Speiser v. Randall – Oral Argument – April 09, 1958

Media for Speiser v. Randall

Audio Transcription for Oral Argument – April 08, 1958 in Speiser v. Randall

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Earl Warren:

Randall, and Number 484 — (Inaudible) San — San Francisco.

Lawrence Speiser:

I would like to discuss two points in the cases of which I think are fundamental both to these cases as well as to the preceding ones.

One is the question of the infringement on freedom of speech as encompassed within the language of the constitutional amendment and within Revenue and Taxation Code Section 32 and the reason why this language has not been limited by the State Supreme Court and its interpretation of it to language of advocacy as a rule of incitement but encompasses within it, advocacy which is — which may be merely discussion or advocacy of abstract principles.

And secondly, I would like to discuss the fact that there is no legitimate legislative objective to the constitutional amendment which is an issue here and that is totally unrelated to the purposes of the various exemptions which are granted under state law.

Now, it has been indicated in various decisions and I believe that the appellees will agree that indirect infringements on freedom of speech may be fully as coercive in their effect as direct infringement.

The Douds case seemed to indicate that and Justice Burton indicated that in a situation like this where individuals fall within a general class in which they would otherwise obtain an exemption if they are excluded from this.

Isn’t this in effect a direct tax?

My answer is yes, this would be just the same effect.

You’re looking at the substance of the matter not the form.

Now, if you do have an indirect infringement, as I contend that you do, in this case, then there has to be a determination as to whether the terms of the particular legislation with constitutional amendment affect free speech and we have to look at the terms themselves.

Now, first of all, there was no interpretation on the part of the State Supreme Court of the second clause, advocacy of the support of a foreign government against the United States in the event of hostilities.

So there is no gloss on that.

There is no indication as to whether they were merely restricting that to advocacy which might be advocacy in the form of incitement.

Now, as far as the first part is concerned, the State Supreme Court said this.

Now, the opinion of the State Supreme Court in the First Unitarian Church cases sets forth their reasoning for the decisions which they made in the cases here at issue.

So I’m going to be referring to the opinion of the State Supreme Court most of the time and its opinion in the First Unitarian Church cases which came up just before the cases that issue.

They are printed in the jurisdictional statement.

They are not printed in the record of our case.

Now on page 39 of the of the appendix to the jurisdictional statement, the State Supreme Court said this, “In the present case, it is apparent that the limitation imposed by Section 19 of Article 20 as a condition of exemption from taxation is not a limitation on mere belief but is a limitation on action.

The advocacy of certain proscribed conduct.

What one may merely belief is not prohibited.

It is only advocates of the subversive doctrines who are affected.

Advocacy constitutes action and the instigation of actions not mere belief or opinion.

Now, there’s no reference in their discussion at all to advocacy which discussion, advocacy of abstract principles.

They apparently make just two categories, advocacy of action — excuse me, advocacy which constitutes action.

I’m not quite sure what they mean by that but — and then advocacy which is instigation of action and then on the other side of the fence, not mere belief or opinion.

From the tenor of their remarks though, it is apparent that they seem to feel that advocacy itself is action and this is not true.

This Court has had this matter before it on a number of occasions and it isn’t a question of whether the advocacy of action.

That isn’t how the question is decided.

It’s whether speech is so close to action in certain situations that the State may validly place limitations on it.

Lawrence Speiser:

So, I feel that they have incorrectly talk of advocacy in terms of action and since they have left out this broad area with which we are mainly concerned of, what about advocacy that does not take on the color of action.

It isn’t incitement but it’s merely advocacy in the form of discussion, advocacy which is in the form of — of pleading.

Where does that fit in?

They don’t discuss this.

They make the two categories, advocacy constituting action and instigation that’s action and belief or opinion.

Then they go on to explain themselves and discuss the Dennis case and what they conceive to be the holding of the Dennis case and this is where I think it is fairly clear that they have misinterpreted the Dennis case and what advocacy may or may not be punished or penalized.

On the jurisdictional statements of the instant cases on page 46, the Court says, “In that case, Dennis versus the United States, the Court upheld an instruction to the jury that if the defendants actively advocated governmental overthrow by force and violence as feebly as circumstances would permit, then as a matter of law, there is sufficient danger of a substantive evil that the Congress has the right to prevent to justify the application of the statute under the First Amendment of the Constitution.”

In the present case, the constitutional provision is concerned with those who advocate the same prohibited activity.

Well, if they had correctly stated what Dennis meant, then I would not be able to make the point that I’m making but they have incorrectly stated it and they — they stated it in even less rigorous terms and the trial court had in Yates which this Court recently determined was not sufficient in — to define advocacy which may be penalized.

Now, as the Court pointed out in Yates and — and in Dennis and Justice Frankfurter’s conferring opinion in Dennis that there are three factors in determining the advocacy that may be penalized that one, was that it be a rule of action, two, by language that reasonably calculated to incite persons to such action and three, and was intended to overthrow the Government by force and violence as soon as circumstances permit.

The State Supreme Court makes no references, no reference to any of those three factors.

They do so in the term as speedily as circumstances permit.

They used the term “actively advocate” and I’m not sure what they mean by that.

You may actively discuss.

You may actively advocate as an — an abstract principle.

So, they don’t talk about advocacy as a rule of action and that this statute was intended to hit at that type of advocacy.

Even the Yates instruction was better than the — the instruction of the lower court in Yates was better than this because they at least have the last factor.

And then to further make clear of the fact that they completely misconstrued advocacy which may be penalized, they make the statement and it’s on the jurisdiction — in the jurisdictional statement in the appendix, page 47.

It must be said that such advocacy from whatever source imposes a threat to our Government and that the gravity of the evil is not to be materially discounted by its improbability from the meaning of the test which employed in the Dennis case.

