BOND ET AL. v. FLOYD ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. No. 87.
Argued November 10, 1966.
Decided December 5, 1966.
Several months after the election in June 1965 to the Georgia House of Representatives of appellant Bond, a Negro, a civil rights organization of which he was a staff member issued an anti-war statement against the Government's Vietnam policy and the operation of the Selective Service laws. Bond endorsed the statement in a news interview stating among other things that as "a second class citizen" he was not required to support the war, as a pacifist he was opposed to all war, and he saw nothing inconsistent with his statement and his taking the oath of office. House members in petitions challenged Bond's right to be seated, charging that his statements aided our enemies, violated the Selective Service laws, discredited the House, and were inconsistent with the legislator's mandatory oath to support the Constitution. Following the House clerk's refusal to seat him, Bond, manifesting willingness to take the oath, challenged the petitions as depriving him of his First Amendment rights and being racially motivated. At a House committee hearing Bond amplified his views and denied having urged draft card burning or other law violations. Following the hearing, the committee concluded that Bond should not be seated and the House thereafter refused to seat him. Bond brought this action in District Court for injunctive relief and a declaratory judgment. The District Court, holding that it had jurisdiction to decide the constitutional issue, concluded that Bond had been accorded procedural due process through the hearing. It also held that the House had a rational basis for concluding that Bond's remarks exceeded criticism of national policy and that he could not in good faith take an oath to support the State and Federal Constitutions and thus could not meet a qualification for membership which the House had the power to impose. While Bond's appeal to this Court under 28 U.S.C. 1253 from that decision was pending he was again elected as a Representative, in a special election. He was rejected by the House Rules Committee [385 U.S. 116, 117] when he declined to recant, and later was elected again, in the regular 1966 primary and general elections. Held:
Howard Moore, Jr., and Leonard B. Boudin argued the cause for appellants. With them on the briefs was Victor Rabinowitz.
Arthur K. Bolton, Attorney General of Georgia, argued the cause for appellees. With him on the brief were William L. Harper and Alfred L. Evans, Jr., Assistant Attorneys General, and Paul L. Hanes, Deputy Assistant Attorney General.
Briefs of amici curiae, urging reversal, were filed by Robert L. Carter for the National Association for the Advancement of Colored People; Melvin L. Wulf and [385 U.S. 116, 118] Charles Morgan, Jr., for the American Civil Liberties Union et al.; and by Joseph B. Robison for the American Jewish Congress.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The question presented in this case is whether the Georgia House of Representatives may constitutionally exclude appellant Bond, a duly elected Representative, from membership because of his statements, and statements to which he subscribed, criticizing the policy of the Federal Government in Vietnam and the operation of the Selective Service laws. An understanding of the circumstances of the litigation requires a complete presentation of the events and statements which led to this appeal.
Bond, a Negro, was elected on June 15, 1965, as the Representative to the Georgia House of Representatives from the 136th House District. Of the District's 6,500 voters, approximately 6,000 are Negroes. Bond defeated his opponent, Malcolm Dean, Dean of Men at Atlanta University, also a Negro, by a vote of 2,320 to 487.
On January 6, 1966, the Student Nonviolent Coordinating Committee, a civil rights organization of which Bond was then the Communications Director, issued the following statement on American policy in Vietnam and its relation to the work of civil rights organizations in this country:
Before January 10, 1966, when the Georgia House of Representatives was scheduled to convene, petitions challenging Bond's right to be seated were filed by 75 House members. These petitions charged that Bond's statements gave aid and comfort to the enemies of the United States and Georgia, violated the Selective Service laws, and tended to bring discredit and disrespect on the House. The petitions further contended that Bond's endorsement of the SNCC statement "is totally and completely repugnant to and inconsistent with the mandatory oath prescribed by the Constitution of Georgia for a Member of the House of Representatives to take before taking his seat." For the same reasons, the petitions asserted that Bond could not take an oath to support the Constitution of the United States. When Bond appeared at the House on January 10 to be sworn in, the clerk refused to administer the oath to him until the issues raised in the challenge petitions had been decided.
Bond filed a response to the challenge petitions in which he stated his willingness to take the oath and argued that he was not unable to do so in good faith. He further argued that the challenge against his seating had been filed to deprive him of his First Amendment rights, and that the challenge was racially motivated. A special committee was appointed to report on the challenge, and a hearing was held to determine exactly what Bond had said and the intentions with which he had said it.
At this hearing, the only testimony given against Bond was that which he himself gave the committee. Both the opponents Bond had defeated in becoming the Representative of the 136th District testified to his good character and to his loyalty to the United States. A recording of the interview which Bond had given to the reporter after the SNCC statement was played, and Bond was called to the stand for cross-examination. He there admitted his statements and elaborated his views. He [385 U.S. 116, 124] stated that he concurred in the SNCC statement "without reservation," and, when asked if he admired the courage of persons who burn their draft cards, responded:
Bond then instituted an action in the District Court for the Northern District of Georgia for injunctive relief [385 U.S. 116, 126] and a declaratory judgment that the House action was unauthorized by the Georgia Constitution and violated Bond's rights under the First Amendment. A three-judge District Court was convened under 28 U.S.C. 2281. All three members of the District Court held that the court had jurisdiction to decide the constitutionality of the House action because Bond had asserted substantial First Amendment rights. 1 On the merits, however, the court was divided.
