Whitehill v. Elkins

PETITIONER:Whitehill
RESPONDENT:Elkins
LOCATION:South Boston Court

DOCKET NO.: 25
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 389 US 54 (1967)
ARGUED: Oct 16, 1967
DECIDED: Nov 06, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – October 16, 1967 in Whitehill v. Elkins

Sanford Jay Rosen:

— from the statute, the definitional provisions of which were identical to those voided in the Baggett and Dombrowski cases are unconstitutionally fraud, vague and indefinite.

The facts in this case are comparatively simple.

It’s a direct appeal from a final order and judgment of a statutory three-judge court sitting in Maryland, dismissing the appellant’s complaint on the grounds of a prior precedent to this Court.

The appellant, a Quaker, is an author of works of fiction and nonfiction, and a teacher of Creative Writing at the Johns Hopkins University.

He was invited in the summer of 1966 to teach Creative Writing at the University of Maryland for the academic year of 1966-1967.

He was to be paid $7,000 over 10 months.

In July, he received by mail a copy of the contract to be signed and certain other documents including the certification of applicant for public employment which if I may I’d like to read to the Court.

It’s captioned required by law, Article 85A, paragraph 13 Annotated Code of Maryland 1957.

It appears by the way in the transcript at page 11 in the appendix of the appellant’s brief at page 16A.

It states, “I, — leaving space for the name –, do hereby certify that I am not engaged in one way or another in an attempt to overthrow the government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence.

I further certify that I understand the aforegoing statement is made subject to the penalties of perjury prescribed in Article 27, Section 439 of the Annotated Code of Maryland,” — and there’s a space for the date and the signature.

(Inaudible)

Sanford Jay Rosen:

The appellant signed the contract, executed the other papers with the exception of the loyalty of.

He returned these documents and advised his correspondent in a separate letter that on conscientious grounds he would not sign the required oath.

He offered to teach by the way without compensation pending adjudication of the constitutional issues.

He received a reply informing him that the university could not accept his services until he had executed and filed the oath.

On August 19, 1966, he filed a class action.

02.44 —

Sanford Jay Rosen:

I beg your pardon sir.

Do you think this oath is more or less different from the oath that the (Inaudible).

Sanford Jay Rosen:

More or less specific?

Yes.

Sanford Jay Rosen:

I would say in the context to the statute which is the only way that the oath can be read, it’s much less specific.

Oh, what I am trying to (Inaudible) from the statute.

Sanford Jay Rosen:

Well, it’s the appellant’s —

Is this the only oath that he was required to sign?

Sanford Jay Rosen:

At this time, yes Justice Harlan.

(Inaudible)

Sanford Jay Rosen:

However, he has to take this oath as authorized under a specific statute and it’s our contention that the Gerende case, if that’s what you’re referring to Justice Harlan, does not really hold for the proposition that the oath can be read without the statute.

And if it does, the subsequent decisions of this Court will make it quite clear that an oath cannot be considered outside of the context of its statute.

Sanford Jay Rosen:

And —

And it sort of incorporated all of the statutes in this (Inaudible).

Sanford Jay Rosen:

We believe that that’s what the Elfbrandt case indicates.

I know, but what about the oath that was sworn?

Sanford Jay Rosen:

The oath itself is quite —

The oath in reference to the rest of the statute is (Inaudible).

Sanford Jay Rosen:

It has two references.

It has a caption and it also provides that it’s subject to the penalties of perjury and the only way in which this could be subject to the penalties of perjuries on a statutory basis which is also a reference to the statute ultimately.

Penalty of perjury in the different statutes —

Sanford Jay Rosen:

Yes, but this would be statutory perjury and the only statute it provides for the oath happens to be the overact itself.

In addition, the phrase in one way or another we contend is unduly broad and vague.

But Your Honor —

Abe Fortas:

But suppose this oath stood alone.

Suppose the (Voice Overlap) —

Sanford Jay Rosen:

If it stood alone —

Abe Fortas:

— if we would go along with respect to its relationship to the statute, the implications in that relationship, suppose the teachers just declined to take this particular oath.

Sanford Jay Rosen:

And that’s all the statute said Justice Fortas.

Abe Fortas:

That’s all?

Sanford Jay Rosen:

Well this particular oath to me would still suggest is unduly vague to the extent that it has the phrase in one way or another in it which defies the definition —

Abe Fortas:

Yes, but it also got the phrase, overthrow the government by force or violence.

Sanford Jay Rosen:

Certainly.

Abe Fortas:

And it didn’t relate to overthrowing the Government in any other way, does it?

Sanford Jay Rosen:

Well, but it says in one way or another.

That could —

Abe Fortas:

By force or violence.

Sanford Jay Rosen:

By force or violence.

That could be read to mean the “in one way or another” phrase that mere adherence to an organization that’s engaged in an attempt or about to be engaged in an attempt to overthrow the government by force —

Abe Fortas:

But of course, hasn’t been so read?

Sanford Jay Rosen:

It — it’s not clear.

The only judicial determination of the statute and oath other than the Gerende case is the Court of Appeals of Maryland’s decision in the Shub case in 1950.

Sanford Jay Rosen:

And while — one could say that the Court of Appeals of Maryland attempted to narrow the construction of the actual statute, it certainly isn’t clear and it’s our position that the Court of Appeals reading of the statute would contemplate mere advocacy of abstract ideas within the ambit of the statute and therefore the oath.

And also mere membership, mere knowing membership in an organization, not even necessarily qualified to active membership and certainly not qualified to membership with specific intent to support the goals, the unlawful goals of the organization.

Abe Fortas:

Well is that your argument that the oath as construed by the highest court of the state, it means something more than it seems to say?

Sanford Jay Rosen:

Well, our argument is that the oath as read with the statute as construed by the highest court of the state clearly contemplates that which this Court declared unconstitutionally broad and vague in Keyishian and Elfbrandt and Baggett.

Abe Fortas:

But I believe the statute out as it — would you perhaps — what is your presentation to us?

Sanford Jay Rosen:

If the statute is just left out entirely, well —

Abe Fortas:

Yes.

Sanford Jay Rosen:

— we have great deal of difficulty leaving the statute out.

There’s no other authority —

Abe Fortas:

I understand that.

