t you file a lawsuit against them in the state court?

Laurence H. Tribe:

–Well, in fact this Court itself could certify the case to the Supreme Court of Oklahoma, and that would surely be better than making us start from the beginning, but let me ask this Court to think about–

Thurgood Marshall:

Why?

Laurence H. Tribe:

–Why would that be better?

Thurgood Marshall:

Why would that be better?

Laurence H. Tribe:

Well, because this Court has held about eight times that the high cost of keeping the chilling effect of this kind of law in place while someone is dragged through another judicial system is not worth paying.

Thurgood Marshall:

Do you mean you filed this case for the purpose of getting us to send it back?

Laurence H. Tribe:

No, no, we filed this case for the purpose of being able to speak freely.

Thurgood Marshall:

You say now it is all right to send it back.

Laurence H. Tribe:

No, I say it would be better to send it back than make us go through from the word go.

But let’s think about what would happen if you sent it back.

What would you ask the Supreme Court of Oklahoma?

Would you give them a multiple–

Thurgood Marshall:

You are asking a state supreme court to interpret its own state statute.

Laurence H. Tribe:

–Right.

Thurgood Marshall:

That is all you are asking.

Laurence H. Tribe:

But if the question is that open-ended, I would hate to serve on that state supreme court.

Byron R. White:

Well, after we hear your argument we will know what to ask them.

Laurence H. Tribe:

Well, I think after you hear the argument you might know, if you agree with me, that there is no finite list of questions that would help, because the very questions already asked from this bench, I think what we got was an example of the Draconian chilling confusion caused by this law.

For example, Justice O’Connor asked, what about that first criterion?

Laurence H. Tribe:

Must there be likelihood of adverse effect?

And then counsel invented the Childers case, which I guess… I have read the case.

It is not in the briefs.

The case deals with an interpretation of the sodomy law, not of this law.

As they say, this law has never been interpreted because it has never been applied, because its chilling effect is so severe.

Then they turn to a Tennessee case.

The fact is that if you just read the statute, all it says is, certain factors shall be considered.

It doesn’t say any of them must be present.

And then, what is the meaning of adverse effect?

That is, embarrassment by fellow teachers is obviously not to be desired.

That is an adverse effect.

Now, the Supreme Court of Oklahoma might write a 1,000-page essay.

Well, by adverse effect, it has got to be very adverse.

It might try to tell you what that meant.

But the whole theme of many of this Court’s decisions dealing with certification as well as abstention is that when a law is so broad and sweeping in its chill of protected discussion that you couldn’t get a simple, clear, single definition of just how far it reaches, not in a long series of adjudications, which might never occur because of the chilling effect of the law–

Warren E. Burger:

You are starting there with a conclusion that this is protected discussion.

Isn’t that what this case is about, whether it is protected discussion?

Laurence H. Tribe:

–Of course, even the board of education concedes that if it comes anywhere close to advocating repeal, it ought to be protected, but remember, when they were asked to narrow the law’s enforcement to that extent, in February of 1981, they refused.

Actually, this Court has dealt with problems rather like that in a case called Thomas v. Collins, the leading case back in 1945.

It was common ground in that case that it is not protected discussion for a union organizer actually to solicit members in the union without first getting some kind of union card.

But on the other hand, it was protected just to extol the virtues of unionism.

The problem in that case and the conclusion of the Court was that when a speaker has to worry on pain of some concrete penalty if he guesses wrong whether others will take his words of praise for unionism, like Justice Brennan’s example, what is so wrong with what these gay people do, whether others will take those words of praise as an impermissible encouragement to join up, then the freedom of speech is fatally abridged.

And I think the fundamental teaching of this Court’s cases all the way back from Thomas in ’45 to Baggett and Paishian is that the First Amendment forbids forcing speakers to walk across that kind of tightrope even if the state, promises that it might supply some kind of safety net if they should happen to fall.

Warren E. Burger:

Do you think a legislature is entitled to take into account the reality, if you concede that it is a reality, that teachers in schools, particularly grade school and high school level, are role models for the pupils?

Laurence H. Tribe:

I think that, Mr. Chief Justice, that certainly can be taken into account, but when President Reagan editorialized against this very law in California, about six years ago, his answer to the role model point was, first of all, as a matter of common sense, there is no reason to believe that homosexuality is something like a contagious disease.

He quoted a woman who said that if teachers had all that much power as role models, I would have been a nun many years ago.

His point really was, this role model business can be taken only so far, and this Court itself said in Ambach against Norwich, recognizing teachers are role models, yes, and we can make them be citizens, yes, but in Footnote 10 this Court said, of course, we are not saying you can muzzle them, we are not saying you can tell them what to discuss.

