Earl Warren: Number 72, David Walter -- Walton Cramp, Jr., Appellant, versus Board of Public Instruction of Orange County, Florida. Mr. Simon.
Tobias Simon: Mr. Chief Justice, may it please this Honorable Court. This is an appeal from the final decision of the Supreme Court of Florida, upholding the validity of Fla. Stat. 876.05 against the contention that this statute violated the provisions of the First and Fourteenth Amendments to the United States Constitution. This is the Act which requires that all public employees in the State of Florida, including David Walton Cramp, who is a teacher, execute a loyalty or expurgatory oath as a condition of his employment. The pertinent provisions of that oath other than the ones that were in effect prior to 1949 which at that time simply required all public employees to swear loyalty to the Constitution and to the -- and to the United States, now require that the public employee swear that he is not a member of the Communist Party and I quote, “That I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; and fourth, that I am not a member of any organization or party which believes in or teaches directly or indirectly the overthrow of the Government of the United States by force or violence.” Now, the appellant, Cramp, had been employed in Orange County as a teacher for nine years when just prior to the institution of this litigation, it was realized that through some administrative oversight, he had not executed the loyalty oath. He was approached and requested to sign the oath.
Potter Stewart: How long is this statute been on the books?
Tobias Simon: Since 1949 sir.
Potter Stewart: So it was there when he first became employed as a --
Tobias Simon: Yes, that is correct. Cramp refused to sign the oath on the grounds that the State could not validly and constitutionally require that he execute this oath as a condition of his employment and for no other reason. He brought an action in Orange County under Florida statutes for declaratory relief to declare the statute invalid and to assert his continuing right to teach school without the necessity of executing this oath. This relief was denied to him by the Circuit Court and this decision was affirmed by the Supreme Court of Florida and this appeal then followed. I would like to state that the issue before this Court as I understand it is not whether or not Florida is to be required to keep communists in its roles of public employees nor is the question so ably put by my Brother that Florida cannot establish reasonable qualifications for its teaching personnel or other employees. Because however, there is always and this Court has always recognized the duty of a State with regard to its public employees to establish only and stipulate only those qualifications which are reasonable and which are reasonably designed to fit the man to the job. Because of that requirement, we state that the issue before this Court is whether or not the qualifications imposed by Florida are reasonable and whether they bear a reasonable relationship to the position itself. Irrespective, I wish to point out at this point in the argument whether these qualifications were imposed through the procedural device or vehicle of the loyalty oath or whether they were imposed by statute. I think there is no issue about the fact that a state cannot impose qualifications for employment which violate due process, equal protection and this Court has unanimously stated on many occasions. Cons --
Felix Frankfurter: You argue the oath in its entirety beyond the power of the state or you emphasize when calling our attention to the oath, a particular clause?
Tobias Simon: I will emphasize --
Felix Frankfurter: Is that --
Tobias Simon: I will emphasize three particular clauses of (Voice Overlap) --
Felix Frankfurter: My question is not merely emphasis but do you say that no clause of this oath could stand or some could but it's mixed up with others that couldn't?
Tobias Simon: It is conceivable and I do not wish to reach the point necessarily that the first of the clauses that one must not be a communist in order to teach in the public schools. It is conceivable that under present decisions of this Court, Florida could stipulate a qualification that no communist could be a teacher in the Florida schools.
Felix Frankfurter: Well, the first one is the -- to swear to support the Constitution. What about that, (Inaudible)?
Tobias Simon: That of course is -- that is the same oath that I am required to take and I believe that the Justices of this Court are required to take it --
Felix Frankfurter: Oh, (Voice Overlap) --
Tobias Simon: -- there's no quarrel about that.
Felix Frankfurter: I can conceive of even such an oath that you single out nobody in the community except the particular person or particular class that you might have a basis of proposition or question. The second clause is I'm not a member of the Communist Party. Would that pass your scrutiny?
Tobias Simon: We do not at this point contend that this particular qualification would be unconstitutional.
Felix Frankfurter: The next one, you have indicated that it's beyond the power of the State that I have not -- will not lend my aid, support, advice, counsel, influence, you challenge that?
Tobias Simon: On at least three grounds, if Your Honor please.
Felix Frankfurter: And the next one, that I do not believe in the overthrow of the Government of United States or of the State of Florida by force or violence.
Tobias Simon: We challenge that, yes sir.
Felix Frankfurter: You do challenge that.
Tobias Simon: Yes sir.
Felix Frankfurter: The next one, that I am not a member of an -- any organization or party which believes and/or teaches directly or indirectly the overthrow of the Government of United States or Florida by force, you must challenge that if you did the previous one?
Tobias Simon: We likewise challenge that on additional grounds to all the others.
Felix Frankfurter: Alright.
Tobias Simon: If I --
Felix Frankfurter: I just want to get -- focus my mind to what it is that I'm going to listen to.
Tobias Simon: If I may direct my attention to the first of the clauses which Your Honor has indicated we oppose, and that is the question of that clause of the oath which states that I have not lent aid, support, advice, counsel or influence to the Communist Party? Now, the State of Florida has specifically interpreted this clause to me that I do not presently lend aid, support, influence, counsel or advice to the Communist Party, but that I have never at any time in the unending test, done such an act. Now we maintain and contend, regardless of the fact that this is included in a loyalty oath that this particular qualification is beyond the power of the State to require of an employee that he executes and makes such a statement as a condition of employment. In the first place, it can hardly be alluded to as a qualification of a teacher. We do not say that a State may not ask to secure this information but Florida has said blanketly that no person who has ever lent aid, support, counsel or advice to the Communist Party is suited to be a teacher or other public employee. It is immaterial whether 30, 40, 50 years ago, an individual may have joined the Communist Party or lent aid, support, counsel or advice whatever those words mean to the Communist Party for one day and since that time, devoted himself to a program of rabid anti-communism, if you will, spent that time acquiring enumerable college degrees and presented himself on the doorsteps of our capital building in Tallahassee only to be told there that the law of this State disqualifies you from being either a public employee or a teacher.
Felix Frankfurter: May I ask you whether the Communist Party ever appeared on the official voting ballots of Florida?
Tobias Simon: Not to my knowledge if Your Honor please. The progressive party was there and that, in some minds, is exactly the same thing in Florida.
John M. Harlan II: How do you jump the hurdle, the necessity of your argument of this part, how do you jump the hurdle if the Supreme Court of Florida said in view of the allegations of the complaint, which you said that he has never given any such aid or he had no standing as a matter of state law to raise a question, why isn't that an adequate statement?
Tobias Simon: Well, Mr. Justice Harlan, what the State of Florida said was that we had no standing to raise this as a matter of ex post facto. They said that this law was not an ex post facto law with regard to this particular appellant and they may be right. However, what I am saying here is that this particular qualification cannot be imposed as a matter of due process and he certainly has not waived his rights by merely stating that he has never done this under the Due Process Clause to assume this would mean to say for example that Torcaso had to be an atheist in order to obtain relief from this Court.
John M. Harlan II: Yeah, but the Court, the Florida Court as I read its opinion said, you cannot raise your Constitutional objections to this because you have no standing in light of your allegation with your complaint?
Tobias Simon: I would respectfully submit that this particular question insofar as there is any merit to it and we do not concede that there is merit to the statement, but that any standing to sue is -- we do have standing to sue because this is a matter of due process that a man who states that he is not a communist and has never lent aid, support or counsel or advice to the Communist Party is nevertheless entitled as an American under the Due Process Clause to refuse to execute an oath which requires that he so state this. A man for example, this Court has stated that a state cannot pass a law that no public employee may go to mass or no person who attends mass can be a public employee. Now, I may not ever have attended a mass and yet I believe that this law is invalid and that I have a right not to execute such a note and that disqualification cannot be imposed by the State irrespective of my religion. The fact that a law is bad, the fact that a qualification for employment violates due process, does not depend on whether the individual who is involved in the procedure, so long as he is in the class which is being effective, a non-public employee could not come to this Court and complain, but this man is a public employee.
John M. Harlan II: You argue in effect that this certain state ground is not one that we should recognize as an adequate state ground, that's the substance --
Tobias Simon: That is correct.
John M. Harlan II: -- of your argument.
Tobias Simon: Yes sir. And I also state that if there is any merit to it whatsoever, it is restricted to the question of whether or not Cramp can claim that he is within the class that can raise the issue that this is an ex post facto law, but we rest primarily on the proposition that the asserted state ground is not a proper one.
Felix Frankfurter: But I think you are casting your net too broadly if I may say so. This Court has said again and again that if a particular individual himself, a particular individual himself could not be affected by a statute, he can claim injury on behalf of others who might be in the same class, but were not excluded by the record filed. I think of the case in 204 U.S. I think of a lot of cases to which this Court has said (Inaudible) if somebody who is hurt by this. I think the ground as you -- as you put it that he represents the class. He doesn't represent a class if he is in a class by himself. Why does he put that into his pleading? I'm not saying -- I'm not suggesting, to be clear about it that -- that an argument can't be made but not your argument.
Tobias Simon: The --
Felix Frankfurter: That's simply because he is in a class. The point is he has taken himself out of the class.
Tobias Simon: No Your Honor. We submit that he is within the class that is being affected. He is within the class of public employees who are asked to comply with a particular qualification. Now, the reason why --
Felix Frankfurter: But to go to the -- perhaps one ought to hear your objection, if you go to the objection of such a class, the objection namely that they can search way back into his life, I don't know how many years back, that's why I asked you when the Communist Party was established. He is in Florida or he may have been a member of the Communist Party of the United States, suppose he take judicial notice that -- that's got on the way 1919 or 1920 which puts a judicial notice and the litigant party came in to being, your argument then is (Inaudible) that that means that he did anything from 1920. And thereafter, did everything to oppose that which he did in 1920, he still would be within. But if a man takes himself out of the class but there's no such danger, then I don't think your answer to Justice Harlan's question is adequate that he is in that class. The point is he's not in that class because he's taken himself out of that class. I think there are other objections possibly but not your objection that he's in that class.