There, they directly misstate the hand rule which was adopted in the — the Dennis case because the hand rule says that the gravity of the evil is to be discounted by its improbability.

And yet, the State Supreme Court says that the gravity of the evil is not to be materially discounted by its improbability.

Now, the —

Felix Frankfurter:

Does that — are you implying that this Court must be convinced that there was great danger of people proposing the more or less immediate overthrow of the Government of California or the United States?

Is that what you’re arguing?

Lawrence Speiser:

No, I’m not, Your Honor.

I am suggesting that in this case that there is an infringement on freedom of speech.

Whether its justified I’ll get to in a moment, but I’m arguing the fact that the State Supreme Court in its interpretation meant to include within the context of the constitutional amendment in the oath, advocacy protected by the First Amendment unless there’s some justifiable reason for infringing on it.

Now, the reason I’m making this distinction because of the question that Your Honor raised yesterday in which you posed to Mr. Warren an oath framed in terms of incitement as distinct from in terms of advocacy which may be speech.

Felix Frankfurter:

Do you think that would be all right that if it were explicitly —

Lawrence Speiser:

In terms of —

Felix Frankfurter:

(Inaudible)

Lawrence Speiser:

No, I — I would not because there are substantive due process questions involved there as to whether there is a —

Felix Frankfurter:

Or is there anything but a substantive due process involved in any of this?

What is procedure of due process of (Voice Overlap) —

Lawrence Speiser:

Well, I’m not making — I’m not raising the point of procedural due process.

Felix Frankfurter:

Well then —

Lawrence Speiser:

But in — when I use the term substantive due process, I was speaking in terms of whether there is a legitimate legislative purpose and whether the mean selected have some reasonable relation to that legitimate legislative purpose.

I was distinguishing that from the free speech question which I agree falls within the context of substantive due process as well.

Felix Frankfurter:

I wish I — I wish I felt clear that I knew what were you saying but I understood what you are saying —

Lawrence Speiser:

Well —

Felix Frankfurter:

— except the word.

Lawrence Speiser:

There —

Felix Frankfurter:

It’s maybe my fault

Lawrence Speiser:

And what — then its —

Felix Frankfurter:

Don’t (Voice Overlap) —

Lawrence Speiser:

— my — my job to — to —

Felix Frankfurter:

Let me — don’t let me dissuade from your course of arguments.

Typically, you’ve a — a lot of words.

(Inaudible)

Lawrence Speiser:

Well, then may I — may I state it again?

There are two problems that I feel are involved in this case of major importance.

First of all, there is the problem as to whether there is an infringement on freedom of speech.

This, I grant you, comes through the Due Process Clause of the Fourteenth Amendment.

Now, in determining whether there is an infringement on freedom of speech, I first of all, have to determine whether speech is being affected by it.

This was the gist of what I — of my argument up to this point.

Now, once I’ve determined that, that doesn’t solve the question.

There are still some other problems involved and that is whether the —

Felix Frankfurter:

Would’nt be infringement because you have to make an oath or because the oath is calculated to inhibit speech which, a very different thing.

Lawrence Speiser:

I — I will talk about it in the context of the constitutional amendment, leave the oath out entirely.

Felix Frankfurter:

Well, even if the difficulty that — that you’re being — you’re being prohibited from uttering statements.

Lawrence Speiser:

That is correct.

Felix Frankfurter:

Now, what is it you’re being prohibited from others?

Lawrence Speiser:

Under the interpretation of the State Supreme Court, the — there is an inhibition on uttering speech which is — does not get to the status of incitement, does not get to the status of a rule of action and there is an inhibition in speech — on speech of that kind.

Felix Frankfurter:

That comes only if you’re compelled to obey the oath.

So, you cannot talk about the oath.

That’s what all of this is about.

Lawrence Speiser:

I — I can — I —

Felix Frankfurter:

If they — if you don’t care to take the oath then there’s no — then this — what we’re now concerned with doesn’t do any inhibiting.

Lawrence Speiser:

I believe that it does, Your Honor, in the fact that the State Supreme Court said first of all, the constitutional amendment which denies tax exemption to advocates of these doctrines is self-executing.

I — now, I can’t find a sentence in which it says it but throughout it, the — it is apparent.

It says that the constitutional amendment is mandatory and prohibitory.

It applies to all tax exemptions and then it says the — the oath provision of Revenue and Taxation Code Section 32 is merely a procedural device.

Felix Frankfurter:

Well, that’s — that — whether it’s the Constitution or the statute and enforcement of it, it doesn’t operate unless you claim an exemption.

Lawrence Speiser:

That is correct.

Felix Frankfurter:

And therefore, what if — what inhibits you when it is there, review the Constitution it says you can’t claim an exemption under these circumstances or the oath because you must determine if we’ll make some disavowal.

Lawrence Speiser:

Well, the oath being just a procedural device, still you have the question about the constitutional amendment —

Felix Frankfurter:

Yes.

But —

Lawrence Speiser:

— itself.

Felix Frankfurter:

— that doesn’t come into play unless you claim an exemption.

Lawrence Speiser:

That is correct.

William J. Brennan, Jr.:

(Inaudible)

Lawrence Speiser:

That is correct Your Honor.

William J. Brennan, Jr.:

You can’t attach what would you call an unconstitutional conditions and privilege suspended by the State.

Lawrence Speiser:

That is correct and in similar case —

Felix Frankfurter:

That doesn’t come into being unless you claim an exemption.

Lawrence Speiser:

That is true but once —

Felix Frankfurter:

That’s all I’m saying —

Lawrence Speiser:

All right.

Felix Frankfurter:

— that would — but there is an abstract — this abstract talk or what there is or isn’t in that opinion all hinges on whether or not the demand of the Constitution in the first place and the oath in the second restricting — conditioning your acceptance or getting an exemption.

