Brief Amicus Curiae — Bond v. Floyd

rUPREME CCURT, U. &

Ix THE MAR 26 1966

Supreme Court of the Unjted| Stade vavs eter

Ocroser Term, 19

- No. 1125. 8

”

Juan Bonn, Dr. Martin LutrHer Kine, Jr., and

Mrs. Are. Keyes,

Appellants,

—vV.—

James “Suoppy” Froyp, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND

AMERICAN CIVIL LIBERTIES UNION OF GEORGIA,

AMICI CURIAE

Metyvixn L. Wor

156 Fifth Avenue

New York, New York

Morris Brown

1122 Healey Building

Atlanta, Georgia

CHartes Moraan, Jr.

5 Forsyth Street, N.W.

Atlanta, Georgia

Attorneys for American Civil Lib-

erties Union and American Civil

Inberties Union of Georgia

INDEX

PAGE

Interest of Amici 1

The Questions Are Substantial

(1) Art. ITI, See. IV, Para. 5, and Art. II, Sec. VII,

Para. 1 of the Georgia Constitution on their face

and as construed and applied in this case violate

appellants’ rights of free speech and association

as guaranteed by the First and Fourteenth

Amendments to the United States Constitution.. 2

(2) Art. ITI, See. IV, Para. 5, and Art. ITI, Sec. VII,

Para. 1 of the Georgia Constitution are imper-

missibly vague because they do not inform either

a legislative aspirant, or those who elected him,

of conduct wifich runs afoul of their provisions 6

ConcLusion 9

TasLE or Cases AND OTHER AUTHORITIES

Cases:

Baggett v. Bullitt, 377 U. S. 360 6

Barenblatt v. United States, 360 U. S. 109 3

Barr v. City of Columbia, 378 U. S. 146 4

Barry v. United States, 279 U. S. 597 3

»Bouie v. South Carolina, 378 U. S. 347 4

Braden v. United States, 365 U. S. 431 3

Cox v. Louisiana, 379 U. S. 536 4

Edwards v. South Carolina, 372 U. S. 229 4

Fields v. South Carolina, 372 U. S. 522 4

/

/ PAGE

Garner v. Louisiana, 368 U. S. 157 4

_ Gibson v. Florida, 373 U. 8. 539 4

Lombard v. Louisiana, 373 U. S. 267 Say

Peterson v. City of Greenville, 373 U. S. 244 4

Shuttlesworth v. Alabama, 373 U. S. 262 4

Snowden v. Hughes, 321 U. S. 1 3

Taylor v. Louisiana, 370 U. S. 154 4

Thompson v. Louisville, 362 U. S. 199 4

United States v. Johnson, 34 U. S. L. Week 4161 (Feb.

24, 1966) 5

Wilkinson v. United States, 365 U. S. 399 3

Wright v. Georgia, 373 U. S. 284 4

Statutory Authorities :

Constitution of the United States:

Article I, Section 6 5

Article I, Section 10 8

First Amendment 1, 2, 4,6

Fourteenth Amendment .....«. 2, 8

50 App. U.S. C. Sec. 456(j) 5

Constitution of the Staté of- Georgia:

Article ITI, Section IV, Paragraph 5 2, 6

Article ITI, Section VII, Paragraph 1 2, 6

In THE

Supreme Court of the United States

Ocroszr Tzrm, 1965

No. 1125

>

JuLuian Bonn, Dr. Martin LutrHer Kine, Jr., and

Mrs. AreL Keyes,

Appellants,

—

~

James “Sioppy” Frovp, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

—_>

BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND

AMERICAN CIVIL LIBERTIES UNION OF GEORGIA,

AMICI CURIAE

Interest of Amici

The American Civil Liberties Union and the American

Civil Liberties Union of Georgia, which file this brief with

the consent of the parties, believe that the case at bar raises

substantial federal questions under the First Amendment

which should be heard and decided by this Court. The

central question is whether a duly elected representative to

a state legislature may be barred from taking his seat

solely because his views on issues of public importance are

incompatible with the views held by a majority of the

legislature. )

yA “A

For the reasons set forth in this brief, we believe the

Court should note jurisdiction so that that question, among

others, may be fully briefed, argued and decided.

The Questions Are Substantial

(1) ART. I, SEC. IV, PARA. 5, AND ART. III, SEC. VII, PARA. 1 OF

THE GEORGIA CONSTITUTION ON THEIR FACE AND AS CON-

STRUED AND APPLIED IN THIS CASE VIOLATE APPELLANTS’

RIGHTS OF FREE SPEECH AND ASSOCIATION AS GUARANTEED

BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

The three members of the court below were agreed that

the case before them raised substantial federal questions

(App. pp. 26, 66). Likewise there was no dispute that the

court had the power to decide the issue on the merits, not-

withstanding the vigorous claims by the defendants below

that “the subject matter is one which is vested within the

exclusive jurisdiction of the House” (Defendants’ Brief in

Support of Motion to Dismiss, p. 7 et seq.), and that the

complaint did not present a justiciable issue (Jd. at p. 20

et seq.). As the majority opinion put it, “The court has

jurisdiction over a denial of First Amendment rights by

the state, and . . . the federal rights asserted here are not

so insubstantial as to warrant our refusing jurisdiction”

(App. pp. 25-26).