Tobias Simon: Well, we respectfully submit that the mere statement, the mere fact that he has come to this Court as others have not done and have stated what his political beliefs are does not remove him from the protection of the Due Process Clause, Now this Court, I do not believe will take the position that there must be a doubt in the minds of Justices before they will give benefit of the First Amendment and the Fourteenth Amendment to the litigants. Suppose Torcaso --M
Felix Frankfurter: But there's nothing (Voice Overlap) --
Tobias Simon: -- had come --
Felix Frankfurter: Isn't a question of doubt in our minds. It's a question of a litigant asking for a leave on the basis he's hurt by something and he says, “I haven't been hurt by this.”
Tobias Simon: Well, we submit that we are hurt because this is a man who should not be required to submit to a qualification which offends the Constitution regardless of whether he himself is a person who is being hurt directly. We submit that there is an indirect hurt to him because he is a public employee. I refer again to the example of Torcaso. If Torcaso had come to this Court and stated that he was not an atheist, I suspect that the decision of this Court must necessarily have been exactly the same because Maryland cannot impose a religious test upon public employees whether atheist raised the question or non-atheist raised the question and I suspect that the Due Process Clause under which we are claiming here is as much available to non-communist as it is to those who have a lent aid, influence or support to the Communist Party or to those, I think this is basically the question who do not come and tell this Court as Torcaso did not come, as Garner did not come, as the attorney in the Konigsberg in the following case and test flow did not come and so this Court.
Felix Frankfurter: I don't accept your starting point, you see. I can well understand that a man like Torcaso can file or his lawyer can file a complaint in which he said this is of no hurt to me. It couldn't possibly make any difference to me to sign it. I'd be glad to sign it but I just want to get a ruling from this Court on whether such a statute is constitutional. Speaking for myself, I have the greatest doubt, but I would think that presents the case of controversy before this Court.
Tobias Simon: Except that in this case, if Your Honor please, this man did not sign this affidavit and the statements that he made in his complaint were not regarded by the State of Florida as a substitute for this affidavit. And unless he -- and until he signs this affidavit, he is not in a position to draw on public funds and I would like to add the following. The statements that he made in his complaint do not foreclose the issue because the language that is used in this particular clause of the oath that he has not lent aid, support, influence, counsel or advice to the Communist Party are so vague, broad, general as to be actually incapable of analysis or interpretation except as in a -- except in a completely subjective manner and the fact that he stated that in his opinion he did not do these things is not a guarantee because of the looseness.
Felix Frankfurter: He's not a guarantee of what?
Tobias Simon: That some Court will find --
Felix Frankfurter: Now, you're talking so far as I'm concerned (Voice Overlap) --
Tobias Simon: That some Court would find that he has done exactly the same thing --
Felix Frankfurter: Now, you're talking.
Tobias Simon: -- or has not done exactly the same thing.
Felix Frankfurter: Now, you talk --
Tobias Simon: But this another ground why this particular language, the vagueness and Your Honor of course has dissented in both Garner and in the American Communications Association --
Felix Frankfurter: But that's a very different argument --
Tobias Simon: -- on the same ground.
Felix Frankfurter: -- from the one that you thought was conclusive.
Tobias Simon: I had not at that point come to that argument Your Honor.
Felix Frankfurter: What you're saying is that he might sign this oath and he might subject himself to prosecution of perjury and then at least would have to litigate whether what he did not 40 years ago but two years ago could be regarded on the appropriate charge by a judge to a jury as bringing himself within these terms support, advice, counsel and influence to deny that and therefore it's a case of perjury. Now, I understand you.
Tobias Simon: That is because the language of this particular section is incapable of actual definition and therefore as a matter of due process should not be included among the qualifications for teachers or public employees in Florida or in any other state. The next clause of the oath is the clause which states that I do not believe in the overthrow of the Government of the United States and also that I am not a member of any organization which believes in, and this of course I think is impossible and so the persons who were at the statute added the words “word teachers, directly or indirectly the overthrow of the Government of the United States by force or violence.” To my knowledge, there has been but one other case in which the question of belief in terms of violent overthrow of the Government has come before this Court and that was some 10 or 11 years ago in American Communications Association versus Douds. At that time, the Court by a three-to-three decision affirmed the judgment below. Nevertheless, Justice Vincent, Mr. Justice Vincent in writing for the majority put a gloss on the word belief and stated that the only thing that this can constitutionally mean is a belief in the objectives of violent overthrow as an immediate objective rather than as a prophecy. And this concept has come down to us since that time. In Speiser -- Speiser versus Randall, although that dealt with the question of advocacy, this Court insisted upon and secured from the Attorney General of California the statement that the advocacy therein involved was advocacy not as an immediate objective -- not as a prophecy but as an immediate objective. And if it is true for advocacy, of course, it must necessarily be true for inner beliefs which this Court Douds and all time subsequently stated are in violence. This position was urged before the Supreme Court of Florida and was ignored, but we go on to state that regardless in our opinion and we so contend to this Court that regardless of any gloss, any shaving that can be made of this word believe that the concepts of belief and a man's beliefs are not the function or the power of Government to inquire into. Neither this Court nor any arm of Federal Government, nor the State Government of Florida, can call into play and demand to know what are a man's beliefs as a condition of his employment. And we submit that any requirement as a qualification for public employment that a man divulge his beliefs must be unconstitutional and invalid under the provisions of the First Amendment. The old story of Dionysus who had a man killed for dreaming, that he killed somebody would I think follow in this case and I think that this Court should strike down any qualification for employment that requires an individual and especially a teacher fit within a stereotype concept of belief. And again --
Potter Stewart: Aren't you making a pretty broad argument? Certainly, if you want to hire a teacher to teach geography, you'd be -- it would be irrelevant if he -- if he happened to believe that the world is flat, wouldn't it?
Tobias Simon: No sir. I do not believe and we -- and it's our position that a man's beliefs are in violence. The State cannot call forth any statement from him as to his beliefs as a condition of employment. I think that persons, I think that Christian Science practitioners are perfectly capable of teaching medicine in a medical school. I think that persons who are biblical fundamentalist are perfectly capable of teaching --
Potter Stewart: Evolution.
Tobias Simon: -- evolution in a college. I think that a catholic president for example is perfectly capable of expressing the viewpoint that there should not be public aid to education or can support a program of birth control in and throughout the nation. In other words, I do not believe that there is a necessary corollary that what a man believes will obviate or will excuse him from the sworn duty to follow a prescribe curriculum whether he'd be president or whether he'd be a janitor or a public school teacher.
Felix Frankfurter: Are you saying -- are you suggesting it's far a field that --
Tobias Simon: Yes sir, I -- I --
Felix Frankfurter: -- what I want to know -- what arguments imply. You're suggesting that a state university could not avow refusing to employ a conscientious believer in Christian Science to its medical faculty, is that what you're saying?
Tobias Simon: Yes sir. And I believe that Your Honor said something to the same effect --
Felix Frankfurter: I hope I didn't.
Tobias Simon: -- in Garner [Attempt to Laughter] where you stated that man cannot be asked to swear about something they cannot be expected to know, such a demand is at war with individual integrity. It can be no more justified than the inquiry into belief which Mr. Justice Black, Mr. Justice Jackson and I, deemed invalid in American Communications Association versus Douds.
Felix Frankfurter: That means that the State of Florida can't refuse to employ a plumber on its law faculty because he is expected to know about law, is that it?
Tobias Simon: No sir. The qualification of knowledge is an entirely different proposition from the qualification of the --
Felix Frankfurter: In the first -- we'll reject the whole basis on which a medical school is conducted for good or bad reasons, is violating -- the state is violating the First Amendment. I think you'd --
Tobias Simon: I do not --
Felix Frankfurter: -- you'd get more mileage if you went down with some another argument.
Tobias Simon: Well, we state that in this particular instance, a man's beliefs as to violent overthrow, do not serve as a basis for excluding him from the faculty in a public school system in Florida for two reasons which we have stated; one, because the concepts of belief are beyond the power of the state to inquire into, and secondly, and certainly, and this Court has held on this point that the only type of belief in this area which can serve as some basis for inquiry is a type of belief or advocacy into the overthrow of the Government as an immediate objective rather than as a question of prophecy.
Felix Frankfurter: I do not -- I do not understand why on your theory, you do not challenge the requirement of denial to become a member of the Communist Party?
Tobias Simon: Because, I believe that this Court has already foreclosed that question. I think that the State has the power to prohibit from its employ and I believe Your Honor did so state that a state can prohibit from its employ, Your Honor stated this in your dissent in Garner, any person who seeks to overthrow the Government by force or violence or is -- or are knowingly members of organizations engaged in such endeavor.
Felix Frankfurter: But you are challenging the force and violence part of this oath.
Tobias Simon: Not the force and violence part. I challenge the --
Felix Frankfurter: I thought you're (Voice Overlap) --
Tobias Simon: -- ability of the State of Florida to require that a man express his beliefs as distinguished from his actions in membership, as distinguished possibly from his advocacy, written statements or oral statements but I maintain that it has always been the concept of our Constitution and of this Court that individual integrity requires that an individual's unspoken, unadvocated, unwritten beliefs are his and belong to him privately and solely.
Felix Frankfurter: But did I understand you correctly to say that you challenge the clause that, “I do not believe in the overthrow of the Government of United States by force or violence.”
Tobias Simon: Yes sir because it states the word ‘believe.' Now, to state that I do not advocate the overthrow of the Government by force or violence is an entirely different matter provided of course, and I make the same proviso on the belief clause, provided that by advocate both legislature and the courts of Florida mean as an immediate objective as distinguished from a prophecy.
Felix Frankfurter: And so Florida can refrain to appoint somebody to teach civics that it has called in so many institutions who says, “I firmly believe -- I do believe in the overthrow of the Government of United States by force or violence.”
Tobias Simon: I would say --
Felix Frankfurter: Is that right?
