United Public Workers of America v. Mitchell/Dissent Black
Mr. Justice BLACK, dissenting.
The sentence in § 9 of the statute, here upheld, makes it unlawful for any person employed in the executive branch of the Federal Government, with minor numerical exceptions,  to 'take any active part in political management or in political campaigns.' The punishment provided is immediate discharge and a permanent ban against reemployment in the same position.  The number of federal employees thus barred from political action is approximately three million. Section 12 of the same Act affects the participation in political campaigns of many thousands of state employees.  No one of all these millions of citizens can, without violating this law, 'take any active part' in any campaign for a cause or for a candidate if the cause or candidate is 'specifically identified with any National or State political party.' Since under our common political practices most causes and candidates are espoused by political parties, the result is that, because they are paid out of the public treasury, all these citizens who engage in public work can take no really effective part in campaigns that may bring about changes in their lives, their fortunes, and their happiness. 
We are not left in doubt as to how numerous and varied are the 'activities' prohibited. For § 15 sweepingly describes them as 'the same activities * * * as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States * * *.' Along with the vague and uncertain prior prohibitions of the Commission, are these things which the Commission had clearly prohibited: serving as an election officer; publicly expressing political views at a party caucus or political gathering for or against any candidate or cause identified with a party; soliciting votes for a party or candidate; participating in a political parade; writing for publication or publishing any letter or article, signed or unsigned, in favor of or against any political party, candidate, or faction; initiating, or canvassing for signatures on, community petitions or petitions to Congress.
In view of these prohibitions, it is little consolation to employees that the Act contradictorily says that they may 'express their opinions on all political subjects and candidates.' For this permission to 'express their opinions,' is, the Commission has rightly said, 'subject to the prohibition that employees may not take any active part in * * * political campaigns.' The hopeless contradiction between this privilege of an employee to talk and the prohibition against his talking stands out in the Commission's further warning to all employees that they can express their opinio § publicly, but 'Public expression of opinion in such way as to constitute taking an active part in political management or in political campaigns is accordingly prohibited.' Thus, whatever opinions employees may dare to express, even secretly, must be at their peril. They cannot know what particular expressions may be reported to the Commission and held by it to be a sufficient political activity to cost them their jobs. Their peril is all the greater because of another warning by the Commission that 'Employees are * * * accountable for political activity by persons other than themselves, including wives or husbands, if, in fact, the employees are thus accomplishing by collusion and indirection what they may not lawfully do directly and openly.' Thus are the families of public employees stripped of their freedom of political action. The result is that the sum of political privilege left to government and state employees, and their families, to take part in political campaigns seems to be this: They may vote in silence; they may carefully and quietly express a political view at their peril; and they may become 'spectators' (this is the Commission's word) at campaign gatherings, though it may be highly dangerous for them to 'second a motion' or let it be known that they agree or disagree with a speaker.
All of the petitioners here challenge the constitutional validity of that sentence of § 9 of the statute which prohibits all federal employees from taking 'any active part in political management or in political campaigns' and which by reference only sweeps under this prohibition all thenexisting civil service regulations. The charge is that this provision, thus supplemented by the regulations, violates the First Amendment by prohibiting freedom of press, speech, and assembly; that it violates the Fifth Amendment because it effects an arbitrary and gross discrimination between government employees covered and those exempted; that it also violates the Fifth Amendment because it is so vague and indefinite as to prohibit lawful activities as well as activities which are properly made unlawful by other provisions of law. Thus, these attacks of Poole and all the other petitioners are identical, namely, that the provision is unconstitutional on its face. The Court decides this question against Poole after holding that his case presents a justiciable controversy. I think Poole's challenge to the constitutionality of the provision should be sustained. And since I agree with Mr. Justice DOUGLAS that all the petitioners' complaints state a case or controversy, and show threats of imminent irreparable damages, I think that the contention that the challenged provision is unconstitutional on its face should be sustained as to all of them.
Had this measure deprived five million farmers, or a million businessmen of all right to participate in elections, because Congress thought that federal farm or business subsidies might prompt some of them to exercise, or be susceptible to, a corrupting influence on politics or government, I would not sustain such an Act on the ground that it could be interpreted so as to apply only to some of them. Certainly laws which restrict the liberties guaranteed by the First Amendment should be narrowly drawn to meet the evil aimed at and to affect only the minimum number of people imperatively necessary to prevent a grave and imminent danger to the public.  Furthermore, what federal employees can or cannot do, consistently with the various civil service regulations, rules, warnings, etc., is a matter of so great uncertainty that no person can even make an intelligent guess. This was demonstrated by the government's briefs and oral arguments in this case. I would hold that the provision here attacked is too broad, ambiguous, and uncertain in its consequences to be made the basis of removing deserving employees from their jobs. See dissenting opinion, Williams v. North Carolina, 325 U.S. 226, 261, 276-278, 65 S.Ct. 1092, 1109, 1116 1117, 89 L.Ed. 1577, 157 A.L.R. 1366, and cases collected, n. 16.
