p. 360BAGGETT et al . v . BULLITT et al .
appeal from the uni ted states dist rict court for the
WESTERN DISTRICT OF WASHINGTON.No. 220. Argued March 24, 1964.—Decided June 1, 1964.
This class action was brought by members of the faculty, staff, and
students of the University of Washington for a judgment declaring
unconstitutional 1931 and 1955 state statutes requiring the taking
of oaths, one for teachers and the other for all state employees,
including teachers, as a condition of employment. The 1931 oath
requires teachers to swear, by precept and example, to promote
respect for the flag and the institutions of the United States and
the State of Washington, reverence for law and order and undi-
vided allegiance to the Government of the United States. The
1955 oath for state employees, which incorporates provisions of the
state Subversive Activities Act, requires the affiant to swear that
he is not a “subversive person”: that he does not commit, or
advise, teach, abet or advocate another to commit or aid in the
commission of any act intended to overthrow or alter, or assist in
the overthrow or alteration, of the constitutional form of govern-
ment by revolution, force or violence. “Subversive organization”
and “foreign subversive organization” are defined in similar terms
and the Communist Party is declared a subversive organization.
A three-judge District Court held that the 1955 statute and oath
were not unduly vague and did not violate the First and Fourteenth
Amendments, and it abstained from ruling on the 1931 oath until
it was considered by the state courts. Held:
1. The provisions of the 1955 statute and the 1931 Act violate
due process since they, as well as the oaths based thereon, are
unduly vague, uncertain and broad. Cramp v. Board of Public
Instruction, 368 U. S. 278, followed. Pp. 361-372.
2. A State cannot require an employee to take an unduly vague
oath containing a promise of future conduct at the risk of prosecu-
tion for perjury or loss of employment, particularly where the
exercise of First Amendment freedoms may thereby be deterred.
Pp. 373-374.
3. Federal courts do not automatically abstain when faced with
a doubtful issue of state law, since abstention involves a discre-
tionary exercise of equity power. Pp. 375-379.
p. 361(a) There are no special circumstances warranting applica-
tion of the doctrine here. P. 375.
(b) Construction of the 1931 oath cannot eliminate the
vagueness from its terms, and would probably raise other constitu-
tional issues. P. 378.
(c) Abstention leads to piecemeal adjudication and protracted
delays, a costly result where
First Amendment freedoms may be
inhibited. Pp. 378-379.
215 F. Supp. 439, reversed.
Arvai A. Morris and Kenneth A. MacDonald argued the
cause and filed a brief for appellants.
Herbert H. Fuller, Deputy Attorney General of Wash-
ington, argued the cause for appellees. With him on the
brief were John J. O’Connell, Attorney General of Wash-
ington, and Dean A. Floyd, Assistant Attorney General.
Mr . Justi ce White delivered the opinion of the Court.
Appellants, approximately 64 in number, are members
of the faculty, staff and student body of the University
of Washington who brought this class action asking for
a judgment declaring unconstitutional two Washing-
ton statutes requiring the execution of two different oaths
by state employees and for an injunction against the
enforcement of these statutes by appellees, the President
of the University, members of the Washington State
Board of Regents and the State Attorney General.
The statutes under attack are Chapter 377, Laws of
1955, and Chapter 103, Laws of 1931, both of which
require employees of the State of Washington to take
the oaths prescribed in the statutes as a condition of
their employment. The 1931 legislation applies only to
teachers, who, upon applying for a license to teach or
renewing an existing contract, are required to subscribe
to the following:
“I solemnly swear (or affirm) that I will support
the constitution and laws of the United States of
p. 362America and of the State of Washington, and will
by precept and example promote respect for the flag
and the institutions of the United States of America
and the State of Washington, reverence for law and
order and undivided allegiance to the government of
the United States.” Wash. Laws 1931, c. 103.
The oath requirements of the 1955 Act, Wash. Laws 1955,
c. 377, applicable to all state employees, incorporate
various provisions of the Washington Subversive Activi-
ties Act of 1951, which provides generally that “[n]o
subversive person, as defined in this act, shall be eligible
for employment in, or appointment to any office, or any
position of trust or profit in the government, or in the
administration of the business, of this state, or of any
county, municipality, or other political subdivision of this
state.” Wash. Rev. Code § 9.81.060. The term “sub-
versive person” is defined as follows:
“ ‘Subversive person’ means any person who com-
mits, attempts to commit, or aids in the commission,
or advocates, abets, advises or teaches by any means
any person to commit, attempt to commit, or aid in
the commission of any act intended to overthrow,
destroy or alter, or to assist in the overthrow, de-
struction or alteration of, the constitutional form of
the government of the United States, or of the state
of Washington, or any political subdivision of either
of them by revolution, force, or violence; or who
with knowledge that the organization is an organiza-
tion as described in subsections (2) and (3) hereof,
becomes or remains a member of a subversive organi-
zation or a foreign subversive organization.” Wash.