Tobias Simon: -- that the minute -- no sir, because as soon as this is stated, it now becomes a matter of record, it is a matter then of advocacy. And on this proposition, I think this Court has ruled that you cannot discharge an individual or refuse to hire an individual where advocacy of an idea, as a matter of long-term prophecy as distinguished from an immediate objective is the criteria.
Felix Frankfurter: Well, I don't understand you quite. Suppose this oath was submitted to somebody who satisfies all the requirements; all the other intellectual requirements for having him to teach civics to the institutions of Florida but he says, “I cannot conscientiously sign the clause concerning the oath if it contains the clause, I do not believe in the overthrow of the Government by force or violence because I do believe in it.”
Tobias Simon: That I believe also can be an entirely different matter. The State has the right to inquire of him as to what his beliefs are as a means of measuring his competency and his ability to act as a teacher but to blanketly state that no person who does not sign this oath can be a teacher, I maintain and here we come of course to the distinction --
Felix Frankfurter: You mean -- let's see if I understand, if it -- if a teacher to be hired for civics could be required to sign this, but a teacher of mathematics could not. Is that the point?
Tobias Simon: No sir.
Felix Frankfurter: What is the --
Tobias Simon: Neither -- neither a teacher -- no teacher and no public employee can be subjected to a state qualification or employment wherein belief is the sole criterion upon which he is to be hired.
Felix Frankfurter: Well then, I am assuming that they've put him through the ropes as to where he studied and what books he's read and all the rest and also this that you must sign an oath that you do not believe in the overthrow of the Government by force or violence. You say that's alright, don't you?
Tobias Simon: No sir.
Felix Frankfurter: That's wrong.
Tobias Simon: That is correct. That is wrong.
Felix Frankfurter: But when is it alright? Is any time alright?
Tobias Simon: It is, in my opinion, never alright for the state to inquire into the man's beliefs as a condition of his employment.
Felix Frankfurter: Well then let me ask you again. If a person is under consideration to teach and to be employed as a teacher of civics in a Florida institution, high school or college, and he has to sign an oath, I do believe – I do not believe in the oath of the Government of United States by force or violence, may the state exact such an oath or not.
Tobias Simon: No sir.
Felix Frankfurter: Alright.
Tobias Simon: Because this involves the man's beliefs.
Felix Frankfurter: Alright.
Tobias Simon: And these beliefs cannot be for -- cannot form the basis of an exclusion from public employment. Now, I have stated that these qualifications, the retrospective qualifications, the matter of belief and advocacy which are contained in the Florida oath are bad. I maintain that these qualifications are invalid and are unconstitutional because they violate due process, there is no place for penitence or return, they violate the guarantees of the First Amendment which keep I believe a man's beliefs and right to advocate in violence and if these qualifications had been enacted by statute, those qualifications would not have been proper. We further maintain that because these qualifications are embodied in a loyalty oath which is presented to some 40,000 public school teachers and many more times that number of public employees within the State of Florida, that the requirement of the loyalty oath itself as a procedural device is invalid. Now, the reason why we maintain that position is because the requirement that a man execute and oath as distinguished from complying with certain qualifications, imposes upon him the necessity of submitting his associations, his beliefs, his concepts to the State in order for him to secure a position. Unquestionably, the execution of a loyalty oath is a restriction upon the privileges and rights of association, thought and belief guaranteed by the First Amendment. If we are to say that the interest of a state in prescribing qualifications are so important as to outweigh the interests of the individual then it might be contended that the means of achieving these qualifications, the means of establishing these qualifications in gaining this information, can be utilized through the means of the loyalty oath. But this, I believe, runs afoul of the concept that was established or utilized in Shelton versus Tucker where this Court stated that where there are alternative means of acquiring information, where there are alternative means of achieving an end desired by the State, a second balance must be struck if one method utilizes less danger and less harm or establishes less harm for the individual's rights then that is the method which must be chosen. Now, we submit that to -- that to turnover to the entire body of public employees in the State of Florida, an oath requiring that they give their associational ties and an expression of their beliefs and concepts even if for example, this Court were to say that they could have this information in the first place, that this is not the proper method of achieving this, that this has a chilling effect upon their rights, upon their associational rights as guaranteed under the First Amendment and this Court I believe has prescribed and has shown the method that can be utilized to prescribe these qualifications and that is the matter of the employer-employee investigation. And this Court has on several occasions, in Beilan, Lerner versus Casey, Konigsberg, Anastaplo, Nelson and Globe cases has stated that an employee, if challenged or questioned must come forward and give full and frank answers. And we submit that this is the method that Florida must utilize because if a teacher -- if there is a question about a teacher or a public employee, then it is well within the province of the State to rid itself of communists or other incompetent personnel to call the individual in. Some due process at least must be observed, some type of hearing must be given; something is afforded this individual. The interests of the individual can be protected. The demands upon the state are small and this method can be utilized far better than the blanket loyalty oath because it is our position that if we give at this time, blanket support for the concept of a loyalty oath, then through this device, each and every employee can be required to submit to doctrines in which the school boards or the government officials feel are important. We can be required to submit in signing oaths involving beliefs or disbeliefs or membership or nonmembership in organizations which are not the Communist Party, organizations which are unpopular in Florida or elsewhere.
Hugo L. Black: May I ask you a question?
Tobias Simon: Yes sir.
Hugo L. Black: I haven't quite understood some of the lines you've drawn. Suppose a man was about to be appointed to a job of this Government, he would have to pass on the jobs desired by others. He should be asked to swear that I believe that no person should be discriminated against on account of race, color or religion. Would you see a difference between that and the oath you would take that would be required if it said that I will not discriminate on account of race, color or religion, one being a statement of what he believed and one being a statement of what he would do, is that the line you're drawing?
Tobias Simon: Yes sir. Requiring a man's actions are of course -- would -- the state can require a man to act, an employee to act in a way in which he desires, but a state cannot require that a man believe a -- in a particular thing. We also have laws in our -- in Florida, require -- prohibiting certain types of discrimination based on color, but I do not believe that the State has got the power to make this individual swear that he believes that discrimination is bad. I think his beliefs are his own and so long as he is doing a proper job then this is all that can be constitutionally required of him.
Felix Frankfurter: Do you think of -- do you think a man's conviction of what he promises to carry out -- about what he promises to carry out has no relation to the reliance one can place upon his capacity to carry out or to be subject to carry out.
Tobias Simon: Mr. Justice Frankfurter, I have not mentioned --
Felix Frankfurter: I thought we've had a great deal of --
Tobias Simon: I have not mentioned a man's --
Felix Frankfurter: (Voice Overlap) talk about that to the contrary. We want people actually to believe certain things as an assurance that they will see to it that having power, they will carry that duty into action. Do you think men are (Inaudible) like that if they say, “I will do this --” you can count on him to do it although he pleaded the opposite?
Tobias Simon: No sir. I think when a man promises or undertakes to do a job than he is required to do it. But I feel that --
Felix Frankfurter: You can count on that no matter what?
Tobias Simon: I feel that --
Felix Frankfurter: That's ultimately so.
Tobias Simon: -- that the danger to this country and to our institutions of having government inquire into a man's beliefs and stipulating that a man must believe in a particular manner as a condition of employment can lead to far greater danger than the possibility that a man might not do a job even though he has sworn to do it because he doesn't feel within himself that this is the way he would like the system to be. We might all feel very well that a man who is going to be a notary public should believe in God because he must administer an oath, but that is not to say that the State has got the power to require that he believe in God as a condition of this.
Felix Frankfurter: There may be a difference of opinion as to what a man's belief regarding the ultimate mysteries of the universe. That's a very different thing from saying that a man who is charged with a duty shouldn't be expected while legislation is written. We have a number of enactments of Congress, the PVA I believe is one, Justice Black will correct me, but I think that's one if the person to be appointed by the President should be a man who has faith and conviction in the particular enterprise and therefore as an extra energetic impulse to carry out that enterprise, isn't that true? I believe that's true.
Hugo L. Black: I don't know precisely what the position is?
Felix Frankfurter: But there are several such things that the appointees by the President should be people who believe in the policy which they're called upon to execute.
Tobias Simon: I do not say that it is not desirable to achieve this. What I -- what I do state, however, is that the State, so long as there is no expression of a man's beliefs and as long as there is no reduction of his duties on the particular job that he has to perform, that the question of belief is not within the realm of Government to inquire into or to prohibit.
Hugo L. Black: Without getting into this, the soundness or the unsoundness of your position that I was just trying to clarify; as I understand, what you're saying is that the Congress would have passed a law requiring all candidates for Congress or the Senate to swear that they believe in the operation of Government without any special discrimination against any group that that would not be a good requirement and -- but that it would be quite different if they required him to swear that he would not conduct his office in such way as to deprive that. That is the line you're drawing whether good or bad.
Tobias Simon: That is precisely the line we are drawing, yes sir. We might state also that going back in this picket of the belief in violent overthrow of the Government that one can, I believe, without being a disloyal American believe that if circumstances and conditions obtained that existed were so bad that the only resort to correction was violent overthrow then this does not necessarily make him a bad American. It does not necessarily make him unfit today when he states that conditions are good and are favorable and that conditions can be rectified in a proper and constitutional manner. This does not make him a person who is incapable of holding public office or public employment.
Hugo L. Black: I assume you're taking, arguing literally which maybe a wrong way to argue, a statement made by Mr. Justice Roberts in one of the cases, I've forgotten which one, substantially to the effect that a man's beliefs are empowered, but his conduct can be regulated for the good of society.
Tobias Simon: Absolutely and I'm also taking up the statements that were made in the Anastaplo to exactly the same effect where this young man as an attorney for example, stated that he would not subscribe to the proposition that he did not believe in the overthrow of the Government by force or violence under certain circumstances that might exist at some long time in the future, but it was quite clear that he believed that these circumstances were not present within our society or our civilization at the present time.
Earl Warren: Mr. Simon, we'll reduce it to very simple terms. You -- you make a distinction I take it that it is perfectly proper to require a public employee to swear that he will support the Constitution of the United States, but that it is improper to compel him to say that he believes in every article of the -- of the Constitution of the United States as a prerequisite to getting a public job.
