COMMUNIST PARTY OF INDIANA et al., Appellants, v. Edgar D. WHITCOMB, etc., et al.

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. § 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 of local, state or national government by force or violence . . ..'1

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 of § 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 § 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. . . .'2 The Communist Party submitted an affidavit that, in addition to the statutory language, added the following:

'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, the Election Board filed a motion requesting reconsideration of the order of September 28.3 The District Court, on October 4, denied both 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 § 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.

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. § 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 for appeal thus began to run from October 4 and the notice of appeal filed November 29 was timely.4 As to the merits, we hold that the loyalty oath requirement of § 29—3812 violates the First and Fourteenth Amendments,5 and therefore reverse the judgment of the District Court.6

Loyalty oath cases are not strangers to this Court, see Note, Loyalty Oaths, 77 Yale L.J. 739. (1968), but the constitutional questions presented in earlier cases arising from their use to limit access to the ballot have not had plenary consideration.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.'

Appellees do not deny that § 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 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); 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 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 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, 1830.8

Reversed.

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. § 29—3812 (1969).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 parties.2 It follows that the appellees' discriminatory application of the Indiana statute denied appellants equal protection under the Fourteenth Amendment.3