Rev. Code § 9.81.010 (5).
The Act goes on to define at similar length and in similar
terms “subversive organization” and “foreign subversive
organization” and to declare the Communist Party a sub-
p. 363versive organization and membership therein a subversive
activity.1
On May 28, 1962, some four months after this Court’s
dismissal of the appeal in
Nostrand v. Little, 368 U. S.
436, also a challenge to the 1955 oath,1 2 the University
1 “ ‘Subversive organization’ means any organization which en-
gages in or advocates, abets, advises, or teaches, or a purpose of which
is to engage in or advocate, abet, advise, or teach activities intended
to overthrow, destroy or alter, or to assist in the overthrow, destruc-
tion or alteration of, the constitutional form of the government of
the United States, or of the state of Washington, or of any political
subdivision of either of them, by revolution, force or violence.”
Wash. Rev. Code §9.81.010 (2).
“ ‘Foreign subversive organization’ means any organization di-
rected, dominated or controlled directly or indirectly by a foreign
government which engages in or advocates, abets, advises, or teaches,
or a purpose of which is to engage in or to advocate, abet, advise, or
teach, activities intended to overthrow, destroy or alter, or to assist
in the overthrow, destruction or alteration of the constitutional form
of the government of the United States, or of the state of Wash-
ington, or of any political subdivision of either of them, and to
establish in place thereof any form of government the direction and
control of which is to be vested in, or exercised by or under, the
domination or control of any foreign government, organization, or
individual.” Wash. Rev. Code §9.81.010 (3).
“Comm un ist par ty de cl are d a sub ve rsiv e org ani za ti on.
“The communist party is a subversive organization within the
purview of chapter 9.81 and membership in the communist party is
a subversive activity thereunder.” Wash. Rev. Code §9.81.083.
p. 364President, acting pursuant to directions of the Board of
Regents, issued a memorandum to all University em-
ployees notifying them that they would be required to
take an oath. Oath Form A * 3 requires all teaching per-
the reasons for their refusal. Nostrand v. Little,
362 U. S. 474.
The Washington Supreme Court held upon remand that since Pro-
fessors Nostrand and Savelie were tenured professors the terms of
their contracts and rules promulgated by the Board of Regents
entitled them to a hearing. Nostrand v. Little, 58 Wash. 2d 111,
361 P. 2d 551. This Court dismissed a further appeal,
Nostrand v.
Little, 368 U. S. 436. The issue we find dispositive of the case at
bar was not presented to this Court in the above proceedings.
3 “Oath Form A
“STATE OF WASHINGTON
“Statement and Oath for Teaching Faculty
of the University of Washington
“I, the undersigned, do solemnly swear (or affirm) that I will sup-
port the constitution and laws of the United States of America and
of the state of Washington, and will by precept and example promote
respect for the flag and the institutions of the United States of
America and the state of Washington, reverence for law and order,
and undivided allegiance to the government of the United States;
“I further certify that I have read the provisions of RCW 9.81.010
(2), (3), and (5); RCW 9.81.060; RCW 9.81.070; and RCW
9.81.083, which are printed on the reverse hereof; that I understand
and am familiar with the contents thereof; that I am not a subversive
person as therein defined; and
“I do solemnly swear (or affirm) that I am not a member of the
Communist party or knowingly of any other subversive organization.
“I understand that this statement and oath are made subject to
the penalties of perjury.
(sig na tu re)
(ti tl e an d de pa rtme nt)
“Subscribed and sworn (or affirmed) to before me this..................
day of..................................................,19.........
NOTARY PUBLIC IN AND FOR THE STATE OF WASHING-
TON, RESIDING AT...........................................................................
[Footnote 3 is continued on p. 365~\
p. 365sonnel to swear to the oath of allegiance set out above, to
aver that they have read, are familiar with and under-
stand the provisions defining “subversive person” in the
Subversive Activities Act of 1951 and to disclaim being a
subversive person and membership in the Communist
Party or any other subversive or foreign subversive or-
ganization. Oath Form B* 4 requires other state em-
ployees to subscribe to all of the above provisions except
the 1931 oath. Both forms provide that the oath and
“(To be executed in duplicate, one copy to be retained by
individual.)
“NOTE: Those desiring to affirm may strike the words 'swear’
and 'sworn to’ and substitute 'affirm’ and 'affirmed,’ respectively.”
4 “Oath Form B
“STATE OF WASHINGTON
“Statement and Oath for Staff of the University of Washington
Other Than Teaching Faculty
“I certify that I have read the provisions of RCW 9.81.010 (2),
(3), and (5); RCW 9.81.060; RCW 9.81.070; and RCW 9.81.083
which are printed on the reverse hereof; that I understand and am
familiar with the contents thereof; that I am not a subversive person
as therein defined; and
“I do solemnly swear (or affirm) that I am not a member of the
Communist party or knowingly of any other subversive organization.