Tobias Simon: Yes Your Honor.
Earl Warren: There -- I point that out because there are a great many people today who are in the news all the time, claiming that the provision for an income tax is the work of communism in this country and he could demand who had that belief could hardly take the kind of an oath that is presented here.
Tobias Simon: I --
Earl Warren: There are others who believe that the provision allowing women to vote is wrong. There are people who don't yet believe in the direct election of the United States Senators, but if all those people can -- would be debarred because they believe that way even though they conscientiously would take an oath to support the Constitution of the United States, it would debar a lot of people, wouldn't it?
Tobias Simon: I hardly need to add Your Honor. I agree with Your Honor's statement, I hardly need to add that in Florida, there are a great number of people who feel that some of the decisions of this Court are in precisely the same light that you have cast under these other amendments to the Constitution.
Earl Warren: Yes.
Tobias Simon: And it seems to me that there we have persons throughout our state government, sworn to uphold the Constitution and the decisions of this Court interpreting the Constitution who nevertheless do not believe in the decisions of this Court and believe that they are correct or proper or should have been issued in the first instance.
Felix Frankfurter: Mr. Simon does a (Inaudible) -- if one takes an oath to support the Constitution, he takes an oath to support the whole Constitution.
Tobias Simon: Yes Your Honor.
Felix Frankfurter: And one of the important provisions of the Constitution is the mode by which things you don't like in the Constitution can be taken out of the Constitution and the mode in the Constitution which is set forth is that changes must be made in an orderly way and not by force and violence. And you say that a state can say that you must at least agree that the changes that you want to have come into being, the things you don't like -- you don't have to like everything in the Constitution, but there's a provision the Constitution which says if you don't like it then get busy and get it repealed.
Tobias Simon: But you must support it. You must --
Felix Frankfurter: And therefore, you say a state cannot ask a man to say, “I believe in the Constitution including that provision of it that the things you want to take out, you should take out by reason and votes and not by force,” isn't that right?
Tobias Simon: I -- I do not feel that that is anymore consistent than requiring that a man working to amend the Constitution be required to support it during the time that he is amending it. Now, what Your Honor has stated maybe so and the decision of this Court indicated it was so for an applicant to a bar which is of course within the peculiar ability of a Court to set as to the qualifications of membership of attorneys before a bar. But I do not think that this general requirement should carry over into the hundreds of thousands of public employees throughout the country because I think that then we will obtain and secure a situation in which all manners of beliefs are going to be inquired into and are going to be required to be set forth.
Felix Frankfurter: That's a different argument. I'm merely suggesting that a man can shout from his -- from the House top that he doesn't like being compelled and he can shout from the House top that he thinks it was a great mistake to give the women to vote, that doesn't mean he can go out and smash things up because the Constitution indicated how he can bring his disagreements with specifics into -- into realization.
Tobias Simon: I assure Your Honor I am --
Hugo L. Black: I don't understand that you disagree with that.
Tobias Simon: I'm sorry sir.
Hugo L. Black: I didn't understand if you disagree with that.
Tobias Simon: No sir. I --
Speaker: (Voice Overlap) --
Tobias Simon: I assure Your Honor that I am not proposing that Mr. Cramp who was a perfectly good teacher until five minutes before he was presented with this oath or five minutes after he go out and smashed things up. What I am saying is that if he was a good teacher, he was a good teacher for nine years without the state knowing the first thing about his beliefs.
Felix Frankfurter: And knowing everything --
Tobias Simon: And I --
Felix Frankfurter: -- about Mr. Cramp. All I'm suggesting is that it doesn't prevent anybody from expressing the most vehement disagreement with any specific provision of the Constitution and yet to require him to say that he wants the change made by the way in which the Constitution has indicated changes should be made.
Tobias Simon: Well --
Earl Warren: Mr. Simon, but -- also, I think there are some states in -- I'm trying to think my own, I ought to know because I took the oath a good many times, but I think there are a good many of them that require a man to -- to take an oath that he will not only support the Constitution, but the laws of the State of California. Now, they don't carry, the laws don't carry that implicit thing in them for -- for repeal Mr. Justice Frankfurter has -- has been talking about. But I suppose that when I took the oath to support the Constitution of the State -- Constitution and laws of the State of California that I wasn't saying that I believe in the wisdom and the policy of every law that was on our statute books. I took the oath that I would support them because they were on the statute books and there is a difference between belief in what you will -- what you will do as a public official.
Tobias Simon: I sincerely hope so Your Honor because that is why I am here. That is what --
Felix Frankfurter: Nobody has been asking you to say that he believes in all the laws of the State but --
Tobias Simon: But this --
Felix Frankfurter: -- believing in the Constitution is a very different thing because that's an organic document which has the means of some correction within it --
Earl Warren: The dis --
Felix Frankfurter: -- and the statute doesn't.
Tobias Simon: Oh I --
Earl Warren: So the distinction without a difference.
Hugo L. Black: What percentage of the people do you suppose do believe that every single provision of any state constitution?
Tobias Simon: I do not understand the -- these concepts of believing it.
Hugo L. Black: I'm not talking about what's supported.
Tobias Simon: I -- I --
Hugo L. Black: I recall once from the -- many constitutions have provided that there's no liquor should be sold. I'm just asking what percentage would you make of the people that take an oath soundly and truthfully, they really genuinely believe that every provisions of every state constitution --
Tobias Simon: Present company excluded of course, Your Honor, I would venture to say that probably nobody does. I do not think I have much time left.
Felix Frankfurter: Why do you present company?
Tobias Simon: Well sir I --
Felix Frankfurter: Because every provision the Constitution has an amendment written into it that if you don't like it get it repealed. That's also part of every provision.
Hugo L. Black: For a man might try to enforce it and still want to -- and get out and try to get it repealed, might he not? That frequently have been, doesn't it?
Tobias Simon: Yes Your Honor.
Hugo L. Black: I have known it to happen.
Tobias Simon: I would like to reserve my final time for rebuttal.
Earl Warren: You may Mr. -- you may Mr. Simon. Mr. Wells. We haven't much time but you can get started.
J. R. Wells: Mr. Chief Justice, may it please the Court. It will be my purpose to take up the several clauses of this oath one by one but before I do, I want to call particular attention to the fact that we do not have in this case the kind of situation that was involved in the Wieman versus Updegraff where scienter was construed by the Oklahoma Supreme Court as not being implied in the Oklahoma statute because both prior to the time this oath was submitted to Mr. Cramp for execution and in the course of this case, the Supreme Court as well as the trial court here, specifically held that scienter was implicit in the provisions of the statute. In going back to the Wieman versus Updegraff case, that was in 1952 that this Court held at an Oklahoma statute requiring a specified oath on the basis of -- was in that -- on the basis that the Oklahoma Supreme Court had held that knowledge was not a factor under the Oklahoma statute.
Earl Warren: We'll recess now Mr. Wells. [Recess]
J. R. Wells: May it please the Court. Just before adjournment, I made mention -- excuse me -- of the case of Wieman versus Updegraff decided by this Court in 1952 in which this Court held invalid an Oklahoma statute because scienter had been -- or knowledge had been held by the Oklahoma Court not to be a factor under the statute. In the -- two times before this Court had decided the Garner case in which this -- in which knowledge was not referred to in the ordinance there under consideration, but the Court had sustained the ordinance stating we assume that scienter is implicit in each clause of the oath. And in the Wieman case, this Court commented regarding the Garner case of -- that one of the attacks made on the oath in that case, that is the Garner case was that it violated due process because its negation was not limited to organizations known by the employee to be within the prescribed clause and then the Court said that this argument was objected in that case because we thought justified and assumed that scienter was implicit, each clause of the oath. In 1957, more than two years before the oath was presented to appellant here for execution. The Florida Supreme Court had before it the case of State versus Diez in which there was involved an indictment for perjury in connection with the making of an oath under a statute. And in that indictment, there it was not alleged that the statements were willfully false or anything about the employee having the -- particular individual having knowledge of the subversive nature of the activities. The -- in holding the indictment defective for one of those allegations, the Court said, this conclusion that is that the indictment was defective does not lead us to a decision declaring the act unconstitutional because we think it is inherent in the law that when one takes the oath, that he has not lent aid, advice, counsel and the like to Communist Parties represent an oath he had not done it -- with knowingly. And the Court in the discussion in the Diez case discussed both the Garner case and the Wieman case when one of the complaints in the -- complaint by appellant here, in his complaint, was that the Florida statute did not have the element of scienter. The trial judge said that that contention was not well founded and then quoted from the Diez case. In the --
Earl Warren: Mr. Wells, in that -- in that case, what phase of the oath was alleged to be precarious --
J. R. Wells: The lend and aid, support and --
Earl Warren: I beg your pardon.
J. R. Wells: The lending of aid, support and so forth to the Communist Party in the past.
Earl Warren: What did it allege?
J. R. Wells: What did the indictment allege?
Earl Warren: Yes.
J. R. Wells: It merely alleged the fact that he had lent aid, support and so forth but there was no allegation regarding the fact that it was knowingly done or the willfully done it. And --
Earl Warren: What facts were alleged?
J. R. Wells: Just the --
Earl Warren: The conclusions?
J. R. Wells: The fact of lending aid and support, but nothing with regard to knowledge or willful.
Earl Warren: Yes, well, was it just conclusory that -- that he lent his aid and support but -- or did they charge -- charge that he had -- had given some specific support. I just didn't (Voice Overlap) --
J. R. Wells: My recollection is that it was in general terms, but I have the case here.
Earl Warren: Well, its -- if you don't --
J. R. Wells: I don't recall exactly but I think it was in general terms.
William J. Brennan, Jr.: The attack on the indictment alone or was it after a conviction?
J. R. Wells: It was attack on the indictment. The indictment is being held to be insufficient by the trial judge and there was an appeal to the Supreme Court from that decision of the trial judge. And --
Felix Frankfurter: Mr. Wells.