Having assumed jurisdiction, the court below proceeded

to the merits and decided the case on the basis of a novel

theory of the First Amendment which has no precedent

in this Court, and which if left standing will seriously erode

. 12he reference “App.” is to the opinions below as contained in

the Appendix of the App2llant’s jurisdictional statement.

3

at least two fundamental constitutional principles which are

directly served by the First Amendment: freedom of elected

representatives to express themselves without hindrance

on questions of public importance, and the right of voters

freely to elect their legislative representatives. To nullify

either of these rights makes a mockery of representative

democracy. Nonetheless, both of these principles were

emasculated by the decision of the court below.

The first premise of the novel theory adopted below is

that “the free speech issue should be resolved in the context

of giving effect to the separation of powers principle, and

also our system of federalism to the extent that it permits

self-government to the states under the supremacy of the

Federal Constitution” (App. pp. 34-35). Drawing then upon

Barry v. United States, 279 U. S. 597 (1929) and Snowden

v. Hughes, 321 U. S. 1 (1944), the court derived the further

premise that judicial interference in the electoral process is

confined to those cases where the alleged wrong is clearly

arbitrary in the due process sense, or purposefully and

invidiously discriminatory in the equal protection sense

(App. pp. 35-37). From these two premises the court con-

cluded that “some restraint is to be practiced by the courts

in considering state political questions concerning partic-

ular offices as distinguished from whole systems such as are

prevalent in malapportionment, or racial discrimination.

If this premise be correct, then there is room for a balance

between the separation of powers principle, a system of

federalism and individual rights afforded under the federal

Constitution” (App. p. 37).

Having taken the balancing theory’ into these uncharted

wilds, the court then imported a second distinct theory

2 Barenblatt v. United States, 360 U. S. 109 (1959), Wélkinson

v. United States, 365 U. S. 399 (1961), and Braden v. United

States, 365 U. 8. 481 (1961).

4

enunciated by this Court in Thompson v. Loutsville, 362

U. S. 199 (1960), and concluded that the denial of Bond’s

seat is justified if there is “any evidence which would sup-

port the denial” (App. p. 37).

Searching the record for “any evidence”, the court finds

two:sorts. First, the SNCC statement is not merely “at war

with the national policy of this country,” it is also “a call

to action based on race” (App. p. 38).° Second, the call to

action is in “language which states that SNCC supports

those men in this coulitry who are unwilling to respond to a

military draft” (Ibid.). Consequently, the court concluded,

“We find and hold that [Bond’s] statements and affirmation

of the SNCC statement as they bore on the functioning of

e Selective Service System could reasonably be said to be

inconsistent with and repugnant to the oath which he was

required to take. This suffices as a rational basis for the

action of the House” (App. p. 40).

‘The upshot of the court’s analysis is the transformation

of the balancing test which, as enunciated by this Court, re-

quires that the states have a “compelling and subordinat-

ing .. . interest”* in order to infringe First Amendment

rights: into a test which allows those rights to be traduced

® But see Garner v. Louisiana, 368 U. S. 157 (1961); Taylor v.

Louisiana, 370 U. 8. 154 (1962) ; Edwards v. South Carolina, 372

U. 8. 229 (1963) ; Fields v. South Carolina, 372 U. S. 522 (1963) ;

Peterson v. City of Greenville, 373 U. S. 244 (1963) ; Lombard v..

Louisiana, 373 U. 8. 267 ( 1963) ; Shuttlesworth v. Alabama, 373

U. 8. 262 (1963) ; Wright v. Georgia, 373 U. S. 284 (1963); Barr

. City of Columbia, 378 U. S. 146 (1964) ; Boute v. South Carolina,

378 U. S. 347 (1964) ; Cox v. Louisiana, 379 U. S. 5386 (1965).

* Gibson v. Florida, 372 U. 8. 539, 555 (1963).

p>

~~

i?

5

so long as the state demonstrates no more than “a rational

basis” for its action.

In fact, no “rational basis” was demonstrated. Needless

to say, neither was there a compelling state interest or a

clear and present danger. Under none of these tests could

the appellant have been properly penalized for his state-

ments. The SNCC statement, though no doubt provocative,

was the apotheosis of free political comment. It did nothing

more thar express sympathy and support for those who

object to being drafted, and encouraged work in the civil

rights movement as “a valid alternative to the draft.”*

And Mr. Bond’s remark about the “courage” of those per-

sons who burn draft cards is hardly evidence of unfitness.

The issue this Court must decide in this case is whether

an individual elected by the people to represent them in a

state legislature may be cast out.by the legis'ature because

it finds his views too unorthodox for its tacte.* For that

reason, this case must be fully briefed and argued so that

the nation can once again be instructed-that transgressions

upon the right of unfettered speech will not be tolerated.

5 The Selective Service Act specifically allows alternative civilian

service for conscientious objectors. 50 App. U. 8S. C. Sec. 456(j).

