U.S. Supreme Court

BROADRICK v. OKLAHOMA, 413 U.S. 601 (1973)

413 U.S. 601

BROADRICK ET AL. v. OKLAHOMA ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF

OKLAHOMA

No. 71-1639.

Argued March 26, 1973

Decided June 25, 1973

Appellants, state employees charged by the Oklahoma State Personnel Board with actively engaging in partisan political activities (including the solicitation of money) among their coworkers for the benefit of their superior, in alleged violation of 818 of the state merit system Act, brought this suit challenging the Act's validity on the grounds that two of its paragraphs are invalid because of overbreadth and vagueness. One paragraph provides that no classified service employee "shall directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose." The other provides that no such employee shall belong to "any national, state or local committee of a political party" or be an officer or member of a committee or a partisan political club, or a candidate for any paid public office, or take part in the management or affairs of any political party or campaign "except to exercise his right as a citizen privately to express his opinion and . . . vote." The District Court upheld the provisions. Held: Section 818 of the Oklahoma statute is not unconstitutional on its face. CSC v. Letter Carriers, ante, p. 548. Pp. 607-618.

(a) The statute, which gives adequate warning of what activities it proscribes and sets forth explicit standards for those who must apply it, is not impermissibly vague. Pp. 607-608.

(b) Although appellants contend that the statute reaches activities that are constitutionally protected as well as those that are not, it is clearly constitutional as applied to the conduct with which they are charged and because it is not substantially overbroad they cannot challenge the statute on the ground that it might be applied unconstitutionally to others, in situations not before the Court. Appellants' conduct falls squarely within the proscriptions of 818, which deals with activities that the State has ample power to regulate, United Public Workers v. Mitchell,  330 U.S. 75 ;

CSC v. Letter Carriers, supra, and the operation of the statute has been administratively confined to clearly partisan political activity. Pp. 609-618.

338 F. Supp. 711, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 618. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 621.

John C. Buckingham argued the cause for appellants. With him on the briefs was Terry Shipley.

Mike D. Martin, Assistant Attorney General of Oklahoma, argued the cause for appellees. With him on the brief were Larry Derryberry, Attorney General, and Paul C. Duncan, Assistant Attorney General.

MR. JUSTICE WHITE delivered the opinion of the Court.

Section 818 of Oklahoma's Merit System of Personnel Administration Act, Okla. Stat. Ann., Tit. 74, 801 et seq., restricts the political activities of the State's classified civil servants in much the same manner that the Hatch Act proscribes partisan political activities of federal employees. Three employees of the Oklahoma Corporation Commission who are subject to the proscriptions of 818 seek to have two of its paragraphs declared unconstitutional on their face and enjoined because of asserted vagueness and overbreadth. After a hearing, the District Court upheld the provisions and denied relief. 338 F. Supp. 711. We noted probable jurisdiction of the appeal, 409 U.S. 1058, so that appellants' claims could be considered together with those of their federal counterparts in CSC v. Letter Carriers, ante, p. 548. We affirm the judgment of the District Court.

Section 818 was enacted in 1959 when the State first established its Merit System of Personnel Administration.[^{Footnote 1} ] The section serves roughly the same function as

the analogous provisions of the other 49 States,[^{Footnote 2} ] and is patterned on 9 (a) of the Hatch Act.[^{Footnote 3} ] Without question, a broad range of political activities and conduct

is proscribed by the section. Paragraph six, one of the contested portions, provides that "[n]o employee in the classified service . . . shall, directly or indirectly,

solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose." Paragraph seven, the other challenged paragraph, provides that no such employee "shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office." That paragraph further prohibits such employees from "tak[ing] part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote." As a complementary proscription (not challenged in this lawsuit) the first paragraph prohibits any person from "in any way" being "favored or discriminated against with respect to employment in the classified service because of his political . . . opinions or affiliations." Responsibility for maintaining and enforcing 818's proscriptions is vested in the State Personnel Board and the State Personnel Director, who is appointed by the Board. Violation of 818 results in dismissal from employment and possible criminal sanctions and limited state employment ineligibility. Okla. Stat. Ann., Tit. 74, 818 and 819.