J. R. Wells: Yes sir.
Felix Frankfurter: Forgive me for interrupting you. I didn't hear Mr. Simon in the course of the argument raise the question of scienter so I assumed you accept --
J. R. Wells: That's --
Felix Frankfurter: You accept the state court's decision that scienter is to be read into the statute and therefore the statute comes here with that -- with that authoritative interpretation of your court.
J. R. Wells: That's my assumption because I don't read any of his -- either his jurisdictional statement or his brief as raising any question of scienter.
Felix Frankfurter: I just wonder whether your appeal must be taking your time to answer an argument that is --
J. R. Wells: It may be that I am Your Honor.
Felix Frankfurter: Not that it's been abandoned but he just accept (Voice Overlap) --
J. R. Wells: And if so, I apologize. I just wanted to make it clear that scienter was not -- the absence of scienter in the Florida statute was not effective.
Earl Warren: But can you apply that rule of scienter to beliefs?
J. R. Wells: I apply it Your Honor that he's -- it's got to be a willfully and knowingly false. In other words, that he has not -- that if he does not -- unless he is willfully and corruptly swearing to it that there could be a prosecution on it. That's a way -- that's the way I apply it Your Honor. In other words, there has got to be knowledge of the -- the facts that it is a false statement of belief that it's bona fide that there couldn't be a prosecution of it, but turning then to the allegations of the -- of the statements that have to be in the oath under the Florida statute. I understand no question is raised with regard to the first statement after the support in the Constitution and so forth that I am not a member of the Communist Party that it is conceded by opposing counsel that that is not an invalid requirement in an oath of this kind. So that brings it to the second clause or the next clause following that that I have not and will not lend my aid, support, advice, counsel and influence to the Communist Party. Now, as I understand, the question is put -- is quite well eliminated as to any question that could be raised by somebody else, not a party to this suit. In other words, as to whether this is a bill of attainder on ex post facto law as to somebody else. It is not involved here where appellant has alleged that he has never lent aid, support, advice, counsel and influence to Communist Party. But -- and in our brief, we have made the subsidiary contention that even if that were before the Court that that could be sustained but in view of the fact that it is so clear that he can't raise it, I'm not going to take the time on argument of going into that. But --
Earl Warren: Would it --
Felix Frankfurter: Are you --
Earl Warren: Go ahead please, please.
Felix Frankfurter: Are you going to argue what you call a subsidiary point that in case he is in no position that the stand -- put the standing problem to one side?
J. R. Wells: Yes sir.
Felix Frankfurter: And assume it weren't in this case, I understood you to say a minute ago that if that were so, you would also defend -- you would defend the power of Florida that as – (Inaudible) anybody else whom it appoint but assume a teacher, but I have not -- will not lend my aid and support, advice to the Communist Party.
J. R. Wells: I would Your Honor on the same theory on which the Hawker case was decided and the same theory on which --
Felix Frankfurter: In what case?
J. R. Wells: The Hawker -- the -- involved in --
Felix Frankfurter: New York?
J. R. Wells: Yes sir, involving the -- not --
Felix Frankfurter: You have to get a license to be a hawker.
J. R. Wells: He practiced in Madison and he had committed an abortion 15 years before the Act was passed and yet it was held to be valid to prevent him from practicing medicine and on the same theory on which the DeVeau case I believe it was, was decided two or three years ago by this Court involving the union officers on the Waterfront in which ex-felons were precluded from being union officers notwithstanding the fact that they had been convicted many years before. Now, I realize that the (Inaudible) case involving an attorney in either Illinois, I believe Illinois or one -- some state has to be taken into account in connection with that where there was just the member of the Communist Party many years before. But I do think that in view of the element of scienter here, and that you can sustain so far as the school teacher is concerned not requiring the pupils around the hazard of whether a reform has been bona fide where he has knowingly aided a subversive organization in years gone by.
Felix Frankfurter: Let me ask you this question Mr. Wells.
J. R. Wells: Yes sir.
Felix Frankfurter: I suppose your state university is dependent on state funds for its activities.
J. R. Wells: Largely so, yes sir.
Felix Frankfurter: Well, suppose Mr. Simon said there never was a Communist Party on the electoral ticket in Florida.
J. R. Wells: I don't recall that definitely but I don't think there was.
Felix Frankfurter: Well, suppose the Communist Party of United States in 1924 or 1925 found out that there was a campaign on to increase the appropriations for the University of Florida, to double the appropriations of the previous years, I don't know whether they did it one year or two years. Two years?
J. R. Wells: Two years Your Honor.
Felix Frankfurter: Suppose there was up a referendum to issue bonds to double the appropriations to the University of Florida, and suppose the Communist Party had sent in its most vocal leaders to support such an amendment and made a lot of noise in support of it. And suppose some members of the faculties in University of Florida were on the same platform with the Communist Party leader, solely -- had a meeting solely restricted to promoting the adoption of that bond issue amendment. Now it could be argued that thereby he was aiding -- couldn't it be argued that he was aiding or couldn't it be fairly argued that that was an aid of the Communist Party because he lent his prestige and his respectability, etcetera, etcetera, etcetera. Couldn't that be argued?
J. R. Wells: I felt that Your Honor that that would come within it for the reason that I don't think parallelism of action would -- I think it would --
Felix Frankfurter: Well it doesn't --
J. R. Wells: -- be an aid to the Communist Party.
Felix Frankfurter: Well, when you say you doubted it, I -- am I -- is it fair to imply that it would raise a question and a conscientious lawyer could argue that's an aid?
J. R. Wells: Well, it's hard to --
Felix Frankfurter: At all events, it isn't like the Hawker case or the DeVeau case where the Court had before it the consequences that a state may be allowed to draw from a criminal conviction and the relation of such a criminal conviction to a subsequent position of responsibility.
J. R. Wells: You don't have the element of a conviction. No, Your Honor.
Felix Frankfurter: But it only meant words like aid or support, for instance, support if a distinguished member of the University of Florida is on the same platform under the auspicious of the Communist Party sponsoring increased appropriations for the university. It could be a man wouldn't -- wouldn't look ridiculous or wouldn't be left out of the Court if he was totally supporting the Communist Party, would he?
J. R. Wells: Well, of course it's -- it's hard to say what a -- a man would be left out of (Inaudible) on various things --
Felix Frankfurter: But (Voice Overlap) --
J. R. Wells: -- but I don't believe that would be a reasonable (Inaudible) --
Felix Frankfurter: But if --
William O. Douglas: If you had -- if he had six of them or eight of them or ten of them of the same quality, you wouldn't hesitate to take your case on that -- on parallelism, would you?
J. R. Wells: I don't believe that unless there was a direct element of aiding and supporting in connection with a -- contributing toward the subversive aims, I don't believe that that could reasonably come within it.
Felix Frankfurter: But Mr. -- Mr. Wells.
J. R. Wells: Yes sir.
Felix Frankfurter: The trouble is in your -- in your fair mind and conscientious way, you have a like to say you don't believe it, but the difficulties that I had and why, it has simply been -- what was it, Updegraff and Wieman or the other way around or was it a conscientious man taking an oath wouldn't know what he was taking an oath to. He might say, well, I'm -- he -- I was once on a platform with Foster or what's the other fellow's name, the leader and I don't know if I swear, I never did. It might hold me up one of these days and said, “Well, weren't you the chairman of the meeting at which -- with you meeting Foster, you made a (Inaudible) haranguing speech? He wouldn't know, would he? I mean a conscientious man, particularly if he isn't a lawyer hasn't the great advantage that you and I have of knowing how we play with words in the law, he might pause, wouldn't he?
J. R. Wells: Well, of course it's possible Your Honor but there are many matters that come up in connection with laws and indefiniteness where arguments can be made one way or the other and yet the laws can be held to be of sufficient depth.
Felix Frankfurter: Yes. You're asking him to swear to this thing and I'm just putting it to you.
J. R. Wells: But the element of scienter is in there Your Honor.
Felix Frankfurter: Yes I know, with knowledge. He has all the knowledge --
J. R. Wells: But does he -- and does --
Felix Frankfurter: Yes but I was on that platform (Voice Overlap) --
J. R. Wells: Well, unless he intends to aid the Communist Party as such. I don't see how he could possibly come within it.
Felix Frankfurter: Well, I think from personal experience, I was once a chairman at a meeting in Boston way back, and the purpose of the meeting was to urge the Government of United States to recognize the soviet country, the present regime in Russia long before we did. And we had all the parts of it or mix bag of speakers. And I can assure you all sorts of inferences that might seem to you and did to me at the time ludicrous could be drawn from such chairmanship, was drawn. Now, if I have to swear lawyer that I am, if I had to swear that I never hated the Communist Party because of the communist speaker at that meeting, in Nathaniel Hall or it was Faneuil Hall, the cradle of liberties so-called, I would fall even as a lawyer in saying I don't want to be -- oh yes, I know that I could not know sensible juries convict me but then juries aren't always sensible, no Supreme Court would sustain the conviction but then the Supreme Court aren't always sensible at least in the eyes of the various people in distant times. It's a problem that confronts the man who's asked to take an oath which has these dubious possibilities.
J. R. Wells: Well, I realize that a contention can be made that the -- that there's too much of an indebtedness in that Your Honor but I -- when you have the scienter as a factor in it, I don't believe that that is sufficient that the oath should be declared unconstitutional on the basis of indebtedness.
Felix Frankfurter: It wasn't your -- it wouldn't -- doesn't it make a difference how -- how needed this is, how essential this is to protect the interest that you have a right to protect from my point of view. It means at any time. Suppose you say -- if it's scienter, suppose you say it makes a difference whether its 40 years or two years or three years or five years, doesn't it? And when you have a territory where conscientious men may forge long before they sign in the affidavit which has potentialities of perjury in the system, I don't mean conscious perjury but you've got a problem, haven't you? At least that's what -- that's what's we had in Wieman against Updegraff and you have to hurdle that case, don't you?
