| Broadrick v. Oklahoma
(No. 71-1639)
338 F.Supp. 711, affirmed. |
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| Syllabus
| Opinion
[ White ] | Dissent
[ Douglas ] | Dissent
[ Brennan ] |
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PDF version | HTML version
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Broadrick v. Oklahoma
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.
Whatever one's view of the desirability or constitutionality of legislative efforts to restrict the political activities of government employees, one must regard today's decision upholding § 818 of the Oklahoma Merit System of Personnel Administration Act [n1] as a wholly [p622] unjustified retreat from fundamental and previously well established First and Fourteenth Amendment principles. For the purposes of this decision, the Court assumes -- perhaps even concedes -- that the statute at issue here sweeps too broadly, barring speech and conduct that are constitutionally protected even under the standards announced in United Public Workers v. Mitchell, 330 U.S. 75 (1947), and reiterated today in CSC v. Letter Carriers, ante, p. 548. Nevertheless, the Court rejects appellants' contention that the statute is unconstitutional on its face, reasoning that,
where conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that § 818 is not substantially overbroad, and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Ante at 615-616. That conclusion finds no support in previous decisions of this Court, and it effectively overrules our decision just two Terms ago in Coates v. City of Cincinnati, 402 U.S. 611 (1971). I remain convinced that Coates was correctly decided, and I must therefore respectfully dissent.
As employees of the Corporation Commission of the State of Oklahoma, a state agency, appellants are subject to the provisions of the State's Merit Act. That Act designates certain state agencies, including the Corporation Commission, which are barred from dismissing or suspending classified employees for political reasons. [p623] At the same time, the Act authorizes the State Personnel Board to dismiss or suspend any classified employee who engages in certain prohibited political activity. Although specifically protecting an employee's right "as a citizen privately to express his opinion and to cast his vote," the Act bars (1) fundraising for any political purpose; (2) membership in any national, state, or local committee of a political party or a political club; (3) candidacy for any public office; and (4) participation "in the management or affairs of any political party or in any political campaign."
As a result of appellants' alleged participation in the 1970 reelection campaign of Corporation Commissioner Ray C. Jones, the State Personnel Board formally charged appellants with violations of the Act. Appellants then brought this action under 42 U.S.C. § 1983 before a three-judge Federal District Court in the Western District of Oklahoma, seeking an injunction against enforcement of the Act. The District Court rejected appellants' contentions that the Act is unconstitutionally vague and overbroad, and the Court today affirms that determination.
Appellants' claims are, of course, similar to the vagueness and overbreadth contentions rejected by the Court today in upholding § 9(a) of the Hatch Act, 5 U.S.C. § 7324(a)(2). See Letter Carriers, supra. But that decision, whether or not correct, is by no means controlling on the questions now before us. Certain fundamental differences between the Hatch Act and the Oklahoma Merit Act should, at the outset, be made clear.
Section 9(a) of the Hatch Act provides that a Federal Government employee may not
(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or (2) take an active part in political management or in political campaigns. [p624]
Although recognizing that the meaning of the Act's critical phrase, "an active part in political management or in political campaigns," is hardly free from ambiguity, the Court concluded that the terms could be defined by reference to a complex network of Civil Service Commission regulations developed over many years and comprehensively restated in 1970. See 5 CFR § 733. Those regulations make clear that, among the rights retained by a federal employee, notwithstanding the arguably contrary language of the statute, are the rights to "[e]xpress his opinion as an individual privately and publicly on political subjects and candidates"; to "[d]isplay a political picture, sticker, badge, or button"; to "[b]e a member of a political party or other political organization . . ."; and to "[m]ake a financial contribution to a political party or organization." 5 CFR § 733.111.