“I understand that this statement and oath are made subject to
the penalties of perjury.
(si gn at ur e)
(ti tl e an d de par tme nt or offi ce)
“Subscribed and sworn (or affirmed) to before me this..................
day of................................................... ,19.........
NOTARY PUBLIC IN AND FOR THE STATE OF WASH-
INGTON, RESIDING AT..................................................................
“(To be executed in duplicate, one copy to be retained by indi-
vidual.)
“NOTE: Those desiring to affirm may strike the words 'swear’
and 'sworn to’ and substitute 'affirm’ and 'affirmed,’ respectively.”
p. 366statements pertinent thereto are made subject to the
penalties of perjury.
Pursuant to 28 U. S. C. §§
2281,
2284, a three-judge
District Court was convened and a trial was had. That
court determined that the 1955 oath and underlying stat-
utory provisions did not infringe upon any First and
Fourteenth Amendment freedoms and were not unduly
vague. In respect to the claim that the 1931 oath was
unconstitutionally vague on its face, the court held that
although the challenge raised a substantial constitutional
issue, adjudication was not proper in the absence of pro-
ceedings in the state courts which might resolve or avoid
the constitutional issue. The action was dismissed.
215
F. Supp. 439. We noted probable jurisdiction because of
the public importance of this type of legislation and the
recurring serious constitutional questions which it pre-
sents.
375 U. S. 808. We reverse.
Appellants contend in this Court that the oath require-
ments and the statutory provisions on which they are
based are invalid on their face because their language is
unduly vague, uncertain and broad. We agree with this
contention and therefore, without reaching the numerous
other contentions pressed upon us, confine our considera-
tions to that particular question.5
In
Cramp v. Board of Public Instruction, 368 U. S. 278,
the Court invalidated an oath requiring teachers and
other employees of the State to swear that they had never
lent their “aid, support, advice, counsel or influence to
the Communist Party” because the oath was lacking in
p. 368stand this oath may quite reasonably conclude that any
person who aids the Communist Party or teaches or ad-
vises known members of the Party is a subversive person
because such teaching or advice may now or at some
future date aid the activities of the Party. Teaching and
advising are clearly acts, and one cannot confidently
assert that his counsel, aid, influence or support which
adds to the resources, rights and knowledge of the Com-
munist Party or its members does not aid the Party in
its activities, activities which the statute tells us are all
in furtherance of the stated purpose of overthrowing the
Government by revolution, force, or violence. The ques-
tions put by the Court in Cramp may with equal force be
asked here. Does the statute reach endorsement or sup-
port for Communist candidates for office? Does it reach
a lawyer who represents the Communist Party or its
members or a journalist who defends constitutional rights
of the Communist Party or its members or anyone who
supports any cause which is likewise supported by Com-
munists or.the Communist Party? The susceptibility of
the statutory language to require forswearing of an
undefined variety of “guiltless knowing behavior” is what
the Court condemned in Cramp. This statute, like the
one at issue in Cramp, is unconstitutionally vague.7
p. 369The Washington statute suffers from additional diffi-
culties on vagueness grounds. A person is subversive not
only if he himself commits the specified acts but if he
abets or advises another in aiding a third person to com-
mit an act which will assist yet a fourth person in the
overthrow or alteration of constitutional government.
The Washington Supreme Court has said that knowledge
is to be read into every provision and we accept this con-
struction. Nostrand v. Balmer, 53 Wash. 2d 460, 483-
484, 335 P. 2d 10, 24; Nostrand v. Little, 58 Wash. 2d 111,
123-124, 361 P. 2d 551, 559. But what is it that the
Washington professor must “know”? Must he know
that his aid or teaching will be used by another and
that the person aided has the requisite guilty intent or
is it sufficient that he know that his aid or teaching
would or might be useful to others in the commission
of acts intended to overthrow the Government? Is it
subversive activity, for example, to attend and partici-
pate in international conventions of mathematicians and
exchange views with scholars from Communist countries?
What about the editor of a scholarly journal who an-
alyzes and criticizes the manuscripts of Communist
scholars submitted for publication? Is selecting out-
standing scholars from Communist countries as visiting
professors and advising, teaching, or consulting with
them at the University of Washington a subversive ac-
tivity if such scholars are known to be Communists, or
regardless of their affiliations, regularly teach students
government by force or violence,’ and that he is not knowingly a
member of an organization engaged in such an attempt.” Id., at
56-57 (emphasis in original). The Court said: “At the bar of this
Court the Attorney General of the State of Maryland declared that
he would advise the proper authorities to accept an affidavit in these
terms as satisfying in full the statutory requirement. Under these
circumstances and with this understanding, the judgment of the
Maryland Court of Appeals is Affirmed.” Id., at 57.
p. 370who are members of the Communist Party, which by
statutory definition is subversive and dedicated to the
overthrow of the Government?
