Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (U.S.Ind. 1974)
Supreme Court of the United States
COMMUNIST PARTY OF INDIANA et al., Appellants,
v.
Edgar D. WHITCOMB, etc., et al.
No. 72--1040.
Argued Oct. 16, 1973.
Decided Jan. 9, 1974.
Rehearing Denied Feb. 25, 1974.
See 415 U.S. 952, 94 S.Ct. 1476.
Mr. Justice Powell filed an opinion concurring in result, in which The
Chief Justice, Mr. Justice Blackmun and Mr. Justice Rehnquist joined.
*441 **657
Syllabus [n. *]
n. * The syllabus constitutes no part of the opinion of the Court but has
been prepared by the Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
The application of appellants (the Communist Party of Indiana, certain of
its officers and potential voters, and its **658 candidates for President and
Vice President) for a place on the Indiana ballot for the 1972 general election
was rejected for failure to submit a statutory loyalty oath stating that the Party
'does not advocate the overthrow of local, state or National Government by
force or violence.' Appellants, contending that the statute was unconstitutional,
thereupon filed this action in the District Court for injunctive and declaratory
relief. On September 28, 1972, a three-judge court declared the statute
constitutional and ordered the Election Board to place the Party on the
ballot, but only if the required oath was submitted. After a qualified
oath submitted by the Party was rejected, appellats on October 3 sought a
District Court order directing the Board to accept such oath, and on the
same day the Board requested reconsideration of the September 28 order.
The next day the District Court denied both motions. On October 10
appellants filed a notice of appeal to this Court, which it later sought
to withdraw so that the District Court might act on appellants' motion of
the same day that the September 28 order be amended in certain respects.
On October 31, the District Court allowed withdrawal of the appeal notice
but denied the motion to amend. Appellants refiled their notice of appeal
to this Court on November 29, which appellees contend is untimely. Held:
1. Appellants' notice of appeal was within the 60-day appeal period
prescribed by 28 U.S.C. s 2101(b), since appellees' October 3 motion for
reconsideration suspended the finality of the September 28 judgment until
the District Court's denial of such motion on October 4 restored it, so
that the time for appeal thus began to run from October 4. Pp. 659--660.
2. The loyalty oath requirement of the Indiana statute violates the First
and Fourteenth Amendments. Pp. 660--662.
*442
(a) The principle that the constitutional guarantees of free speech and
free press do not permit a State to forbid or proscribe advocacy of the
use of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to produce
such action, applies to state regulation burdening access to the ballot,
rights of association in the political party of one's choice, casting an
effective ballot, and in running for office, which are interests as
substantial as those in other areas that this Court has protected against
statutory schemes contrary to the First and Fourteenth Amendments. Pp.
661--662.
(b) For purposes of determining whether for grant a place on the ballot, a
group advocating violent overthrow as abstract doctrine need not be
regarded as necessarily advocating unlawful action. P. 662.
Reversed.
Sanford Jay Rosen, New York City, for appellants.
Theodore L. Sendak, Crown Point, Ind., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
This is a loyalty oath case. The question for decision is whether the
First and Fourteenth Amendments are violated by Indiana's requirement,
Ind.Ann.Stat. s 29--3812 (1969), IC 1971, 3--1--11--12, that '(n)o
existing or newly-organized political party or organization shall be
permitted on or to have the names of its candidates printed on the ballot
used at any election until it has filed an affidavit, by its officers,
under oath, that it does not advocate the overthrow *443
of local, state or national government by force or violence . . ..' [n. 1]
n. 1. Section 29--3812 reads in pertinent part as follows:
'No political party or organization shall be recognized and given a place
on or have the names of its candidates printed on the ballot used at any
election which advocates the overthrow, by force or violence, of the
local, state or national government, or which advocates, or carries on, a
program of sedition or of treason, and which is affiliated or cooperates
with or has any relation with any foreign government, or any political
party or group of individuals of any foreign government. Any political
party or organization which is in existence at the time of the passage of
this act . . . or which shall have had a ticket on the ballot one or more
times prior to any election, and which does not advocate any of the
doctrines the advocacy of which is prohibited by this act, shall insert a
plank in its platform that it does not advocate any of the doctrines
prohibited by this act. No existing or newly-organized political party or
organization shall be permitted on or to have the names of its candidates
printed on the ballot used at any election until it has filed an
affidavit, by its officers, under oath, that it does not advocate the
overthrow of local, state or national government by force or violence, and
that it is not affiliated with and does not cooperate with nor has any
relation with any foreign government, or any political party, organization
or group of individuals of any foreign government. The affidavit herein
provided for shall be filed with the state election board or the county
election board having charge of the printing of the ballot on which such
ticket is to
appear.'