By contrast, the critical phrase of the Oklahoma Act -- no employee shall "take part in the management or affairs of any political party or in any political campaign" -- is left almost wholly undefined. While the Act does specifically declare that employees have the right to express their views "privately," it nowhere defines the terms "take part" or "management" or "affairs." The reservation of the right to express one's views in private could, moreover, be thought to mean that any public expression of views is forbidden. Of course, the Oklahoma Act can, like its federal counterpart, be viewed in conjunction with the applicable administrative regulations. But, in marked contrast with the elaborate set of regulations purporting to define the prohibitions of the Hatch Act, the pertinent regulations of the State Personnel Board are a scant five rules that shed no light at all on the intended reach of the statute. Two [p625] of those rules merely recite the language of the Act. [n2] A third offers no more specific guidance than the general exhortation that a classified employee shall
pursue the common good, and, not only be impartial, but so act as neither to endanger his impartiality nor to give occasion for distrust of his impartiality. [n3]
A fourth provides [p626] that a classified employee must resign his position "prior to filing as a candidate for public office, seeking or accepting nomination for election or appointment as an official of a political party" -- again, merely tracking the language of the Act. [n4] The fifth, Rule 1641, far from clarifying or limiting the scope of the Act, provides the major thrust to appellants' overbreadth contention. The rule declares that
[a]n employee in the classified service may not wear a political badge, button, or similar partisan emblem, nor may such employee display a partisan political sticker or sign on an automobile operated by [p627] him or under his control. [n5]
Even the Court concedes that a ban on the wearing of buttons or the display of bumper stickers may be "impermissible." Ante at 618.
It is possible, of course, that the inherent ambiguity of the Oklahoma statute might be cured by judicial construction of its terms. But the Oklahoma Supreme Court has never attempted to construe the Act or narrow its apparent reach. Plainly, this Court cannot undertake that task. Gooding v. Wilson, 405 U.S. 518, 520 (1972); United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971). [n6] I must assume, therefore, that the Act, subject to whatever gloss is provided by the administrative regulations, [n7] is capable of applications that would prohibit speech and conduct clearly protected by the First Amendment. Even on the assumption that the [p628] statute's regulatory aim is permissible, the manner in which state power is exercised is one that unduly infringes protected freedoms. Shelton v. Tucker, 364 U.S. 479, 489 (1960); Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). The State has failed, in other words, to provide the necessary "sensitive tools" to carry out the "separation of legitimate from illegitimate speech." Speiser v. Randall, 357 U.S. 513, 525 (1958). See NAACP v. Button, 371 U.S. 415, 433 (1963).
Although the Court does not expressly hold that the statute is vague and overbroad, it does assume not only that the ban on the wearing of badges and buttons may be "impermissible," but also that the Act "may be susceptible of some other improper applications." Ante at 618. Under principles that I had thought were established beyond dispute, that assumption requires a finding that the statute is unconstitutional on its face. Ordinarily,
one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.
United States v. Raines, 362 U.S. 17, 21 (1960). [n8] And appellants apparently concede that [p629] the State could prohibit the conduct with which they were charged without infringing the guarantees of the First Amendment. Nevertheless, we have repeatedly recognized that
the transcendent value to all society of constitutionally protected expression is deemed to justify allowing "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity."
Gooding v. Wilson, supra, at 521, quoting from Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). [n9] We have adhered to that view because the guarantees of the First Amendment are
delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, [361 U.S. 147, 151-154 (1959)].
NAACP v. Button, supra, at 433. The mere existence of a statute that sweeps too broadly in areas protected by the First Amendment
results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. . . . [p630] Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.
Thornhill v. Alabama, 310 U.S. 88, 98 (1940). See Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 853-854 (1970).
Although the Court declines to hold the Oklahoma Act unconstitutional on its face, it does expressly recognize that overbreadth review is a necessary means of preventing a "chilling effect" on protected expression. Nevertheless, the Court reasons that the function of the doctrine
attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct -- even if expressive -- falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.
Ante at 615. Where conduct is involved, a statute's overbreadth must henceforth be "substantial" before the statute can properly be found invalid on its face.
