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Commentary

Guilt by Association: Georgia’s Anti-Subversive Test Oath

By Marjorie Heins

First Amendment advocates generally think of anti-subversive “test oaths” as archaic relics of an ignominious past, but the State of Georgia does not agree. When the performance artist Karen Finley, no stranger to bad laws, was confronted in 2008 with an old-style disclaimer of revolutionary affiliations as a condition of her accepting a job as a visiting professor at Georgia State University, she was appalled, refused to sign, and began to look for support within the faculty for a legal challenge to the oath.

Finley had been the lead plaintiff in a case decided by the Supreme Court ten years before—a challenge to a federal law requiring the National Endowment for the Arts to consider “general standards of decency” and “respect for the diverse beliefs and values of the American people” in awarding arts grants. Although the Supreme Court ultimately upheld this “decency and respect” law, it only did so by interpreting it to be essentially meaningless;1 nevertheless, the law served its purpose by intimidating the NEA into being very cautioius with respect to future grantmaking.

Finley, now a professor of art and public policy at New York University, had been invited to Georgia State as a result of her previous work in Atlanta: her participation in a group art show in 2007, her subsequent sold-out talk at the university, her performance of her piece, "George and Martha," followed by an interview for the GSU journal Five Points and a lecture on America's involvement with Iraq and visual culture, attended by more than 400 students. Clearly, she was a desirable addition to the faculty. But, sensitive to restrictions on free speech as a matter of artistic integrity as well as academic freedom, Finley balked at an anti-subversive test oath of a type that she thought had been ruled unconstitutional long ago.

The oath is part of a “Security Questionnaire” distributed to all applicants for public employment in Georgia. Referencing the state’s 1953 “Sedition and Subversive Activities Act,” the form questionnaire asks: “Are you now or have you been within the last ten years a member of any organization that to your knowledge at the time of membership advocates, or has as one of its objectives, the overthrow of the government of the United States or of the government of the State of Georgia by force or violence?”

If the applicant answers yes, she must name the organization and describe her “past and present membership status including any offices held.” The form warns that a “yes” answer may lead to “further inquiry” and disqualification “if it is determined” that the person is a subversive within the meaning of the 1953 law.

A Convoluted History

The Georgia oath has a checkered history. Test oaths of this type—in contrast to the more common and generally thought less objectionable “affirmative” oaths to support the constitutions of the U.S. and a particular state—became popular throughout the nation in the 1920s and ‘30s, when fear of communism became a convenient excuse for many politicians to attack liberal reformers of all sorts, including opponents of fascism, economic injustice, and race discrimination. True, the Communist Party was active in the U.S. in the 1930s, often leading these reform campaigns and using them to attract new members and spread revolutionary doctrine. But there was no serious threat of communist revolution in the U.S., and the draconian punishments that many states imposed on public employees and others suspected of sympathy with communism struck directly at our most basic freedoms of thought, speech, and association.2

Georgia was typical in this respect. In 1935, the state legislature passed a resolution requiring all public school teachers, including university professors, to swear not only to “uphold, support and defend” the constitution and laws of Georgia and the United States (a typical affirmative oath), but “to refrain from directly or indirectly subscribing to or teaching any theory of government or economics or of social relations which is inconsistent with the fundamental principles of patriotism and high ideals of Americanism.” In 1949, with Cold War hysteria mounting, the state added a more specific set of requirements: all public employees now had to swear that they were not members of the Communist Party, had “no sympathy for the doctrines of Communism,” and would not lend their “aid, support, advice, counsel or influence to the Communist Party or to the teachings of Communism.”3

It was not until the mid-1960s that a group of professors, represented by the Georgia Conference of the American Association of University Professors (the AAUP), filed a lawsuit challenging these two broad, vague, and politically repressive laws. The federal court in this case invalidated the 1935 requirement—for ideological conformity in teaching and personal belief—by pointing out the obvious: that the oath provided “no ascertainable standard of conduct,” because “there is no definition of fundamental principles of patriotism or high ideals of Americanism and one would necessarily teach at his peril in the areas of government, economics or social relations.” The oath was thus “unconstitutional and void under the First and Fourteenth Amendments to the Constitution.”4

The anti-communist oath that was added to the law in 1949 fared little better in this case. Although the plaintiffs did not object to—and so the court did not rule on—the simple question about Communist Party membership, the court found the rest of the language to be unconstitutionally vague. It relied on two recent Supreme Court decisions striking down anti-subversive oaths in Florida and Washington; the Florida oath had language about “aid, support, and advice” to the Communist Party that was virtually identical to Georgia’s.5

It took another twenty years for the disavowal of Communist Party membership to be eliminated. This resulted from an official "Opinion" of the state attorney general, rendered in response to a request from the secretary of state. The oath now at issue required every public employee to “solemnly swear and affirm that I will support the Constitution of Georgia, and that I am not a member of the Communist Party."