Sanford Jay Rosen:

— in the oath.

Abe Fortas:

I understand that.

Sanford Jay Rosen:

But leaving the statute out, it’s our position that the phrase “in one way or another” which is a phrase admitted — accepted by the Court of Appeals of Maryland and by this Court in the Gerende case has no definite meaning.

And if it does have a definite meaning, it’s too broad.

Abe Fortas:

So it come back to reliance on that phrase for all of them on the construction of the act on the Shub case.

Sanford Jay Rosen:

Well, if you insist Justice Fortas that we have to leave the statute out, I —

Abe Fortas:

I wasn’t trying to insist that; I was trying to —

Sanford Jay Rosen:

I do rely upon that phrase but we also make an —

Abe Fortas:

(Inaudible) relied on your (Voice Overlap) —

Sanford Jay Rosen:

We also make another substantive argument with respect to the oath if it’s read by itself and that is we believe that these negative disclaimers by themselves, by their very nature, violations of the First Amendment that — just is across the board requirement that one say, “I am not disloyal”, whatever that means.

But that’s a violation of the First Amendment.

In addition, we suggest as the brief amicus curiae of the AAUP did that this kind of an oath, not giving anybody an opportunity to explain or get clarification of the oath or explain his reasons for not stating he is not disloyal that by not giving any opportunity for a hearing or an explanation that the oath violates procedural due process in the First Amendment context.

Abe Fortas:

Would you say that if you required a teacher to swear that if he would uphold the constitution of the United States that would be unconstitutional.

Sanford Jay Rosen:

That’s a harder case Justice Fortas of course.

I think we might be willing to argue that there’s no warrant for an across the board declaration by all persons but I think we might fall back to an intermediate position and suggest that if teachers were singled out as the only group to swear, only group among public employees that that would raise people protection problems for us if —

Abe Fortas:

Well, all federal employees have to take an oath to have effect?

Sanford Jay Rosen:

Right.

Abe Fortas:

Are you suggesting that that would be unconstitutional for federal employees or in the group of federal employees?

Sanford Jay Rosen:

No.

In this case, we don’t think we have to reach the question whether an affirmative declaration of allegiance is unconstitutional.

Sanford Jay Rosen:

We certainly see that there’s a basis in the text of the constitution itself for this kind of a declaration.

So I can’t answer that question so far as my client is concerned.

Definitively, we’re faced with a negative disclaimer and it’s not an affirmative declaration.

Abe Fortas:

(Inaudible)

Sanford Jay Rosen:

We’d have a lot more trouble, I must admit with that affirming —

You’re not going to affirm (Inaudible).

Sanford Jay Rosen:

Well, we do go so far as to suggest that a loyalty oath that requires a negative disclaimer, I am not disloyal, I am not a subversive person, I am not engaged in, that this carries such encored connotations that it is itself an undue burden on the First Amendment.

So far as an affirmative statement of allegiance is concerned, we don’t go so far in this case as to argue that that would be unconstitutional.

We’d like to see that case before we had to address ourselves to the particular issue of course.

If I may proceed —

What do you argue on one — in one way or another the theory that one way or another (Inaudible)?

Sanford Jay Rosen:

It could be taken to mean other than by force or violence and certainly even if read to be modified by force or violence, it could be taken to mean adherence to an organization engaged or about to be engaged and overthrow without any specific —

(Inaudible)

Sanford Jay Rosen:

That’s right.

In Maryland (Inaudible).

Sanford Jay Rosen:

Well, that’s not quite accurate Justice Harlan.

Maryland didn’t do that and Attorney General of Maryland made a recommendation.

Just as an Attorney General in Gerende stated that he would advise various officials in the state to give the oath that was approved or apparently approved in Gerende.

As a matter of fact Justice Harlan, that oath was never consistently given, there are subdivisions in this — in the State of Maryland they’re still giving the oath in terms of the definitional phrase in Section 1 of the Act.

So far as this Act is concerned (Inaudible).

Sanford Jay Rosen:

Right.

Do you not?

Sanford Jay Rosen:

That’s right.

So far as the oath that Mr. Whitehill was requested or required to sign, it did not include the membership provision.

I will argue further along that the Attorney General probably has no authority or not adequate authority, or power to rewrite the oath and you certainly has adequate authority or power to rewrite the statute which was judicially construed albeit not as clearly as we would like in the Shub case.

Basically, appellant agrees that the first issue before the Court is the current status of the Gerende decision.

However, before addressing or readdressing myself as the case maybe to Gerende, it might be appropriate for me to just outline briefly the four substantive or meritorious grounds on which appellant contends that the oath and the statute are unconstitutional.

First, I suggest that it’s our position that the oath and the statute were unconstitutionally broad, vague and uncertain in degradation of the Fourteenth Amendment Due Process Clause.

Second, we contend that this indiscriminate loyalty of or non-disloyalty disclaimer, otherwise unconstitutionally infringes the First and Fourteenth Amendment freedoms of belief, association and academic freedom.

Third, in violation of procedural due process, the oath and the statute further infringe the First and Fourteenth Amendment interests by denying public employment without affording any hearing on questions of loyalty or subversiveness and by shifting burdens of proof with respect to these questions to the applicant.

Sanford Jay Rosen:

And fourth, together the statute and the oath constitute an unlawful bill of attainder.

Now this Court’s decision in Gerende, the 1951 very brief per curiam decision in Gerende involved Section 15 of the Act, so-called Candidate’s Oath.

In Gerende, the Court relied upon the Court of Appeals of Maryland’s construction of that provision in Shub versus Simpson.

Perhaps if I could refresh Your Honor’s memories with respect to Gerende, in that case you said, “The scope of the state law was passed on — in Shub”.

We read this decision to hold that to obtain a place on a Maryland ballot for candidate need only make oath that he is not a person who is engaged “in one way or another in the attempt to overthrow the government by force or violation,” and that he is not knowingly a member of an organization engaged in such an attempt.

At the bar of this Court, the Attorney General of the State of Maryland declared that he would advise the proper authorities to and accept an affidavit in these terms to satisfying in full the statutory requirement.

Under these circumstances and with this understanding, the judgment of the Court of Appeals is affirmed.

Now appellees insist that the decision in Gerende in effect severs the certification or oath from the statute and insulates it, claimed innocuous on its face as we’ve just discussed from constitutional attack.