I cannot accept the validity of that analysis. In the first place, the Court makes no effort to define what it means by "substantial overbreadth." We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and, in that sense, a requirement of substantial overbreadth is already implicit in the doctrine. Cf. Note, The First Amendment Overbreadth Doctrine, supra, at 858-860, 918. Whether the Court means to require some different or greater showing of substantiality is left obscure by today's opinion, in large part because the Court makes no effort to explain why [p631] the overbreadth of the Oklahoma Act, while real, is somehow not quite substantial. No more guidance is provided than the Court's conclusory assertion that appellants' showing here falls below the line.
More fundamentally, the Court offers no rationale to explain its conclusion that, for purposes of overbreadth analysis, deterrence of conduct should be viewed differently from deterrence of speech, even where both are equally protected by the First Amendment. Indeed, in the case before us it is hard to know whether the protected activity falling within the Act should be considered speech or conduct. In any case, the conclusion that a distinction should be drawn was the premise of MR. JUSTICE WHITE's dissenting opinion in Coates v. City of Cincinnati, 402 U.S. 611, 620-621 (1971), and that conclusion -- although squarely rejected in Coates -- has now been adopted by the Court.
At issue in Coates was a city ordinance making it an offense for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by. . . ." Id. at 611. There can be no doubt that the ordinance was held unconstitutional on its face, and not merely unconstitutional as applied to particular, protected conduct. For the Court expressly noted that the ordinance was
aimed directly at activity protected by the Constitution. We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.
Id. at 616. In dissent, MR. JUSTICE WHITE maintained that, since the ordinance [p632] prohibited persons from "assembling and ‘conduct[ing]' themselves in a manner annoying to other persons," he would
deal with the Cincinnati ordinance as we would with the ordinary criminal statute. The ordinance clearly reaches certain conduct, but may be illegally vague with respect to other conduct. The statute is not infirm on its face, and, since we have no information from this record as to what conduct was charged against these defendants, we are in no position to judge the statute as applied. That the ordinance may confer wide discretion in a wide range of circumstances is irrelevant when we may be dealing with conduct at its core.
Id. at 620-621. Thus, Coates stood, until today, for the proposition that, where a statute is "unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct," id. at 614, it must be held invalid on its face whether or not the person raising the challenge could have been prosecuted under a properly narrowed statute. [n10] The Court makes no attempt to distinguish Coates, implicitly conceding that the decision has been overruled.
At this stage, it is obviously difficult to estimate the probable impact of today's decision. If the requirement of "substantial" overbreadth is construed to mean only that facial review is inappropriate where the likelihood of an impermissible application of the statute is too small to generate a "chilling effect" on protected speech or conduct, then the impact is likely to be small. On the [p633] other hand, if today's decision necessitates the drawing of artificial distinctions between protected speech and protected conduct, and if the "chill" on protected conduct is rarely, if ever, found sufficient to require the facial invalidation of an overbroad statute, then the effect could be very grave indeed. In my view, the principles set forth in Coates v. City of Cincinnati, are essential to the preservation and enforcement of the First Amendment guarantees. Since no subsequent development has persuaded me that the principles are ill-founded or that Coates was incorrectly decided, I would reverse the judgment of the District Court on the strength of that decision and hold § 818 of the Oklahoma Merit Act unconstitutional on its face.
1. Okla.Stat.Ann., Tit. 74, § 818, provides in pertinent part:
No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.
No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.
2. Oklahoma Merit System of Personnel Administration Rule 1630 (1971) provides:
No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.
Rule 1640 provides:
No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.
Compare n. 1, supra.
3. Rule 1625 provides:
Every classified employee shall fulfill to the best of his ability the duties of the office of [sic] position conferred upon him and shall prove himself in his behavior, inside and outside, the worth of the esteem which his office or position requires. In his official activities the classified employee shall pursue the common good, and, not only be impartial, but so act as neither to endanger his impartiality nor to give occasion for distrust of his impartiality.
A classified employee shall not engage in any employment, activity or enterprise which has been determined to be inconsistent, incompatible, or in conflict with his duties as a classified employee or with the duties, functions or responsibilities of the Appointing Authority by which he is employed.
