Loyalty Oaths

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates unlawful or disloyal action.

Following the Civil War, the state and federal governments adopted test oaths, which the Supreme Court generally voided as ex post facto laws and bills of attainder.1 Accepting the state court construction that the law required each candidate to “make oath that he is not a person who is engaged ‘in one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt,” the Court unanimously sustained the provision in a one-paragraph per curiam opinion.2 Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization, with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party.3 Writing for the Court, Justice Tom Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason.4 With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization’s purpose during their affiliation, who had severed their associations upon knowledge of an organization’s purposes, or who had been members of an organization at a time when it was not unlawfully engaged.5 Otherwise, the oath requirement was valid as “a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty” and as being “reasonably designed to protect the integrity and competency of the service.” 6

In the following Term, the Court sustained in Adler v. Board of Education a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated.7 The statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification. Justice Sherman Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state’s reasonable terms. He stated: “If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.” 8 A state could deny employment based on a person’s advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy.9 With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership.10

The same year, the Court invalidated an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment “solely on the basis of organizational membership.” 11 Stressing that membership might be innocent, that one might be unaware of an organization’s aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims.12 But subsequent cases reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions.13 In Shelton v. Tucker,14 however, a 5-4 majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state’s interests, and had a considerable potential for abuse.

The Court relied on vagueness when loyalty oaths aimed at “subversives” next came before it. In Cramp v. Board of Public Instruction,15 it unanimously held an oath too vague that required one to swear, among other things, that “I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party.” Similarly, in Baggett v. Bullitt,16 the Court struck down two oaths, one requiring teachers to swear that they “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,” and the other requiring all state employees to swear, among other things, that they would not “aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration” of government. Although couched in vagueness terms, the Court’s opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the state could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow.17

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell18 involved an oath that as supplemented would have been violated by one who “knowingly and willfully becomes or remains a member of the communist party. . . or any other organization having for its purposes the overthrow by force or violence of the government” with “knowledge of said unlawful purpose of said organization.” The law’s blanketing in of “knowing but guiltless” membership was invalid, wrote Justice William O. Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied.19 Next, in Keyishian v. Board of Regents,20 the oath provisions sustained in Adler21 were declared unconstitutional. A number of provisions were voided as vague,22 but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But “legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.” 23 Similarly, in Whitehill v. Elkins,24 an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.

Loyalty oath cases from the 1970s reflected the heightened constitutional protections announced in Keyishian. In Connell v. Higginbotham,25 the Court invalidated an oath provision reading “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” because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson26 upheld a clause in an oath “that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method” upon the construction that this clause was mere “repetition, whether for emphasis or cadence,” of the first part of the oath, which was a valid “uphold and defend” positive oath. More broadly, as Keyishian suggests and as discussed in subsequent essays, the Court has rejected the Adler rationale that public employment may be subject to unreasonable conditions because there is no right to public employment.27 Instead, the controlling principle now is that government may not deny employment or other benefits on a basis that infringes a person’s constitutionally protected interests.28

1: Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).
2: Gerende v. Bd. of Supervisors of Elections, 341 U.S. 56 (1951). In In. Communist Party v. Whitcomb, 414 U.S. 441 (1974), a requirement that parties and candidates seeking ballot space subscribe to a similar oath was voided because the oath’s language did not comport with the advocacy standards of Brandenburg v. Ohio, 395 U.S. 444 (1969). Four Justices concurred more narrowly. 414 U.S. at 452 n.3. See also Whitcomb v. Communist Party of In., 410 U.S. 976 (1973).
3: Garner v. Bd. of Pub. Works, 341 U.S. 716 (1951). Justice Felix Frankfurter dissented in part on First Amendment grounds, id. at 724, Justice Harold Burton dissented in part, id. at 729, and Justices Hugo Black and William O. Douglas dissented completely, on bill of attainder grounds, id. at 731.
4: Id. at 720. Justices Felix Frankfurter and Burton agreed with this ruling. Id. at 725–26, 729–30.
5: Id. at 723–24.
6: 341 U.S. at 720–21. Justice Felix Frankfurter objected that the oath placed upon the takers the burden of assuring themselves that every organization to which they belonged or had been affiliated with for a substantial period of time had not engaged in forbidden advocacy.
7: Adler v. Bd. of Educ., 342 U.S. 485 (1952).
8: Id. at 492.
9: Id.
10: Id. at 494–96.
11: Wieman v. Updegraff, 344 U.S. 183, 190 (1952).
12: Id. at 190–91.
13: Beilan v. Bd. of Educ., 357 U.S. 399 (1958); Lerner v. Casey, 357 U.S. 468 (1958); Nelson v. Cnty. of Los Angeles, 362 U.S. 1 (1960). Compare Slochower v. Bd. of Higher Educ., 350 U.S. 551 (1956). For the self-incrimination aspects of these cases, see Amdt5.4.3 General Protections Against Self-Incrimination Doctrine and Practice.
14: 364 U.S. 479 (1960). “It is not disputed that to compel a teacher to disclose his every associational tie is to impair that teacher’s right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.” Id. at 485–86.
15: 368 U.S. 278 (1961). For further proceedings on this oath, see Connell v. Higginbotham, 305 F. Supp. 445 (M.D. Fla. 1970), aff’d in part and rev’d in part, 403 U.S. 207 (1971). 377 U.S. 360 (1964).
16: 377 U.S. 360 (1964). Justices Clark and John Harlan dissented. Id. at 380.
17: 377 U.S. at 369–70.
18: 384 U.S. 11 (1966) Justices Byron White, Clark, John Harlan and Potter Stewart dissented. Id. at 20.
19: Id. at 16, 17, 19. “Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities pose no threat, either as citizens or public employees.” Id. at 17.
20: 385 U.S. 589 (1967). Justices Clark, John Harlan, Potter Stewart, and Byron White dissented. Id. at 620.
21: 342 U.S. 485 (1952).
22: Keyishian v. Bd. of Regents, 385 U.S. 589, 597–604 (1967).
23: Id. at 608. The statement here makes specific intent or active membership alternatives in addition to knowledge, whereas Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), requires both in addition to knowledge.
24: 389 U.S. 54 (1967). Justices John Harlan, Potter Stewart, and Byron White dissented. Id. at 62.
25: 403 U.S. 207 (1971).
26: 405 U.S. 676, 683–84 (1972).
27: Keyishian, 385 U.S. at 605–06.
28: Perry v. Sindermann, 408 U.S. 593, 597 (1972) (citation omitted). A finding, however, that protected expression or conduct played a substantial part in the decision to dismiss or punish does not conclude the case; the employer may show by a preponderance of the evidence that the same decision would have been reached in the absence of the protected expression or conduct. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979).