Appellant respectfully disagrees.

First, the certification is not innocuous on its phase.

Both the Supreme —

What happened if Professor Whitehill actually (Inaudible)?

Sanford Jay Rosen:

Professor Whitehill is still teaching at the Johns Hopkins University, he recently published a novel as a matter of fact.

But he lives in Maryland.

He was ready, willing and able to fulfill the contract at any time during his term.

He is currently a lecturer in English, teaching Creative Writing at Johns Hopkins.

(Inaudible)

Sanford Jay Rosen:

The University of Maryland, the College of Art.

How long was he a part of the —

Sanford Jay Rosen:

For the academic year 1966-1967, an academic year which would have ended in June of 1967th.

(Inaudible)

Sanford Jay Rosen:

I don’t believe so Your Honor.

No more than there was in Bond versus Floyd last term.

Professor Whitehill would have claimed on back wages at very least.

How much is his (Voice Overlap) –?

Sanford Jay Rosen:

$7,000.

(Inaudible)

Sanford Jay Rosen:

I have no idea.

(Inaudible)

Sanford Jay Rosen:

Well this would have been an addition to his job at Hopkins.

Sanford Jay Rosen:

There is no real question of mitigation.

This was a one-day or two-day a week operation and it’s not the sort of thing that a man could go out and mitigate.

He was filling in for a specific post, you don’t have too many instructors of Creative Writing around nor do you in — in a given state have too many opportunities to teach Creative Writing.

The question of mootness (Inaudible).

Sanford Jay Rosen:

The question of mootness has not been raised and as I suggested, the Bond case indicates that it would not appropriately be raised and there’s Johnson versus Branch, the Fourth Circuit decision dealing with dismissal of certain school teachers.

It indicate that the damages themselves would be adequate — of course further there — this is a continuing situation maybe not directly with respect to Professor Whitehill.

But we have a file of additional people and could be — we could come in to court tomorrow and file a new suit in the District of Maryland and if need to be there, or continually cases coming up in Maryland at this time.

Now as we suggested, the certification is not innocuous on its face.

First, the Supreme Court and the Maryland Court of Appeals authorized a prohibition of knowing membership in an organization engaged in an attempt to violently overthrow the government —

Thurgood Marshall:

Mr. Rosen, suppose you struck one way or another —

Sanford Jay Rosen:

Well if you struck in one way or another Justice Marshall, I supposed that the oath would become comparatively unvague.

However, we would still rely upon our two or three other arguments that first this kind of a negative oath, a negative disclaimer itself violates the First Amendment.

It’s taken up on point too in our brief in effect.

And second, that by not affording any procedural —

Thurgood Marshall:

You mean, you can’t ask somebody welcome after he intend to violate the laws of the United States?

Sanford Jay Rosen:

That might be what we’ve been forced to ask Justice Marshall.

We — we’re not saying that you can’t in all circumstances certainly ask somebody whether he will adhere to the laws of the United States.

The implications of asking the negative as Dr. Glass — eventually Glass suggested, it’s like asking a man whether he’s being unfaithful.

The implication carries —

Thurgood Marshall:

Would you mind taking the oath when you became a member of the bar?

Sanford Jay Rosen:

Did I mind taking the oath —

Thurgood Marshall:

Yes.

Sanford Jay Rosen:

— when I became a member of the bar?

It was an affirmative oath as I recall.

I might say, I didn’t mind taking the oath for my employment with the University of Maryland.

I found that it exceedingly offensive.

Thurgood Marshall:

No, I was talking about the bar.

Sanford Jay Rosen:

No, I did not mind taking the oath which as I recall, in Connecticut it was an oath or affirmation to support the laws and constitution.

William J. Brennan, Jr.:

I think, would it be any different to — do you ask the question (Inaudible)?

Sanford Jay Rosen:

That’s true.

Sanford Jay Rosen:

And of course, the recent decisions of this Court in the Konigsberg and staff locations indicated that this kind of inquiry might be appropriate.

Justtice White:

Do you think (Inaudible)

Sanford Jay Rosen:

Well we have suggest — we have suggested in our oath that — I mean, in our brief that the — that particularly with respect to the question of subversiveness which —

Justtice White:

(Inaudible)

Sanford Jay Rosen:

That’s a different area.

It doesn’t involve the First —

Justtice White:

(Inaudible)

Sanford Jay Rosen:

I supposed one can be asked that it’s germane to whether or not you’re — you should be admitted to practice.

Justtice White:

(Inaudible)

Sanford Jay Rosen:

I beg your pardon?

Justtice White:

Even if it’s a negative oath.

Sanford Jay Rosen:

It’s just a negative oath, Justice White.

It’s not in the First Amendment area.

What’s you’re asking Mr. Whitehill is to say is I am not subversive.

That is, I do not hold or act upon certain political ideals which is purely First Amendment matter.

If you ask a man who is to be admitted to the practice of law, have you ever been convicted of a felony?

That doesn’t to me raise very many First Amendment implications.

We’re in the area of the First Amendment and this as the Court will notice is a very special area and distinguishable at least on that basis.

Abe Fortas:

This is all raised in the present tense to with me.

I am not indeed — he’s got to say —

Sanford Jay Rosen:

Well —

Abe Fortas:

— I’m not indeed in an attempt to overthrow the government of the United States by force and violence.

Sanford Jay Rosen:

Well that raises precisely —

Abe Fortas:

(Inaudible)

Sanford Jay Rosen:

— one of the grounds —

Abe Fortas:

— that this is quite immaterial direct test but it’s rather a resilient thing to require a grown man to say as (Inaudible).

But that’s not our problem.

We asked him to say whether — as of this moment of time, is he engaged in attempting to overthrow —

Sanford Jay Rosen:

That’s right.

Abe Fortas:

— the Government of the United States by force and violence?

Abe Fortas:

Well, that’s very different from asking are you engaged or have you engaged or do you intend to engage in subversive activities.

Sanford Jay Rosen:

Well that’s what the oath says and I agree with Justice Fortas, it is rather silly.

Abe Fortas:

But you also have said that he is being required to say that he is — won’t engage in a subversive activity —

Sanford Jay Rosen:

Well —

Abe Fortas:

— that’s not this one.

