"BOND et al. v. FLOYD et al. 385 U.S. 116"
No. 87. Argued November 10, 1966. -- Decided December 5, 1966.
FULL TEXT
Several months after the election in June 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 statement 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. Sec. 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 when he declined to recant,
and later was elected again, in the regular 1966 primary and general elections. Held:
1. This court has jurisdiction to determine whether a disqualification
for the office of state legislator under color of a proper
Constitutional standard violates First Amendment rights. P. 131.
2. In disqualifying Bond because of his statements the State
violated the First Amendment made applicable to the States by the
Fourteenth. Pp. 131-137.
(a) A majority of state legislators is not authorized to test the
sincerity with which another duly elected legislator meets the
requirements for holding office of swearing to support the Federal
and State Constitutions. P. 132.
(b) The State may not apply to a legislator a First Amendment
standard stricter than that applicable to a private citizen. Pp.
132-133.
(c) Bond's statements do not show an incitement to violate the
Selective Service statute's prohibition of counseling against
registration for military service. Pp. 133-134.
(d) Though a State may impose an oath requirement on legislators
it cannot limit their capacity to express views on local or national
policy. "[D]ebate on public issues should be uninhibited, robust and
wide-open." New York Times v Sullivan, 376 U.S. 254, 270. Pp. 135-136.
251 F. Supp. 333, reversed.
BOND ET AL. v. FLOYD ET AL.
Appeal from the United States District Court for the Northern
District of Georgia.
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:
"The Student Non-Violent Coordinating Committee has a right and a
responsibility to dissent with United States foreign policy on an
issue when it sees fit. The Student Non-Violent Coordinating Committee
now states its opposition to United States' involvement in Viet Nam on
these grounds:
We believe the United States government has been deceptive in its
claims of concern for freedom of the Vietnamese people, just as the
government has been deceptive in claiming concern for the freedom of
colored people in such other countries as the Dominican Republic, the
Congo, South Africa, Rhodesia, and in the United States itself.
We, the Student Non-Violent Coordinating Committee, have been involved
in the black people's struggle for liberation and self determination in
this country for the past five years. Our work, particularly in the
South, has taught us that the United States government has never
guaranteed the freedom of oppressed citizens, and is not yet truly
determined to end the rule of terror and oppression within its own
borders.
We ourselves have often been victims of violence and confinement
executed by United States government officials. We recall the numerous
persons who have been murdered in the South because of their efforts to
secure their civil and human rights, and whose murderers have been
allowed to escape penalty for their crimes.
The murder of Samuel Young in Tuskegee, Ala., is no different than the
murder of peasants in Viet Nam, for both Young and the Vietnamese
sought, and are seeking, to secure the rights guaranteed them by law.
In each case the United States government bears a great part of the
responsibility for these deaths.
Samuel Young was murdered because United States law is not being
enforced. Vietnamese are murdered because the United States is pursuing
an aggressive policy in violation of international law. The United States
is no respecter of persons or law when such persons or laws run counter
to its needs and desires.
We recall the indifference, suspicion and outright hostility with which
our reports of violence have been met in the past by government
officials.
We know that for the most part, elections in this country, in the North
as well as the South, are not free. We have seen that the 1965 Voting
Rights Act and the 1964 Civil Rights Act have not yet been implemented
with full federal power and sincerity.
We question, then, the ability and even the desire of the United States
government to guarantee free elections abroad. We maintain that our
country's cry of 'preserve freedom in the world' is a hypocritical
mask behind which it squashes liberation movements which are not bound,
and refuse to be bound, by the expediencies of United States Cold War
policies.
We are in sympathy with, and support, the men in this country who are
unwilling to respond to a military draft which would compel them to
contribute their lives to United States aggression in Viet Nam in the
name of 'freedom' we find so false in this country.
We recoil with horror at the inconsistency of a supposedly 'free'
society where responsibility to freedom is equated with the
responsibility to lend oneself to military aggression. We take note
of the fact that 16 per cent of the draftees from this country are
Negroes called on to stifle the liberation of Viet Nam, to preserve a
'democracy' which does not exist for them at home.
We ask, where is the draft for the freedom fight in the United States?