J. R. Wells: Well, in that case though, the knowledge was held not to be a factor under the Oklahoma statute by the -- by the Oklahoma Court. In other words, that was the difference between that case and our situation that is -- that that --
William O. Douglas: It had no --
J. R. Wells: -- differences in the statute.
William O. Douglas: You haven't -- maybe you have but I have -- I haven't been able to follow. Disentangle the -- what we call the illegal purposes of the party and the -- what may be the lawful purposes of the party. The party as far as I know may be for maternity care, against juvenile delinquency, for disarmament, for peace and all sorts of things. My question is how an association purposes that may be up -- completely lawful, could be used under this statutory scheme.
J. R. Wells: I don't believe that those purposes could come within the purport of the activeness to Justice Douglas.
William O. Douglas: Tell me again just why.
J. R. Wells: On account of the fact that the subversive character --
William O. Douglas: But the statute says by aid, support, advice, counsel or influence to the.
J. R. Wells: Well --
William O. Douglas: -- Communist Party which may have --
J. R. Wells: That -- that is construed by the Court to have reference to the subversive character.
William O. Douglas: Where is that precisely?
J. R. Wells: It is on page 13 of the record Your Honor.
Hugo L. Black: Suppose they knew that the Communist Party intended to be subversive, had full knowledge of it, he attended a meeting such as Mr. Justice Frankfurter mentioned where they talked about various things where this man was the chairman of the meeting or made a speech like De Jonge in Oregon, would you say that the fact that he knew about it would take away from him the protection of the First Amendment of the freedom to be there?
William O. Douglas: Where -- where his advocacy or belief or what not promotes a wholly lawful phase of a subversive organizations' activities.
J. R. Wells: I think it would depend Your Honor on the motive. In other words, whether there was a motive to advance the party knowing of its subversive character or whether it was a -- purpose of events and cause.
William O. Douglas: Well, the De Jonge, the man, De Jonge undoubtedly knew about the full scope of the purpose of the party but he was held immune there because the purpose of the meeting it had -- which he attended was to aid strikers or to give relief to picket lines or something in that category that was wholly lawful.
J. R. Wells: Well, I think that that would be that same distinction here Your Honor.
William O. Douglas: But I don't find it in the case of the report that you -- record that you refer to --
J. R. Wells: Well it --
William O. Douglas: -- because there it says whether he has been or is or has been innocently and knowingly aligned with a subversive. Now, De Jonge walks into the meeting knowing what the full scope of the Communist Party program is, but they're there that evening not for blowing up things but for promotion of a local cause. Would he be caught under your statute?
J. R. Wells: I don't think he would unless his motive was to advance the cause of the party as distinguished from an advancing the cause that the party was also seeking to advance.
Hugo L. Black: Well suppose a speaker had preceded him who advocated the Communist Party in its aims. He got up and talked on a perfectly lawful subject.
J. R. Wells: Well, I don't see how unless in other words, unless the -- what he did was done for the purpose of advancing the Communist Party as distinguished from advancing the cause there that the Communist Party was also seeking to advance at the time. I --
Hugo L. Black: You mean if he had talked on something that was purposely lawful, advocated the cause that many people before (Inaudible) that the jury could convict him if they thought from the evidence of a speaker preceding him had advocated the Communist Party.
J. R. Wells: I don't think that that would be --
Hugo L. Black: He too wanted -- he too wanted to aid the Communist Party looking to his motives.
J. R. Wells: I don't think that that would be sufficient Your Honor.
Hugo L. Black: That -- then you wouldn't look to his motives.
J. R. Wells: I think you look to his motives but I think you'd have to have more than that to establish his motives.
Felix Frankfurter: Mr. Wells, my narrow point is this that if you were defending this man in the hypothesis put, I'm confident if you let me say so that you get them all but you might not, you might not. A perfectly clear cut case have reached -- have led the men in the jury box to reach a different conclusion and I'm suggesting that a lot of school teachers who aren't versed in the dialectics of the law might feel queasy and (Inaudible) naturally and justifiably queasy about running an affidavit that might lead them into -- into criminal -- into a criminal prosecution even if they're usually the defendant and whereas such a risk -- such a risk can be unfold upon by the state, it is as narrow as that --
J. R. Wells: Well, I can understand the point that Your Honor is putting and raising and realize that it's a point that has to be faced in the case, but I don't believe that it should be fatal to the -- to the statute.
Felix Frankfurter: If you have -- it shouldn't be fatal to the statute if you can give a really strong weighty counter consideration why this is the way that a reasonable legislature must deal with the problem with which it has a right to deal with, namely, that puts no time limit, refuses voguish words which is susceptible of ambiguous construction etcetera, etcetera.
J. R. Wells: Of course, I realize Your Honor that the alternatives are to be taken into account to a brief but I think also that the legislature is not bound to consider the best possible alternative.
Felix Frankfurter: I'm with you on that.
J. R. Wells: And that if this has a reasonable connection with a purpose which they have a right to achieve that it is something that they could have adopted. Now, what is the purpose that they have a right to achieve so far as school teachers are concerned? It is that in this sensitive area that persons not be teaching school where there is an undue hazard that they may be disloyal to the United States Government. Now, this Court held in the Garner case, I think with seven out of eight of the participating justices agreeing that the provision of the affidavit plan to the effect that they were required to state whether they had ever been a member of the Communist Party, and if so, when? Now, that went back to the indefinite past and yet that was sustained by -- by this Court, by an overwhelming vote of the justices.
Felix Frankfurter: That's much more definite than this, isn't it Mr. Wells?
J. R. Wells: Well, it --
Felix Frankfurter: Whether a man has been a member of a party -- there isn't much room for a debate about that. There is some. I'm not unaware of it but not -- nothing like aid, support, what is it? Influence --
Earl Warren: Counsel.
Felix Frankfurter: -- counsel. Those are -- those of (Inaudible) words. Those are the grab bag words, aren't they? I don't mean they were grab bag but they're -- they're words of breadth.
J. R. Wells: Well, they are words of breadth but I think the words like counsel and advice that they have had a long history of having been used in connection with accessories, words of that kind, accessory before it, in fact on crime and things of that kind and I think all that needs to be taken into account in determining in the meaning to be attached to it as to whether the --
Felix Frankfurter: They made an influence on ethnic -- aren't words of ours, are they, influence?
J. R. Wells: Well, influence is sometimes used in connection as influence in an act in connection with accessory before the fact but advice and counsel are more.
Felix Frankfurter: Mr. Dale Carnegie uses them in a different sense, doesn't he?
J. R. Wells: I believe it does Your Honor.
Earl Warren: Mr. Wells, may I ask you this --
J. R. Wells: Yes sir.
Earl Warren: -- this question? Assuming for the moment that this oath does invade constitutional rights under certain circumstances, just assuming that?
J. R. Wells: Yes sir.
Earl Warren: Does that lead you to the conclusion that no redress can be given to an admittedly loyal American citizen just because he asserts his loyalty. But on the other hand, redress is restricted to communists who are admittedly disloyal.
J. R. Wells: I don't know that the question can be answered strictly that we -- Your Honor.
Earl Warren: Well, we've got the two extremes, two poles and --
J. R. Wells: Well, I take it for instance as applied specifically to the past, I think it's quite definite that the -- a party cannot raise a question for someone else on a constitutional question.
Earl Warren: That wasn't the question I asked you. I asked you admittedly, is -- is redress denied to a man who assertedly and admittedly is a loyal citizen, but on the contrary that any redress open to anyone if there is an invasion of constitutional rights is limited to communists who are admittedly disloyal.
J. R. Wells: If they are -- to a loyal American, if his rights -- if his constitutional rights have been invaded then there certainly is redress.
Earl Warren: Regardless of whether he claims to be loyal or not.
J. R. Wells: That's as to whether if his constitutional rights have been invaded.
Earl Warren: That's right.
J. R. Wells: But the -- I think the -- it does affect whether his constitutional rights has been invaded. What his position is and what -- how he stands with relation to the oath as to --
Earl Warren: In other words --
J. R. Wells: -- whether his constitutional rights have been invaded.
Earl Warren: Well, I'll put it this way. In other words, if he is -- if he is a loyal American citizen and that should close the book, shouldn't it on the situation, he can be compelled to take this kind -- kind of an oath but if he is a communist and is disloyal, he need not -- he need not take it, assuming that there is some invasion of constitutional rights.
J. R. Wells: Well, that would depend on whether there is an invasion of his constitutional rights. There's an invasion of his constitutional rights then he can't be required to take it. I think if it --
Earl Warren: Well, tell me this then. What rights of a communist can be invaded and be subject to redress without the same invasion giving a loyal American citizen a right to redress?
J. R. Wells: Well, a communist or a person who has lent aid or support to the Communist Party years ago and has reformed then he would be entitled to raise a question as to whether that was a bill of attainder or ex post facto law as to whether how that -- it would be answered, it would be a different question but he would be entitled to raise that question as to whether there was passed to him a bill of attainder or ex post facto law. But I don't think that a person who says that he has never lent aid, support and so forth to the Communist Party can raise the question as to whether it's an ex post facto law or bill of attainder because it couldn't possibly be as to him.
Earl Warren: Yes, but suppose a man -- a man like Justice Frankfurter was talking about, a man who had supported certain causes that the Communist Party supports. Suppose he supported a broad program of public housing, a broad program of maternal care, broad program of let us say public medicine and things of that kind, suppose he supported those things permanently but did not support any of their subversive programs, would he then -- would he -- wouldn't he then have a -- have to stop, look and listen before he signed any such affidavit for fear, three or four half a dozen people would say I saw him on the platform with so and so. I saw him when the communists were advocating this or advocating that. He spoke from those very, very things in company with them on the same platform. Wouldn't a man in that position be in a delicate -- delicate position to sign an affidavit of that kind on the question of beliefs and counsel and aid and so forth?
J. R. Wells: Oh, I think he would -- he would have the right to raise the question as to whether his constitutional rights had been invaded by the unconstitutionally vague statute as -- but I don't believe --
Earl Warren: Where could he -- when -- where could he raise it? When he's charged with perjury?
J. R. Wells: I think he could raise it in advance although I do think --
Earl Warren: Do you have procedure for that in Florida?