The right to vote and privately to express an opinion on political matters, important though they be, are but parts of the broad freedoms which our Constitution has provided as the bulwark of our free political institutions. Popular government, to be effective, must permit and encourage much wider political activity by all the people.  Real popular government means 'that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion * * *. Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth.' Thornhill v. State of Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 741, 84 L.Ed. 1093. Legislation which muzzles several million citizens threatens popular government, not only because it injures the individuals muzzled, but also, because of its harmful effect on the body politic in depriving it of the political participation and interest of such a large segment of our citizens. Forcing public employees to contribute money and influence can well be proscribed in the interest of 'clean politics' and public administration. But I think the Constitution prohibits legislation which prevents millions of citizens from contributing their arguments, complaints, and suggestions to the political debates which are the essence of our democracy; prevents them from engaging in organizational activity to urge others to vote and take an interest in political affairs; bars them from performing the interested citizen's duty of insuring that his and his fellow citizens' votes are counted. Such drastic limitations on the right of all the people to express political opinions and take political action would be inconsistent with the First Amendment's guaranty of freedom of speech, press, assembly, and petition. And it would violate, or come dangerously close to violating, Article I and the Seventeenth Amendment of the Constitution, which protect the right of the people to vote for their Congressmen and their United States Senators and to have their votes counted. See Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; United States v. Classic, 313 U.S. 299, 314, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368.
There is nothing about federal and state employees as a class which justifies depriving them or society of the benefits of their participation in public affairs. They, like other citizens, pay taxes and serve their country in peace and in war. The taxes they pay and the wars in which they fight are determined by the elected spokesmen of all the people. They come from the same homes, communities, schools, churches, and colleges as do the other citizens. I think the Constitution guarantees to them the same right that other groups of good citizens have to engage in activities which decide who their elected representatives shall be.
No statute of Congress has ever before attempted so drastically to stifle the spoken and written political utterances and lawful political activities of federal and state employees as a class. The nearest approach was the Civil Service Act of 1883, 22 Stat. 403, 4, which authorized the President to promulgate rules so that among other things no Government employee should 'use his official authority or influence to coerce the political action of any person or body. In 1907, the Civil Service Commission, purporting to act under authority of the 1883 Act, did, as the Court points out, prohibit civil service employees from taking 'an active part in political management or in political campaigns.' But this Court has not approved the statutory power of the Commission to promulgate such a rule, nor has it ever expressly or by implication approved the constitutional validity of any such sweeping abridgement of the right of freedom of expression. Neither Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232, nor United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508, lend the slightest support to the present statute. Both of these cases related to statutes which did no more than limit the right of employees to collect money from other employees for political purposes. Indeed, the Curtis decision seems implicitly to have rested on the assumption that many political activities of Government employees, beyond merely voting and speaking secretly, would not, and could not under the Constitution, be impaired by the legislation there at issue. Ex parte Curtis, supra, 106 U.S. at page 375, 1 S.Ct. at page 385.
It is argued that it is in the interest of clean politics to suppress political activities of federal and state employees. It would hardly seem to be imperative to muzzle millions of citizens because some of them, if left their constitutional freedoms, might corrupt the political process. All political corruption is not traceable to state and federal employees. Therefore, it is possible that other groups may later be compelled to sacrifice their right to participate in political activities for the protection of the purity of the Government of which they are a part.
It may be true, as contended, that some higher employees, unless restrained, might coerce their subordinates or that Government employees might use their official position to coerce other citizens. But is such a possibility of coercion of a subordinate by his employer limited to governmental employer-employee relationships?  The same quality of argument would support a law to suppress the political freedom of all employees of private employers, and particularly of employers who borrow money or draw subsidies from the Government. Nor does it seem plausible that all of the millions of public employees whose rights to free expression are here stifled, might, if they participate in elections, coerce other citizens not employed by the Government or the States. Poole, one of the petitioners here, is a roller in a government printing office. His job is about on a par in terms of political influence with that of most other state, federal, and private business employees. Such jobs generally do not give such employees who hold them sufficient authority to enable them to wield a dangerous or coercive influence on the political world. If the possibility exists that some other public employees may, by reason of their more influential positions, coerce other public employees or other citizens, laws can be drawn to punish the coercers.  It hardly seems consistent with our system of equal justice to all to suppress the political and speaking freedom of millions of good citizens because a few bad citizens might engage in coercion. 
It may also be true, as contended, that if public employees are permitted to exercise a full freedom to express their views in political campaigns, some public officials will discharge some employees and grant promotion to others on a political rather than on a merit basis. For the same reason other public officials, occupying positions of influence, may use their influence to have their own political supporters appointed or promoted. But here again, if the practice of making discharges, promotions or recommendations for promotions on a political basis is so great an evil as to require legislation, the law could punish those public officials who engage in the practice. To punish millions of employees and to deprive the nation of their contribution to public affairs, in order to remove temptation from a proportionately small number of public officials, seems at the least to be a novel method of suppressing what is thought to be an evil practice.
