| Broadrick v. Oklahoma
(No. 71-1639)
338 F.Supp. 711, affirmed. |
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| Syllabus
| Opinion
[ White ] | Dissent
[ Douglas ] | Dissent
[ Brennan ] |
| HTML version
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 DOUGLAS, dissenting.
This case in my view should be governed by some of the considerations I set forth in my dissent in the Letter Carriers case, ante, p. 595.
Section 818, par. 7, of the Oklahoma Act states:
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 [p619] to express his opinion and to cast his vote.
(Emphasis supplied.)
If this were a regulation of business or commercial matters, the Court's citation of Connally v. General Construction Co., 269 U.S. 385, 391, would be apt. Connally was a case involving a state law making it a crime for contractors with the State to pay their workmen less than the "current rate of per diem wages in the locality where the work is performed." The Court held the Act too vague to pass muster as a penal measure. I would concede that, by the Connally test § 818, par. 7, would not fall. For the provision in question bars an employee from taking
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.
But the problem here concerns not commerce, but the First Amendment. The First Amendment goes further than protecting a person for "privately" expressing his opinion. Public as well as private discourse is included, and the emphasis in § 818, par. 7, that private expression of views is tolerated emphasizes that public expression is not tolerated.
I do not see how government can deprive its employees of the right to speak, write, assemble, or petition once the office is closed and the employee is home on his own. Public discussion of local, state, national, and international affairs is grist for the First Amendment mill. Our decisions emphasize that free debate, uninhibited discussion, robust and wide-open controversy, a multitude of tongues, the pressure of ideas clear across the spectrum set the pattern of First Amendment freedoms. We emphasized in New York Times Co. v. Sullivan, 376 U.S. 254, 272, that neither injury "to official reputation" nor "factual error" justified repression of [p620] speech, that the demands of free speech lowered the barriers to libel actions for charges of official misconduct or improprieties.
First Amendment rights are indeed fundamental, for "we the people" are the sovereigns, not those who sit in the seats of the mighty. It is the voice of the people who ultimately have the say; once we fence off a group, and bar them from public dialogue, the public interest is the loser. Those who are tied into the federal regime either by direct employment or by state projects federally financed now amount to about five and a half million. The number included, if all state employees are added, is estimated [*] at over 13 million.
These people are scrubwomen, janitors, typists, file clerks, chauffeurs, messengers, nurses, orderlies, policemen and policewomen, night watchmen, telephone and elevator operators, as well as those doing some kind of administrative, executive, or judicial work. There are activities that do not touch on First Amendment rights which can be banned. There are illegal election procedures such as wiretapping, burglary, and mailing politically salacious letters that are beyond the pale. The First Amendment, however, concerns a variety of activities that are deep in our tradition: forming ad hoc committees to lobby measures through a council or other legislative body; organizing protective associations to protect lakes, rivers, islands of wilderness, or a neighborhood; preparing and circulating petitions for signatures in support of legislative reforms; making protest marches or picketing the statehouse for a public cause -- these as well as debate, passing out campaign literature, watching at the polls, making radio and TV appearances, addressing rallies in parks or auditoriums, are all part of the intense process of mobilizing "we the people" for or against [p621] specific measures, shaping public opinion, getting X rather than Y elected, and so on.
A bureaucracy that is alert, vigilant, and alive is more efficient than one that is quiet and submissive. It is the First Amendment that makes it alert, vigilant, and alive. It is suppression of First Amendment rights that creates faceless, nameless bureaucrats who are inert in their localities and submissive to some master's voice. High values ride on today's decision in this case, and in Letter Carriers. I would not allow the bureaucracy in the State or Federal Government to be deprived of First Amendment rights. Their exercise certainly is as important in the public sector as it is in the private sector. Those who work for government have no watered-down constitutional rights. So far as the First Amendment goes, I would keep them on the same plane as all other people.
I would reverse the judgment below.
* Statistical Abstract of the United States 1972, pp. 403, 431.