Appellant
William M. Broadrick and two other state employees
Appellee
Oklahoma State Personnel Board
Appellant's Claim
That Section 818 of the Oklahoma State Merit System Act, which forbids stateemployees from taking part in political fund-raising or campaigning except asprivate citizens, was overbroad and vague, thus forbidding activities whichare constitutionally protected under the First Amendment.
Chief Lawyer for Appellant
John C. Buckingham
Chief Lawyer for Appellee
Mike D. Martin, Assistant Attorney General of Oklahoma
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Thurgood Marshall, Lewis F. Powell, Jr.,William H. Rehnquist, Potter Stewart, Byron R. White (writing for the Court)
Justices Dissenting
William J. Brennan, Jr., William O. Douglas
Place
Washington, D.C.
Date of Decision
25 June 1973
Decision
That Section 818 was constitutional as applied to the actions for which appellants were charged, and that it was not sufficiently overbroad to justify their challenge that it might be applied unconstitutionally to others.
Significance
Broadrick v. Oklahoma raised difficult First Amendment questions in its focus on the right of public employees to participate in politics. While the Constitution can hardly be construed to justify the use of public office topromote political ends, higher officials in the federal and lower governments belong to political parties, and daily function in the capacity of promoting their parties' ends. The case also marked the high point of the reaction tothe concept of First Amendment "overbreadth" associated with the Court of former Chief Justice Earl Warren.
The appellants in Broadrick v. Oklahoma, all three of them Oklahoma state employees, were charged by the Oklahoma State Personnel Board for violation of Section 818 of the Oklahoma Merit System of Personnel Administration Act. The latter forbids employees of the state from soliciting funds or campaigning for, or belonging to, any political party except as a private citizen. The three appellants were charged for their active participation in the 1970 reelection campaign of Ray C. Jones, a state corporation commissioner--and their superior. On several occasions at the commission's Oil and Gas Conservation Division, they allegedly asked other corporation commission employees to take part in campaign work or to recommend others who might participate in thecampaign. Two of the three were charged with soliciting campaign funds from commission employees, and one was charged with receiving and distributing campaign posters.
When the three appellants took their case to the Federal District Court of the Western District of Oklahoma, at issue were two clauses in Section 818. Thefirst of these, in paragraph six, stated that "[n]o employee in the classified service . . . shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose."The second was in paragraph seven, which provided that no such employee "shall be a member of any national, state or local committee of a political party,or any officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office."
The law, the appellants charged, was overly broad in its application, and could be used to forbid constitutionally protected forms of free speech, such asthe use of campaign buttons or bumper stickers. However, they did not dispute the constitutionality of the law as applied to their own circumstances, butonly called into question its possible future application. The three-judge panel of the district court upheld the law, and the appellants took the case to the Supreme Court.
"Overbreadth" Called into Question
Earlier on the same day that the Court reviewed the case of Broadrick v. Oklahoma, it heard a similar case involving federal, rather than state, employees. In Civil Service Commission v. Letter Carriers, the law in question was Section 9(a) of the Hatch Act, which provides that no federal employee shall "use his official authority or influence for the purpose of interfering with or affecting the result of an election" or "take part in politicalmanagement or in political campaigns." Evidently the Court did not considerthis law "overbroad," because it upheld the Hatch Act by 6-3 vote.
In delivering the opinion of the Court in Broadrick, Justice White cited not only the Hatch Act, but laws similar to Section 818 which prevailed inall 49 of the other states. Thus he established that such provisions are relatively uniform, and that they are not ambiguous: "Without question," he said, "a broad range of political activities and conduct is proscribed by the section." He cited another proscription in Section 818, one which the appellantsdid not dispute, which prohibited discrimination against any state employeefor his or her political beliefs--thus perhaps establishing a link between the prohibition of political discrimination on the one hand, and that of activecampaigning and solicitation on the other.
In clarifying the case at hand, Justice White noted that the appellants did not consider the legitimacy of Section 818 as it applied to them, but were challenging it on the basis of its possible overbreadth and vagueness. White discounted this claim: "Whatever other problems there are with Section 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes, or fails to set out `explicit standards'for those who must apply it." Though he conceded that "[w]ords inevitably contain germs of uncertainty," and that the prohibitions in Section 818 might not satisfy "those intent on finding fault at any cost," he affirmed that Section 818 was spelled out in terms clear enough for any person using ordinary common sense to understand.