**659
Appellants are the Communist Party of Indiana, a new political party in
Indiana, certain of its officers and potential voters, and its candidates
for President and Vice President in the 1972 election. Appellees are the
Indiana State Election Board and its members. When appellants applied to
the Election Board in August 1972 for a place on Indiana's National Ballot
for the 1972 general election without submitting the required oath, the
Board, on the advice of the Attorney General of Indiana, rejected the
application. Appellants thereupon filed this action in the District Court
for the Northern District of Indiana seeking a declaration of the
unconstitutionality*444 of s 29--3812, and an injunction requiring that the
Election Board place the Party on the ballot. A three-judge court was
convened and that court, on September 28, 1972, in an unreported opinion,
declared the provision of s 29--3812 that is challenged on this appeal
constitutional and issued an order requiring the Election Board to place the
Communist Party and its nominees on the National Ballot only '(i)n the event
that the Communist Party of Indiana shall submit an affidavit in keeping with
this memorandum and order. . . .' [n. 2] The Communist Party submitted an
affidavit that, in addition to the statutory language, added the following:
n. 2. The District Court's decision of September 28 also decided attacks
upon the loyalty oath provision of s 29--3812 made in actions brought by
two other new political parties, the American Independent Party and the
Indiana Peace and Freedom Party. All three actions challenged, in addition
to the 'advocacy' provision, the provision of s 29--3812 requiring a party
also to file an affidavit that 'it is not affiliated with and does not
cooperate with nor has any relation with any foreign government, or any
political party, organization or group of individuals of any foreign
government.' The September 28 memorandum of the three-judge court declared
this provision of s 29--3812 unconstitutional. The American Independent
Party and the Indiana Peace and Freedom Party then filed affidavits
accepted by the Election Board and were placed on the National Ballot for
the 1972 elections. On November 11, the Election Board appealed that
portion of the order to this Court. We summarily affirmed. Whitcomb v.
Communist Party, 410 U.S. 976, 93 S.Ct. 1502, 36 L.Ed.2d 173 (1973).
'The term advocate as used herein has the meaning given it by the Supreme
Court of the United States in Yates v. United States, 354 U.S. 298 at 320
(77 S.Ct. 1064, 1 L.Ed.2d 1356), 'the advocacy and teaching of concrete
action for the forcible overthrow of the government, and not of principles
divorced from action.''
The Election Board rejected the affidavit and appellants, on October 3,
returned to the District Court, seeking an order directing the Board to
accept it. On the same day, *445 the Election Board filed a motion requesting
reconsideration of the order of September 28. [n. 3] The District Court, on
October 4, denied both **660 motions by order entered that day. Appellants
on October 10 filed a notice of appeal to this Court to enable them to seek
emergency relief. That effort was abandoned, and appellants then sought leave
of the District Court to withdraw the notice of appeal in order that the District
Court might act on a motion of appellants, also filed October 10, that the
District Court amend its September 28 order to include a determination
that s 29--3812 was constitutional 'only insofar as it proscribes advocacy
directed at promoting unlawful action, as distinguished from advocacy of
abstract doctrine.' On October 31, the District Court entered an order
granting leave to withdraw the notice of appeal of October 10 but denying
the motion to amend the September 28 memorandum.
n. 3. Section 29--3801 Ind.Stat.Ann. (1969), IC 1971, 3--1--11--1
provides for ballot listing of any party that files petitions containing signatures
of one-half of one percent 'of the total vote of all parties cast in the
state for secretary of state at the last preceding general
election.' The sufficiency of the Communist Party petitions in this
respect was challenged by appellees in the District Court but was not
discussed in the court's September 28 memorandum although the issuance of
the injunction presupposed a decision adverse to appellees. The motion for
reconsideration requested the court to reconsider that result.
Appellants refiled their notice of appeal on November 29.
Appellees moved to dismiss the appeal as jurisdictionally untimely,
arguing that the 60-day period for appeal, 28 U.S.C. s 2101(b), expired on
November 27. We postponed consideration of the question of our
jurisdiction to the merits. 410 U.S. 981, 93 S.Ct. 1504, 36 L.Ed.2d 176
(1973). We hold that the appeal was timely. Appellees' motion for
reconsideration of October 3 suspended the finality of the judgment of
September 28 until the District Court's denial of the motion on October 4
restored it. Time *446 for appeal thus began to run from October 4 and the
notice of appeal filed November 29 was timely. [n. 4] As to the merits, we
hold that the loyalty oath requirement of s 29--3812 violates the First and
Fourteenth Amendments, [n. 5] and therefore reverse the judgment of the
District Court. [n. 6]
n. 4. Appellees also argue that the notice of appeal of November 29 was
ineffective because the earlier notice of October 10 divested the
District Court of jurisdiction and that that jurisdiction could not have
been revested by the granting of leave to withdraw the October 10 notice.
