Broadrick v. Oklahoma

Two dissenting opinions were filed in Broadrick v. Oklahoma. The first of these came from Justice Douglas, who contrasted the case with Connally v. 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 just protect "private" speech, but public speech as well, and therefore "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." 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 of a statute must not only be real, but substantial as well, judged in relation to 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 that day, 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'."