Felix Frankfurter:

That’s the thing that does it and not these abstract talks.

Lawrence Speiser:

I —

Felix Frankfurter:

If you don’t make claim, if you yourself haven’t claimed an exemption, you wouldn’t be here in any case, would you?

Lawrence Speiser:

That is correct and the exemption was denied by reason of the constitutional amendments implemented by the procedural device as the oath itself.

Felix Frankfurter:

Therefore, it’s the coercive powers applies this coercive of claiming an exemption subject a condition.

Lawrence Speiser:

That is correct Your Honor.

Now, in determining whether there is an infringement on — on free speech, we not only have to look at the content of the oath, we also have to look at its sweep because —

Felix Frankfurter:

Now, what do you mean by that?

I — I think this is a territory as far as I’m concerned in which one has to be scrupulously and meticulously accurate and concrete instead of riding off into large talk.

Lawrence Speiser:

If I am correct, the constitutional amendment as the State Supreme Court said, it’s self-executing.

It’s mandatory and prohibitory applies to all exemptions then the sweep of it is all exemptions.

The mere fact that I happen to be here on one particular type of exemption is merely because the —

Felix Frankfurter:

Yes.

But your — you can’t hearsay, this is bad because it affects the church’s attendance.

Lawrence Speiser:

I can — I can look at the terms of it and I can look at it as the State Supreme Court interpreted it.

The State Supreme Court says it applies to all exemptions and I talked about a lot of different exemptions.

Felix Frankfurter:

We haven’t got all exemptions here.

Lawrence Speiser:

We have two classes, Your Honor, because the constitutional amendment made two classes.

It says one class is advocates, the other is non-advocates.

Non-advocates we’ll give exemptions to, advocates, we won’t.

Felix Frankfurter:

Can somebody come here who doesn’t pay any income tax and complain?

Lawrence Speiser:

Not at this stage Your Honor.

Felix Frankfurter:

Or can somebody in your — suppose you didn’t have any income tax report?

Could you be here?

Lawrence Speiser:

Not unless the State attempted to prevent whatever income I did have —

Felix Frankfurter:

Well, I’m —

Lawrence Speiser:

— from being exempt.

Felix Frankfurter:

— suppose you haven’t any?

Lawrence Speiser:

If I had no income?

William O. Douglas:

There’s no different posture in that issue than the (Inaudible), the Unitarian Church.

Lawrence Speiser:

That is correct Your Honor.

Felix Frankfurter:

But you were not presenting the position of the Unitarian Church.

Lawrence Speiser:

I’m not attempting to.

Felix Frankfurter:

All right.

William O. Douglas:

I thought you were presenting the First Amendment position.

Lawrence Speiser:

Well, I’m presenting — excuse me, I — I am —

William O. Douglas:

(Inaudible)

Lawrence Speiser:

I am presenting that the free speech question which I think is inherent in the First Unitarian Church cases as well as the cases at bar now.

Felix Frankfurter:

Well, I could decide against you and yet decide for the Unitarian Church, couldn’t I?

Lawrence Speiser:

You could, Your Honor.

Felix Frankfurter:

All right, but you’re not here for the Unitarian Church.

Lawrence Speiser:

But I — I am raising the question of free speech which I think is inherent in — in the — any case coming up under the constitutional amendment.

Felix Frankfurter:

So far, as it affects you.

Lawrence Speiser:

Not as long as I follow within the category of —

Felix Frankfurter:

Or anybody in your category if you’re in that category.

Lawrence Speiser:

And I’m in the category that’s been affected by the constitutional amendment in which makes two categories, advocates and non-advocate.

Now, in determining what the purpose of the constitutional amendment and this comes to the second point that I’m raising or have — we can look at the language of the State Supreme Court and then look at the purposes of exemptions because it says that it applies to all exemptions.

The purpose — so the State Supreme Court says, and this is in the jurisdictional statement on page 31, “It may properly be said that the primary purpose for Article 20 was to provide for the protection of the revenues of the State from impairment by those who would seek to destroy it by unlawful means.”

Well, this was not suggested either by the legislature nor even by the appellees.

They haven’t even picked this up in their brief.

And as a matter of fact, there is no impairment which has been shown.

The only effect that this could have would be to increase revenues, not impairment with starting out with exemptees as a group, the exemptions which have been granted.

And I’m not contending that exemptions rights.

I have recognized they’re privileges and gratuities.

And then the second purpose which was suggested by the State Supreme Court was that the interest of the State in maintaining the loyalty of its people and thus safeguarding against its violent overthrow by internal or external forces.

Well, this argument doesn’t hold up because that there isn’t any way that this does prevent the violent overthrow.

Now, with regard to loyalty, but the question was like, this is really to induce loyalty and that the State Supreme Court was looking at the constitutional amendment when it made the statement.

Now, if you’re going to determine the purpose of it and connection with tax exemptions, we have to look at all of them.

You can’t just look at the veteran.

You have to look at income tax exemption.

Lawrence Speiser:

What is the purpose of — of an income’s tax exemption.

Is it to promote loyalty or cemeteries or churches or growing crops and fruit in not growing trees?

We have exemptions for that in California and householders and — they all have different purposes.

They were all created for different reasons.

And we have to consider all those purposes in determining whether this constitutional amendment has some reasonable relationship to them.

If it doesn’t then it must fall in violating substantive due process.

It’s not reasonably related to some legitimate, legislative objective.

But even if we just consider the veteran’s exemption, the veteran’s exemption was created in 1911.

Justice Brennan was interested in this yesterday and it would have two major purposes.

One was it’s a reward for past honorable service, honorable discharge from the Arm Forces.