But since the October 10 notice was clearly timely, that argument is
reduced to an attack on the untimeliness under Supreme Court Rule 13(1) of
the filing of the jurisdictional statement on January 26, 1973. Timely
docketing of the jurisdictional statement is not, however, a jurisdictional
requisite. Johnson v. Florida, 391 U.S. 596, 598, 88 S.Ct. 1713, 1714,
20 L.Ed.2d 838 (1968).
Appellees' brief also invokes s 3 of the Communist Control Act of 1954, 68
Stat. 776, 50 U.S.C. s 842, providing that '(t)he Communist Party of the
United States . . . (is) not entitled to any of the rights, privileges,
and immunities attendant upon legal bodies created under the jurisdiction
of the laws of the United States or any political subdivision thereof . .
..' We have difficulty understanding appellees' argument that this statute
is applicable to the Communist Party of Indiana or in any way relevant to
the issues in this case. The statute was not relied upon by either the
Election Board, or the District Court when it denied declaratory relief.
In any event, insofar as the argument is that this statute bars the
Communist Party of Indiana from maintaining this action, it is rejected.
See Communist Party, U.S.A. v. Catherwood, 367 U.S. 389, 81 S.Ct.
1465, 6 L.Ed.2d 919 (1961).
n. 5. Appellants also contend that the requirement is constitutionally
precluded as an oath different from that prescribed for a President by
Art. II, s 1, and for any other state or federal officer by Art. VI, cl.
3. See Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593
(1972). In view of our result we need not address those contentions.
n. 6. The only question presented in the jurisdictional statement is
whether s 29--3812 is facially valid. Thus, we do not reach the question
whether the Election Board's apparent failure to require the Republican
and Democratic Parties, the two major parties in Indiana, to comply with
the statute rises to the level of a denial of equal protection of the law
as applied, or was within the Board's 'prosecutorial discretion.' We note,
however, that the only relevant testimony in the District Court, given by
the Board's clerk, is entirely silent as to the reasons behind the
omission.
*447
Loyalty oath cases are not strangers to this Court, see Note, Loyalty
Oaths, 77 Yale L.J. 739. **661 (1968), but the constitutional questions
presented in earlier cases arising from their use to limit access to the ballot
have not had plenary consideration. [n. 7] The District Court decided this
case under the pressure of a ballot-printing deadline, and its memorandum
opinion states no reasons and cites no authorities to support the court's
holding that 'that portion of the statute providing 'that it does not advocate
the overthrow of local, state or national government by force or violence,' is
constitutional and hence enforceable by Indiana.'
n. 7. E.g., Lisker v. Kelley, 401 U.S. 928, 91 S.Ct. 927, 28 L.Ed.2d 210
(1971), summarily aff'g, 315 F.Supp. 777 (D.C.1970); Gerende v. Board of
Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745 (1951), presenting a
constitutional challenge to a Maryland statute imposing a loyalty
requirement on candidates for municipal office rested on 'the narrowing
construction tendered by the Attorney General (of Maryland) during oral
argument so as to avoid the constitutional issue that was argued.'
Whitehill v. Elkins, 389 U.S. 54, 58, 88 S.Ct. 184, 186, 19 L.Ed.2d 228
(1967). And Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S.Ct.
1716, 32 L.Ed.2d 317 (1972), was dismissed as insufficiently concrete and
mature to permit adjudication, on the authority of Rescue Army v.
Municipal Court of City of Los Angeles, 331 U.S. 549, 67 S.Ct. 1409, 91
L.Ed. 1666 (1947).
Appellees do not deny that s 29--3812 exacts a broad oath embracing
advocacy of abstract doctrine as well as advocacy of action. Yet this
Court has held in many contexts that the First and Fourteenth Amendments
render invalid statutes regulating advocacy that are not limited to
advocacy of action. And, as we have so often emphasized, '(p)recision of
regulation must be the touchstone in an area so closely touching our most
precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328,
340, 9 L.Ed.2d 405 (1963).
We most recently summarized the constitutional principles *448
that have evolved in this area in Brandenburg v. Ohio, 395 U.S. 444, 89
S.Ct. 1827, 23 L.Ed.2d 430 (1969). We expressly overruled the earlier
holding of Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed.
