Speiser v. Randall

In Speiser v. Randall, the state of California argued that its statute denied benefits only to those whose speech would be considered criminal by First Amendment standards and by the definitions arrived at by the Supreme Court. But the Court ruled that this was not the central issue. "[W]e assume without deciding," Justice Brennan wrote, "that California may deny tax exemptions to persons who engage in the proscribed speech for which they might be fined or imprisoned." Instead, the Court focused on the matter of due process--the procedural safeguards guaranteed by the Constitution. Whether the veteran's speech was criminal or not, the Court reasoned, the California statute requiring the loyalty oath unjustly imposed the burden of proof on the appellant. "Due process commands that no man shall lose his liberty," the Court noted, "unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt."

Shifting the burden of proof was particularly dangerous in this case, the Court ruled, because the speech in question fell close to the line distinguishing between protected and criminal speech. This created the danger that mistaken factfinding could end up inadvertently penalizing legitimate speech. A person burdened with the task of proving himself innocent, the Court reasoned, "must steer far wider of the unlawful zone than if the State must bear these burdens," and this could, in effect, create self-censorship that would deprive the individual of his or her right to speak freely.

Though the majority opinion emphasized the due process analysis, Justice Black, joined by Justice Douglas, issued a separate concurring opinion focusing on the importance of protecting free speech. He viewed the California statute as an example of "how dangerously far we have departed from the fundamental principles of freedom declared in the First Amendment" and called the case an example of the Communist witch-hunt mentality still gripping the country at the time.