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Cole v. Richardson

Citation. 405 U.S. 676 (1972)
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Brief Fact Summary.

The appellee, hired as a research sociologist, was required to take an oath by Massachusetts but refused.

Synopsis of Rule of Law.

Neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First and Fourteenth Amendments respectively.


The appellee, Richardson, was hired as a research sociologist by the Boston State Hospital. Appellant Cole is superintendent of the hospital. Soon after she entered on duty, Mrs. Richardson was asked to subscribe to the oath required of all public employees in Massachusetts. Mrs. Richardson informed the hospital’s personnel department that she could not take oath as ordered because of her belief that it was in violation of the Constitution. She was terminated and brought this suit.


Is requiring the oath on all public employees in Massachusetts violate the Constitution?


No, the second clause of the oath contains a promise to oppose the overthrow of the government of the United States by force, violence, or by any illegal or unconstitutional language. The Court has recognized the purpose leading legislatures to enact such oaths, just as the purpose leading the Framers of our Constitution to include the two explicit constitutional oaths, was not to create specific responsibilities but to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our system.


Justice Marshall

The clause in the oath is not only vague but overbroad. The oath is not clear whether the last prepositional phrase modified the verb “oppose” or the noun “overthrow.” Thus, an affiant cannot be certain whether he is swearing that he will “oppose” governmental overthrow by utilizing every means at his disposal, including those specifically prohibited by the laws or constitutions he has sworn to support or whether he has merely accepted the responsibility of opposing illegal or unconstitutional overthrows. The affiant is left with little guidance as to the responsibilities he has assumed in taking the oath.


Here, the clause does not require specific action in some hypothetical or actual situation. Plainly “force, violence or any illegal or unconstitutional method” modifies “overthrow” and does not commit the oath taker to meet force with force. Just as the active word “support” has been interpreted to mean simply a commitment to abide by our constitutional system, the clause of this oath is merely oriented to the negative implication of this notion. It is a commitment not to use illegal and constitutionally unprotected force to change the constitutional system. The oath is not interpreted as void for vagueness. It is punishable only by a prosecution for perjury and since perjury is a knowing and willful falsehood, the constitutional vice of punishment without fair warning cannot occur here. Nor here is there any problem of punishment inflicted by mere prosecution. There has been no prosecution under this statute and there is no indication that prosecutions have been planned or begun. The oath triggered no serious possibility of prosecution.

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