And secondly, it has an objective in assisting veterans who presumably have lost during wartime service because it’s limited to veterans who have less than $5000 worth of property.

These are the two purposes they have had.

It’s not — and the — there is no requirement that veterans as a group keep up a pattern of good moral character.

The — the character is established when they got their honorable discharge just as it is for bonuses.

There is no requirement that they not commit crimes, felonies.

There’s nothing at all.

There’s no disqualification because reward for past service and because trying to help veterans with some economic assistance.

Now, the purpose of the amendment, the constitutional amendment was set out in the argument of the voters.

I’m sorry the Court does not yet have the arguments of the voters.

I’ll leave the portions of it applying to the exemptions.

This means that no organization advocating the overthrow of the United States or the State could operate as a charity and avoid paying taxes.

It also means that any such person or organization would not be entitled to certain business and income tax exemptions.

This will have the effect of hitting such persons or organizations in the pocket book.

There is no valid reason why such exemption should be allowed to a Communist and the like.

No right thinking person should object to making a declaration that he’s not a Communist before receiving such exemptions from the State.

The last sentence really doesn’t apply because it makes no provisions for such a declaration but this is the reason.

It’s a penalization, it’s coercion, it’s an attempt to inhibit advocacy that was within the protection of the First Amendment and it’s the real reason.

It has nothing to do with the — the purposes of the exemption.

It’s no more — has no more to do with negating the purpose of the church exemption and raising morality or the veteran’s exemption or the cemetery exemption has no — no relation to that at all.

Its sole function is penalization to inhibit free speech.

Lawrence Speiser:

Now, it’s true, there’ve been cases that have allowed infringement on free — on speech as incidental effects.

The Douds case where you have a situation, but you have to weigh the danger to the country from interference with interstate commerce by political strikes.

There are government employee cases but none of those were aimed at the advocacy.

They were aimed at setting qualifications because there was a sufficient to danger to warranty infringement.

None of the cases in which you had situations for that kind have allowed infringements to be the purpose of the qualification.

George W. McClure:

Mr. Justice Black, may it please the Court.

For about seven minutes, I want to analyze very briefly the words and phrases, used in this oath and to show that those words and phrases have been upheld in other cases by this Court and by other courts.

The oath is a declaration that the personal organization making the statement return or other document does not advocate.

I’m reading — I’m sorry, from page IV at the back of appellant’s consolidated brief, the white brief, down in the middle of the long paragraph on that page.

A declaration that the personal organization making the statement securing no other document does not advocate the overthrow of the Government of the United States or of the State of California by a force or a violence or — or other unlawful means nor advocate the support of a foreign government against the United States in the event of hostilities.

We come first to the word advocate.

This is present advocacy and not past nor future advocacy.

In the Garner and Hoffman cases, these cases are all cited in this brief.

The advocacy was for a period of five years prior, in one case, to the passage of the statute and then the other case to the taking of the oath.

In the Fitzgerald versus Philadelphia case, the — both required was a promising that there would be no future advocacy.

Felix Frankfurter:

But isn’t — but isn’t the content of the term of a concept advocacy as ambiguous whether it relates to the past or to the present?

If advocacy as such at the difficulties of advice or the limitations or the fallibilities of ambiguity with reference to past, how did it contain an unequivocal meaning with reference to the person?

George W. McClure:

Well, it has the same meaning past or present, I think Your Honor.

Felix Frankfurter:

Well, then you do still have to meet whether the term isn’t inherently the ambiguous, or at least ambiguous to your content just refers in time to take a note in denial of it.

George W. McClure:

Well, I don’t think it’s —

Felix Frankfurter:

If you have to deny in something that’s ambiguous, you don’t know what you’re denying.

George W. McClure:

That’s true but I — I — our position is, that the word is not ambiguous.

However, —

Felix Frankfurter:

Very well.

Hugo L. Black:

What do you think it means?

George W. McClure:

I think it means what the Court has said and meant in the Dennis and Yates cases.

It means the — the calling, invocation or the incitement to whatever thing is being advocated.

In this case, the forceful overthrow of the Government.

Hugo L. Black:

Where?

George W. McClure:

Well, that can be as in the Yates case and in — in the Dennis case even a future violent act can be the subject of present advocacy and still be unlawful.

Felix Frankfurter:

But if a Verne advocates that the world is flat, that’s a mode of saying that’s what he believes despite all the evidence to the contrary.

But if he wants to get recruit for some purpose for that view, that’s a different thing.

George W. McClure:

That’s true, Your Honor.

That is having an idea that it could not unfairly because I’m an advocate of this view.

Do you think this is my think this is my intellectual offer?

That’s a very different thing from say I want to get people together.

We’re going to do something about it.

George W. McClure:

Well, we have the — the word “advocacy” used, in the number of oaths and declarations that have been passed on by the courts and I think that they had generally taken the view that it means something more than expressing their belief.

It means the calling forth of something on —

Felix Frankfurter:

There’s also (Inaudible) — there are those of us who had difficulty with that view as you know.

William J. Brennan, Jr.:

Well, Mr. McClure this was — those taxpayers do who looks at this thing and he has to ask himself, do I have the term, belief and — or do I have — if they’d to overthrow the Government by a force and violence.

Other people determine for themselves whether they advocate.

I don’t.

George W. McClure:

I suppose he searches his conscience and if he’s a lawyer, he reached the Dennis and Yates cases and if he isn’t he just answers it on some common sense basis.

William J. Brennan, Jr.:

How does he decide for himself based on what, conscience it is or what he believes to himself (Inaudible) —

George W. McClure:

I don’t —

William J. Brennan, Jr.:

— do it?

George W. McClure:

I would say that advocacy clearly means some expression whether there are oral or written.