Judges Bell and Morgan, writing for the majority of the court, addressed themselves first to the question of whether the Georgia House had power under state law to disqualify Bond based on its conclusion that he could not sincerely take the oath of office. They reasoned that separation-of-powers principles gave the Legislature power to insist on qualifications in addition to those specified in the State Constitution. The majority pointed out that nothing in the Georgia Constitution limits the qualifications of the legislators to those expressed in the constitution.
Having concluded that the action of the Georgia House was authorized by state law, the court considered whether Bond's disqualification violated his constitutional right of freedom of speech. It reasoned that the decisions of this Court involving particular state political offices supported an attitude of restraint in which the principles of separation of powers and federalism should be balanced against the alleged deprivation of individual constitutional rights. On this basis, the majority below fashioned the test to be applied in this case as being whether the refusal to seat Bond violated procedural or what it termed substantive due process. The court held that the hearing which had been given Bond by the House satisfied procedural due process. As for [385 U.S. 116, 127] what it termed the question of substantive due process, the majority concluded that there was a rational evidentiary basis for the ruling of the House. It reasoned that Bond's right to dissent as a private citizen was limited by his decision to seek membership in the Georgia House. Moreover, the majority concluded, the SNCC statement and Bond's related remarks went beyond criticism of national policy and provided a rational basis for a conclusion that the speaker could not in good faith take an oath to support the State and Federal Constitutions:
Bond appealed directly to this Court from the decision of the District Court under 28 U.S.C. 1253. While this appeal was pending, the Governor of Georgia called a special election to fill the vacancy caused by Bond's exclusion. Bond entered this election and won overwhelmingly. The House was in recess, but the Rules Committee held a hearing in which Bond declined to recant his earlier statements. Consequently, he was again prevented from taking the oath of office, and the seat has remained vacant. Bond again sought the seat from the 136th District in the regular 1966 election, and he won the Democratic primary in September 1966, and won an overwhelming majority in the election of November 8, 1966. 4
The Georgia Constitution sets out a number of specific provisions dealing with the qualifications and eligibility of state legislators. These provide that Representatives shall be citizens of the United States, at least 21 years of age, citizens of Georgia for two years, and residents for one year of the countries from which elected. 5 The [385 U.S. 116, 129] Georgia Constitution further provides that no one convicted of treason against the State, or of any crime of moral turpitude, or of a number of other enumerated crimes may hold any office in the State. 6 Idiots and insane persons are barred from office, 7 and no one holding any state or federal office is eligible for a seat in either house. 8 The State Constitution also provides:
The State does not claim that Bond refused to take the oath to support the Federal Constitution, a requirement imposed on state legislators by Art. VI, cl. 3, of the United States Constitution:
We are not persuaded by the State's attempt to distinguish, for purposes of our jurisdiction, between an exclusion alleged to be on racial grounds and one alleged to violate the First Amendment. The basis for the argued distinction is that, in this case, Bond's disqualification was grounded on a constitutional standard - the requirement of taking an oath to support the Constitution. But Bond's contention is that this standard was utilized to infringe his First Amendment rights, and we cannot distinguish, for purposes of our assumption of jurisdiction, between a disqualification under an unconstitutional standard and a disqualification which, although under color of a proper standard, is alleged to violate the First Amendment.
We conclude as did the entire court below that this Court has jurisdiction to review the question of whether the action of the Georgia House of Representatives deprived Bond of federal constitutional rights, and we now move to the central question posed in the case - whether Bond's disqualification because of his statements violated [385 U.S. 116, 132] the free speech provisions of the First Amendment as applied to the States through the Fourteenth Amendment.
The State argues that the exclusion does not violate the First Amendment because the State has a right, under Article VI of the United States Constitution, to insist on loyalty to the Constitution as a condition of office. A legislator of course can be required to swear to support the Constitution of the United States as a condition of holding office, but that is not the issue in this case, as the record is uncontradicted that Bond has repeatedly expressed his willingness to swear to an oath provided for in the State and Federal Constitutions. Nor is this a case where a legislator swears to an oath pro formal while declaring or manifesting his disagreement with or indifference to the oath. Thus, we do not quarrel with the State's contention that the oath provisions of the United States and Georgia Constitutions do not violate the First Amendment. But this requirement does not authorize a majority of state legislators to test the sincerity with which another duly elected legislator can swear to uphold the Constitution. Such a power could be utilized to restrict the right of legislators to dissent from national or state policy or that of a majority of their colleagues under the guise of judging their loyalty to the Constitution. Certainly there can be no question but that the First Amendment protects expressions in opposition to national foreign policy in Vietnam and to the Selective Service system. The State does not contend otherwise. But it argues that Bond went beyond expressions of opposition, and counselled violations of the Selective Service laws, and that advocating violation of federal law demonstrates a lack of support for the Constitution. The State declines to argue that Bond's statements would violate any law if made by a private citizen, but it does argue that even though such [385 U.S. 116, 133] a citizen might be protected by his First Amendment rights, the State may nonetheless apply a stricter standard to its legislators. We do not agree.