We therefore encourage those Americans who prefer to use their
energy in building democratic forms within this country. We believe
that work in the Civil Rights Movement and with other human relations
organizations is a valid alternative to the draft. We urge all
Americans to seek this alternative, knowing full well that it may
cost their lives -- as painfully as in Viet Nam."
On the same day that this statement was issued, Bond was interviewed
by telephone by a reporter from a local radio station, and, although
Bond had not participated in drafting the statement, he endorsed the
statement in these words:
"Why, I endorse it, first 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 encourage people not to participate in it for any
reason that they choose; and secondly, I agree with this statement
because of the reason set forth in it - because I think it is sorta
hypocritical for us to maintain that we are fighting for liberty in
other places and we are not guaranteeing liberty to citizens inside
the continental United States.
Well, I think that the fact that the United States government fights
a war in Viet Nam, I don't think that I as a second class citizen of
the United States have a requirement to support that war. I think my
responsibility is to oppose things that I think are wrong if they are
in Viet Nam or New York, or Chicago, or Atlanta, or wherever."
When the interviewer suggested that our involvement in Vietnam was
because "if we do not stop Communism there that it is just a question
of where will we stop it next," Bond replied:
"Oh, no, I'm not taking a stand against stopping world Communism, and
I'm not taking a stand in favor of the Viet Cong. What I'm saying that
is, first, that I don't believe in that war. That particular war. I'm
against all war. I'm against that war in particular, and I don't think
people ought to participate in it. Because I'm against war, I'm against
the draft. I think that other countries in the world get along without
a draft - England is one - and I don't see why we couldn't, too.
... I'm not about to justify that war, because it's stopping
International Communism, or whatever -- you know, I just happen to
have a basic disagreement with wars for whatever reason they are
fought -- ... [F]ought to stop International Communism, to promote
International Communism, or for whatever reason. I oppose the Viet
Cong fighting in Viet Nam as much as I oppose the United States
fighting in Viet Nam. I happen to live in the United States. If
I lived in North Viet Nam I might not have the same sort of freedom
of expression, but it happens that I live here -- not there."
The interviewer also asked Bond if he felt he could take the oath of
office required by the Georgia Constitution, and Bond responded that
he saw nothing inconsistent between his statements and the oath. Bond
was also asked whether he would adhere to his statements if war were
declared on North Vietnam and if his statements might become treasonous.
He replied that he did not know "If I'm strong enough to place myself in
a position where I'd be guilty of treason."
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 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:
"I admire people who take an action, and I admire people who feel
strongly enough about their convictions to take an action like that
knowing the consequences that they will face, and that was my original
statement when asked that question.
I have never suggested or counseled or advocated that any one other
person burn their draft card. In fact, I have mine in my pocket and
will produce it if you wish. I do not advocate that people should break
laws. What I simply try to say was that I admired the courage of
someone who could act on his convictions knowing that he faces pretty
stiff consequences."
Tapes of an interview Bond had given the press after the clerk had
refused to give him the oath were also heard by the special committee.
In this interview, Bond stated:
"I stand before you today charged with entering into public
discussion on matters of national interest. I hesitate to offer
explanations for my actions or deeds where no charge has been
levied against me other than the charge that I have chosen to
speak my mind and no explanation is called for, for no member
of this House, has ever, to my knowledge, been called upon to
explain his public statements for public postures as a prerequisite
to admission to that body. I therefore, offer to my constituents
a statement of my views. I have not counseled burning draft cards,
nor have I burned mine. I have suggested that Congressionally outlined
alternatives to military service be extended to building democracy at
home. The posture of my life for the past five years has been
calculated to give Negroes the ability to participate in formulation
of public policies. The fact of my election to public office does not
lessen my duty or desire to express my opinions even when they differ
from those held by others. As to the current controversy because of
my convictions that I have arrived at through examination of my
conscience I have decided I personally cannot participate in war.
I stand here with intentions to take an oath - that oath they just
took in there - that will dispel any doubts about my convictions or
loyalty."
The special committee gave general approval in its report to the
specific charges in the challenge petitions that Bond's endorsement
of the SNCC statement and his supplementary remarks showed that he
"does not and will not" support the Constitutions of the United
States and of Georgia, that he "adheres to the enemies of the ...