The Attorney General’s Opinion acknowledged that the federal court twenty years earlier, in the case brought by the Georgia chapter of the AAUP, had seemed to approve the simple requirement that employees disavow CP membership, but said that the court had not actually ruled on the issue. In the years since, the Supreme Court had struck down another state law, this time in Arizona, that deemed an employee guilty of perjury if she signed a standard “affirmative” oath of loyalty to the U.S. and the State of Arizona while “knowingly” being a member of the Communist Party or any other organization having for "one of its purposes" the overthrow of the government of Arizona or any of its political subdivisions, "where the employee had knowledge of the unlawful purpose.” The Supreme Court said in this case that even “knowing” membership in the CP, a party that presumably aimed to lead a violent revolution at some undefined future moment if the time was ripe, is not, under the First Amendment, an acceptable reason to deprive a person of employment.

That is, people may have joined the Communist Party out of sympathy with its position on civil rights, economic justice, the fight against fascism, or other worthy causes. As Justice William O. Douglas wrote for the Court in the Arizona case: “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.” The Arizona law thus threatened “the cherished freedom of association protected by the First Amendment.”6

Under this rule, people cannot be deprived of employment or otherwise punished if they simply have knowledge of the unlawful aims of the Party; they must also have a specific intent to support those aims. This may have seemed like a fine distinction, but it basically meant that anti-subversive test oaths, to the extent they had ever been effective as a means of weeding out potential subversives, would now have to be phrased so narrowly that they would have little use apart from enforced rituals of political conformity. Most former and present members of the CP or other groups with revolutionary aims could now presumably disclaim any specific intent to support those aims without much fear of being prosecuted for perjury.

Given the Arizona decision and other similar precedents, the Georgia Attorney General ruled that Georgia's simple question about membership in the Communist Party is unconstitutional. Employment, the Opinion said, “may not be conditioned on an oath denying past, or refusing future, associational activities within constitutional protection. These protected activities include membership in organizations having illegal purposes unless one knows of the purposes and shares a specific intent to promote the illegal purposes.” Thus, “before a person can be refused office or employment based on an oath, he must admit that he is knowingly a member of a subversive organization and that he shares in the goals and aims of this organization for the illegal overthrow of the government.”7

One might have thought that at this point, the Georgia legislature would have turned its attention to other matters, confident that its schools and other places of public employment did not need test oaths to secure their safety. But the legislators were undaunted, and instead now added the words “to your knowledge” to the language of their test oath. As the oath reads today—the one Karen Finley refused to sign—a potential employee must swear that she is not, and has not in the last ten years been, a member of an organization that “to your knowledge at the time of membership advocates, or has as one of its objectives, the overthrow of the government of the United States or of the government of the State of Georgia by force or violence.”

Clearly, the legislature only partially fixed the problem. As the Opinion of the Attorney General explained, “knowing” membership is not enough to disqualify; the employee must also intentionally share in the unlawful aims of the organization.

If this all sounds convoluted, it is because in the early-to-mid 1960s, the Supreme Court chose to chip away incrementally at anti-subversive loyalty oaths, rather than attacking them head-on. But finally in 1967, the Court ruled more broadly, striking down New York State’s elaborate system of loyalty disqualifications and investigations for teachers and professors. In this landmark case, Justice William Brennan wrote for the Court that the First Amendment simply does not tolerate laws that “cast a pall of orthodoxy over the classroom.”8 After this, it really seemed that anti-subversive oaths and statutes like Georgia’s would soon become ancient history.

Fear and Caution in Academe

But Karen Finley learned otherwise. And to her dismay, she found no eagerness among the faculty at Georgia State when she proposed bringing a legal challenge to the current law. In an effort to explore the issue and drum up support, Finley worked with Matthew Roudané, chair of the English Department and the professor who had initially invited her to Georgia State, to organize a colloquium on "Public Issues, Private Freedoms: Loyalty Oaths, Artists, and the Humanities" at the November 2009 meeting of the South Atlantic Modern Language Association. Among the speakers, in addition to Finley and Roudané, were Georgia State history professor Hugh Hudson, who presented a history of the state loyalty oath, and attorney Gerry Weber, who provided a legal analysis.

But still, there was no enthusiasm for a legal challenge. To the contrary: as Roudané told this author, everyone thought the oath was a joke, but no one was interested in joining a lawsuit. “Given the economy,” he said, including furloughs—forced time off that effectively reduces the salaries of state university staff—“the last thing people want to do is get into a fight with the state.”9 A year later, when Finley was finally considering going forward with the case on her own, with Weber as her attorney, Roudané wrote that he could not provide a letter stating that the job offer to Finley was still open. It seemed that the Georgia State faculty simply did not want anyone raising the touchy, politically charged issue of loyalty oaths.