Bond could not have been constitutionally convicted under 50 U.S.C. App. 462 (a), which punishes any person who "counsels, aids, or abets another to refuse or evade registration." 12 Bond's statements were at worst unclear on the question of the means to be adopted to avoid the draft. While the SNCC statement said "We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft," this statement alone cannot be interpreted as a call to unlawful refusal to be drafted. Moreover, Bond's supplementary statements tend to resolve the opaqueness in favor of legal alternatives to the draft, and there is no evidence to the contrary. On the day the statement was issued, Bond explained that he endorsed it "because I like to think of myself as a pacifist and one who opposes that war and any other war and eager and anxious to [385 U.S. 116, 134] encourage people not to participate in it for any reason that they choose." In the same interview, Bond stated categorically that he did not oppose the Vietnam policy because he favored the Communists; that he was a loyal American citizen and supported the Constitution of the United States. He further stated "I oppose the Viet Cong fighting in Viet Nam as much as I oppose the United States fighting in Viet Nam." At the hearing before the Special Committee of the Georgia House, when asked his position on persons who burned their draft cards, Bond replied that he admired the courage of persons who "feel strongly enough about their convictions to take an action like that knowing the consequences that they will face." When pressed as to whether his admiration was based on the violation of federal law, Bond stated:
The State attempts to circumvent the protection the First Amendment would afford to these statements if made by a private citizen by arguing that a State is constitutionally justified in exacting a higher standard of loyalty from its legislators than from its citizens. Of course, a State may constitutionally require an oath to support the Constitution from its legislators which it does not require of its private citizens. But this difference in treatment does not support the exclusion of Bond, for while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators' capacity to discuss their views of local or national policy. 13 The manifest function of [385 U.S. 116, 136] the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), is that "debate on public issues should be uninhibited, robust, and wide-open." We think the rationale of the New York Times case disposes of the claim that Bond's statements fell outside the range of constitutional protection. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. The State argues that the New York Times principle should not be extended to statements by a legislator because the policy of encouraging free debate about governmental operations only applies to the citizen-critic of his government. We find no support for this distinction in the New York Times case or in any other decision of this Court. The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators. Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates [385 U.S. 116, 137] by the person they have elected to represent them. We therefore hold that the disqualification of Bond from membership in the Georgia House because of his statements violated Bond's right of free expression under the First Amendment. Because of our disposition of the case on First Amendment grounds, we need not decide the other issues advanced by Bond and the amici. 14
The judgment of the District Court is
[ Footnote 2 ] Id., at 344.
[ Footnote 3 ] Id., at 345.
[ Footnote 4 ] A question was raised in oral argument as to whether this case might not be moot since the session of the House which excluded Bond was no longer in existence. The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.
[ Footnote 5 ] Georgia Const., Art. 3, 6 ( 2-1801, Ga. Code Ann.).
[ Footnote 6 ] Georgia Const., Art. 2, 2 ( 2-801, Ga. Code Ann.).
[ Footnote 7 ] Ibid.
[ Footnote 8 ] Georgia Const., Art. 3, 4 ( 2-1606, Ga. Code Ann.).
[ Footnote 9 ] Georgia Const., Art. 3, 7 ( 2-1901, Ga. Code Ann.).
[ Footnote 10 ] Georgia Const., Art. 3, 4 ( 2-1605, Ga. Code Ann.).
[ Footnote 11 ] See Gomillion v. Lightfoot, 364 U.S. 339 (1960), in which the Court stated: "When a State exercises power wholly within the [385 U.S. 116, 131] domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right." 364 U.S., at 347 .
[ Footnote 12 ] The pertinent provisions of 462 (a) are as follows:
[ Footnote 13 ] Madison and Hamilton anticipated the oppressive effect on freedom of expression which would result if the legislature could utilize its power of judging qualifications to pass judgment on a legislator's political views. At the Constitutional Convention of 1787, Madison opposed a proposal to give to Congress power to establish qualifications in general. Warren, The Making of the Constitution 420-422 (1937). The Journal of the Federal Convention of 1787 states:
[ Footnote 14 ] Bond argues that the action of the Georgia House was not authorized by state law, that if the State Constitution allows this exclusion it does so pursuant to an oath which is unconstitutionally vague, that the exclusion was based on statements protected by the First Amendment, and that the exclusion is a bill of attainder and an ex post facto law. In addition, amicus briefs filed in support of appellant Bond add the arguments that the decision not to seat him was inextricably involved with race prejudice and that it violated the guarantee of a republican form of government clause.
Similarly, we need not pass on the standing of two of Bond's constituents who joined in the suit below. The majority below dismissed the complaint as to these two constituents because they lacked a sufficiently direct interest in the controversy as would give them standing. The majority noted that it was appropriate to dismiss the case as to Bond's constituents because Bond's complaint would resolve every issue necessary to a decision in the case. We express no opinion on the question of whether Bond's constituents can claim that concrete adverseness which would be necessary to give them standing. [385 U.S. 116, 138]