The Washington oath goes beyond overthrow or altera-
tion by force or violence. It extends to alteration by
“revolution” which, unless wholly redundant and its
ordinary meaning distorted, includes any rapid or funda-
mental change. Would, therefore, any organization or
any person supporting, advocating or teaching peaceful
but far-reaching constitutional amendments be engaged
in subversive activity? Could one support the repeal of
the Twenty-second Amendment or participation by this
country in a world government? 8
8 It is also argued that § 2 of the Smith Act, 18 U. S. C. §
2385,
upheld over a vagueness challenge in
Dennis v. United States, 341
U. S. 494, proscribes the same activity in the same language as the
Washington statute. This argument is founded on a misreading of
§ 2 and Dennis v. United States, supra.
That section provides:
“Whoever knowingly or willfully advocates, abets, advises, or teaches
the duty, necessity, desirability, or propriety of overthrowing or
destroying the government of the United States or the government
of any State ... by force or violence . . . .”
The convictions under this provision were sustained in Dennis, supra,
on the construction that the statute means “teaching and advocacy
of action for the accomplishment of [overthrowing or destroying
organized government] by language reasonably and ordinarily calcu-
lated to incite persons to such action ... as speedily as circum-
stances would permit.”
Id., at 511-512. In connection with the
vagueness attack, it was noted that “[t]his is a federal statute which
we must interpret as well as judge. Herein lies the fallacy of reli-
ance upon the manner in which this Court has treated judgments
of state courts. . . .”
Id., at 502.
In reversing convictions under this section in
Yates v. United
States, 354 U. S. 298, the Court made quite clear exactly what all
the above terms do and do not proscribe: “[T]he Smith Act reaches
only advocacy of action for the overthrow of government by force
and violence.”
Id., at 324.
p. 371We also conclude that the 1931 oath offends due process
because of vagueness. The oath exacts a promise that
the affiant will, by precept and example, promote respect
for the flag and the institutions of the United States and
the State of Washington. The range of activities which
are or might be deemed inconsistent with the required
promise is very wide indeed. The teacher who refused
to salute the flag or advocated refusal because of religious
beliefs might well be accused of breaching his promise.
Cf. West Virginia State Board of Education v. Barnette,
319 U. S. 624. Even criticism of the design or color
scheme of the state flag or unfavorable comparison of it
with that of a sister State or foreign country could be
deemed disrespectful and therefore violative of the oath.
And what are “institutions” for the purposes of this oath?
Is it every “practice, law, custom, etc., which is a material
and persistent element in the life or culture of an orga-
nized social group” or every “established society or cor-
poration,” every “establishment, especially] one of a
public character”?9 The oath may prevent a professor
from criticizing his state judicial system or the Supreme
Court or the institution of judicial review. Or it might
be deemed to proscribe advocating the abolition, for
example, of the Civil Rights Commission, the House
Committee on Un-American Activities, or foreign aid.
It is likewise difficult to ascertain what might be done
without transgressing the promise to “promote . . . un-
divided allegiance to the government of the United
States.” It would not be unreasonable for the serious-
minded oathtaker to conclude that he should dispense
with lectures voicing far-reaching criticism of any old or
new policy followed by the Government of the United
p. 372Opinion of the Court. 377U. S.
States. He could find it questionable under this lan-
guage to ally himself with any interest group dedicated
to opposing any current public policy or law of the Fed-
eral Government, for if he did, he might well be accused
of placing loyalty to the group above allegiance to the
United States.
Indulging every presumption of a narrow construction
of the provisions of the 1931 oath, consistent, however,
with a proper respect for the English language, we cannot
say that this oath provides an ascertainable standard of
conduct or that it does not require more than a State may
command under the guarantees of the First and Four-
teenth Amendments.
As in Cramp v. Board of Public Instruction, “[t]he vice
of unconstitutional vagueness is further aggravated
where, as here, the statute in question operates to inhibit
the exercise of individual freedoms affirmatively protected
by the Constitution.” 368 U. S. 278, 287. We are deal-
ing with indefinite statutes whose terms, even narrowly
construed, abut upon sensitive areas of basic First Amend-
ment freedoms. The uncertain meanings of the oaths re-
quire the oath-taker—teachers and public servants—to
“steer far wider of the unlawful zone,” Speiser v. Randall,
357 U. S. 513, 526, than if the boundaries of the forbidden
areas were clearly marked. Those with a conscientious
regard for what they solemnly swear or affirm, sensitive to
the perils posed by the oath’s indefinite language, avoid
the risk of loss of employment, and perhaps profession,
only by restricting their conduct to that which is unques-
tionably safe. Free speech may not be so inhibited.10
p. 373Smith v. California, 361 U. S. 147; Stromberg v. Cali-
fornia,
283 U. S. 359, 369. See also
Herndon v. Lowry,
301 U. S. 242;
Thornhill v. Alabama, 310 U. S. 88; and
Winters v. New York, 333 U. S. 507.