And this Court in Abood versus the Detroit Board of Education not very long ago expressly held that although they are role models, public school teachers have First Amendment rights every bit as broad as private citizens when they talk on matters of public interest, whether they are talking politics or philosophy or ethics or social change.

Now, recognizing that teachers are role models does not mean that the First Amendment–

William H. Rehnquist:

Abood wasn’t a classroom teaching case.

William H. Rehnquist:

That was a case where the teachers were presenting a point of view to the school board.

Laurence H. Tribe:

–That’s right, Justice Rehnquist, but one of the conclusions in Abood, I think, would simply that if the teacher’s union to which teachers had to contribute began engaging in lobbying, saying we should tighten up the laws against gay activity, then a teacher would be free to withhold her dues.

And surely if she is free to withhold her dues, she is free to explain at a PTA meeting or in a newspaper why she is withholding her dues, and if she quotes Justice Brennan and says, I am withholding my dues because I think that being gay, though right now it is a crime, oughtn’t to be, there is nothing wrong with it, then that teacher runs afoul of this law, because that could be said to encourage.

And this case, too, doesn’t involve a classroom situation.

That is, in no way do we challenge the power of Oklahoma to prescribe a curriculum.

In no way do we challenge the power of Oklahoma to direct what may be included in class.

Byron R. White:

Well, you do challenge, I take it, a rule that said that you may not discuss homosexuality in class?

Laurence H. Tribe:

Well, of course, that would be subsumed in this case, but this case goes way beyond class.

Byron R. White:

Well, I know, but so you would say there are some limits to what you–

Laurence H. Tribe:

Sure there are, Justice White, and I would… let me give you an example.

Suppose–

Byron R. White:

–I would suppose you would say that the teacher in the class could not be fired for in class urging that the laws against homosexuality be repealed.

Laurence H. Tribe:

–Well, in a math class–

Byron R. White:

Is that right or not?

Laurence H. Tribe:

–that would conflict with the curriculum rules.

Byron R. White:

Well, I know, but any time, any time.

Laurence H. Tribe:

I think, Justice White, I would probably urge that, but we don’t have to prevail on that view for this law to be struck down.

Byron R. White:

I know you don’t because you are arguing overbreadth, that it covers non-classroom activity.

Laurence H. Tribe:

That’s right, but even in class, Justice White, suppose during a recess a child runs in and says, what should I do, I just saw these kids ganging up on Johnny, they claim Johnny is gay.

This law is in effect.

The teacher is in a dilemma.

On the one hand, the teacher could say nothing, and encourage disrespect for fellow students.

On the other hand, the teacher can say something sympathetic to Johnny, who is thought to be gay.

The moment the teacher does that, then as President Reagan said when he opposed this law, someone may be listening, and the teacher may be in trouble.

William H. Rehnquist:

When you say ganging up, I take it you mean chiding.

Laurence H. Tribe:

Chiding or perhaps beating up on.

That is, the experience in the State of Oklahoma has not been a happy one.

There have been violent episodes against homosexuals, and in light of those violent episodes, it is not surprising that the law has had so chilling an effect.

Thurgood Marshall:

That is not in this record.

Laurence H. Tribe:

Well, the chilling effect, Justice Marshall, is in the record.

Thurgood Marshall:

I am talking about the beating up business.

Laurence H. Tribe:

That is right.

I think the Court–

Thurgood Marshall:

That is not in this record.

Laurence H. Tribe:

–The Court may just have to take notice of some realities.

Thurgood Marshall:

Let’s stick to the record.

Laurence H. Tribe:

Nor is it necessary to our case that we talk about that.

I am simply trying to put this case in context.

Thurgood Marshall:

It is necessary to stick to the record.

Laurence H. Tribe:

I will do that, Justice Marshall.

And with respect to the record in this case, if I might go back to the idea that these nexus requirements might somehow save the law, either the way they are written or the way they might be construed if this Court were to certify the case to the Supreme Court of Oklahoma, it seems to me that the key to that is Justice White’s question about whether all of these factors might somehow be collapsed into nothing through that magic word, “unfit”, because if you really had to find that word, independent of the viewpoint the teacher expressed, the teacher was independently unfit to teach, in terms of general background and otherwise valid fitness rules, then of course this law would be entirely superfluous except for one important factor.

And that is that under this law there is a new basis and an important basis for chilling all speech that comes anywhere close to the line, and that is in Section 6103.3 of the statute, which is very much in this record.

Whenever a superintendent of a school district has reason to believe that cause exists for dismissal, then the teacher can be suspended without even a hearing while one tries to figure out whether the teacher is unfit within the meaning of this law, and then when you look at this law, what does it tell you?