William J. Brennan, Jr.:

In other words, at least he had to say to himself, “Well, I advocate that I can agree with myself as I advocate to overthrow if I have made speeches about it, if I have written to that effect.”

Is that it?

George W. McClure:

Yes, but not merely speeches about — speeches calling for some action or conduct on — on the part of the listeners.

William J. Brennan, Jr.:

In other words, he — he would not — if he able — even though he believe to himself, he hasn’t made any open expression or any word, although he might personally believe in — overthrow of the government by force and violence.

He could truthfully sign this unless if all he did was believe it and has never done anything about it.

Is that it?

George W. McClure:

He truthfully sign it.

William J. Brennan, Jr.:

And he could truthfully sign it if he merely made speeches about it but not — the only time he couldn’t truthfully sign it was the — more than like speeches about it.

He attempted by the speeches or otherwise to incite people to overthrow, is that it?

George W. McClure:

Yes, Your Honor.

William J. Brennan, Jr.:

So he just has to the answer that single question for himself, “Do I do things about this which have for their purpose inciting other people to overthrow and if I don’t I can truthfully sign it.”

George W. McClure:

Yes, Your Honor.

George W. McClure:

That’s our position.

Felix Frankfurter:

Mr. McClure may I ask you this question?

When was this amendment put the vote here at California?

George W. McClure:

In the election of November 1952, Your Honor.

Felix Frankfurter:

When did it first — when was it admitted into public?

That year?

George W. McClure:

You mean, when was it —

Felix Frankfurter:

When was the — when was the supporting memorandum, whatever it’s called put up?

George W. McClure:

Well, my recollection is those things come out about a month ahead of the general election in November.

Felix Frankfurter:

Somewhere on September, October (Voice Overlap) —

George W. McClure:

Yes, unless this might possibly had been in the summer at the primary but I think constitutional members —

Felix Frankfurter:

In 1952.

It’s all 1952.

George W. McClure:

Yes, Your Honor.

Felix Frankfurter:

So that was a full year.

That’s one full year.

Now, to this Court in Garner, they’ll call upon to reinterpret what the word advocacy means —

George W. McClure:

It was to —

Felix Frankfurter:

— and some of — isn’t that true?

George W. McClure:

It was only two years, Your Honor, at the Garner and Douds.

It was two years after those.

Felix Frankfurter:

1951, probably.

George W. McClure:

Well, then one year after Garner and two years after —

Felix Frankfurter:

And I suppose that — that the amendment was drafted, at least overseen by lawyers and the memorandum was drawn by lawyers.

Is that a fair inference or not?

George W. McClure:

Yes, the argument on one side was drafted by a lawyer for the (Inaudible) and on the other side, I think by a state legislator but I don’t know whether he’s a lawyer.

But I assume —

Felix Frankfurter:

Well, I’m — I’m suggesting that this Court in 1961 in a — in litigation in a — a case within this general appeal dealt with the California situation and indicated the difficulty of its term with the concept gone and even in the court’s opinion they have to rewrite it.

It doesn’t have to be right if construe it.

George W. McClure:

That’s correct.

Felix Frankfurter:

Now, I was just wondering whether one is entitled to say that — that this was put to the people of California, in all events incorporated in its constitution and its laws with notice from this Court that this is a — this is a ticklish, dubious term’ “advocacy” susceptible of different interpretations.

George W. McClure:

But we left a notice to the people — was that the Court had passed on the old — in the Garner case which went far further than this oath does.

Felix Frankfurter:

Yes, but it had to be reinterpreted with — with several doubts expressed by the (Inaudible) in this Court.

I don’t — I’m not arguing that the Court’s opinion isn’t the Court’s decision.

All I’m saying is that — that — made clear the difficulties of this kind of a problem didn’t it?

George W. McClure:

Yes, it is did.

William O. Douglas:

(Inaudible)

George W. McClure:

Well, not really to overrule the Supreme Court but —

William O. Douglas:

(Inaudible)

George W. McClure:

No, it wasn’t (Voice Overlap) — those words.

Felix Frankfurter:

I’m suggesting that the term was put back by the voters by legally informed people.

George W. McClure:

That’s correct, Your Honor, undoubtedly, drafted by the Legislative Council’s Officer.

But in that case, in — in the Garner oath, there was a requirement that you state that you did not advocate within five years prior to the passage of the law.

Insofar as I know, that oath is still required by public employees in that jurisdiction.

Furthermore, there was a non-membership privilege in — in that oath.

The — again, on the subject of advocacy, this oath does not touch affiliations and beliefs which were contained in the oaths in the Douds case and the Gerende versus Board of Supervisors, Shub versus Simpson, the Garner case and Friedrich cases.

The advocate —

William J. Brennan, Jr.:

(Inaudible) a taxpayer was a file which you were discussing, a state in which he said that I believe in the overthrow of Government by force and violence and I talk about that with my friends.

Would you allow him, the exemption if he signed that the statement saying in addition all I mean when I signed this is to say that when I talk about it, I’m not trying to incite anybody to overthrow the Government by force and violence?

George W. McClure:

Well, he has to sign our form of declaration because the statue says he doesn’t get that exemption.

William J. Brennan, Jr.:

Well, I’m suggesting that he says I signed it because that’s what I understand that means.

But nevertheless, I believe in the overthrow of the Government by force and violence indeed in my — among my friends I talk about it.

George W. McClure:

If he signs the declaration and makes that further explanation of it, our advice to the assessor would be to allow him the exemption I think because it doesn’t strike the beliefs and it doesn’t strike at the discussion as an abstract principle where the merits or demerits of a particular cause, on the subject of the overthrow of the Government whether it be the national or the state government in the Whitney case of course, the oath or the conduct which resulted in the criminal division was controlled by a statute which protected the industrial ownership and control and not merely the — the government of the — of the state and also that it protected the economic system, that was the criminal cynical of the statute.