White had little use for the appellants' claim that, even if the law was correct when applied to them, it could be misapplied to others. Implied in the traditions of constitutional interpretation, he said, is the idea that a personclearly guilty under a given statute cannot challenge that statute simply onthe grounds that it might be misapplied to somebody else. "These principles," he said, "rest on more than the fussiness of judges. They reflect the conviction that, under our constitutional system, courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." There werelimited exceptions, he said, especially instances in which those who are notparties to a suit stand to lose due to its outcome, as in the case of National Association for the Advancement of Colored People v. Alabama (1958). But Broadrick was not one of those instances, according to White, sohe, along with Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist, voted to affirm the decision of the district court.
The Dissent on First Amendment Grounds
Two dissenting opinions were filed in Broadrick v. Oklahoma. The firstof these came from Justice Douglas, who contrasted the case with Connallyv. General Construction, which involved a state law forbidding a contractor to pay workers "less than the current rate of per diem wages in the locality where the work is performed." The Court, Douglas noted, had held that the law in question was too vague, and by that standard, Section 818 would be similarly judged too vague. The First Amendment, he said, does not justprotect "private" speech, but public speech as well, and therefore "I do notsee 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 hisown." Therefore Douglas voted to reverse the judgment of the lower court.
Justice Brennan also dissented, in an opinion in which Justices Stewart and Marshall joined. In Brennan's view, the decision in Broadrick was "a wholly unjustified retreat from fundamental and previously well established First and Fourteenth Amendment principles." He called into question White's reference to "substantial overbreadth" in the Court's opinion, when White had said, "where conduct and not merely speech is involved . . . the overbreadth ofa statute must not only be real, but substantial as well, judged in relationto the statute's plainly legitimate sweep." This idea, Brennan said, was at odds with previous Court decisions, such as that in Coates v. Cincinnati (1971).
And even with regard to the Letter Carriers case decided earlier thatday, Brennan said, there were differences between Section 818 and the Hatch Act. The latter, he said, was much more well-defined than Section 818. By providing that employees have the right to express their political views in private, he said, Section 818 implies that they have no right to do so publicly. On these and other bases, he held that Oklahoma had failed "to provide the necessary `sensitive tools' to carry out the `separation of legitimate from illegitimate speech'."
Related Cases
William M. Broadrick and two other state employees
Appellee
Oklahoma State Personnel Board
Appellant's Claim
That Section 818 of the Oklahoma State Merit System Act, which forbids stateemployees from taking part in political fund-raising or campaigning except asprivate citizens, was overbroad and vague, thus forbidding activities whichare constitutionally protected under the First Amendment.
Chief Lawyer for Appellant
John C. Buckingham
Chief Lawyer for Appellee
Mike D. Martin, Assistant Attorney General of Oklahoma
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Thurgood Marshall, Lewis F. Powell, Jr.,William H. Rehnquist, Potter Stewart, Byron R. White (writing for the Court)
Justices Dissenting
William J. Brennan, Jr., William O. Douglas
Place
Washington, D.C.
Date of Decision
25 June 1973
Decision
That Section 818 was constitutional as applied to the actions for which appellants were charged, and that it was not sufficiently overbroad to justify their challenge that it might be applied unconstitutionally to others.
Significance
Broadrick v. Oklahoma raised difficult First Amendment questions in its focus on the right of public employees to participate in politics. While the Constitution can hardly be construed to justify the use of public office topromote political ends, higher officials in the federal and lower governments belong to political parties, and daily function in the capacity of promoting their parties' ends. The case also marked the high point of the reaction tothe concept of First Amendment "overbreadth" associated with the Court of former Chief Justice Earl Warren.
The appellants in Broadrick v. Oklahoma, all three of them Oklahoma state employees, were charged by the Oklahoma State Personnel Board for violation of Section 818 of the Oklahoma Merit System of Personnel Administration Act. The latter forbids employees of the state from soliciting funds or campaigning for, or belonging to, any political party except as a private citizen. The three appellants were charged for their active participation in the 1970 reelection campaign of Ray C. Jones, a state corporation commissioner--and their superior. On several occasions at the commission's Oil and Gas Conservation Division, they allegedly asked other corporation commission employees to take part in campaign work or to recommend others who might participate in thecampaign. Two of the three were charged with soliciting campaign funds from commission employees, and one was charged with receiving and distributing campaign posters.
When the three appellants took their case to the Federal District Court of the Western District of Oklahoma, at issue were two clauses in Section 818. Thefirst of these, in paragraph six, stated that "[n]o employee in the classified service . . . shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose."The second was in paragraph seven, which provided that no such employee "shall be a member of any national, state or local committee of a political party,or any officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office."
The law, the appellants charged, was overly broad in its application, and could be used to forbid constitutionally protected forms of free speech, such asthe use of campaign buttons or bumper stickers. However, they did not dispute the constitutionality of the law as applied to their own circumstances, butonly called into question its possible future application. The three-judge panel of the district court upheld the law, and the appellants took the case to the Supreme Court.
