The opinion
Wright, J.
(dissenting) — I do not express any view on the matter of the wisdom or the efficacy of a loyalty oath. The wisdom of legislation is within the discretion of the legislature. We are concerned only with whether the act in question violates a specific prohibition of the state or federal constitution.
The first amendment to the United States Constitution reads:
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.
*547 While the First Amendment is only a restriction on the powers of Congress, the protections thereof were extended to protect against the acts of states by the Fourteenth Amendment.
In Edwards v. South Carolina, 372 U.S. 229 , 9 L. Ed. 2d 697 , 83 S. Ct. 680 (1963), it was said at page 235:
It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States. [Citations omitted.]
The First Amendment protects the freedom of speech, one of the protections demanded by the citizens of the original 13 states as a condition for ratifying the constitution. The meaning of the First Amendment becomes clear when viewed against the backdrop of history. The original states had just finished throwing off the oppressive yoke of the English tyrants. They had fought and won a war to gain liberty from despotism. Two of the most cherished rights for which the Revolutionary War was fought were the freedom of religion and the freedom of speech. It is significant that those rights were enunciated in the First Amendment.
Certainly the freedom of speech which was in the minds and hearts of our forefathers was the freedom to speak freely on matters of religion and politics. Specifically, the right to advocate the use of force against an existing government was uppermost in their thoughts. It takes but little imagination to guess the fate of those who advocated the Boston Tea Party had they been detected by the agents of the King of England.
When thus viewed, it is unthinkable that legislation should curtail the exercise of a right to speak freely on matters of government. The right to speak freely includes the right to express views which may be unpopular, views which may not accord with those of the majority. Even an opinion held by only one person is entitled to be brought into the open and be freely expressed.
That an opinion is unpopular is not reason to prohibit the *548 expression of such opinion. Edwards v. South Carolina, supra; Terminiello v. Chicago, 337 U.S. 1 , 93 L. Ed. 1131 , 69 S. Ct. 894 (1949). Herein no opinion is expressed as to the wisdom or the efficacy of a loyalty oath. The wisdom of legislation rests solely within the discretion of the legislature. Treffry v. Taylor, 67 Wn.2d 487 , 408 P.2d 269 (1965). We said in Petstel, Inc. v. County of King, 77 Wn.2d 144, 151 , 459 P.2d 937 (1969): “It is the function of the judiciary to test legislation against constitutional restrictions. Courts do not review the wisdom of legislative acts or the policy contained therein.”
While nothing said herein is to be construed as indicating any view that there is a constitutional protection for inciting violence as distinguished from merely advocating same, no such problem is before the court. Just as courts should refrain from expressing views on the wisdom of legislation, so should courts refrain from expressing views on matters not presented for decision.
For the reasons stated, the petition should be granted.
Rosellini and Utter, JJ., concur with Wright, J.
Petition for rehearing denied September 14, 1973.