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E, Elfbrandt v. Russell,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 November 2020

Elfbrandt v. Russell,

384 U. S. 11 (1966), argued 24 Feb. 1966, decided 18 Apr. 1966 by vote of 5 to 4; Douglas for the Court, White, Clark, Harlan, and Stewart in dissent. The issue in this case was the constitutionality of a loyalty oath for Arizona state employees. A legislative gloss interpreting the oath made it a violation knowingly to be a member of the Communist party or any other organization having as its purpose the violent overthrow of the state government. A violation would subject the employee to discharge and to prosecution for perjury. A school teacher contended that she did not understand the gloss since the statute provided no opportunity for a hearing. The state supreme court upheld the statute. On *certiorari, the U.S. Supreme Court remanded the case for consideration in light of Baggett v. Bullitt (1964). Again the state supreme court upheld the statute, and certiorari was again granted.

The legislative gloss, the Court said, could be interpreted to condemn a member of an organization that had both legal and illegal purposes even though that person did not subscribe to the illegal purposes. This, the Court concluded, interfered with the freedom of association guaranteed by the *First and *Fourteenth Amendments. Persons who do not share an organization’s unlawful purposes and do not participate in its unlawful activities pose no threat as citizens or as public employees. Previously, in Wieman v. Updegraff (1952) and Garner v. Board of Public Works (1951), the Court had held that loyalty oath statutes may punish only employees who know of the unlawful purpose of the organization; in Elfbrandt, the Court added that the employee must have a specific intent to further this purpose.

See also assembly and association, citizenship, freedom of.

Milton R. Konvitz