Sanford Jay Rosen:

Well, we say of course that the phrase “in one way or another” means subversive activities of course —

Abe Fortas:

But all of that is modified, there’s a comma and it’s modified by the phrase by the course of violence.

Sanford Jay Rosen:

Well, the Court —

Abe Fortas:

I suppose you can — the idea of the question as this with literary product if it overthrow the government by poison, by dum-dum bullets, by machine guns, by —

Sanford Jay Rosen:

Well —

Abe Fortas:

— possession of whisky.

Sanford Jay Rosen:

Of course we don’t read that phrase as you do.

At this moment Justice Fortas, further, we suggest that the very narrowness of the oath if that’s the way you read it which speaks and as you suggested foolishly of, “Are you at present, this moment, this instant in history, engaged in an attempt to overthrow the government?”

The very narrowness of that inquiry only highlights Section 14 of the statute and Section 10 of the statute.

Section 10 says that no subversive person shall be employed by the state.

Section 14 provides for continual surveillance of persons in the employee of the state, including teachers, including Mr. Whitehill had he been employed by the state.

Continual surveillance of these people to determine whether —

Abe Fortas:

Oh, I don’t see (Voice Overlap) —

Sanford Jay Rosen:

— in the future they become subversive persons.

Abe Fortas:

I don’t see that those are before us.Are you arguing that they’re before us (Voice Overlap) —

Sanford Jay Rosen:

Yes we are.

We are arguing — our basic argument Justice Fortas is that you cannot in the light of the Elfbrandt decision in particular read this oath without its statute.

In Elfbrandt, you’ll recall Justice Fortas that the oath on its face was apparently innocuous.

It was even an affirmative declaration of allegiance.

One didn’t find out what the defect in the oath was until he read the statute and discovered the legislature had put a specific gloss upon the oath and a gloss that this Court found was unduly broad.

The same thing is true in this case.

We can’t conceive of how the oath can be read without the statute, where the Attorney General himself, in his brief suggests that the authority for requiring the appellant to execute the certification is found in Section 11 of the statute.

That’s the only authority that the Attorney General that any state agent has for giving this oath.

As Justice Sobeloff suggested in his special concurrence in Whitehill, I am inclined to agree that the prescribed oath or statement is not to be judged in isolation but in conjunction with the statute.

For in the absence of a statute, there would be no authority for demanding any statement under the penalty of perjury.

Sanford Jay Rosen:

There is no other basis for this statement to be requested or rather demanded of these people.

That’s the only authority the state has to ask the — it’s not possible, we submit to therefore read the oath without its underlying statutory authority.

Potter Stewart:

Well, that maybe true but the highest judicial — not that the — the highest law enforcement officer of your state as I understand it has said that, “Yes, that’s true but it’s not for you or for us to read the statute”.

And it’s not that we — what we think it might mean, he has told us that it means and requires no more than this oath —

Sanford Jay Rosen:

We submit —

Potter Stewart:

— is that true?

Sanford Jay Rosen:

— that he has no authority to say that.

Potter Stewart:

Well that’s not for us to decide, is it?

Sanford Jay Rosen:

Certainly it is.

Potter Stewart:

Why?

Sanford Jay Rosen:

Just as in —

Potter Stewart:

A matter of Maryland law.

Sanford Jay Rosen:

Just as in the Sweezy case, this Court decided that it could not really tell whether the Attorney General had authority to ask the questions he was asking because he —

Potter Stewart:

Well, that’s a question of Maryland law, isn’t it?

Sanford Jay Rosen:

Whether he has —

Potter Stewart:

Whether he has authority —

Sanford Jay Rosen:

— authority —

Potter Stewart:

— to do that.

That’s certainly not a matter of federal law.

Sanford Jay Rosen:

It certainly is in the First Amendment area, that’s the Sweezy case indicates.

Potter Stewart:

I understand that.

Sanford Jay Rosen:

On the Sweezy case Justice Stewart, the Attorney General was authorized somehow, by the legislature of New Hampshire to make inquiry to investigate subversive activities in the State of New Hampshire.

The Supreme Court, this Court overturned I believe a contempt citation of one called Sweezy basically on the grounds that it didn’t know what the authority, the scope of authority of the Attorney General was in the — in this First Amendment area without some clear — very clear statement to the authority of the Attorney General.

His activities would therefore abridge First Amendment rights which — including academic freedom.

Now in this case, —

William J. Brennan, Jr.:

(Inaudible)

Sanford Jay Rosen:

— the Attorney General is performing —

William J. Brennan, Jr.:

(Inaudible) court in Maryland —

Sanford Jay Rosen:

— exigent — I beg your pardon?

William J. Brennan, Jr.:

A three judge court of Maryland has found this enough in it, hasn’t it?

Sanford Jay Rosen:

Oh, I —

William J. Brennan, Jr.:

You mean, (Inaudible)

Sanford Jay Rosen:

First, we believe that the three-judge court was in error and their examination of the issue was certainly a very limited one at the time.

William J. Brennan, Jr.:

But they accepted the oath which was construed by the Attorney General.

Sanford Jay Rosen:

Well, they did accept the oath as construed by the Attorney General but only because of the decision in Gerende.

They felt incumbent upon them to accept it on the basis of Gerende.

However, as we’ve suggested Gerende is dubious authority today.

Thurgood Marshall:

Didn’t you make the same argument in the three-judge court to making that?

Sanford Jay Rosen:

What?

The Attorney General is without authority?

Thurgood Marshall:

Yes.

Sanford Jay Rosen:

Oh, we can’t say for sure that he’s utterly without authority.

What we’re suggesting is that his basis for authority is this Court’s decision in Gerende and the Court’s — and the Court of Appeals in Maryland’s decision in Shub.

Now both of those decisions presumably upheld an oath in specific terms.

Thurgood Marshall:

And you say the Attorney General did not have the authority of the three-judge court as he did.

Sanford Jay Rosen:

Justice Frankfurter in the Garner case —

Thurgood Marshall:

No, no, no.

Sanford Jay Rosen:

— the same term as the Gerende.

Thurgood Marshall:

My question is —

Sanford Jay Rosen:

Yes.

Thurgood Marshall:

— is it true that you say they did not have the authority?