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from "political extortion."[^{Footnote 4} ] See United Public Workers v. Mitchell,  330 U.S. 75, 99 -103 (1947). Rather, appellants maintain that however permissible,

even commendable, the goals of 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons,[^{Footnote 5} ] appellants assert that the sixth and seventh paragraphs of 818 are void in toto and cannot be enforced against them or anyone else.[^{Footnote 6} ]

We have held today that the Hatch Act is not impermissibly vague. CSC v. Letter Carriers, ante, p. 548. We have little doubt that 818 is similarly not so vague that "men of common intelligence must necessarily guess at its meaning." Connally v. General Construction Co.,  269 U.S. 385, 391 (1926). See Grayned v. City of Rockford,  408 U.S. 104, 108 -114 (1972); Colten v. Kentucky,  407 U.S. 104, 110 -111 (1972); Cameron v. Johnson,  390 U.S. 611, 616 (1968). Whatever other problems there are with 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out "explicit standards" for those who must apply it. Grayned v. City of Rockford, supra, at 108. In the plainest language, it

prohibits any state classified employee from being "an officer or member" of a "partisan political club" or a candidate for "any paid public office." It forbids solicitation of contributions "for any political organization, candidacy or other political purpose" and taking part "in the management or affairs of any political party or in any political campaign." Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in 818 as "partisan," or "take part in," or "affairs of" political parties. But what was said in Letter Carriers, ante, at 578-579, is applicable here: "there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest."[^{Footnote 7} ] Moreover, even if the outermost boundaries of 818 may be imprecise, any such uncertainty has little relevance here, where appellants' conduct falls squarely within the "hard core" of the statute's proscriptions and appellants concede as much.[^{Footnote 8} ] See Dombrowski v. Pfister,  380 U.S. 479, 491 -492 (1965); United States v. National Dairy Products Corp.,  372 U.S. 29 (1963); Williams v. United States,  341 U.S. 97 (1951); Robinson v. United States,  324 U.S. 282, 286 (1945); United States v. Wurzbach,  280 U.S. 396 (1930).

Shortly before appellants commenced their action in the District Court, they were charged by the State Personnel Board with patent violations of 818.[^{Footnote 9} ] According to the Board's charges, appellants actively participated in the 1970 re-election campaign of a Corporation Commissioner, appellants' superior. All three allegedly asked other Corporation Commission employees (individually and in groups) to do campaign work or to give referrals to persons who might help in the campaign. Most of these requests were made at district offices of the Commission's Oil and Gas Conservation Division. Two of the appellants were charged with soliciting money for the campaign from Commission employees and one was also charged with receiving and distributing campaign posters in bulk. In the context of this type of obviously covered conduct, the statement of Mr. Justice Holmes is particularly appropriate: "if there is any difficulty . . . it will be time enough to consider it when raised by someone whom it concerns." United States v. Wurzbach, supra, at 399.

Appellants assert that 818 has been construed as applying to such allegedly protected political expression as the wearing of political buttons or the displaying

of bumper stickers.[^{Footnote 10} ] But appellants did not engage in any such activity. They are charged with actively engaging in partisan political activities - including the solicitation of money - among their coworkers for the benefit of their superior. Appellants concede - and correctly so, see Letter Carriers, supra - that 818 would be constitutional as applied to this type of conduct.[^{Footnote 11} ] They nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.

Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. See, e. g., Austin v. The Aldermen, 7 Wall. 694, 698-699 (1869); Supervisors v. Stanley,  105 U.S. 305, 311 -315 (1882); Hatch v. Reardon,  204 U.S. 152, 160 -161 (1907); Yazoo & M. V. R. Co. v. Jackson Vinegar Co.,  226 U.S. 217, 219 -220 (1912); United States v. Wurzbach, supra, at 399; Carmichael v. Southern Coal & Coke Co.,  301 U.S. 495, 513 (1937); United States v. Raines,  362 U.S. 17 (1960). A closely related principle is that constitutional rights are personal and may not be asserted vicariously. See McGowan v. Maryland,  366 U.S. 420, 429 -430 (1961). These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts

are not roving commissions assigned to pass judgment on the validity of the Nation's laws. See Younger v. Harris,  401 U.S. 37, 52 (1971). Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court:

"So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." Marbury v. Madison, 1 Cranch 137, 178 (1803).

In the past, the Court has recognized some limited exceptions to these principles, but only because of the most "weighty countervailing policies." United States v. Raines, 362 U.S., at 22-23.[^{Footnote 12} ] One such exception is where individuals not parties to a particular suit stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves. See Eisenstadt v. Baird,  405 U.S. 438, 444 -446 (1972); NAACP v. Alabama,  357 U.S. 449 (1958). Another exception has been carved out in the area of the First Amendment.