J. R. Wells: Well, I think -- I think he could raise it in a type of procedures that is raised – that's invoked here. But if I say I think he could raise it in a type of procedure that was invoked to him, declaratory decree if his constitutional rights have been invaded. But I question that his constitutional rights have been invaded and also, I think that if a person is not in a very good position to say that I could not sign that oath as to whether to the effect that I've never lent aid and support because of doubt as to what might be considered aid-support and yet at the same time square that I have never lent aid or support.
Earl Warren: But suppose the man was in this position. Suppose he said -- he said, “Yes, I was -- I was very much in favor with all of these things and I have -- have enumerated and I did cooperate with the -- with the Communist Party when they were advocating such things but I have no truck at all with their other -- with their other beliefs but I did counsel with them. I did advice them, I did -- I did talk with them on the -- on the platform.” What would his position be then?
J. R. Wells: Well, that gets to the question as to whether it is fatally indefinite and with the scienter in there, I don't think it is fatally in depth because you've got to show a lack of bona fides in connection with it and I don't think that there -- in order to show that it was false and I don't think that that could ever be shown.
Earl Warren: Was there anything in -- in -- in the statute or in the decisions of your Florida Supreme Court which hold that the -- that the cooperation and the -- and the counseling and assistance and so forth that is contemplated by this oath must be as to those facets of the Communist Party that have to do with overthrowing our government?
J. R. Wells: I don't -- I think that the statement by the Court in this decision substantially holds that Your Honor.
Earl Warren: Where?
J. R. Wells: In the statements.
Earl Warren: What does it say? Where -- where can we find that?
J. R. Wells: At the bottom of page 13 of the record.
Earl Warren: Of the record.
J. R. Wells: Yes.
Earl Warren: Yes.
Hugo L. Black: May I ask you to get there from my mind about this.
J. R. Wells: Yes sir.
Hugo L. Black: Is it your argument that no man can raise this who is not affected by it and no man can be affected by it unless he's been guilty of the things which it prohibits?
J. R. Wells: Not exactly Your Honor. It is --
Hugo L. Black: But it is your idea that in order to challenge it, he must show -- he comes within the class who have either been a communist, is a communist who has advised, aided and abetted communists.
J. R. Wells: It is my position that where he shows that he has not --
Hugo L. Black: Suppose he hadn't shown he has not? Suppose he just comes in and says, “I want to raise the question of the constitutionality of this” and they say, “Well, you've got to show you were within the class by denying that you are -- by admitting that you have done some of these things.”
J. R. Wells: Well, I think that that would be a more questionable --
Hugo L. Black: More questionable? But if it's the other way, if -- why wouldn't it be here that if a -- is it your argument that this particular man does not have the right standing because he has denied that he's been a communist or is it your idea that a man must show he comes within the class that it touches, which is it?
J. R. Wells: Well, I think it's necessary that he show that he come within the class Your Honor.
Hugo L. Black: Suppose he (Voice Overlap) --
J. R. Wells: However -- but -- certainly if he (Voice Overlap) --
Hugo L. Black: Suppose he didn't come (Voice Overlap) --
J. R. Wells: -- he doesn't come within the class --
Hugo L. Black: Suppose he just comes and says, “I'm not going to answer this. The laws are unconstitutional.” And they say, “Well, does it affect you?” He said, “I won't say it.”
J. R. Wells: Well --
Hugo L. Black: Would he have standing?
J. R. Wells: I doubt that he would but of this situation that he --
Hugo L. Black: In other words, he decided to come in -- when he's got to come in and do as I -- your argument, as I understand it, is to come in first and either admit that he is a communist or has done these things under which -- under which circumstances, he would have standing to challenge.
J. R. Wells: I think it depends on which standing the question what it would be brought.
Hugo L. Black: Standing the question of this Act.
J. R. Wells: Well, I think he has standing in the question of the act on certain basis of it without regard to that, but I don't think he's got standing to contend that it is an ex post facto law or bill of attainder.
Hugo L. Black: Why not, what's the difference?
J. R. Wells: On account of the fact that it cannot be an ex post facto or bill of attainder unless it adversely affects him.
Hugo L. Black: Well, is that the only one you claim that he doesn't have standing to raise here?
J. R. Wells: Well, I think that it's affected seriously where he -- on the -- in the question of vagueness.
Hugo L. Black: Do you think he doesn't have the right to raise that?
J. R. Wells: I doubt that he has the right to raise the question of vagueness where he comes in and swears to the facts that he says, the oath is too vague with regard to.
Hugo L. Black: Well, I don't quite get what a man would have the right to challenge. I've always -- suppose that the only -- that the man had have a right to challenge the law, he's accused of doing something under it and that he wouldn't have to come in and admit that he'd done it before he'd have standing to sue -- to challenge it. He doesn't have to do that, does he?
J. R. Wells: No sir, no sir. I don't think that's been (Voice Overlap) --
Hugo L. Black: But he doesn't have to admit he comes within the class that covers, does he, so far as his conduct is concerned?
J. R. Wells: I don't think he does, generally speaking, no. But if he shows that he --
Hugo L. Black: Do you think he does under communist act but not generally, is that it?
J. R. Wells: No sir. I don't think that that is our position Your Honor.
Felix Frankfurter: Mr. Wells, there is a difference, isn't there between a man coming in to court and say, “I'm asked to sign a document. You have no business to ask me. I signed it and therefore I ask you to strike it down” and a man saying, “You're asking me to sign a document. I'm perfectly ready to sign it or it doesn't cause me any kind of recognizable harm to sign it but I'd like to have the Court to make a ruling on this question.” There is a difference between those two situations.
J. R. Wells: Well, that was the --
Felix Frankfurter: I'm not saying that this is a good situation --
J. R. Wells: -- the point I was trying to make Your Honor.
Felix Frankfurter: -- I don't think it is but there is a difference.
Hugo L. Black: I -- I was just going to ask you if you don't think that's happened here, do you? He hadn't come in and said that I can't possibly be touched by this Act.
J. R. Wells: I think he has to in large measure Your Honor where he says, “I have not lent aid, support and so forth to the Communist Party. I'm not a communist. I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence and I'm not a member of an organization or parties that believes in or teaches the overthrow and --”
Felix Frankfurter: Mr. Wells, isn't the truth of the matter just as interpreting what this really means, I haven't -- I don't live inside of the mind or the threat or with the constraints but he's trying, quite understandably, he's trying to ride through horses which is a feat that's not too impossible. He's trying to say, “It's none of your business to ask me these questions but I don't want to appear -- I want to appear in the best possible life. So I disavow having done any of the things that are disapproved by the oath. He decides to do both those things.” Isn't that right?
J. R. Wells: Well, to -- I think in large measure Your Honor that is right. And I think --
Hugo L. Black: Suppose he has -- suppose he has, how does he know that the state must -- that he hasn't done would not be disapproved by a group of informers or group of other people, how could you know?
J. R. Wells: Well, of course that gets to --
Felix Frankfurter: That's the vice of (Inaudible) --
J. R. Wells: That gets to the question of whether it is fatally indefinite and if the statute is fatally indefinite then I don't question that the statute is invalid but that gets back to the question as to whether it is fatally indefinite.
Felix Frankfurter: When you say fatally indefinite, I think if I may say so you're conjoining two very different things. The statute isn't indefinite to defend that -- one doesn't know what it means. It's often when one does know what it means, it raises difficulties which -- while we're here which raises a constitutional question whether you have a right to put a man in that situation. It's perfectly plain what it means namely that you mustn't have been guilty of -- you mustn't have conducted yourself or to bring yourself within any of these rubrics. The trouble is, as is pointed out several times in the course of this argument, this may subject him in a lawsuit and everybody knows that the lawsuit is a gamble.
J. R. Wells: I realize that there is that possibility Your Honor. Well, the next clause of the oath --
Charles E. Whittaker: Mr. Wells.
J. R. Wells: Yes sir.
Charles E. Whittaker: This is the heart of the case for me here. Here is an averment either that one can or that he cannot make such an affidavit in such a case ever relevant in such a case?
J. R. Wells: I believe it is Your Honor. I believe it's relevant. You mean as to whether he can make the --
Charles E. Whittaker: Whether he could -- whether he is able by reason of his past conduct to make the affidavit or he is not able, is that ever a relevant averment in a complaint in the case like this? I'm thinking that if it is then one who doesn't say as this plaintiff did say, “I can honestly make the affidavit” would be presumed to be unable to make it. So is it ever relevant such an allegation?
J. R. Wells: I don't know. I'm sorry that I'm --
John M. Harlan II: I thought your position was that it might be relevant on the question of the state rule that says that you cannot come in and raise a constitutional claim if this appears in the face of your complaint, the -- if you don't claim here, that'd be personal injury -- personally injured by the claim if it's -- if by the statute if it's enforced against you and all you want is a general declaration of rights under the law. I thought that's what you state the Supreme Court had said.
J. R. Wells: I think that that is -- is what enforced.
Charles E. Whittaker: Well, isn't that quite another thing even if these averments of the kind made by here by this petitioner in paragraph 6 on page 2 of this record are irrelevant and are not necessary. Yet by making them, is it true as I understand your court has held that he has reduced his complaint to a request for an advisory opinion and therefore has shown its non-justiciability?
J. R. Wells: I think that --
Charles E. Whittaker: That's a different question isn't it?
J. R. Wells: I would have thought it was at least to the clause and relief question Your Honor.
Charles E. Whittaker: Well, even if such an averment could never be relevant yet one might voluntarily by allegations like those in paragraph 6 of this complaint, show that he could not be injured by them and say, “I can make” as he says he can make this very affidavit and therefore reduced his complaint to a mere request upon the Court to render to him an advisory opinion.
J. R. Wells: Well, I -- I think that's -- I think that's correct Your Honor. That's correct.
Hugo L. Black: Suppose it is true that a person has no standing to sue in the Florida Court, do you think he's having a standing to raise this constitutional question in any way?