Sanford Jay Rosen:

That’s right.

He does not have —

Thurgood Marshall:

And the three-judge court said he did.

Sanford Jay Rosen:

That’s right.

Thurgood Marshall:

Is that correct?

Sanford Jay Rosen:

That is in effect correct.

But we would like to buttress this by suggesting in the Garner case, Justice Frankfurter suggested, and that was in the same term as Gerende.

The Attorney General of Maryland did not give this assurance, the assurance he gave in the Gerende case.

As a matter of personal relaxation, I believe a requirement.

Sanford Jay Rosen:

He was able to give it on the basis of the interpretation that the Court of Appeals of Maryland, the highest court of that state had placed upon the legislation.

The Court of Appeals of Maryland has not pass upon this legislation since that statement was made.

All he has to go on is the interpretation of the statute and the oath that was made in the Shub case back in 1950, and the operative legal rules with respect to First Amendment interest in the oath area, particularly with respect to vagueness, breadth, and indefiniteness, have been significantly changed.

As he himself recognized by attempting to delete from the oath — the phrase I — and I am not a member of — knowingly a member of an organization engaged in such an attempt.

Now he can try to do that, he can delete it from the oath.

But of course if we’re right in our view that the oath can’t be read without the statute, that won’t get him anywhere.

And we suggest further that it’s entirely possible if he has no authority to act.

So, in particularly in this First Amendment area, it’s incumbent upon the Court to closely examine whether or not he has such authority to act.

Potter Stewart:

Mr. Rosen, you’ve just referred to this, its (Inaudible) on the bench, as an oath.

Sanford Jay Rosen:

Yes sir.

Potter Stewart:

As I read it, it technically at least is a certification —

Sanford Jay Rosen:

Yes sir.

Potter Stewart:

— rather than an oath.

Is there any claim in this case that the petitioner was required to make an oath contrary to his religious scruples against taking an oath as contrasted with an affirmation?

Sanford Jay Rosen:

No.

There was a claim that as a Quaker he had conscientious scruples against making this kind of a declaration but it wasn’t necessarily the difference between an oath and affirmation or a certification.

Potter Stewart:

This is the equivalent of an affirmation, I see, I should (Voice Overlap) —

Sanford Jay Rosen:

Yes, I believe it is the equivalent of an affirmation but he has conscientious scruples against making this a —

Potter Stewart:

Well —

Sanford Jay Rosen:

–affirmation.

Potter Stewart:

Religious, conscientious scruples, they are constitutional or they — or you think this violates his constitutional —

Sanford Jay Rosen:

He thinks that it’s a viable —

Potter Stewart:

— rights as a citizen.

Sanford Jay Rosen:

Because he’d — can’t understand what the oath means particularly when read with the statute.

He thinks it may be in violation of his First Amendment free speech rights but also there are some questions —

Potter Stewart:

I didn’t see that in your brief and that’s the (Inaudible).

Sanford Jay Rosen:

Well we didn’t make much of a point of it —

Potter Stewart:

Because I — because its my understanding that some — the disciples of certain religions —

Sanford Jay Rosen:

That’s right.

We’re not pressing this —

Potter Stewart:

Is fine but it violates their religious teachings to take any kind of an oath even though on the witness stand to tell the truth.

Isn’t that true, they’d rather affirm than take an oath?

Sanford Jay Rosen:

Yes.

But this — we agree with the equivalent of an affirmation.

Potter Stewart:

Affirmation?

Sanford Jay Rosen:

Yes.

Well, I see that my time is up Your Honors.

Thank you very much.

Earl Warren:

Mr. Hawes.

Loring E. Hawes:

Mr. Chief Justice, may it please the Court.

I should first like to distinguish this interpretation of Elfbrandt that was presented here with respect to the legislative gloss.

Now in Elfbrandt, the reason that legislative gloss became important was that the perjury portion of the statute incorporated within it that the person who is taking the oath shall not knowingly and willfully become or remain a member of the Communist Party, etcetera.

This is not the case in the Maryland certification situation because the Maryland perjury statute is simply a criminal statute for making a false statement.

Now, the words “in one way or another,” we fail to see how these words could possibly give anyone any trouble.

I mean, in any way.

Its mere surplusage, its additional language was neither adds to nor takes away from the words or meaning of the oath itself.

The Court on a number of occasions has found no constitutional difficulty from the vagueness standpoint in construing the words overthrow the government by force and violence.

These words have been used in federal statutes such as the Smith Act and the vices of vagueness which has been found in other oaths and other laws and not been found in those words.

The oath in Baggett versus Bullitt which was referable to a Washington statute which is identical to that in Maryland is distinguishable also.

In that case, the oath said that, I certify that I’m not a subversive person as defined by the Act and there was no limitation upon the definition of subversive person in that case, in the oath that was taken in the State of Washington.

And so the case of Baggett versus Bullitt does not constitute a precedent for overruling Gerende or making the Maryland oath as presently stated invalid.

Justtice White:

Could you tell me where the form of oath that is prescribed in the statute?

Loring E. Hawes:

Mr. Justice White, the form of oath is not prescribed in the statute.

Justtice White:

(Inaudible)

What about the —

Loring E. Hawes:

I —

Justtice White:

(Inaudible)

Loring E. Hawes:

I believe it was.

I’m not certain of that.

Justtice White:

Does the latter says the — in light of the (Inaudible) the Maryland law has been modified by emanating words so and so forth.

Justtice White:

(Inaudible) — of the modified loyalty oath decided by the court.

There’s no — where is the authority in the statute (Inaudible)?

Is there any mention of an oath from the statute or in virtue of (Inaudible)?

Loring E. Hawes:

Yes there is.

Justtice White:

(Inaudible)

(Inaudible)

Justtice White:

Do you see any mention of an oath (Inaudible)?

Loring E. Hawes:

Well 11 contains the authorization for a state agency to make —

Justtice White:

Rules and regulations —

Loring E. Hawes:

– rules and regulations —

Justtice White:

(Inaudible)

Loring E. Hawes:

— and procedures.

Justtice White:

Now, who makes the oath?

Loring E. Hawes:

The — they can set up a procedure and the procedure involved here as I see it would be a written statement intending —

Justtice White:

Well, that’s the last —

William J. Brennan, Jr.:

Containing this is 11 said.

