Amendment 1 — Loyalty Oaths

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First Amendment :

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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn1amd1 " Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn2amd1 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn3amd1 " 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. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn4amd1 " Id. at 720. Justices Felix Frankfurter and Burton agreed with this ruling. Id. at 725–26, 729–30. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn5amd1 " Id. at 723–24. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn6amd1 " 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. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn7amd1 " Adler v. Bd. of Educ., 342 U.S. 485 (1952). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn8amd1 " Id. at 492. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn9amd1 " Id. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn10amd1 " Id. at 494–96. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn11amd1 " Wieman v. Updegraff, 344 U.S. 183, 190 (1952). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn12amd1 " Id. at 190–91. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn13amd1 " 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 . ") In Shelton v. Tucker,[14](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn14amd1 " 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. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn15amd1 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn16amd1 " 377 U.S. 360 (1964). Justices Clark and John Harlan dissented. Id. at 380. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn17amd1 " 377 U.S. at 369–70. ")

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell[18](https://www.law.cornell.edu/constitution-conan/amendment-1/loyalty-oaths#fn18amd1 "