J. R. Wells: I think the --
Hugo L. Black: And so where would it be but the federal courts.
J. R. Wells: I think the Florida rule on that is that has been referred to as a state rule is similar to a rule that this Court has announced as to the necessity of a person injured in -- a necessity of a person being injured in order to get a decision on the constitutional question.
Hugo L. Black: But that's -- that's arguing the merits of the rule not what I understood Justice Harlan to be talking about that this is a Florida rule.
J. R. Wells: Well, if -- if that is --
Hugo L. Black: What about Mooney and Holohan that Florida won't let him raise?
J. R. Wells: I beg your pardon.
Hugo L. Black: What about the rule in Mooney and Holohan that Florida will not let him raise this constitutional question?
J. R. Wells: You mean as to --
Hugo L. Black: The right to raise it in the federal court.
J. R. Wells: Well, it's entirely possible that there might be the right. I haven't --
Hugo L. Black: Is it your idea that your Florida rule is intended to be played that whether the federal rule required to be not -- this man shall not be allowed to raise this constitutional question in the Florida Court under the circumstances here?
J. R. Wells: I think so far as this case is concerned Your Honor that if the -- if the Florida Court has announced a rule which is a sufficient rule of state law to decide this case then as to whether there's any other redress I think would be a question for another case.
Hugo L. Black: Well, are you arguing that it's still the Florida rule or that you're following the federal court to say it has no chance to -- suppose you're wrong on the federal rule --
J. R. Wells: Well, I'm saying --
Hugo L. Black: -- do you still say that Florida will deny him relief?
J. R. Wells: I feel like Your Honor that the Florida rule is sufficient to deny him relief.
Hugo L. Black: In Florida.
J. R. Wells: In Florida. Now, I'm under the general impression that the federal rule is not too much different from the Florida rule in that regard but I'm --
Hugo L. Black: But that would result in -- meaning that the man can have his constitutional right violated with no possible remedy in the federal or state court. I thought Mooney and Holohan held different.
J. R. Wells: Well, I don't --
Hugo L. Black: I thought --
J. R. Wells: I'm not familiar with those two decisions that the --
Hugo L. Black: Mooney versus Holohan where the question was whether California has failed to give a remedy where there was a charge that the man had been convicted on perjurious evidence knowing that the evidence was -- the state knowing it was fault. That was (Voice Overlap) --
J. R. Wells: I remember something out of the case now Your Honor. I didn't recall it (Inaudible)
Hugo L. Black: And this Court held that it would not have -- as I recall it. I haven't read it yet, (Inaudible) it would not assume that California would not give a relief in the federal constitution is violated, the man is condemned from the consideration on that basis. I think that was (Inaudible) --
Felix Frankfurter: Mr. Wells.
J. R. Wells: Yes sir.
Felix Frankfurter: The -- I think I've been talking a little bit at large as to what the complaint says and what the courts held.
J. R. Wells: Yes sir.
Felix Frankfurter: To be sure, paragraph 7, the complaint says, the plaintiff is a loyal American and does not decline to execute (Inaudible) oath of fear of the penalty provided by law of false oath. And then it goes on in the next paragraph and says, “nevertheless he objects to it” because to require him to swear that he has not lent aid, support etcetera, brings him in the violation of the due process of law. He doesn't spell out why it's a due process of law, but he has a right not to foreclose in making any proper inferences drawn from the (Inaudible) of what he does. Now, your Supreme Court didn't say, which for me would make a very difference -- it'd be a different case, your Supreme Court doesn't -- hasn't said that in view of paragraph 7, despite his reliance on due process, he has said in effect that I have no concern with the consequences of signing this oath. I'm not worried that any jury in Florida would -- could construe such an oath by lending aid and support, except to mean that I was a member of the Communist Party, that I have a definite organic relation with the party. And if he wanted to say that then under Florida law, it should have been more particular. For myself, I think Florida can -- if he chooses to continue the common law pleading which strict -- with all the strict technicalities of that system of pleading. All your Supreme Court had said was this, “By the allegations of his complaint, the appellant under oath affirmatively denied any present or past associations which would preclude him from executing the subject oath.” He stated in his complaint quote, “That he has not, does not and will not lend aid, support or advice, counsel or influence the Communist Party.” That's all I find in the opinion of the court that you point out some things that I've missed as well I might have. And therefore, all they gather from his disavow is that he was not -- that he did not have present or past association with the Communist Party. Now, that for me still leaves open the danger he runs of having perfectly innocent constitutionally allowable conduct interpreted by a jury with the finding that he did give aid or support.
J. R. Wells: Oh, did Your Honor read from the bottom of page 18 and top of page 19?
Felix Frankfurter: That's what I've been reading from.
J. R. Wells: I didn't --
Felix Frankfurter: That's just what I've been reading from Mr. Wells and that's all I find. For myself, I think states can be as pugnacitive as they want to be so long as they don't use pugnacities as a means of defeating federal rights because they can be as exacting as they plead in pleadings, but I don't find that the Supreme Court here has made any such ruling.
J. R. Wells: Well, I see that my time is nearly up and I'll just briefly refer to the clause of the oath. I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence. I would like to call your particular attention to the fact that the language there does not contain the words that Mr. Justice Frankfurter felt to be particularly obnoxious in the Douds case with regard to where -- by unconstitutional or illegal means that they are not in the Florida statute and that this is limited to the violent overthrow by force or violence which I think would go far to eliminate the objections that was dealt in part in the Douds case. Now, I think the -- on that clause, the validity of the oath might well depend on what is to be meant, considered to be meant by that expression. In other words, does that refer to a belief in the abstract doctrine of the overthrow of Government by force or violence or does that have reference to the overthrow as an objective of the Government as presently constituted by force and violence. And I think that it definitely has reference to the overthrow as an objective of the Government by force or violence -- as presently constituted and does not refer to any plea within the -- for some conceivable set of circumstances not now existing or some dictatorship or something of that kind. Thank you Your Honors.
Earl Warren: Mr. Simon.
Tobias Simon: The Court will note from the brief that this action was brought in Orange County, Florida pursuant to the provisions of Florida statute 87.01 which under Florida law permits an individual who is in doubt as to his status and his rights under a Florida statute to bring an action for declaratory relief. Now, this is not a procedure that is available in every state. It is available within the federal system. And while this does not give an individual the right to ask for and secure an advisory opinion, it is something very close to that. It does give him the right to have the Court adjudicate for him whether he is required to sign -- in this case, sign this oath or not. I think it is important to point out to this Court that there were at least and not less than six points raised on our appeal to the Florida Supreme Court and the Florida Supreme Court answered all six points, five of them in a substantive manner. They said, for example, that the question of scienter was no longer in the case. They said that the question of preemption of subversion under the Nelson case is no longer in the case. They ruled specifically on the question of whether we had to take this oath or whether the Constitution of Florida limited public employees to a constitutional oath. They ruled and said specifically that anybody who can read English as to the requirements of the statute knows exactly what it means on the question of the so-called vice of vagueness. They also said that due process and First Amendment provisions were not applicable and then and only then on pages 17, 18 and 19 of the record did they come to the question of ex post facto and bill of attainder and they said with regard to these questions and only these questions do we maintain that there is no standing to sue. Florida did not say that there was no standing to sue with regard to the other questions.
Charles E. Whittaker: May I ask you Mr. Simon. Is the effect of that argument to regard paragraphs 6 and 7 of the complaint as surplusage? What effect have they under this argument?
Tobias Simon: It is not surplusage according to the Florida Supreme Court with regard to the questions of ex post facto and bill of attainder. They said that this man cannot raise the question whether -- and they said specifically on page 19 of the record, there could not and I quote, “There could not possibly be a legislative adjudication of guilt for the simple reason that the complaint on which the appellant stands and set up firmly points out.” They said the same thing that this statute could not constitute an ex post facto law as to this appellant but they did not say that this appellant was not permitted to raise the due process question and they did not say that this appellant -- of course they said that there was no denial of due process, but they ruled on that and they did not answer the other questions on this ground which if they have wanted to, they could have dismissed our entire brief and our entire complaint raising six assignments of error on this last one and they did not do it for the simple reason that the Florida Supreme Court did not hold that there was no standing to sue. We submit that where this man's rights are being invaded as we maintain they are by forcing him to do something as a condition of his employment which he is not required to do, the fact that he is willing to show himself in a good life to this Court. To come in as a sheep rather than as a goat does not destroy his rights.
Felix Frankfurter: Mr. Simon before you sit down, in view of the breadth of your argument remain, I would like to ask you namely that no belief can constitutionally be inquired as to anybody who seeks office under the United States or state government, is that right?
Tobias Simon: Mr. Justice Frankfurter, I do not feel that my argument has to reach that point. There may be cases wherein a guard of the president may be inquired -- one may require him to express his belief --
Felix Frankfurter: Let me -- let me put a case that is in regard to the President. The thing I referred to you but I didn't have the text before me. The TVA Act has this provision, all members of the board shall be persons who profess a belief, just listen in what (Inaudible) this professor believes in, you must profess a belief in the feasibility and wisdom of this Act. I gather from your argument as an unconstitutional assertion of power by the President -- by the Congress.
Tobias Simon: I have not represented the TVA nor the (Voice Overlap) of the Act and I would --
Felix Frankfurter: I know but our argument either -- argument either have relevance or they don't have relevance.
Tobias Simon: And --
Felix Frankfurter: And the lawyer says that a government can't ask its appointees whether they have a belief in the Constitution of the United States and its entirety or a belief in an Act under which they're supposed to act or belief in the law and the members of the law faculty then I have a right to put you a concrete case in order to test your argument.
Tobias Simon: My answer to that sir is that that particular provision in my opinion and based upon what I understand to be the decisions of this Court is that the federal government nor the government of Florida can reach into a man's mind and require it to be divulged as the condition of any governmental favor or employment.
Felix Frankfurter: So that that's an unconstitutional provision in the TVA.
Tobias Simon: It was so here sir, yes sir.
Felix Frankfurter: Alright.
Tobias Simon: Thank you Your Honor.