Loring E. Hawes:

Containing a notice that it is subject to the penalties of perjury.

William J. Brennan, Jr.:

Well I know what it says — what’s this mean, in securing any facts necessary, the applicant shall be required to sign a written statement.

Is that what we’re talking about?

Containing answers to such inquiries is maybe immaterial.

Loring E. Hawes:

Yes.

Justtice White:

So who — then who promulgates the form of the employee has to sign whether you — suppose an oath or a certification or what it is.

Actually, it’s just a — according to the statute it’s just a written statement isn’t it, containing answers to inquiry?

Loring E. Hawes:

That would be true under —

Justtice White:

As the Attorney General always drafted the form of oaths used in this?

Loring E. Hawes:

Well he did in this case.

And — but whether he did in the initial case, I can’t answer it right now because I don’t know.

Justtice White:

And is it your position that he has the authority to do that under this Section?

Loring E. Hawes:

No, he would have the authority to do that under his general authority as Attorney General to — as a legal adviser to the various agencies of state government.

And this would be a function of his rendering legal advice to write or create a — an oath which would pass the constitutional standards and would also conform with the intent of the Act.

William J. Brennan, Jr.:

Well, at least there’s no statutory requirement that the broader — that is being modified here by the Attorney General because the form was not specified by the statute.

Loring E. Hawes:

That’s right, yes sir.

William J. Brennan, Jr.:

Are there any written regulations that you know of, of any department in the state of Maryland with respect to this matter?

Loring E. Hawes:

With respect to University of Maryland, it’s not by written regulation.

It’s by form which was adopted —

William J. Brennan, Jr.:

But it’s a —

Loring E. Hawes:

— form of the oath.

Justtice White:

Is there any regulation by any other department that you know of?

Loring E. Hawes:

I’d — possibly in Baltimore City, the school board has affirmed.

This isn’t part of this case — it is not in the record and I couldn’t say for certain.

Thurgood Marshall:

Mr.(Voice Overlap) —

Earl Warren:

Since there are — pardon me.

Does this certification — does it apply to the University of Maryland, the school people?

Loring E. Hawes:

No sir.

Earl Warren:

Applies to every employee in the State of Maryland?

Loring E. Hawes:

It applies to all employees except the laborers.

Earl Warren:

I beg your pardon?

Loring E. Hawes:

Except laborers.

Earl Warren:

All, except labors.

Loring E. Hawes:

Laborers.

Earl Warren:

Oh, laborers.

Working for the state, is that right?

Loring E. Hawes:

That’s right.

Potter Stewart:

Mr. Hawes, supposed an employee was a member of the Communist Party of the United States, but he was a completely passive, nominal — their having been a determination that the Communist Party of United States, is an organization engaged to overthrow by force or violence.

But he safely say, “I am not engaged in any one way — in one way or another in an attempt to overthrow and so forth the (Inaudible)?”

Loring E. Hawes:

I would think it would be — the question there as to whether his involvement in the Communist Party was more than just as you stated.

Potter Stewart:

Well, I’m giving you the — I’m giving you the basis.

The hypothetical is he’s a purely nominal passive member of an organization which is engaged.

Loring E. Hawes:

That would not be enough under this Court.

Potter Stewart:

Would he be sure of that?

Loring E. Hawes:

I think so because this Court said so.

Potter Stewart:

Oh, he’s engaged in one way or another in the event.

Loring E. Hawes:

Well, this Court —

Potter Stewart:

Is that (Voice Overlap) —

Loring E. Hawes:

— has said that this is not in the Elfbrandt case.

Justtice White:

And we’ve stricken out that clause to be a — an oath that might have covered situation and —

Loring E. Hawes:

We struck out the evidence —

William J. Brennan, Jr.:

You struck out the knowing membership provision.

Loring E. Hawes:

Yes.

William J. Brennan, Jr.:

But you’re confident that he could sign this without this conformity?

Loring E. Hawes:

With that clause stricken, yes.

Abe Fortas:

Well, as I understand the argument of your opponent, perhaps it runs this way that this statement is made pursuant to Section 13 of the subversiveness, Subversive Activities Act of 1949, is that right?

Loring E. Hawes:

The particular oath involved in this case does say that.

Abe Fortas:

It’s made pursuant to that section of the law.

Loring E. Hawes:

Yes.

No, the (Voice Overlap) —

Abe Fortas:

Is that —

Loring E. Hawes:

— the form has on there — apparently what happened was that —

Abe Fortas:

(Inaudible)

Loring E. Hawes:

— when it went to the printer, the printer left on that at a reference to Section 13.

Abe Fortas:

Well, whoever left it on, its there.

Loring E. Hawes:

In this particular case, yes.

Abe Fortas:

And the — there you are in Section 13, now your opponent asks — so says that the — if Mr. Whitehill is charged with knowledge of what’s in Section 13.

And that Section 13 says that the Mr. Whitehill and many state employees has to make a written statement which shall contain notice subject to the penalties of perjury, that he is not a subversive person as defined in this Article and then it goes on and that he is not a member of a subversive organization or a foreign subversive organization that is more fully defined in this Article.

Now I suppose if the argument of your opponent is that no matter what this statement says that since it’s made, since the statement is made pursuant to Section 13 of the Act with which Professor Whitehill noticed — what Professor Whitehill is charged, that Professor Whitehill is saying that he is not a subversive person as defined in the Article and not a member of a subversive organization or a foreign subversive organization as defined in the Act.

Our key to that I assume on your — Attorney General has (Inaudible) in the — has effectively rewritten Section 13.

Isn’t that right — isn’t that what (Inaudible)?

Loring E. Hawes:

I would answer that question in two ways.

One, we could say very recently that Section 13 has been rewritten and modified and (Voice Overlap) —

Earl Warren:

Could you speak a little louder please?

Loring E. Hawes:

Yes sir.

That Section 13 has been modified by the oath prescribed by the Attorney General which was presented to this individual.

Now, this gets into the question of severability and so forth which I will reach later.

Justtice White:

Well, would you concede —

Loring E. Hawes:

But secondly —

Justtice White:

Do you — but you concede that if — that Section 13 was at least in part invalidated by Baggett against Bullitt?

Loring E. Hawes:

Yes.