1095 (1927), that 'without more, 'advocating' violent means to effect
political and economic change involves such danger to the security of the
State that the State may outlaw it.' 395 U.S., at 447, 89 S.Ct., at 1829.
For, we said:
'(L)ater decisions have fashioned the principle that the constitutional
guarantees of free speech and free press do not permit a State to forbid
or proscribe advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action. As we said in Noto v.
United States, 367 U.S. 290, 297--298 (81 S.Ct. 1517, 1520--1521, 6
L.Ed.2d 836) (1961), 'the mere abstract teaching . . . of the moral
propriety or even moral necessity for a resort to force and violence, is
not the same as preparing a group for violent action and steeling it to
such action.' . . . A statute which fails to draw this distinction
impermissibly intrudes upon the freedoms guaranteed by the First and
Fourteenth Amendments. It sweeps within its condemnation speech which our
Constitution has immunized from governmental control. Cf. Yates v. United
States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) . . ..' Id., at
447--448, 89 S.Ct., at 1829.
This principle that 'the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or
produce such action' has been applied not only to statutes that directly
forbid or proscribe advocacy, see Scales v. United States, 367 U.S. 203,
81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Noto v. United States, 367 U.S. 290,
81 S.Ct. 1517, 6 L.Ed.2d 836 (1961); *449 Yates v. United States, 354
U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); but also to regulatory
schemes that determine eligibility **662 for public employment, Keyishian v.
Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967);
Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966);
Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275,
7 L.Ed.2d 285 (1961); see also United States v. Robel, 389 U.S. 258,
88 S.Ct. 419, 19 L.Ed.2d 508 (1967); tax exemptions, Speiser v. Randall,
357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); and moral fitness
justifying disbarment, Schware v. Board of Bar Examiners, 353 U.S. 232,
77 S.Ct. 752, 1 L.Ed.2d 796 (1957).
Appellees argue that the principle should nevertheless not obtain
in cases of state regulation of access to the ballot. We perceive no
reason to make an exception, and appellees suggest none. Indeed, all of
the reasons for application of the principle in the other contexts are
equally applicable here. 'To be sure, administration of the electoral
process is a matter that the Constitution largely entrusts to the States.
But, in exercising their powers of supervision over elections and in
setting qualifications for voters, the States may not infringe upon basic
constitutional protections.' Kusper v. Pontikes, 414 U.S. 51, at 57, 94
S.Ct. 303, at 307, 38 L.Ed.2d 260 (footnote omitted). At stake are
appellants' First and Fourteenth Amendment rights to associate with others
for the common advancement of political beliefs and ideas. 'The right to
associate with the political party of one's choice is an integral part of
this basic constitutional freedom.' Ibid., Williams v. Rhodes, 393 U.S.
23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). At stake as well are
appellants' interests as party members in casting an effective ballot. See
Bullock v. Carter, 405 U.S. 134, 142--144, 92 S.Ct. 849, 855-- 856, 31
L.Ed.2d 92 (1972).
Thus, burdening access to the ballot, rights of association in the
political party of one's choice, interests in casting an effective vote
and in running for office, not because the Party urges others 'to do
something, now or in the future . . . (but) . . . merely to believe in
something,' Yates v. United States, supra, 354 U.S., at 325, 77 S.Ct., at
1080, is to *450 infringe interests certainly as substantial as those in public
employment, tax exemption, or the practice of law. For 'the right to exercise
the franchise in a free and unimpaired manner is preservative of other basic
civil and political rights . . ..' Reynolds v. Sims, 377 U.S. 533, 562, 84
S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). 'Other rights, even the most
basic, are illusory if the right to vote is undermined.' Wesberry v.
Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964).
Appellees argue: 'It is fraudulent for a group seeking by violent
revolution to overthrow our democratic form of government to disguise
itself as a political party and use the very forms of the democracy it
seeks to subvert in order to gain support and carry on its nefarious
ends.' Brief for Appellees 7. Again, they argue 'that the affidavit
required under the statute refers to the official actions of the party
itself, thus reducing to a minimum any possibility of 'innocent
involvement' in activities which might be considered advocacy.' Id., at
10. As we understand appellees, this is an argument that, at least for
purposes of determining whether to grant a place on the ballot, any group
that advocates violent overthrow as abstract doctrine must be regarded as
necessarily advocating unlawful action. We reject that proposition. Its
acceptance would only return the law to the 'thoroughly discredited'
regime of Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095
(1927), unanimously overruled by the Court in Brandenburg v. Ohio, 395
U.S., at 447, 449, 89 S.Ct., at 1829, 1830. [n. 8]
n. 8. Cf. Noto v. United States, 367 U.S. 290, 298, 81 S.Ct. 1517, 1521, 6
L.Ed.2d 836 (1961), a prosecution under the Smith Act, 18 U.S.C. s 2385,
where we held that the constitutional limitations require that criminal
advocacy by the Communist Party be proved by 'some substantial direct or
circumstantial evidence of a call to violence now or in the future which
is both sufficiently strong and sufficiently pervasive to lend color to
the otherwise ambiguous theoretical material regarding Communist Party
teaching, and to justify the inference that such a call to violence may
fairly be imputed to the Party as a whole, and not merely to some narrow
segment of it.' See also Scales v. United States, 367 U.S. 203, 81 S.Ct.
