United States Supreme Court
ELFBRANDT v. RUSSELL, (1966)
No. 656
Argued: February 24, 1966 Decided: April 18, 1966

State employees in Arizona must take an oath to support the Federal and State Constitutions and state laws. Under a legislative gloss put on the oath, an employee is subject to prosecution for perjury and discharge from office if he "knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations" or "any other organization" having for "one of its purposes" the overthrow of the state government where the employee had knowledge of the unlawful purpose. Petitioner, a teacher, filed suit for declaratory relief, having decided that she could not in good conscience take the oath, not knowing what it meant and being unable to obtain a hearing to determine its precise scope and meaning. The judgment of the Arizona Supreme Court sustaining the oath was vacated by this Court, 378 U.S. 127, and remanded for reconsideration in light of Baggett v. Bullitt, 377 U.S. 360. On reconsideration the Arizona Supreme Court reinstated the original judgment, finding the oath "not afflicted" with the many uncertainties found potentially punishable in Baggett v. Bullitt. Held:

1. Political groups may embrace both legal and illegal aims, and one may join such groups without embracing the latter. Pp. 15-17.

2. Those who join an organization without sharing in its unlawful purposes pose no threat to constitutional government, either as citizens or as public employees. P. 17.

3. To presume conclusively that those who join a "subversive" organization share its unlawful aims is forbidden by the principle that a State may not compel a citizen to prove that he has not engaged in criminal advocacy. Speiser v. Randall, 357 U.S. 513, followed. Pp. 17-18.

4. The Arizona Act is not confined to those who join with the "specific intent" to further the illegal aims of the subversive organization; because it is not "narrowly drawn to define and [384 U.S. 11, 12] punish specific conduct as constituting a clear and present danger" it unnecessarily infringes on the freedom of political association. Pp. 16-19.

97 Ariz. 140, 397 P.2d 944, reversed.

W. Edward Morgan argued the cause and filed a brief for petitioner.

Philip M. Haggerty, Special Counsel to the Attorney General of Arizona, argued the cause for respondents. With him on the brief was Darrell F. Smith, Attorney General.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This case, which involves questions concerning the constitutionality of an Arizona Act requiring an oath from state employees, has been here before. We vacated the judgment of the Arizona Supreme Court which had sustained the oath (94 Ariz. 1, 381 P.2d 554) and remanded the cause for reconsideration in light of Baggett v. Bullitt, 377 U.S. 360. See 378 U.S. 127. On reconsideration the Supreme Court of Arizona reinstated the original judgment. 97 Ariz. 140, 397 P.2d 944. The case is here on certiorari. 382 U.S. 810.

The oath reads in conventional fashion as follows:1

"I, (type or print name) do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona; that I will bear true faith and allegiance to the same, and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of (name of office) according to the best of my ability, so help me God (or so I do affirm)." [384 U.S. 11, 13]

The Legislature put a gloss on the oath2 by subjecting to a prosecution for perjury and for discharge from public office anyone who took the oath and who "knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations" or "any other organization" having for "one of its purposes" the overthrow of the government of Ar

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