The State labels as wholly fanciful the suggested pos-
sible coverage of the two oaths. It may well be cor-
rect, but the contention only emphasizes the difficulties
with the two statutes; for if the oaths do not reach some
or any of the behavior suggested, what specific conduct
do the oaths cover? Where does fanciful possibility end
and intended coverage begin?
It will not do to say that a prosecutor’s sense of fair-
ness and the Constitution would prevent a successful
perjury prosecution for some of the activities seemingly
embraced within the sweeping statutory definitions. The
hazard of being prosecuted for knowing but guiltless
behavior nevertheless remains. “It would be blinking
reality not to acknowledge that there are some among
us always ready to affix a Communist label upon those
whose ideas they violently oppose. And experience
teaches us that prosecutors too are human.” Cramp,
supra, at 286-287. Well-intentioned prosecutors and ju-
dicial safeguards do not neutralize the vice of a vague law.
Nor should we encourage the casual taking of oaths by
upholding the discharge or exclusion from public employ-
the fair use of this opportunity is repugnant to the guaranty of liberty
contained in
the Fourteenth Amendment.” Stromberg v. California.
283 U. S. 359, 369. “[S]tatutes restrictive of or purporting to place
limits to those [
First Amendment] freedoms must be narrowly drawn
to meet the precise evil the legislature seeks to curb . . . and . . .
the conduct proscribed must be defined specifically so that the person
or persons affected remain secure and unrestrained in their rights to
engage in activities not encompassed by the legislation.” United
States n . Congress of Industrial Organizations,
335 U. S. 106, 141-142
(Rutledge, J., concurring).
i
p. 374ment of those with a conscientious and scrupulous regard
for such undertakings.
It is further argued, however, that, notwithstanding the
uncertainties of the 1931 oath and the statute on which
it is based, the oath does not offend due process because
the vagaries are contained in a promise of future conduct,
the breach of which would not support a conviction for
perjury. Without the criminal sanctions, it is said, one
need not fear taking this oath, regardless of whether he
understands it and can comply with its mandate, however
understood. This contention ignores not only the effect
of the oath on those who will not solemnly swear unless
they can do so honestly and without prevarication and
reservation, but also its effect on those who believe the
written law means what it says. Oath Form A contains
both oaths, and expressly requires that the signer “under-
stand that this statement and oath are made subject to
the penalties of perjury.” Moreover, Wash. Rev. Code
§ 9.72.030 provides that “[e]very person who, whether
orally or in writing . . . shall knowingly swear falsely con-
cerning any matter whatsoever” commits perjury in the
second degree. Even if it can be said that a conviction
for falsely taking this oath would not be sustained, the
possibility of a prosecution cannot be gainsaid. The State
may not require one to choose between subscribing to an
unduly vague and broad oath, thereby incurring the like-
lihood of prosecution, and conscientiously refusing to take
the oath with the consequent loss of employment, and per-
haps profession, particularly where “the free dissemina-
tion of ideas may be the loser.”
Smith v. California, 361
U. S. 147, 151. “It is not the penalty itself that is
invalid but the exaction of obedience to a rule or stand-
ard that is so vague and indefinite as to be really no rule
or standard at all.” Champlin Refg. Co. v. Corporation
Comm’n of Oklahoma,
286 U. S. 210, 243; cf. Small Co.
v. American Refg. Co.,
267 U. S. 233.
p. 375We are asked not to examine the 1931 oath statute
because, although on the books for over three decades, it
has never been interpreted by the Washington courts.
The argument is that ever since Railroad Comm’n v.
Pullman Co.,
312 U. S. 496, the Court on many occa-
sions has ordered abstention where state tribunals were
thought to be more appropriate for resolution of complex
or unsettled questions of local law. A. F. L. v. Watson,
327 U. S. 582; Spector Motor Service v. McLaughlin,
323
U. S. 101; Harrison v. NAACP,
360 U. S. 167. Because
this Court ordinarily accepts the construction given a
state statute in the local courts and also presumes that the
statute will be construed in such a way as to avoid the
constitutional question presented,
Fox v. Washington,
236 U. S. 273;
Poulos v. New Hampshire, 345 U. S. 395,
an interpretation of the 1931 oath in the Washington
courts in light of the vagueness attack may eliminate the
necessity of deciding this issue.