State of Georgia" contrary to the State Constitution, that he gives
aid and comfort to the enemies of the United States, that his
statements violated the Universal Military Training and Service
Act, Sec 12, 62 Stat. 622, 50 U.S.C. App. Sec 462, and that his
statements "are reprehensible and are such as to tend to bring
discredit to and disrespect of the House." On the same day the
House adopted the committee report without findings and without
further elaborating Bond's lack of qualifications, and resolved
by a vote of 184 to 12 that "Bond shall not be allowed to take
the oath of office as a member of the House of Representatives
and that Representative-Elect Julian Bond shall not be seated
as a member of the House of Representatives."
Bond then instituted an action in the District Court for the
Northern District of Georgia for injunctive relief 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. Sec 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 the 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 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:
"A citizen would not violate his oath by objecting to or criticizing
this policy or even by calling it deceptive and false as the statement
did.
But the statement does not stop with this. It is a call to action based
on race; a call alien to the concept of the pluralistic society which
makes this nation. It aligns with the organizations with '...colored
people in such other countries as the Dominican Republic, the Congo,
South Africa, Rhodesia....' It refers to its involvement in the black
people's struggle for liberation and self-determination....' It states
that 'Vietnamese are murdered because the United States is pursuing an
aggressive policy in violation of international law.' It alleges that
Negroes, referring to American servicemen, are called on to stifle the
liberation of Viet Nam.
The call to action, and this is what we find to be a rational basis
for the decision which denied Mr. Bond his seat, is that language
which states that SNCC support those men in this country who are
unwilling to respond to a military draft."2
Chief Judge Tuttle dissented.3 He reasoned that the question of
the power of the Georgia House under the State Constitution to
disqualify a Representative under these circumstances had never
been decided by the state courts, and that federal courts should
construe state law, if possible, so as to avoid unnecessary federal
constitutional issues. Since Bond satisfied all the stated
qualifications in the State Constitution, Chief Judge Tuttle
concluded that his disqualification was beyond the power of the
House as a matter of state constitutional law.
Bond appealed directly to this Court from the decision of the
District Court under 28 U.S.C. Sec. 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 won an overwhelming majority in the election of
November 8, 19667.4
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 lease 21 years of age, citizens of Georgia for two years,
and residents for one year of the counties from which elected.5
The 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:
"Election, returns, etc.; disorderly conduct. -- Each House shall be
the judge of the election, returns and qualifications of its members
and shall have power to punish them for disorderly behavior, or
misconduct, by censure, fine, imprisonment, or expulsion; but no
member shall be expelled, except by a vote of two-thirds of the
House to which he belongs."9
These constitute the only stated qualifications for membership in
the Georgia Legislature and the State concedes that Bond meets all
of them. The Georgia Constitution also requires Representatives to
take an oath stated in the Constitution:
"Oath of members. - Each senator and Representative, before taking
his seat, shall take the following oath, or affirmation, to-wit: 'I
will support the Constitution of this State and of the United States,
and on all questions and measures which may come before me, I will so
conduct myself, as will, in my judgment, be most conducive to the
interests and prosperity of this State.'"10
The State points out in its brief that the latter part of this oath,
involving the admonition to act in the best interests of the State,
was not the standard by which Bond was judged.
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:
"The Senators and Representatives before mentioned, and the members
of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall
be bound by Oath or Affirmation, to support this Constitution; but no
religious Tests shall ever be required as a Qualification to any Office
or public Trust under the United States."
Instead, if argues that the oath provisions of the State and Federal
Constitutions constitute an additional qualification. Because under
state law the legislature has exclusive jurisdiction to determine
whether an elected Representative meets the enumerated qualifications,
it is argued that the legislature has power to look beyond the plain
meaning of the oath provisions which merely require that the oaths be
taken. This additional power is said to extend to determining whether
a given Representative may take the oath with sincerity. The State
does not claim that is should be completely free of judicial review
whenever it disqualifies an elected Representative; it admits that,
if a State Legislature excluded a legislator on racial or other
clearly unconstitutional grounds, the federal (or state) judiciary
would be justified in testing the exclusion by federal constitutional
standards.11 But the State argues that there can be no doubt as to the
constitutionality of the qualification involved in this case because
it is one imposed on the State Legislatures by Article VI of the United
States Constitution. Moreover, the State contends that no decision of
this Court suggests that a State may not ensure the loyalty of its
public servants by making the taking of an oath a qualification of
office. Thus the State argues that there should be no judicial review
of the legislature's power to judge whether a prospective member may
conscientiously take the oath required by the State and Federal
Constitutions.