Each Appointing Authority shall determine and prescribe those activities which, for employees under its jurisdiction, will be considered inconsistent, incompatible or in conflict with their duties as classified employees. In making this determination the Appointing Authority shall give consideration to employment, activity or enterprise which: (a) involves the use for private gain or advantage of state time, facilities, equipment and supplies; or, the badge, uniform, prestige or influence of one's state office of employment, or (b) involves receipt or acceptance by the classified employee of any money or other consideration from anyone, other than the State, for the performance of an act which the classified employee would be required or expected to render in the regular course or hours of his state employment or as a part of his duties as a state classified employee, or (c) involves the performance of an act in other than his capacity as a state classified employee which act may later be subject directly or indirectly to the control, inspection, review, audit or enforcement by such classified employee or the agency by which he is employed.
Each classified employee shall during his hours of duty and subject to such other laws, rules and regulations as pertain thereto, devote his full time, attention and efforts to his office or employment.
4. Rule 1209.2 provides:
Any classified employee shall resign his position prior to filing as a candidate for public office, seeking or accepting nomination for election or appointment as an official of a political party, partisan political club or organization or serving as a member of a committee of any such group or organization.
5. Rule 1641 also provides:
Continued use or display of such political material shall be deemed willful intent to violate the provisions of 74 O.S.1961 § 818 relating to prohibited political activities of classified State employees and shall subject such employee to dismissal pursuant to said statute.
6. See also Niemotko v. Maryland, 340 U.S. 268, 285 (1951) (Frankfurter, J., concurring in the result in related case of Kunz v. New York, 340 U.S. 290 (1951)): "It is not for this Court to formulate with particularity the terms of a permit system which would satisfy the Fourteenth Amendment."
7. In addition to the regulations promulgated by the State Personnel Board, the Court places some reliance on an interpretive circular issued by the Board and on certain opinions issued by the State Attorney General. Even assuming that these constructions should properly be considered in gauging the reach of the Act, they offer little real guidance to the meaning of the terms. The circular, for example, states that
The right to express political opinions is reserved to all such persons. Note: This reservation is subject to the prohibition that such persons may not take active part;n political management or in political campaigns.
See ante at 617 n. 15. The second half of that statement merely restates the provision of the Act. The first half can hardly be said to convey any fixed meaning. In fact, given the statement in the Act that the right to make a private expression of political views is protected, an employee might reasonably interpret the circular to mean that "The right to express political opinions is reserved to all such persons, provided that such expression is not made in public." Similarly, the Court makes reference to an Opinion of the Attorney General holding, "in plain terms," ante at 617, that the Act applies only to "clearly partisan political activity." I am at a loss to see how these statements offer any clarification of the provisions of the Act.
8. Raines concerned a prosecution under § 131 of the Civil Rights Act of 1957, charging that the defendants, in their capacity as state officials, had discriminated against blacks who desired to register to vote. The defendants' conduct plainly fell within the permissible reach of the statute. But more importantly, it was not even suggested that the statute might conceivably be used to punish the exercise of First Amendment rights. While stating the general rule that a defendant normally may not assert the constitutional rights of a person not a party, Raines did specifically recognize that the rule is suspended in cases where its application would "itself have an inhibitory effect on freedom of speech." 362 U.S. 17, 22. Cf. United States v. National Dairy Corp., 372 U.S. 29 (1963); Yazoo & M. v. R. Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912).
9. See also Kunz v. New York, 340 U.S. 290 (1951); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Terminiello v. Chicago, 337 U.S. 1 (1949).
10. The Court has applied overbreadth review to many other statutes that assertedly had a "chilling effect" on protected conduct, rather than on "pure speech." See, e.g., United States v. Robel, 389 U.S. 258 (1967); Aptheker v. Secretary of State, supra; Thornhill v. Alabama, 310 U.S. 88 (1940). In none of these cases, or others involving conduct rather than speech, did the Court suggest that a defendant would lack standing to raise the overbreadth claim if his conduct could be proscribed by a narrowly drawn statute.