We are not persuaded. The abstention doctrine is not
an automatic rule applied whenever a federal court is
faced with a doubtful issue of state law; it rather
involves a discretionary exercise of a court’s equity
powers. Ascertainment of whether there exist the “spe-
cial circumstances,”
Propper v. Clark, 337 U. S. 472, pre-
requisite to its application must be made on a case-by-
case basis. Railroad Comm’n v. Pullman Co.,
312 U. S.
496, 500; NAACP v. Bennett,
360 U. S. 471.11 Those
special circumstances are not present here. We doubt,
in the first place, that a construction of the oath
provisions, in light of the vagueness challenge, would
p. 376avoid or fundamentally alter the constitutional issue
raised in this litigation. See Chicago v. Atchison, T. &
S. F. R. Co.,
357 U. S. 77. In the bulk of abstention cases
in this Court,* 12 including those few cases where vagueness
was at issue,13 the unsettled issue of state law principally
nett,
360 U. S. 471. See also United States v. Livingston,
179 F.
Supp. 9, 12-13 (D. C. E. D. S. C.), aff’d,
Livingston v. United States,
364 U.S. 281: “Though never interpreted by a state court, if a state
statute is not fairly subject to an interpretation which will avoid or
modify the federal constitutional question, it is the duty of a federal
court to decide the federal question when presented to it.” Shelton
v. McKinley,
174 F. Supp. 351 (D. C. E. D. Ark.) (abstention inap-
propriate where there are no substantial problems of statutory con-
struction and delay would prejudice constitutional rights); All Amer-
ican Airways v. Village of Cedarhurst,
201 F. 2d 273 (C. A. 2d Cir.);
Sterling Drug v. Anderson,
127 F. Supp. 511, 513 (D. C. E. D.
Tenn.).
p. 377concerned the applicability of the challenged statute to a
certain person or a defined course of conduct, whose reso-
lution in a particular manner would eliminate the con-
stitutional issue and terminate the litigation. Here the
of members of such an organization. They argued that the defini-
tions were vague and failed to inform them if a local Communist
organization and its members were required to register. The lower
court took judicial notice of the fact that the Communist Party of
the United States, with whom the local party was associated, was a
part of the world Communist movement dominated by the Soviet
Union, and held the statute constitutional in all other respects. This
Court vacated the judgment and declined to pass on the appellants’
constitutional claims until the Michigan courts, in a suit already
pending, construed the statutory terms and determined if they re-
quired the local Party and its secretary, without more, to register.
The approach was that the constitutional claims, including the one
founded on vagueness, would be wholly eliminated if the statute,
as construed by the state court, did not require all local Communist
organizations without substantial ties to a foreign country and their
members to register. Stated differently, the question was whether
this statute applied to these plaintiffs, a question to be authoritatively
answered in the state courts.
In Harrison v. NAACP,
360 U. S. 167, the NAACP and the
NAACP Legal Defense and Education Fund sought a declaratory
judgment and injunction on several constitutional grounds in respect
to numerous recently enacted state statutes. The lower court en-
joined the implementation of three statutes, including one provision
on vagueness grounds, and ordered abstention as to two others,
finding them ambiguous. This Court ordered abstention as to all
the statutes, finding that they were all susceptible of constructions
that would limit or eliminate their effect on the litigative and legal
activities of the NAACP and construction might thereby eliminate
the necessity for passing on the many constitutional questions raised.
The vagueness issue, for example, would not require adjudication if
the state courts found that the challenged provisions did not restrict
the activities of the NAACP or require the NAACP to register. Un-
like the instant case, the necessity for deciding the federal constitu-
tional issues in the above and other abstention cases turned on
whether the restrictions or requirements of an uncertain or unclear
state statute were imposed on the persons bringing the action or on
their activities as defined in the complaint.
p. 378uncertain issue of state law does not turn upon a choice
between one or several alternative meanings of a state
statute. The challenged oath is not open to one or a few
interpretations, but to an indefinite number. There is
no uncertainty that the oath applies to the appellants and
the issue they raise is not whether the oath permits them
to engage in certain definable activities. Rather their
complaint is that they, about 64 in number, cannot under-
stand the required promise, cannot define the range of
activities in which they might engage in the future, and
do not want to forswear doing all that is literally or
arguably within the purview of the vague terms. In
these circumstances it is difficult to see how an abstract
construction of the challenged terms, such as precept,
example, allegiance, institutions, and the like, in a declar-
atory judgment action could eliminate the vagueness
from these terms. It is fictional to believe that anything
less than extensive adjudications, under the impact of
a variety of factual situations, would bring the oath
within the bounds of permissible constitutional certainty.
Abstention does not require this.
Other considerations also militate against abstention
here. Construction of this oath in the state court, ab-
stractly and without reference to concrete, particularized
situations so necessary to bring into focus the impact of
the terms on constitutionally protected rights of speech
and association, Ashwander v. Tennessee Valley Author-
ity,
297 U. S. 288, 341 (Brandeis, J, concurring), would
not only hold little hope of eliminating the issue of vague-
ness but also would very likely pose other constitutional
issues for decision, a result not serving the abstention-
justifying end of avoiding constitutional adjudication.