Ironically, the American professoriat was much more assertive on this issue sixty years ago, at the height of Cold War anti-communist furor. In 1949, about 300 professors at the University of California, most of them confirmed civil libertarians rather than communists, refused on principle to sign a test oath that singled out and stigmatized teachers as potentially disloyal. They eventually won their point in court, although the state legislature then simply expanded the oath to cover all public employees, and it was not struck down until 1967, in the wake of the Supreme Court decision invalidating loyalty programs in general.10

Similarly, Washington State’s anti-subversive oaths, struck down in 1964, were challenged by a coalition of 64 professors. Even in the New York case that put the final nail in the coffin of broad state loyalty programs, five professors refused on principle to sign. (None were communists.) The lead plaintiff in that case, Harry Keyishian, later remarked that “there was widespread opposition” to New York’s loyalty program among his fellow faculty at the University of Buffalo, but in the end, only five refused to sign a disclaimer oath. “Suppose there had been 25, or for that matter 500? Clearly the problem would have been so serious that it is doubtful the administration could have taken any action at all. The faculty clearly underestimated its power and allowed itself to be stampeded into signing with unnecessary haste.”11

Of course, the Washington and New York cases began in the early 1960s, a time when support for liberalism and respect for academic freedom were beginning to revive after the severe political repression of the ‘50s. And the revolt of the California professors in 1949 can be seen as having taken place while liberalism was still fighting what turned out to be a losing battle against repression in the late ‘40s. One question raised by Karen Finley’s unsuccessful effort to enlist Georgia professors in her challenge to the state’s archaic test oath is whether we are now again in a period like the ‘50s, where silence, fear, and caution prevail in academia even though the outward signs of repression, such as legislative investigating committees and deeply invasive loyalty investigations into people’s associations, political activities, and reading choices, are absent.

A test oath, as Matthew Roudané pointed out, seems to many, perhaps most, people like a silly annoyance rather than a problem of major civil liberties proportions. It is difficult to discern what chilling effect an oath like Georgia’s has on the exercise of First Amendment freedoms. Certainly, there are few members of the Communist Party or other revolutionary groups in America today, so most people can sign the oath without fear of being contradicted by informers and subsequently prosecuted for perjury. But the problem with test oaths goes beyond the potential chill on First Amendment rights.

For one thing, it is often conscientious objectors, rather than committed revolutionaries, who refuse to sign. Karen Finley is a good example. Quakers and others whose objections to oaths are religious in nature are put to a cruel dilemma when they are forced to choose between their deeply held beliefs and a job to support their families—not to mention the loss to schools and students of good, sometimes great, teachers.

Karen Finley's planned courses at Georgia State, for example, were already fully subscribed when she was sent a packet of papers including the test oath. As a result of her principled refusal to sign, both students and faculty were deprived of exposure to her controversial, award-winning, intensely engaged feminist art.

Finally, as the Supreme Court recognized in an early decision striking down a post-Civil War test oath, a fundamental problem with such oaths is that they violate the presumption that citizens in a democracy are innocent until proven guilty of wrongdoing. The numerous provisions of the oath in that case, said the Court,

subvert the presumptions of innocence, and alter the rules of evidence, which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable. They assume that the parties are guilty; they call upon the parties to establish their innocence; and they declare that such innocence can be shown only in one way—by an inquisition, in the form of an expurgatory oath, into the consciences of the parties.12

A story recounted by Roger Revelle, the founder of the University of California at San Diego, illustrates the point. During the controversy over California's test oath for university professors, one of the oath's perhaps unlikely opponents, General "Howling Mad" [Holland M.] Smith, was asked by "a couple of the good ladies of La Jolla ... why those professors aren't willing to say they aren't communists. And General Smith said, 'Madam, if somebody asked you to take an oath that you were not a prostitute, what would you do?' They never spoke to me again."13

August 17, 2010

Marjorie Heins is working on a book about academic freedom and the First Amendment.

For more background on loyalty oaths, see "A Pall of Orthodoxy": The Painful Persistence of Loyalty Oaths and What Makes a Conscientious Objector? - Ohio’s Anti-Terrorist Oath.

1. National Endowment for the Arts v. Finley, 524 U.S 569 (1998) (holding that the “decency and respect” law is only advisory and had not caused any proven harm to artists).

2. See Marjorie Heins, “A Pall of Orthodoxy": The Painful Persistence of Loyalty Oaths, for more detail on both anti-subversive test oaths and affirmative oaths of loyalty, and for the arguments pro and con.

3. See Georgia Conference of the AAUP v. Board of Regents of the University System of Georgia, 246 F.Supp. 553 (N.D. Ga. 1965).

4. Id.

5. Cramp v. Board of Public Instruction, 368 U.S. 278 (1961) (the Florida case); Baggett v. Bullitt, 377 U.S. 360 (1964) (the Washington case).

6. Elfbrandt v. Russell, 384 U.S. 11, 17, 18 (1966).

7. Opinion of the Attorney General, 1985 Op. Atty Gen. Ga. 48 (1985).

8. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

9. Nov. 13, 2009 telephone conversation with Matthew Roudané.

10. Vogel v. County of Los Angeles, 68 Cal. 2d 18 (1967).

11. Harry Keyishian, Unpublished paper (1965).

12. Cummings v. Missouri, 71 U.S. 277, 328 (1866).

13. Roger Revelle, Oral History, Scripps Institute of Oceanography Library, 1984, Vol. 3, p. 7, http://scilib.ucsd.edu/sio/oral/Revelle%20Volume%203.pdf


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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