It says that a teacher may be discharged if the teacher has been rendered unfit because of such conduct or activity.

Conduct is in turn defined as speech.

In other words, you can be rendered unfit simply because the point of view you express might directly or indirectly encourage homosexual activity.

Now, it is suggested by Mr. Arrow that we are somehow guilty of reading the word “indirectly” into this law to make it look broader.

On the contrary, when they were invited before the District Court to narrow the law by reading the word “directly” into it and an intent requirement into it, to eliminate the directly threatened enforcement of the law as it now stood, they declined that invitation.

Warren E. Burger:

Do you think counsel could amend the statute in the District Court?

Laurence H. Tribe:

Well, the problem is, I suppose, counsel couldn’t even promise not to enforce it.

That is, he surely couldn’t amend it–

Warren E. Burger:

Well, let’s stay with the amending.

You are chastising him for not amending the statute.

Until he gets elected to the legislature, he has no standing to do that.

Laurence H. Tribe:

–I certainly don’t mean to be doing that.

I am suggesting, however, that if in this Court he tells us in response to Justice Rehnquist’s question that there is no real threat of enforcement against people who merely discuss, he certainly had the power to eliminate that threat by entering into a consent decree.

But as Justice White points out, this law is essentially self-executing.

They have no discretion about its enforcement.

If you put yourself in the position of a public school teacher in Oklahoma either before the Tenth Circuit acted or after this Court might send the case back on certification to the Oklahoma Supreme Court, and if you ask yourself, must I hedge and trim every word I utter on this controversial public subject, because otherwise I will be suspended and I might ultimately be discharged, your answer is surely yes.

That is, this law, by virtue of the threat that is on its face reinforced by the sweeping interpretation given by the Attorney General of the State of Oklahoma, this law in effect tells teachers, you had better shut up about this subject, or if you talk about it, you had better be totally hostile to homosexuals.

Laurence H. Tribe:

And the real question is whether it is consistent with the traditions of free speech and open inquiry for that lesson to be given.

You asked, Mr. Chief Justice, about the role model function of teachers, and I do take that seriously, but it seems to me that when Justice Frankfurter in 1952 talked about teachers as the high priests of our democracy, he made an important point in suggesting that one of the most important values that those teachers model is the value of open inquiry, the value of free speech and an informed citizenry.

And even the teacher who out in society advocated some of the really more outlandish positions that might be attributed to people, not this position, which is hardly outlandish… 29 states have adopted it… but even if a teacher out in the society, in the community, said, I think that many of the laws that all you people think that are reasonable are really crazy, it is part if the lesson that teachers are to impart in this society that a teacher ought not to be silenced and fired for that.

William J. Brennan, Jr.:

Mr. Tribe, I notice you haven’t cited In Re Sawyer.

Don’t you get any comfort from this?

Laurence H. Tribe:

Which aspect of the holding?

William J. Brennan, Jr.:

That was where the lawyer criticized the Smith Act.

Laurence H. Tribe:

It would seem to me that if lawyers can’t be punished for criticizing the Smith Act, as you point out, Justice Brennan, then teachers can’t be punished for criticizing the anti-sodomy act.

Warren E. Burger:

You think those two things are quite parallel, apparently.

Laurence H. Tribe:

The anti-sodomy act and overthrowing the government?

It seems to me that, if anything, it is obviously more serious to bring the government down by force and violence than to engage in even the private conduct for whose advocacy a teacher could be fired.

But interestingly, Mr. Chief Justice, Judge Barrett, dissenting in the Tenth Circuit, thought it was the other way around.

That is, he thought that even though this form of advocacy or encouragement or promotion of criminal and violent overthrow of the government would be protected, that there was something so much worse about homosexuality, because it was, he said, malum in se, that you don’t have to show any real probability of harm.

You just fire someone.

It seems to me that that expresses an attitude of horror and unspeakability also suggested by the fact that the crime isn’t even named in the Oklahoma statute.

It is the detestable crime against nature.

One can either view it as so horrible that it can’t even be named or one can view it as activity that is really nobody else’s business.

But however you view it, isn’t it the fundamental lesson of freedom of speech that those who seriously disagree with the majority’s view should not be forced to hedge and trim every word, waiting to hear what the Oklahoma Supreme Court on certification tells them this vague and opaque and sweeping and broad law really means?

Warren E. Burger:

What are the immediate consequences of trying to overthrow the government by use of actual force and violence?

The immediate consequences are reciprocity with the same kind of treatment, are they not?

Laurence H. Tribe:

You mean other speech?

Warren E. Burger:

Yes, you get shot.