1469, 6 L.Ed.2d 782 (1961); Yates v. United States, 354 U.S. 298, 77 S.Ct.
1064, 1 L.Ed.2d 1356 (1957).
Reversed.
**663 *451
Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice
BLACKMUN, and Mr. Justice REHNQUIST join, concurring in the result.
I concur in the result. In my view it was quite unnecessary to reach the
issue addressed by the Court.
It was established at trial that appellees had certified the Democratic
and Republican Parties despite the failure of party officials to submit
the prescribed affidavits under Ind.Ann.Stat. s 29--3812 (1969). [n. 1] In
Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968),
this Court held that a discriminatory preference for established parties
under a State's electoral system can be justified only by a 'compelling
state interest.' In the present case, no colorable justification has been
offered for placing on appellants burdens not imposed on the two
established *452 parties. [n. 2] It follows that the appellees' discriminatory
application of the Indiana statute denied appellants equal protection under the
Fourteenth Amendment. [n. 3]
n. 1. The complaint in this case expressly alleged that s 29--3812
subjected appellants to burdens not imposed on the Republican and
Democratic Parties, and proof at trial was directed to that issue. The
Court now maintains that this issue cannot be considered because it was
not expressly raised in the jurisdictional statement. Ante, at 660 n. 6.
Supreme Court Rule 15(1)(c) provides, however, that the jurisdictional
statement 'will be deemed to include every subsidiary question fairly
comprised therein' and that 'questions set forth in the jurisdictional
statement or fairly comprised therein will be considered by the court.'
The issue of discriminatory application of the statute certainly falls
within the gravamen of appellants' jurisdictional statement and should
therefore be considered. See, e.g., United States v. Arnold, Schwinn &
Co., 388 U.S. 365, 371--372 n. 4, 87 S.Ct. 1856, 1861, n. 4 18 L.Ed.2d
1249 (1967). Moreover, the appropriate exercise of judicial power requires
that important constitutional issues not be decided unnecessarily where
narrower grounds exist for according relief. This consideration applies
even though such grounds are not raised in the jurisdictional submissions.
Boynton v. Virginia, 364 U.S. 454, 457, 81 S.Ct. 182, 184, 5 L.Ed.2d 206
(1960). Cf. Barr v. Matteo, 355 U.S. 171, 172, 78 S.Ct. 204, 205, 2
L.Ed.2d 179 (1957).
n. 2. The Court's intimation that a prima facie case of constitutional
deprivation was not established because Board officials were 'silent as to
the reasons behind the omission' of the established parties from the
affidavit requirement (ante, at 660 n. 6) misses the point. Nothing more
need be shown than that the statute was in fact discriminatorily applied.
It is the Board officials not the appellants, who must then come forth
with reasons justifying the discriminatory application of the statute.
n. 3. In view of this patently unconstitutional application of the statute,
there is no occasion to reach the broader issue addressed by the Court
today. Although I express no conclusion on that issue, it should be noted
that this is the first case touching upon the type of oath which may be
required of a candidate for the office of President of the United States.
The Indiana oath, of course, is required of the party rather than its
presidential candidate. But it could be argued that Yates v. United
States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), and its
progeny are not controlling here. Under Art. IV, cl. 3, all state and
federal officers are bound by oath 'to support this Constitution,' and
under Art. II, s 1, cl. 8, the President must swear that he will
'faithfully execute the Office . . . and will to the best of (his)
Ability, preserve, protect and defend the Constitution of the United
States.' Art. II, s 3, also imposes on the President the affirmative duty
to 'take Care that the Laws be faithfully executed.' Neither the effect of
these explicit constitutional obligations nor the responsibility of a chief
executive official of government to enforce the rule of law was a relevant
issue in any of the Yates line of cases. Cf. Cole v. Richardson, 405 U.S.
676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972).