Justtice White:

And that if the oath really did require the professor to — this term, what Section 13 requires in this term that’d be unconstitutional under Bagget against Bullit.

Loring E. Hawes:

If all the words of Section 13 were in the oath, that is correct.

But, secondly I would say this, that if this reference to Section 13 becomes a basis for this Court’s decision that this would involve only this one individual and it would not preclude Maryland’s requiring him to execute a certification which did not have a reference to Section 13 as a precondition to (Voice Overlap) —

Abe Fortas:

I know, but I don’t — we have before us is this case.

That’s the one presumably that the (Inaudible).

Loring E. Hawes:

Yes.

Abe Fortas:

And that does have the reference to Section 13.

Loring E. Hawes:

That’s correct, yes sir.

Potter Stewart:

Or whether or not the reference to Section 13 is on a piece of paper that he is required to sign, is there any other authority in Maryland’s state law except 13 for anybody to require any certification like this one.

Loring E. Hawes:

Oh, we say that there’s authority under Section 11 and there’s one under —

Earl Warren:

Where do we get the facts in — for 11?

Loring E. Hawes:

Under 15.

Justtice White:

On page 10A of the petitioner’s brief or the appellant’s brief, I think (Inaudible)?

Loring E. Hawes:

Yes, it is in the appendix, Section 10A.

Now, in Section 15, there is a requirement for an oath of candidates for office.

That’s not the question — the oath involved here.

And Section 13 only involves those persons who are in employment on June 1, 1949 and that’s not the case here because this man is an applicant and not an employee.

Potter Stewart:

Of course the statement under Section 11 is only an aid of the termination whether that he was a subversive person.

Loring E. Hawes:

That’s correct, but a subversive person —

Potter Stewart:

Well, how we — only further along under 11 on the (Inaudible).

Loring E. Hawes:

Because, first —

Potter Stewart:

That’s — that the only authority for the statement at all is in aid of a determination whether he’s a subversive person, is that right?

That’s the only authority you have to ask any certificate.

Loring E. Hawes:

That’s right, for an applicant.

Thurgood Marshall:

Mr. Hawes, is that — this reference in Section 13 is still on defense?

Loring E. Hawes:

No.

Thurgood Marshall:

Then he’s taken the oath.

Loring E. Hawes:

At that time it was brought up in this case.

Thurgood Marshall:

When was that?

(Inaudible)

Loring E. Hawes:

It would have been at the time of the argument.

I believe it was February last year.

Earl Warren:

You may find it (Inaudible).

Continue your argument.

Loring E. Hawes:

Thank you Mr. Chief Justice.

The question of the authority of the Attorney General is apparently still bothering the Court.

And I should once again try to establish where this authority comes from and how it affects this interpretation of the law here.

Now, this may not be in the brief, but in Article 5, Section 3 of the Maryland constitution, it is stated that the Attorney General shall give his opinion in writing on any legal matter or subject.

And in Code Article 32A of the Maryland Annotated Code Section 3, the Attorney General shall have general charge supervision and direction of a legal business of the other state and shall be legal adviser and representative of and perform all legal work for boards, institutions, departments, etcetera of the state.

Now the University of Maryland of course is a department, an institution or an agency of the state.

The applicable part of Section 11 of the overact is that every board in this case would be the Board of Regents or other agency of the state which employs –and so forth employee shall establish by rules, regulations or otherwise procedures designed to ascertain before any person is appointed or employed that he or she as the case maybe is not a subversive person and that there are no reasonable grounds to believe that such persons are subversive persons.

Now, this is quite similar to the charge in Section 15 which was construed by this Court in Gerende where an affidavit was required for a person who is a candidate for election.

That he is — he or she is not a subversive person as defined in this Article.

And our argument here is that if the oath prescribed here which was the one that this Court said was sufficient under Gerende can be given under Section 15 that certainly the same oath should be able to be given under Section 11 of the Act.

Earl Warren:

Where is the direct power of the Attorney General to make rules and regulations that are binding upon any officer of the state?

Loring E. Hawes:

Well, the —

Earl Warren:

Or employee?

Loring E. Hawes:

The oath here is not prescribed in that manner Mr. Chief Justice.

Earl Warren:

No, but that —

Loring E. Hawes:

The —

Earl Warren:

Do you contend that the — he has a right to make rules or regulations for the department (Voice Overlap).

Loring E. Hawes:

No sir.

Earl Warren:

But how does it — that power, how is that power transferred to this situation?

Loring E. Hawes:

Well, in the letter that is in the appendix to appellant’s brief on page 18A, which is a second page to the letter from Attorney General Finan to Governor Tawes dated May 13, 1966.

In that letter, the Attorney General suggested — and this is giving his legal advice to the agency — to all of state agencies.

In this case, to the governor, to the Secretary of State, commissioner-personnel, and a copy of course went to the University of Maryland.

And on the basis of this letter, it is up to the state agency involved to prescribe the oath and to give it to its employees.

Now, there is one distinction here with respect to commissioner-personnel — he does not prescribe the personnel procedures for the University of Maryland because of the Autonomy Act of 1952.

And this clause —

Justtice White:

So the university took the Attorney General’s advice I gather.

Loring E. Hawes:

As to the body of the oath, it did.

Justtice White:

(Inaudible)

Loring E. Hawes:

Except — they made it apparently an error in having it printed with the reference to Section 13 which shouldn’t have been in there.

And this is —

William J. Brennan, Jr.:

But I take it that the advice of the Attorney General was never binding in any agencies.

It’s only a guide, isn’t it?

Loring E. Hawes:

It —

William J. Brennan, Jr.:

But what I have reference that apparently it’s a decision of your Court of Appeals, the (Inaudible) case, you’re familiar with I’m sure where it says the opinions of the Attorney General are not binding, but are entitled to careful consideration of service guides to those charge of the administration of law.

Is that the rule in Maryland?

Loring E. Hawes:

That is correct because only a court can bind the department to a particular interpretation of law.

However, as a practical matter, the department do follow the Attorneys General — Attorney General’s advice.

Earl Warren:

I understood counsel to say that they were giving this oath in various forms throughout the state today.

Loring E. Hawes:

This is not in the record and I have no personal knowledge of this.

If it’s true, it’s something that’s outside of the record.