Laurence H. Tribe:

If you incite it, you would get shot, surely, and if you incite homosexual activity, then you are committing a crime in Oklahoma, and you go to jail, and from jail you can’t teach.

Warren E. Burger:

No, you are changing this quite markedly.

I am saying that if you go out and begin to overthrow the government, any government of any country, the authorities will start shooting themselves.

They don’t engage in lawsuits.

They shoot.

Isn’t that right?

Laurence H. Tribe:

I suppose that’s right, Mr. Chief Justice, and I suppose if you go out and begin committing homosexual sodomy, that is, anything close to the act itself is a crime in Oklahoma, and if you impose it or solicit it, that is, the kind of activity that is ancillary to it, you can be fired as a teacher.

The question in this case isn’t what happens if you begin to commit it.

Laurence H. Tribe:

The question is, what happens if you discuss it favorably, express sympathy to it, express sympathy in any of a number of possible ways?

And there is no way to give an answer to that question by one simple interpretation.

The only way to give that answer is to apply the First Amendment to it.

And in the name of the First Amendment, it seems to me that there is only one correct outcome in this case.

One moral certitude after another has led men to hound others from their midst.

Their ideas seemed alien.

They were too different.

But as Justice Brandeis reminded us long ago, men feared witches and burnt women.

That is not the proudest part of this nation’s heritage.

Byron R. White:

Mr. Tribe, what… public homosexual conduct is what is involved here, but it at least include either advocating, soliciting, imposing, encouraging, or promoting.

Laurence H. Tribe:

That is right.

Encouraging–

Byron R. White:

I take it… you have said time and time again that if you just got up and urged that the law be repealed, the law against homosexuality be repealed, you would be advocating, soliciting, imposing, encouraging, or promoting?

Laurence H. Tribe:

–Encouraging or promoting.

Well, as you said, Justice White, in the Wrightman case, remember–

Byron R. White:

Well, as to the Wrightman case, this is the first time I have heard that case cited for anything.

0 [Generallaughter.]

Laurence H. Tribe:

–It is the one proposition to which it may really be relevant.

Byron R. White:

Well, it may not be.

0 [Generallaughter.]

We will soon find out.

You say the word is “advocating”?

Is that it?

Laurence H. Tribe:

The three words together, advocating, encouraging, or promoting.

Byron R. White:

Advocating that the law be repealed would be encouraging?

Laurence H. Tribe:

No, advocating that the law be repealed might encourage or promote the underlying activity.

The reason that you advocate repeal is to liberate the activity from the inhibition of this law.

William H. Rehnquist:

But the activity wouldn’t be encouraged until repeal actually took place, would it?

Laurence H. Tribe:

I suppose the activity is indirectly encouraged.

But remember, Mr. Justice Rehnquist, I think it is quite crucial that when that line of argument was pursued in the District Court, that is, it would be quite satisfactory to the Gay Task Force to have this law effectively rewritten by somebody, or a promise of non-enforcement clearly and bindingly made, if you stop short of deliberately urging the actual commission of the crime.

Laurence H. Tribe:

People don’t get up on soapboxes and say, sodomy now.

That isn’t the problem.

0 [Generallaughter.]

William H. Rehnquist:

If the Task Force offered to stipulate to a construction in the District Court, it seems to me that is all the more reason why the state court should be given an opportunity to construe it.

Laurence H. Tribe:

If the state court in a single decision could construe it, that would be fine.

William H. Rehnquist:

Couldn’t they construe it according to the stipulation that your client offered to enter into?

Laurence H. Tribe:

That it construe it to… if this Court were to ask the state court, does this law henceforth apply only to directly and deliberately urging the commission of the specific crime with the intent that the crime be committed, and if their answer to that question is, yes, we will effectively rewrite the law so that it all it covers, that would satisfy the purpose.

Byron R. White:

Suppose a teacher gets up in a classroom and says, I encourage each of you to engage in homosexual activity, and that is all he says or she says.

Now, could that teacher be legally fired under this Act?

Laurence H. Tribe:

I would think even without this law, that teacher could probably have been legally fired, because… well, certainly under this law that teacher could be fired.

I guess your question is, would it be constitutional to apply the law that way to that teacher.

Byron R. White:

I want to know whether you would say firing a person for saying that would be constitutional.

Laurence H. Tribe:

Under this law I think not, but in general the answer is, I think you could fire someone in class for saying, I encourage you to go out and commit a crime, and it wouldn’t matter what the crime was.

But all that tells us–

Byron R. White:

Whatever the teacher says inside the classroom or outside the classroom has got to be at least to encourage homosexuality.

Laurence H. Tribe:

–That it has to have that effect.

Byron R. White:

Yes.

Laurence H. Tribe:

My time is up.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.