"Overbreadth" Called into Question
Earlier on the same day that the Court reviewed the case of Broadrick v. Oklahoma, it heard a similar case involving federal, rather than state, employees. In Civil Service Commission v. Letter Carriers, the law in question was Section 9(a) of the Hatch Act, which provides that no federal employee shall "use his official authority or influence for the purpose of interfering with or affecting the result of an election" or "take part in politicalmanagement or in political campaigns." Evidently the Court did not considerthis law "overbroad," because it upheld the Hatch Act by 6-3 vote.
In delivering the opinion of the Court in Broadrick, Justice White cited not only the Hatch Act, but laws similar to Section 818 which prevailed inall 49 of the other states. Thus he established that such provisions are relatively uniform, and that they are not ambiguous: "Without question," he said, "a broad range of political activities and conduct is proscribed by the section." He cited another proscription in Section 818, one which the appellantsdid not dispute, which prohibited discrimination against any state employeefor his or her political beliefs--thus perhaps establishing a link between the prohibition of political discrimination on the one hand, and that of activecampaigning and solicitation on the other.
In clarifying the case at hand, Justice White noted that the appellants did not consider the legitimacy of Section 818 as it applied to them, but were challenging it on the basis of its possible overbreadth and vagueness. White discounted this claim: "Whatever other problems there are with Section 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes, or fails to set out `explicit standards'for those who must apply it." Though he conceded that "[w]ords inevitably contain germs of uncertainty," and that the prohibitions in Section 818 might not satisfy "those intent on finding fault at any cost," he affirmed that Section 818 was spelled out in terms clear enough for any person using ordinary common sense to understand.
White had little use for the appellants' claim that, even if the law was correct when applied to them, it could be misapplied to others. Implied in the traditions of constitutional interpretation, he said, is the idea that a personclearly guilty under a given statute cannot challenge that statute simply onthe grounds that it might be misapplied to somebody else. "These principles," he said, "rest on more than the fussiness of judges. They reflect the conviction that, under our constitutional system, courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." There werelimited exceptions, he said, especially instances in which those who are notparties to a suit stand to lose due to its outcome, as in the case of National Association for the Advancement of Colored People v. Alabama (1958). But Broadrick was not one of those instances, according to White, sohe, along with Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist, voted to affirm the decision of the district court.
The Dissent on First Amendment Grounds
Two dissenting opinions were filed in Broadrick v. Oklahoma. The firstof these came from Justice Douglas, who contrasted the case with Connallyv. General Construction, which involved a state law forbidding a contractor to pay workers "less than the current rate of per diem wages in the locality where the work is performed." The Court, Douglas noted, had held that the law in question was too vague, and by that standard, Section 818 would be similarly judged too vague. The First Amendment, he said, does not justprotect "private" speech, but public speech as well, and therefore "I do notsee 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 hisown." Therefore Douglas voted to reverse the judgment of the lower court.
Justice Brennan also dissented, in an opinion in which Justices Stewart and Marshall joined. In Brennan's view, the decision in Broadrick was "a wholly unjustified retreat from fundamental and previously well established First and Fourteenth Amendment principles." He called into question White's reference to "substantial overbreadth" in the Court's opinion, when White had said, "where conduct and not merely speech is involved . . . the overbreadth ofa statute must not only be real, but substantial as well, judged in relationto the statute's plainly legitimate sweep." This idea, Brennan said, was at odds with previous Court decisions, such as that in Coates v. Cincinnati (1971).
And even with regard to the Letter Carriers case decided earlier thatday, Brennan said, there were differences between Section 818 and the Hatch Act. The latter, he said, was much more well-defined than Section 818. By providing that employees have the right to express their political views in private, he said, Section 818 implies that they have no right to do so publicly. On these and other bases, he held that Oklahoma had failed "to provide the necessary `sensitive tools' to carry out the `separation of legitimate from illegitimate speech'."
Related Cases
- Connally v. General Construction Co., 269 U.S. 385 (1926).
- National Association for the Advancement of Colored People v. Alabama, 377 U.S. 288 (1958).
- Coates v. Cincinnati, 402 U.S. 611 (1971).
- Civil Service Commission v. Letter Carriers, 413 U.S. 548 (1973).
Further Readings
- Biskupic, Joan and Elder Witt, eds. Congressional Quarterly's Guide to the U.S. Supreme Court, 3rd ed. Washington, DC: Congressional Quarterly, Inc., 1996.
- Levy, Leonard W., ed. Encyclopedia of the American Constitution, New York: Macmillan, 1986.
- Witt, Elder, ed. The Supreme Court A to Z, Washington, DC: Congressional Quarterly, 1993.
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