Before Hastings, Senior Circuit Judge, and Parsons and Decker,
The opinion of the court was delivered by: Per Curiam.
"I * * * do swear (or affirm) that I am not a
member of or affiliated with the communist party and
that I am not knowingly a member or knowingly
affiliated with any organization which advocates the
overthrow or destruction of the constitutional form
of the government of the United States or of the
State of Illinois, by force, violence or other
Claiming the oath and its underlying statutory provisions to be
unconstitutional, plaintiffs brought separate actions under
42 U.S.C. § 1983 to enjoin their enforcement. The causes were
consolidated pursuant to Fed.R.Civ.P. 42(a), and a three-judge
The statutes in question, Ill.Rev.Stat. ch. 127 § 166a and §
166b*fn1, as amended, constitute a single legislative enactment
with a common objective. Section 166a prohibits the use of any
appropriation to pay any part of the compensation of any state
employee who advocates, or who knowingly belongs to an
organization which advocates, the violent overthrow of the
government of the United States or of the State of Illinois.
Section 166b supplements Section 166a by requiring state
employees to subscribe to the aforementioned oath as a condition
precedent to receipt of compensation.
The applicable constitutional standard for the consideration of
negative oaths was set forth in Elfbrandt v. Russell,
384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966), Keyishian v. Board of
Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L. Ed.2d 629 (1967), and
Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed. 2d 228
(1967), as requiring both knowledge of the unlawful purposes of
the organization and a specific intent to further
those purposes. "A law which applies to membership without the
`specific intent' to further the illegal aims of the organization
infringes unnecessarily on protected freedoms. It rests on the
doctrine of `guilt by association' * * *." Elfbrandt v. Russell,
supra, 384 U.S. at 19, 86 S.Ct. at 1242.
The Supreme Court's rejection of the "knowledge" standard in
favor of the test of "specific intent" is an affirmation that the
First Amendment protects the right to knowingly associate with
proscribed organizations absent some participation in the
organization's illegal activities. Any lesser test runs the risk
of punishing for "knowing but guiltless behavior," thereby
chilling the right to free association.
"Those who join an organization but do not share its unlawful
purposes and who do not participate in its unlawful activities
surely pose no threat, either as citizens or as public employees.
Laws * * * which are not restricted in scope to those who join
with the `specific intent' to further illegal action impose, in
effect, a conclusive presumption that the member shares the
unlawful aims of the organization." Elfbrandt v. Russell,
supra, 384 U.S. at 17, 86 S.Ct. at 1241. See also: Opinion of
the Justices, 108 N.H. 62, 228 A.2d 165 (1967); Vogel v. County
of Los Angeles, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961
(1967); Haskett v. Washington, 294 F. Supp. 912 (D.C. 1968).
Sections 166a and 166b suffer from this infirmity. They deny
compensation for employment to members of subversive
organizations who have knowledge of the group aims, but who have
no specific intent to further those aims. Pickus v. Board of
Education of City of Chicago, 9 Ill.2d 599, 138 N.E.2d 532
Clearly, it is too late in the day to resurrect the premise
that public employment, or compensation therefor, may be
conditioned upon the surrender of constitutional rights that
could not be abridged by direct governmental action. Adler v.
Board of Education of City of New York, 342 U.S. 485, 72 S.Ct.
380, 96 L.Ed. 517 (1952).
In sum, the constitutional issues raised in these actions have
been fully and finally determined by the Supreme Court in
Keyishian, Elfbrandt and Whitehill, supra. We are, therefore,
left with no alternative but to conclude that the Illinois oath
and underlying statutes, Sections 166a and 166b, supra, must fall
as being in derogation of the First and Fourteenth Amendment
rights of the plaintiffs.
It is, therefore, considered, ordered and adjudged:
(1) That defendants be and they are hereby enjoined from
enforcing said statutes and the loyalty oath required thereunder
and denying compensation to these plaintiffs.
(2) That said statutes and the loyalty oath required thereunder
be and the same are declared void, ...