(Inaudible)

George W. McClure:

Do I think our Supreme Court will?

(Inaudible)

George W. McClure:

You mean —

I think it did in these cases.

But, I understood Justice Carter’s opinion one of the things he took issue that the — that the majority had not so limited the statute and therefore, as he read the majority opinion that covered advocacy in its broad sense advocacy of abstract doctrine, he felt —

George W. McClure:

Well —

— that was one of his criticisms.

George W. McClure:

We — we don’t read the opinion that way, Mr. Justice Harlan.

We read as saying this declaration controls or seeks to have some — something to do with the same kind of conduct as the Smith Act.

I didn’t say you have to read it that way in order to escape the — the difficulties that your adversary brought.

George W. McClure:

Well, no, the Court itself has said that it controls — that it relates to the same conduct as the Smith Act.

In this case, business?

George W. McClure:

Yes, Your Honor.

Where is that?

George W. McClure:

The language is on pages 17 and 18 of our brief, this white brief.

Thank you.

George W. McClure:

And on page 53 of the transcript of the record in — in this case, no, in the Unitarian Church case.

17, page 17 in your brief is the language of this Court, not your court.

George W. McClure:

18 Your Honor, I’m sorry.

Oh, I’m sorry.

George W. McClure:

The italics at the bottom of that indented paragraph on page 18, in which — in which our Supreme Court was referring to the Dennis decision.

In Davis against Beason, this Court upheld an oath that prohibiting advocacy of bigamy and in Fitzgerald versus Philadelphia, the oath there concern the altering of the former government or denying rights to others, all of which are less formidable threats to the State than its own overthrow.

As to force and violence or other unlawful means, this language was used in the oath in the Douds case and in the Garner case and in the Whitney case and in the Putman and Fitzgerald cases.

In Adler versus Board of Education, this Court upheld the Feinberg Law in New York which related to an oath regarding the overthrow of the Government by force or violence or any unlawful means.

With petition regarding the advocacy of war support of a foreign government against this Government, we think it’s helpful to read case of Gilbert versus Minnesota in which case — in which this case this Court upheld a Minnesota state statute punishing the speaking against the United States participation and in that case, it was in World War I of course and said that this was a valid encouragement of patriotism on — on the part of the State and that the States stood to suffer as much from a defeat as the National Government and it was the citizens of the States which made up the national armies.

The conduct advocating war support of a foreign government against our Government is merely a particular form of the same kind of conduct which is reached by the first provision which is advocacy forcible overthrow of the Government and has the additional evil or the additional reprehensibility of —

William J. Brennan, Jr.:

Can you say that again, Mr. McClure, what does it mean?

Support for means what?

George W. McClure:

War support of a foreign government.

William J. Brennan, Jr.:

Support of a foreign government in the event of hostilities is the language, isn’t it?

George W. McClure:

Yes, sir.

William J. Brennan, Jr.:

So, what does that mean?

George W. McClure:

That means taking the position that if in and when there are hostilities and, of course, they may be at the time that the speech is made or they may be in the future.

But at that time during a period of hostilities that one should work for the victory of a foreign government over the Government of the United States.

(Inaudible)

George W. McClure:

I don’t know whether how far the moral support would carry us.

Right.

George W. McClure:

Certainly, in some cases I would think that the moral support would be covered by this in other cases but it’s not.

Hugo L. Black:

In effect, they have to swear that they were not guilty (Inaudible)

George W. McClure:

I would say that that language reaches the same — the same access as that —

Hugo L. Black:

And that refer that they do not — will not commit treason if we have a war.

George W. McClure:

Well, that they do not now advocate the commission of treason.

Hugo L. Black:

Not in time of war?

George W. McClure:

Yes —

Hugo L. Black:

Well, that —

George W. McClure:

In time of hostilities.

Hugo L. Black:

I — I thought the way you read it was something like they had to swear they wouldn’t give aid (Inaudible) in time of war they wouldn’t ask anybody else to do it.

George W. McClure:

I think with me it’s very much the same thing, except that what their — our declaration is that they do not advocate this and this is either treason or the support of a foreign government against the United States in the event of hostilities.

But what — what they’re asked to declare —

(Inaudible)

George W. McClure:

Yes, I think that means practically the same thing as this, but they do not now advocate that.

Potter Stewart:

But what I don’t quite understand — perhaps I misunderstood you Mr. McClure, I thought you suggested that advocate in this relation means the same thing as it does in relation to overthrow the Government by force and violence, namely, that they do not advocate in the sense, they do not incite to action, is that it?

George W. McClure:

Yes, Your Honor, that’s correct.

Potter Stewart:

Now, what bothers me is how one today when there are no hostilities, incites to action —

George W. McClure:

Well, in —

Potter Stewart:

— not — what is it, the support of foreign power in event of and so forth.

George W. McClure:

In the first place, I — I don’t see what’s wrong with the statute passed now that it hasn’t viewed some evil that may arise in the future.

There may be another war.

This language was passed in 1952 when at the Korean hostilities were not at the boiling point then they had only recently subsided from very —

Potter Stewart:

Well, what if the action?

What I don’t quite understand is what is the action to which the claimant for exemption incites of this?

George W. McClure:

He incites others to act on behalf of a foreign government against the United States in the event of hostilities or supports, incites them to support.

Potter Stewart:

So, they — it’s not the present action then it’s action someday maybe never, maybe 50 years, maybe 10 years, maybe year, hence.

George W. McClure:

It could be.

Let’s assume that a person to whom this oath might possibly apply would have a much easier time taking it now than he would if there were actually a war going on.

It’s true because right now there are no hostilities.