We also cannot ignore that abstention operates to re-
quire piecemeal adjudication in many courts,
England v.
Louisiana State Board of Medical Examiners, 375 U. S.
411, thereby delaying ultimate adjudication on the merits
p. 379for an undue length of time, England, supra; Spector,
supra; Government & Civic Employees Organizing Com-
mittee v. Windsor,
353 U. S. 364,14 a result quite costly
where the vagueness of a state statute may inhibit the
exercise of
First Amendment freedoms. Indeed the 1955
subversive person oath has been under continuous consti-
tutional attack since at least 1957, Nostrand v. Balmer, 53
Wash. 2d 460, 463, 335 P. 2d 10, 12, and is now before this
Court for the third time. Remitting these litigants to
the state courts for a construction of the 1931 oath would
further protract these proceedings, already pending for
almost two years, with only the likelihood that the case,
perhaps years later, will return to the three-judge Dis-
trict Court and perhaps this Court for a decision on the
identical issue herein decided. See Chicago v. Atchison,
T. cfe S. F. R. Co.,
357 U. S. 77, 84; Public Utilities
Comm’n of Ohio v. United Fuel Co.,
317 U. S. 456.15
Meanwhile, where the vagueness of the statute deters
constitutionally protected conduct, “the free dissemina-
tion of ideas may be the loser.”
Smith v. California, 361
U. S. 147, 151.
V.
As in Cramp v. Board of Public Instruction, supra, we
do not question the power of a State to take proper meas-
ures safeguarding the public service from disloyal con-
p. 380Cla rk , J., dissenting. 377 U. S.
duct. But measures which purport to define disloyalty
must allow public servants to know what is and is not
disloyal. “The fact . . . that a person is not compelled
to hold public office cannot possibly be an excuse for bar-
ring him from office by state-imposed criteria forbidden
by the Constitution.” Torcaso v. Watkins, 367 U. S. 488,
495-496.
Reversed.
Mr . Justice Clark , whom Mr . Just ice Harlan joins,
dissenting.
The Court strikes down, as unconstitutionally vague,
two Acts of the State of Washington. The first, the Act
of 1955, requires every state employee to swear or affirm
that he is not a “subversive person” as therein defined.
The second, the Act of 1931, which requires that another
oath be taken by teachers, is declared void without the
benefit of an opinion of either a state or federal court. I
dissent as to both, the first on the merits, and the latter,
because the Court refuses to afford the State an oppor-
tunity to interpret its own law.
The Court says that the Act of 1955 is void on its face
because it is “unduly vague, uncertain and broad.” The
Court points out that the oath requires a teacher to
“swear that he is not a subversive person: that he is not
one who commits an act or who advises, teaches, abets or
advocates by any means another person to commit or aid
in the commission of any act intended to overthrow or
alter, or to assist the overthrow or alteration, of the con-
stitutional form of government by revolution, force or
violence.” The Court further finds that the Act declares
the Communist Party to be a subversive organization.
From these premises, the Court then reasons that under
the 1955 Act “any person who aids the Communist Party
p. 381or teaches or advises known members of the Party is a
subversive person” because “at some future date” such
teaching may aid the activities of the Party. This rea-
soning continues with the assertion that “one cannot con-
fidently assert that his counsel, aid, influence or support
which adds to the resources, rights and knowledge of the
Communist Party or its members does not aid the
Party ... in furtherance of the stated purpose of over-
throwing the Government by revolution, force, or vio-
lence.” The Court then interrogates itself: Does the
statute reach “endorsement or support for Communist
candidates for office? ... a lawyer who represents the
Communist Party or its members? . . . [defense of the]
constitutional rights of the Communist Party or its
members . . . [or support of] any cause which is like-
wise supported by Communists or the Communist
Party?” Apparently concluding that the answers to
these questions are unclear, the Court then declares the
Act void, citing
Cramp v. Board of Public Instruction,
368 U. S. 278 (1961). Let us take up this reasoning in
reverse order.
First, Cramp is not apposite. The majority has failed
to recognize that the statute in Cramp required an oath
of much broader scope than the one in the instant case:
Cramp involved an oath “that I have not and will not
lend my aid, support, advice, counsel or influence to the
Communist Party . . . .” That oath was replete with
defects not present in the Washington oath. As Mr .
Justic e Stewar t pointed out in Cramp:
“The provision of the oath here in question, it is to
be noted, says nothing of advocacy of violent over-
throw of state or federal government. It says noth-
ing of membership or affiliation with the Communist
Party, past or present. The provision is completely
lacking in these or any other terms susceptible of
objective measurement.” At 286.
p. 382These factors which caused the Court to find the Cramp
oath unconstitutionally vague are clearly not present in
the Washington oath. Washington’s oath proscribes only
the commission of an act of overthrow or alteration of the
constitutional form of government by revolution, force or
violence; or advising, teaching, abetting or advocating
by any means another person to commit or aid in the
commission of any act intended to overthrow or alter or
to assist the overthrow or alteration of the constitutional
form of government by revolution, force or violence.