Earl Warren:

Now in this letter that he wrote — that the Attorney General wrote to the governor he said, “In light of the — he grant decisions.

The Maryland loyalty pledge has been modified by eliminating the words “and I am not knowingly a member of an organization engaged in such an attempt” to read as follows and then he quotes the present oath.

Now who modified it?

Loring E. Hawes:

Well, the Attorney General did here.

Earl Warren:

The Attorney General modified it?

Loring E. Hawes:

Yes sir.

Earl Warren:

Now, does he — where did he have — where do you get the power to modify any law of the State of Maryland?

Loring E. Hawes:

Well, the oath isn’t prescribed in that form by law.

So he is modifying a procedure which a department is using under Section 11 of the Act.

Earl Warren:

Who made that procedure?

Who established the original procedure?

Loring E. Hawes:

I — probably commissioner-personnel or the — for the regions in the case of the University of Maryland on the advice of the Attorney General.

They actually do the printing of — at the University with respect to their oaths.

Earl Warren:

Well it — it couldn’t be the Secretary of State or commissioner-personnel because you say the offices advised him.

This office is advising the Secretary of State and the commissioner-personnel of the modified loyalty pledge devised by this office to meet the constitutional standards requiring a decision there is on the case, so evidently they didn’t do it, did they?

Loring E. Hawes:

Yes, they did.

Earl Warren:

Well they might have done it following the modification by the Attorney General.

Loring E. Hawes:

Oh, in other words (Voice Overlap) —

Earl Warren:

(Voice Overlap) where is the power of the Attorney General to modify an Act of the legislature which says one thing?

Or do you contend that you have broad general powers to make regulations of this kind of change and it will.

Loring E. Hawes:

Well, the — let’s look at this way.

The — we’re talking about two O’s here.

First, the one prior to 1966 which is in identical words of what this Court said in Gerende, the Attorney General could advise the state agencies as conforming with I guess the Maryland law and satisfying its requirements completely.

Now, what the Attorney General has done here is to limit that further.

Now if the department had not taken his advice and used the old pledge, we might be up here on a different case.

But in this case, he did not, the department — of the Board of Regents took the Attorney General’s advice and use this to take the form.

Now with respect to the negative nature of the oath which was brought up, we would say this is — in the very fact that you could have an oath, this doesn’t differ too much from the certifications that the facts are true and correct and so forth that one makes on your income tax forms, employment applications, auto registration, auto licenses and so forth.

And on those — on certain types of applications, an applicant maybe asked whether he is taking narcotics or his — a consumer of a certain amount of alcohol or certain other very personnel type of questions which don’t reach First Amendment freedoms, beliefs or speech and so forth but nevertheless or in the same type of form that this particular certification is.

Now, with respect to the — the extent of the oath in reaching the innocent person who is a mere member of an organization or something of this sort, it should be noted that the oath itself — the title to the other law itself — the Act itself states that this is an Act to add a new Article making it a crime to commit acts or advocate acts intended to affect the overthrow of the government and so forth by an — violence and so forth or to attempt or conspire to do so.

Now, this Title and the Act itself which construed by the Maryland Court as set forth in our brief, as its intention is to prevent infiltration into our state, county and municipal governments of person who are engaged in one way or another in the attempt to overthrow the government by force or violence.

And this interpretation of the intent of the Act was taken in by this Court in Gerende to be the full meaning of it.

And it is our contention that a certification in this language therefore is sufficient under all the cases involving loyalty oaths to this time.

And that this Court would have to overrule Gerende and possibly Garner or Cramp and at least distinguish these cases if it were to make an adverse ruling with respect to this oath on the grounds of vagueness.

Earl Warren:

Mr. Hawes, just one more thing if you were — have you finished — had you finished?

Loring E. Hawes:

Yes.

Earl Warren:

I just want to ask you one more thing.

I understood Professor Rosen to say that the — your Court of Appeals had never passed upon this particular form of the declaration, is that right?

Loring E. Hawes:

Yes, it passed upon a form which was larger than this one.

Earl Warren:

Yes.

Earl Warren:

But has never passed on this interpretation of the Attorney General?

Loring E. Hawes:

Eliminating the —

Earl Warren:

Yes.

Loring E. Hawes:

— words in 1966.

Earl Warren:

Yes, yes.

Loring E. Hawes:

That is correct.

Earl Warren:

Now, is your Court of Appeals bound to follow the interpretation of the Attorney General?

Loring E. Hawes:

It is not bound to follow it but it would certain (Voice Overlap) —

Earl Warren:

So what you’ve — what you have been arguing to us is premised upon the interpretation of the Attorney General and not upon the interpretation of your Court.

Loring E. Hawes:

No, because the portion of the oath which is now being used was approved by the Court.

There were just some additional words which were thrown out in 1966, which may or may not be valid or invalid that —

Earl Warren:

In which may or may not be valid, wouldn’t that be up to this Court to determine?

Loring E. Hawes:

The Maryland Court?

Earl Warren:

Yes.

Loring E. Hawes:

If they were still being used.

But if it isn’t being used, it doesn’t seem to make any difference.

Potter Stewart:

Well, it might not be up to the Court of Appeals of Maryland ultimately rather than your State Attorney General to decide whether or not this certification is sufficient in compliance with the Maryland statute.

Loring E. Hawes:

Well, if —

Potter Stewart:

That’s never been before the Court, has it, the Maryland Court of Appeals?

Loring E. Hawes:

That’s correct, it has not.

Potter Stewart:

The — your Attorney General has advised that it is sufficient in compliance but as to what you’ve just told —

Loring E. Hawes:

That’s right.

Potter Stewart:

— the Chief Justice that there’s no way binding upon the Maryland Court of Appeals.

Loring E. Hawes:

What the — this Court can be assured that the Maryland Court will find the law to be constitutional.

Potter Stewart:

Well, that’s a separate question.

Loring E. Hawes:

(Inaudible)

Potter Stewart:

The question that I thought — the Chief Justice’s question is directed to in any event require — what my question is directed to is whether or not this certification is sufficient in compliance with the Maryland statute.

And that’s never been —

Loring E. Hawes:

Yes.

Potter Stewart:

— passed upon by the Court of Appeals of Maryland.

Loring E. Hawes:

That’s correct.