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 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 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 the oaths provided for in the State and
Federal Constitutions. Nor is this a case where a legislator swears
to an oath pro forma 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 counseled 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 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. Sec. 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 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:
"I have never suggested or counseled or advocated that any one other
person burn their draft card. In fact, I have mine in my pocket and
will produce it if you wish. I do not advocate that people should
break laws. What I simply try to say was that I admired the courage
of someone who could act on his convictions knowing that he faces
pretty stiff consequences."
Certainly this clarification does not demonstrate any incitement to
violation of the law. No useful purpose would be served by discussing
the many decisions of this Court which establish that Bond could not
have been convicted for these statements consistently with the First
Amendment. See, e.g., Wood v. Georgia, 370 U.S. 375 (1962); Yates v.
United States, 354 U.S. 298 (1957); Terminiello v. Chicago, 337 U.S. 1
(1949). Nor does the fact that the District Court found the SNCC
statement to have racial overtones constitute a reason for holding
it outside the protection of the First Amendment. In fact the State
concedes that there is no issue of race in the case.
The State attempts to circumvent the protection of 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
legislators' capacity to discuss their views of local or national
policy.13 The manifest function of 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 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
Reversed.
1 The opinion of the District Court is reported at 251 F. Supp. 333 (1966).
2 Id., at 344.
3 Id., at 345.
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.
5 Georgia Const., Art. 3, Sec 6 (Sec 2-1801, Ga. Code Ann.).
6 Georgia Const., Art. 2, Sec 2 (Sec 2-801, Ga. Code Ann.).
7 Ibid.
8 Georgia Const., Art. 3, Sec 4 (Sec 2-1606, Ga. Code Ann.).
9 Georgia Const., Art. 3, Sec 7 (Sec 2-1901, Ga. Code Ann.).
10 Georgia Const., Art. 3, Sec 4 (Sec 2-1605, Ga. Code Ann.).
11 See Gomillion v. Lightfoot, 364 U.S. 339 (1960), in which the Court
stated: "When a State exercises power wholly within the 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.
12 The pertinent provisions of Sec 462(a) are as follows:
"[A]ny person who shall knowingly make, or be a party to the making,
of any false statement or certificate regarding or bearing upon a
classification or in support of any request for a particular
classification, for service under the provisions of this title..., or
rules, regulations, or directions made pursuant thereto, or who
otherwise evades or refuses registration or service in the armed
forces or any of the requirements of this title..., or who knowingly
counsels, aids, or abets another to refuse or evade registration or
service in the armed forces or any of the requirements of this
title..., or of said rules, regulations, or directions,... or any
person or persons who shall knowingly hinder or interfere or attempt to
do so in any way, by force or violence or otherwise, with the
administration of this title... or the rules or regulations made
pursuant thereto, or who conspires to commit any one or more of
such offenses, shall, upon conviction in any district court of the
United States of competent jurisdiction, be punished by imprisonment
for not more than five years or a fine of not more than $10,000, or
by both such fine and imprisonment..."
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:
"Mr. Madison was opposed to the Section as vesting an improper
and dangerous power in the Legislature. The qualifications of
electors and elected were fundamental articles in a Republican Govt.
and ought to be fixed by the Constitution. If the Legislature could
regulate those of either, it can by degrees subvert the Constitution...
Qualifications founded on artificial distinctions may be devised, by
the stronger in order to keep out partizans of a weaker faction.
"Mr. Madison observed that the British Parliamt. possessed the power
of regulating the qualifications both of the electors, and the elected;
and the abuse they had made of it was a lesson worthy of our attention.
They had made the changes in both cases subservient to their own views,
or to the views of political or Religious parties." 2 Farrand, The
Records of the Federal Convention of 1787, pp. 249-250 (Aug. 10, 1787).
Hamilton agreed with Madison that:
"The qualifications of the persons who may choose or be
chosen... are defined and fixed in the constitution; and are
unalterable by the legislature." The Federalist, No. 60 p. 409
(Cooke ed. 1961).
14 Bond argues that the action of the Georgia House was not
authorized by state law, that if the State Constitution allows
this exclusions 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 x 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.
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