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression

has to give way to other compelling needs of society. Herndon v. Lowry,  301 U.S. 242, 258 (1937); Shelton v. Tucker,  364 U.S. 479, 488 (1960); Grayned v. City of Rockford, 408 U.S., at 116-117. As a corollary, the Court has altered its traditional rules of standing to permit - in the First Amendment area - "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Dombrowski v. Pfister, 380 U.S., at 486. Litigants, therefore, are permitted to challenge a statute not because their own right of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate "only spoken words." Gooding v. Wilson,  405 U.S. 518, 520 (1972). See Cohen v. California,  403 U.S. 15 (1971); Street v. New York,  394 U.S. 576 (1969); Brandenburg v. Ohio,  395 U.S. 444 (1969); Chaplinsky v. New Hampshire,  315 U.S. 568 (1942). In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents,  385 U.S. 589 (1967); United States v. Robel,  389 U.S. 258 (1967); Aptheker v. Secretary of State,  378 U.S. 500 (1964); Shelton v. Tucker, supra. Facial

overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, at 114-121; Cameron v. Johnson, 390 U.S., at 617-619; Zwickler v. Koota,  389 U.S. 241, 249 -250 (1967); Thornhill v. Alabama,  310 U.S. 88 (1940), and where such conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See Shuttlesworth v. Birmingham,  394 U.S. 147 (1969); Cox v. Louisiana,  379 U.S. 536, 553 -558 (1965); Kunz v. New York,  340 U.S. 290 (1951); Lovell v. Griffin,  303 U.S. 444 (1938).

The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. See Dombrowski v. Pfister, 380 U.S., at 491; Cox v. New Hampshire,  312 U.S. 569 (1941); United States v. Thirty-seven Photographs,  402 U.S. 363 (1971); cf. Breard v. Alexandria,  341 U.S. 622 (1951). Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. In Cantwell v. Connecticut,  310 U.S. 296 (1940), Jesse Cantwell, a Jehovah's Witness, was convicted of common-law breach of the peace for playing a phonograph record attacking the

Catholic Church before two Catholic men on a New Haven street. The Court reversed the judgment affirming Cantwell's conviction, but only on the ground that his conduct, "considered in the light of the constitutional guarantees," could not be punished under "the common law offense in question." Id., at 311 (footnote omitted). The Court did not hold that the offense "known as breach of the peace" must fall in toto because it was capable of some unconstitutional applications, and, in fact, the Court seemingly envisioned its continued use against "a great variety of conduct destroying or menacing public order and tranquility." Id., at 308. See Garner v. Louisiana,  368 U.S. 157, 202 -203, 205 (1961) (Harlan, J., concurring in judgment). Similarly, in reviewing the statutory breach-of-the-peace convictions involved in Edwards v. South Carolina,  372 U.S. 229 (1963), and Cox v. Louisiana, supra, at 544-552, the Court considered in detail the State's evidence and in each case concluded that the conduct at issue could not itself be punished under a breach-of-the-peace statute. On that basis, the judgments affirming the convictions were reversed.[^{Footnote 13} ] See also Teamsters Union v. Vogt, Inc.,  354 U.S. 284 (1957). Additionally, overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner. See United States

v. Harriss,  347 U.S. 612 (1954); United States v. CIO,  335 U.S. 106 (1948); cf. Red Lion Broadcasting Co. v. FCC,  395 U.S. 367 (1969); Pickering v. Board of Education,  391 U.S. 563, 565 n. 1 (1968); Eastern Railroad Conference v. Noerr Motor Freight, Inc.,  365 U.S. 127 (1961).

It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate. Coates v. City of Cincinnati,  402 U.S. 611, 617 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct - even if expressive - falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect - at best a prediction - cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States,  394 U.S. 165, 174 -175 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case

analysis of the fact situations to which its sanctions, assertedly, may not be applied.[^{Footnote 14} ]

Unlike ordinary breach-of-the-peace statutes or other broad regulatory acts, 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, 818 is not a censorial statute, directed at particular groups or viewpoints. Cf. Keyishian v. Board of Regents, supra. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicated, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers, supra. Under the decision in Letter Carriers, there is no question that 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs,

or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.

These proscriptions are taken directly from the contested paragraphs of 818, the Rules of the State Personnel Board and its interpretive circular, and the authoritative opinions of the State Attorney General. Without question, the conduct appellants have been charged with falls squarely within these proscriptions.

Appellants assert that 818 goes much farther than these prohibitions. According to appellants, the statute's prohibitions are not tied tightly enough to partisan political conduct and impermissibly relegate employees to expressing their political views "privately." The State Personnel Board, however, has construed 818's explicit approval of "private" political expression to include virtually any expression not within the context of active partisan political campaigning,[^{Footnote 15} ] and the State's Attorney General, in plain terms, has interpreted 818 as prohibiting "clearly partisan political activity" only.[