Potter Stewart:

Now, again he has to ask himself whether he sits back and really, really believes that we oath that he oath to support on these or that he merely talk to others than they are to support enemies or whether he somehow incites them to do something in the event of hostility in the way of supporting of that.

George W. McClure:

Advocacy is still the key word Your Honor.

Potter Stewart:

I’m wondering suppose — I know that’s not this case you’re dealing with in as a matter of exemption case but going to the arguments of yesterday, would you give the same advice to your assessor which you told me you’ve given this instance if the church we were talking about yesterday have a thousand members.

I’ll file an application signed by the Secretary signed your form, but he said I ought to tell you that all thousand of us, however, do believe in the overthrow of the Government by force or violence.

All of us believed it and we talk about it in our meeting.

But in the sense, we don’t go out and incite others why we are signing this affidavit.

Would you recommend to the assessor that the exemption be granted?

George W. McClure:

Yes, if they don’t incite each other.

It has to be —

Potter Stewart:

Well, I’ve — I’ve given you — I’ve given you the hypothesis —

George W. McClure:

Yes.

Potter Stewart:

— that they’re just talking about it.

George W. McClure:

Yes.

Potter Stewart:

At all our meetings, and all thousands of them believe it, all thousands of them talk about it.

George W. McClure:

They can believe what they want.

Mr. Attorney General:

Mr. Justice Black, may it please the Court.

I hope that this brief is plausible, some rather broad issues in the time remaining.

I hope to try to pinpoint four issues.

One is the form of the oath, second, its interpretation, third, the substantive evil to be met and fourth, the place for the interplay of state action and the exercise of the powers of the State in this picture.

Now, first in regard to the form of the oath, I’d like to refer, Your Honors, to page 43 of the record in this case where the oath is set out at the bottom of an exemplar of the form.

I merely do that for information.

I just like to make a point now very briefly.

We will note that this is enclosed as part of an oath already taken that under California law, as covered in page 59 of our brief, an affirmation or since 1957, a declaration under penalty of perjury may be substituted.

As I point out in the same place in our brief, the burden to obtain a tax exemption like this is on the taxpayer.

On that page, I cite what should be Section 260, 260 of the Revenue Taxation Code in the State of California which provides that burden and which provides for waiver in the absence of the execution of the oath required.

This is more fully covered on pages 59 and 61 of the brief.

Secondly, in regard to the interpretation of the oath —

Felix Frankfurter:

What — in what part of that oath advance the problem namely, that you can’t place this burden upon him?That’s what the whole shooting is about.

Mr. Attorney General:

Well now, that that is my second point, Your Honor.

As I read the holding of the California Supreme Court in this case, particularly in page 53 of the record in the Unitarian Church case, the — in first referring to the Dennis case, the Court says the Dennis case involved the validity of the Smith Act which prohibited and made criminal the advocacy of the activities announced by the people of the State and its constitution.

Mr. Attorney General:

In other words, it refers to the same activity which prohibited and made criminal the activity, the advocacy of the activities denounced by the people of the State and its constitution.

If we skip the quotation from the Dennis case, later on, we note that the Court states in the present case, the constitutional provision is concerned with those who advocate the same prohibited activity.

I think probably that we should be able to take the California Supreme Court and its word.

Now, my point would be that in the Yates case, in the Dennis case, in the Garner case, the Douds case, the Adler case and the Gerende case, in each of those cases, this Court was faced with a problem of an oath governing advocacy.

In many cases, the forms of the oath were brought that they covered other types of conduct besides such as advising and in teaching.

My point is the Court has always emphasized that each of these particular provisions calls for interpretation that it must be construed as interpreted by the State Court.

I contend on the basis of this language that the state court has given it such interpretation.

Potter Stewart:

Now, what interpretation do you think the Supreme Court has given?

Mr. Attorney General:

That it covers the advocacy of conduct for violent overthrow.

In other words, the advocacy of conduct, productive of violent overthrow.

Potter Stewart:

That is the advocacy of inciting others —

Mr. Attorney General:

Yes, precisely.

Potter Stewart:

— in that sentence.

Mr. Attorney General:

Yes, that’s the way I read it and that’s the way I think that we can fairly state that the Court read it.

And I believe that this Court in prior cases particularly, in the Garner case and in the Gerende case has taken the provision as narrowed by the State.

Felix Frankfurter:

That — you read that from the brief in the Unitarian case.

Mr. Attorney General:

Yes, I did, on page 53, Your Honor.

Also on page 47, they referred to advocacy as being action and the instigation of action and they fight to get location in that regard which, of course, this Court relied on in drawing the line in the — in regard to the Smith Act.

In other words, this Act isn’t — no broader.

In fact, it’s in narrower terms in regard to advocacy than those other provisions concerned in those cases.

Now, in regard to the point in the — of the possible —

Felix Frankfurter:

Yes.

Would you — may I — may I ask —

Mr. Attorney General:

Surely.

Felix Frankfurter:

— question about it.

Would you say that (Inaudible) I assume you are that the clause, the meaning that with your Supreme Court is based upon that as such explicit which it wouldn’t defend (Inaudible) the constitution and discussion explicitly said you must take an oath that weren’t today not going to do that to reach this Court as you say because it has said in the Dennis case is saying the validity of Smith Act.

Is that what you’re saying?

Mr. Attorney General:

Yes, I’m saying that in the Dennis case, Your Honor, this Court was concerned with criminal conduct.

And, of course, there is the same need for a fair notice in advance as a written regard to the oath and I’m saying that the Court in those cases read the statutes in a narrow fashion as we’ve contended they should be read throughout our brief and I’m contending that I believe there is —

Felix Frankfurter:

You — you have to have to say more, and you do — you are saying more.

Felix Frankfurter:

Not as we should read it that way.