The defects noted by the Court when it passed on the
Cramp oath have been cured in the Washington statute.
It is strange that the Court should find the language of
this statute so profoundly vague when in 1951 it had no
such trouble with the identical language presented by
another oath in Gerende v. Board of Supervisors of Elec-
tions, 341 U. S. 56. There, the constitutionality of
Maryland’s Ober Law, written in language identical to
Washington’s 1955 Act, was affirmed by a unanimous
Court against the same attack of vagueness. It is unfor-
tunate that Gerende is overruled so quickly.* Other state
laws have been copied from the Maryland Act—just as
Washington’s 1955 Act was—primarily because of our
approval of it, and now this Court would declare them
void. Such action cannot command the dignity and
respect due to the judicial process. It is, of course, ab-
surd to say that, under the words of the Washington Act,
*It has been contended that the crucial section of Maryland’s Ober
Act, that which is identical to the Washington Act, was not before
the Court in Gerende, but a review of the record in that case conclu-
sively demonstrates to the contrary. Further, while the Gerende
opinion was stated with a qualification, the fact remains that the
Court approved the judgment of the Maryland court and rejected
the argument that the Act was unconstitutionally vague.
p. 383a professor risks violation when he teaches German, Eng-
lish, history or any other subject included in the curricu-
lum for a college degree, to a class in which a Communist
Party member might sit. To so interpret the language
of the Act is to extract more sunbeams from cucumbers
than did Gulliver’s mad scientist. And to conjure up
such ridiculous questions, the answers to which we all
know or should know are in the negative, is to build up a
whimsical and farcical straw man which is not only grim
but Grimm.
In addition to the Ober Law the Court has also found
that other statutes using similar language were not vague.
An unavoidable example is the Smith Act which we
upheld against an attack based on vagueness in the land-
mark case of Dennis v. United States,
341 U. S. 494
(1951). The critical language of the Smith Act is again
in the same words as the 1955 Washington Act.
“Whoever knowingly or willfully advocates, abets,
advises, or teaches the duty, necessity, desirability, or
propriety of overthrowing or destroying the gov-
ernment of the United States . . . .” 18 U. S. C.
§
2385. (Emphasis supplied.)
The opinion of the Court in Dennis uses this language in
discussing the vagueness claim:
“We agree that the standard as defined is not a
neat, mathematical formulary. Like all verbaliza-
tions it is subject to criticism on the score of
indefiniteness. . . . We think [the statute] well
serves to indicate to those who would advocate con-
stitutionally prohibited conduct that there is a line
beyond which they may not go—a line which they,
in full knowledge of what they intend and the cir-
cumstances in which their activity takes place, will
well appreciate and understand.” At 515-516.
729-256 0-65-29
p. 384It appears to me from the statutory language that Wash-
ington’s 1955 Act is much more clear than the Smith Act.
Still the Court strikes it down. Where does this leave
the constitutionality of the Smith Act?
Appellants make other claims. They say that the
1955 Act violates their rights of association and free
speech as guaranteed by the First and Fourteenth Amend-
ments. But in light of Königsberg v. State Bar of Cal-
ifornia, 366 U. S. 36 (1961); In re Anastaplo, 366 U. S.
82 (1961); Adler v. Board of Education, 342 U. S. 485
(1952); Garner v. Board of Public Works, 341 U. S. 716
(1951); and American Communications Assn. n . Douds,
339 U. S. 382 (1950), this claim is frivolous. Likewise in
view of the decision of Washington’s highest court that
tenured employees would be entitled to a hearing, Nos-
trand v. Little, 58 Wash. 2d 111, 131, 361 P. 2d 551, 563,
the due process claim is without foundation. This con-
clusion would also apply to those employees without
tenure, since they would be entitled to a hearing under
Washington’s Civil Service Act, Rev. Code Wash. § 41.04
et seq. and its Administrative Procedure Act, Rev. Code
Wash. § 34.04.010 et seq.
The Supreme Court of Washington has never construed
the oath of allegiance required by the 1931 Act. I agree
with the District Court that Washington’s highest court
should be afforded an opportunity to do so. As the
District Court said:
“The granting or withholding of equitable or
declaratory relief in federal court suits which seek to
limit or control state action is committed to the sound
discretion of the court. Accordingly, in the absence
p. 385of a concrete factual showing that any plaintiff or
any member of the classes of state employees here
represented has suffered actual injury by reason of
the application of the oath of allegiance statute
(Chapter 103, Laws of 1931) this court will decline
to render a declaratory judgment as to the constitu-
tionality of that statute in advance of an authori-
tative construction by the Washington Supreme
Court.” 215 F. Supp. 439, 455.
For these reasons, I dissent.