Our political system, different from many others, rests on the foundation of a belief in rule by the people-not some, but all the people. Education has been fostered better to fit people for self-expression and good citizenship. In a country whose people elect their leaders and decide great public issues, the voice of none should be suppressed-at least such is the assumption of the First Amendment. That Amendment, unless I misunderstand its meaning, includes a command that the Government must, in order to promote its own interest, leave the people at liberty to speak their own thoughts about government, advocate their own favored governmental causes, and work for their own political candidates and parties.
The section of the Act here held valid reduces the constitutionally protected liberty of several million citizens to less than a shadow of its substance. It relegates millions of federal, state, and municipal employees to the role of mere spectators of events upon which hinge the safety and welfare of all the people, including public employees. It removes a sizable proportion of our electorate from full participation in affairs destined to mould the fortunes of the Nation. It makes honest participation in essential political activities an offense punishable by proscription from public employment. It endows a governmental board with the awesome power to censor the thoughts, expressions, and activities of law-abiding citizens in the field of free expression from which no person should be barred by a government which boasts that it is a government of, for, and by the people-all the people. Laudable as its purpose may be, it seems to me to hack at the roots of a Government by the people themselves; and consequently I cannot agree to sustain its validity.
^1 Those excepted are 'a part-time officer or part-time employee without compensation or with nominal compensation serving in connection with the existing war effort,' commonly designated as 'Dollar-a-year men' and '(1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nation-wide administration of Federal Laws.' Section 9a, 18 U.S.C. § 61h(a), 18 U.S.C.A. § 61h(a).
^2 'Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.' Section 9b, 18 U.S.C. § 61h(b), 18 U.S.C.A. § 61h(b).
In 1945 the Federal Government paid $865,729,569.15 in grants in aid to states, Annual Report of the Secretary of the Treasury on the State of the Finances, for the fiscal year ending June 30, 1945 (1946) 714, and $688,506,157.11 in direct payments to states for the social security program, public roads and emergency maternity and nfant care. Id. at 718. Grants to and expenditures within states, providing direct relief, work relief, and other aid such as the Agricultural Adjustment Program, National Housing Agency annual contributions, etc., totaled $1,353,427,735.68. Id. at 721.
In July 1946 the number of persons employed by state and local governments totaled approximately 2,824,000 of whom 654,000 were employed in schools and 2,170,000 were non-school employees. Public Employment in July, 1946, Government Employment, Dept. of Commerce, Bureau of the Census, Vol. 7, No. 3 (1946) 1. A breakdown of county employees is a sample which suggests the proportion state and local whose salaries may be paid in whole or in part by federal funds thus coming under the provisions of this Act. Of a total of 310,000 non-school county employees in the entire country, 77,000 were employed in highway departments; 4,700 in natural resources; 12,600 in health and sanitation; 40,000 in hospitals; 22,000 in public welfare. County Employment in 1944, Government Employment, op. cit. supra, Vol. 5, No. 2 (1944) 7.
^4 There are minor exceptions. One concession only is granted those federal employees who live 'in the immediate vicinity of the National Capital in the States of Maryland and Virginia or in municipalities the majority of whose voters are employed by the Government of the United States. * * *' The Civil Service Commission may 'permit' them to participate in campaigns involving the 'municipality or political subdivision' in which they reside 'to the extent the Commission deems to be in (their) domestic interest * * *.' Section 16, 18 U.S.C. § 61p, 18 U.S.C.A. § 61p. A general exception permits participation (1) in an 'election and the preceding campaign if none of the candidates is to be nominated or elected * * * as representing a (political) party * * * (2) in connection with any question which is not specifically identified with any National or State political party. For the purposes of this section, questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character, shall not be deemed specifically identified with any National or State political party.' § 18, 18 U.S.C. § 61r, 18 U.S.C.A. § 61r. The importance and number of political issues thus excepted, e.g. Sunday movies, local school bond issues, location of local parks, election of local officials in whom no political party is interested, are obviously very small.
^5 Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276; Bridges v. State of California, 314 U.S. 252, 260, 263, 62 S.Ct. 190, 192, 194, 86 L.Ed. 192, 159 A.L.R. 1346.
^6 Some states require that employers pay their employees for the time they spend away from work while voting. See People v. Ford Motor Co., 271 App.Div. 141, 63 N.Y.S.2d 697; Note, Pay While Voting, 47 Col.L.Rev. 135 (1947).
^7 Many states have laws protecting non-government employees from employer interference with their voting independence. See Note, Pay While Voting, 47 Col.L.Rev. 135, 136, note 9 (1947).
^8 See note 7, supra.
^9 The Act, in fact, leaves free the higher officials whose positions give them the actual power to coerce subordinates and other citizens not employed by the government. § 9a, 18 U.S.C. § 61h, 18 U.S.C.A. § 61h.