If you say that this — the constitution and — and statute of California has come here will that raise an interest by your Supreme Court which governed us.

Mr. Attorney General:

I think that’s a fair reading of the statement of the Supreme Court.

Felix Frankfurter:

Well, that’s what you’re saying?

Mr. Attorney General:

Yes.

I’m — I also —

William J. Brennan, Jr.:

How do you apply this to other unlawful means?

Mr. Attorney General:

Well, now that is — I’m, of course, is first I would like to say that I believe that this Court treated that problem in the Garner and to some extent in the Adler cases and I think that the — the Garner case, they upheld that.

In fact, that was one of the arguments made as you’ll note in the brochure of the voters.

That was picked out specifically.

I would say this, that if I were asked to construe it, I would say that other unlawful means, means other unlawful means in the nature of force or violence.

Felix Frankfurter:

If that’s what — what — if that’s what you’re saying, that is what your court is saying.

Mr. Attorney General:

No, however, I mean —

Felix Frankfurter:

I’m not saying that you’re not a good prophet of what they would say, but that is — but that’s of a different order from what you said a minute ago in regards to (Inaudible)

Is that right?

Mr. Attorney General:

Yes.

I think there is a different problem.

As I see it, this Court has not specifically construed that language by itself, nor has the California Supreme Court.

Now, there have been cases which construed probably a broader language like this Court did in Williams versus United States in regard to the Civil Rights Acts in the regard to the language says that to depriving any person of any rights given under the Constitution or statutes of the United States.

And this Court held there that this statute could be applied as properly construed.

Also, I want to point out the California Supreme Court in the old case of People versus Steelik 187 Cal.361 and also 203 P.78 did construe the problem of what crime meant.

And they held in that case that crime referred to crime as exists under California law and, of course, in California we do have statutory crimes under our penal code.

So, therefore, I believe, Your Honor, there is a basis for construing other unlawful means, although I will admit to Your Honors, that the — it has not been specifically construed although it has been covered with the decisions of this Court, particularly, in Garner.

Now, in regard to the fair notice rule, I just like to advert, Your Honors, — oh, wait.

May I have five minutes more and my time is up, please, Mr. Justice Black?

Hugo L. Black:

You have five minutes.

Mr. Attorney General:

Fine, thank you.

In regard to the notice, I’d like to point particularly to some other cases particularly the decisions of this Court in Beauharnais versus Illinois, the United States versus Harrison, United States versus Petrillo where it states the essence, its fair notice to the person affected.

And I think that the — that there is fair notice here in regard to other unlawful means.

Now, in regard to the problem of severability which was raised by this Court yesterday, I’d like to advert specifically to page 50 in my brief where we find Revenue and Taxation code Section 26 which I contend first is the rule of severability for this particular oath.

Felix Frankfurter:

What page?

Mr. Attorney General:

Page 50 of our brief.

It’s — it’s at the very — very bottom of the page.

I contend that this statute besides the fact of the — of the fourth provision itself allows complete severability as between force or violence or other unlawful means or the question of support.

William J. Brennan, Jr.:

Well, what about severability, the constitutional provision?

Mr. Attorney General:

I think it’s likewise severable.

It’s — it’s phrase in the same term.

In other words, the drafting of the Constitution with the succession of the word or, or, or suggests to me the idea of severability.

William J. Brennan, Jr.:

Well, I mean you can’t rely on this provision of the taxation code to support you that the constitutional provision is severable, can it?

Mr. Attorney General:

Well, I mean since the oath was required, hereunder, the particular statutory provision, it seems to me like that would dispose of this case.

Now, of course, if this Court were to hold, that a certain part of the state constitution were invalid, I imagine that would be probably dispose of the matter.

In other words, I — I take it we would not attempt to enforce the law.

William J. Brennan, Jr.:

Yes, but the question is if we have to reach the validity of a state constitution provision, on what basis are we disposed of that provision is severable?

Mr. Attorney General:

I think on the basis, Your Honor, that the people were attempting and here gets the basic state purpose which I probably will not have time to advert to.

They are attempting to secure —

Hugo L. Black:

(Inaudible) you can go ahead (Inaudible)

Mr. Attorney General:

Fine, thank you very much, Your Honor.

The — I want to say that I think that the purpose of the people of the State was to attempt to satisfy in their — a — a declaration to that effect on page 42 of our brief — in statute I might say, that the attempt of the people with the State was to try to prevent the use of an exemption, in this case, an exemption given for patriotic purposes and to stimulate patriotism that they are trying to prevent the use of that exemption to subsidize people whose particular narrow conduct that’s defined in this oath did not comport with the purpose of the exemption.

And I think that the purpose of the people of the State would be served, if you were to read and leave the oath merely as referring to force or violence or force or violence or other unlawful means.

In other words, I think that the state purpose which the people of the State sought to provoke by this enactment, in which they sought to attain as a state purpose.

I believe that that would be satisfied by such a construction.

(Inaudible)

William J. Brennan, Jr.:

But this has a hypothesis at all and they made in review about it.

If we had to say that other unlawful means had to fall and that support of a foreign power in the event of hostility set for.

Is there any basis upon which we could view the constitutional provision that’s severable so that the advocacy of overthrow by force and violence could stand?

Mr. Attorney General:

Yes, I think so, Your Honor.

The basis I mean that there is an independent purpose to — to reach that particular narrow, limited kind of speech.

In other words, that’s the kind of speech covered the Smith Act.

That’s the kind of speech covered in many other enactments which have been passed upon by this Court and by other courts including the California Supreme Court.

So, therefore, I think we can say there is an independent public purpose even on as limited or reading of the provision as that and that applies to I think both to the statute and to the Constitution.

Mr. Attorney General:

Thank you.

I have nothing further to add, but if the Court has any questions, (Inaudible)