¢ The special importance of unrestricted speech and the open

clash of ideas within legislatures is reflected in Art. I, Sec. 6 of the

United States Constitution which provides that . . “for any speech

or debate in either House, [Senators and Representatives] shall not

be questioned in any other place.” See U. 8. v. Johnson, 34 U.S. L.

Week 4161 (Feb. 24, 1966).

(2) ART. III, SEC. Iv, PARA.*S, AND: ART. Il, SEO. VIly PARA. 1 OF

THE GEORGIA CONSTITUTION ARE ,IMPERMISSIBLY VAGUE BE-

CAUSE THEY DO NOT INFORM EITHER A LEGISLATIVE AS-

PIRANT, OR THOSE WHO ELECTED HIM, OF CONDUCT WHICH

RUNS AFOUL OF THEIR PROVISIONS.

Under the terms of the Georgia constitutional provisions,

as construed and applied below, a conscientious person who

aspires to be a legislator must play a type of Russian rou-

lette. He must speculate about the controversiality of his

every statement and the intentions of his fellow legislators.

If he guesses wrong he loses his political life. Consequently,

as in Baggett v. Bullitt, 377 U. S. 360, 372 (1964) :

“We cannot say that this oath provides an ascertain-

able standard of conduct or that it does not require

more than a State may command under the guarantees

of the First and Fourteenth Amendments.”

When First Amendment rights are at stake, the void-for-

vagueness doctrine has special application. The effect of

the Georgia oath’s uncertain requirements, as exemplified

in this case, is to seriously inhibit free and frank discussion

of public issues by candidates and elected representatives.

Aspirants for public office can, if elected, be assured of

being. seated only “by restricting their conduct to that

which i8 unquestionably safe.” Baggett v. Bullitt, supra, at

p. 372.

We have no constitutional quarrel with that portion of

the Georgia oath which calls for “support” of the United

States and Georgia Constitutions. Rather, it is the suc-

ceeding language which is objectionable: “.. . and on all

questions and measures which may come before me, I will

7

so conduct myself, as will, in my judgment, be most con-

ducive to the interest and prosperity of this state.”

This case provides tangible proof that the language

claimed to be vague not only permits but encourages rum-

maging around in a grab bag of charges and accusations

so that appellant Bond has no actual idea of the conduct

which supported the Legislature’s conclusion that he was

incapable of taking the oath of office.

Thus, the petitions filed against Bond in the House

of Representatives charged among other things that he

did not support the Constitutions of the United States or

Georgia, that he had committed treason, that he had vio-

lated the penal provisions of the Selective Service Act, that

he had brought discredit to the Georgia House of Repre-

sentatives (App. pp. 46-47), and that he had endorsed a

“subversive policy statement” (App. p. 52).

Counsel for the Special Committee charged that appel-

lant had committed treason (T. 68),’ and had given aid and

comfort to the enemy (T. 81-82).

The Special Committee’s report contained no reasons for

its recommendation (T. 91).

Initially, the Attorney General of Georgia, attorney for

the defendants below, though declining to make any “con-

tentions whatsoever with respect to Mr. Bond’s right to

make the statements attributed to him,” said at the same

time that those statements “were sufficient to put the House

‘The symbol “T” refers to tke transcript of the proceedings

before the Georgia House of Representatives which is part of the

record on appeal.

8

on notice that possibly he did not feel bound to support the

Constitution of the United States” (Defendant’s Brief in

Support of Motion to Dismiss, p. 31). A few days later,

the Attorney General thought that Bond was disloyal to

the United States (Defendant’s Supplemental Brief, p. 5),

had advocated violation of the Selective Service Act (Id. at

pp. 5-6), and had committed sedition (Jd. at p. 17).

The majority opinion below held that appellant’s state-

ments “as they bore on the functioning of the Selective

Service System could reasonably be said to be inconsistent

with and repugnant to the oath which he was required to

take” (App. p. 40).

Any statute which will support such variegated charges

without any agreement about which of appellant’s state-

ments supports the Legislature’s conclusion, is, we believe,

ipso facto void for vagueness.°

* Amici also believe that the decision below in effect disenfran-

chised Mr. Bond’s constituents in violation of the Fourteenth

Amendment, and that House Resolution 19 is both an Ex Post

Facto Law and Bill of Attainder in violation of Article I, Sec-

tion 10 of the United States Constitution. We forego treating these

questions since they are sufficiently dealt with in appellant’s juris-

dictional statement.

sor inl Ma ety

it IO hte

Nath ath ra

CONCLUSION

For the reasons stated above, the questions are sub-

_ stantial and the Court should note probable jurisdiction.

Under the circumstances of the case, we also urge the

Court to grant appellant’s Motion to Advance.

>

Respectfully submitted,

Metvin L. Wor

156 Fifth Avenue

New York, New York

Morris Brown

1122 Healey Building

Atlanta, Georgia

CHartes Moraan, JR.

5 Forsyth Street, N.W.

Atlanta, Georgia

Attorneys for American Ciwil Lib-

erties Union and American Civil

Inberties Union of Georgia

March 1966