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Case No. 06-13173-GG
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BASIL E. DALACK,
Plaintiff -Appellant,
v.
VILLAGE OF TEQUESTA, FLORIDA,
Defendant -Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
INITIAL BRIEF OF APPELLANT BASIL E. DALACK
Richard B. Rosenthal (Counsel of Record
THE LAW OFFICES OF RICHARD B. ROSENTHAL, P.A.
169 East Flagler Street
Suite 1422
Miami, Florida 33131
Telephone: (305) 779-6097
Facsimile: (305) 779-6095
rbr@rosenthalappeals. c om
•
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Pursuant to 11th Cir. R. 26.1, the undersigned counsel certifies that the
following is a list of persons or entities that have an interest in the outcome of this
case:
Basil E. Dalack (Plaintiff /Appellant)
Village of Tequesta, Florida (Defendant/Appellee)
Greenberg Traurig, P.A. (Counsel for Appellee)
Jim Humpage (Village Mayor)
Tom Paterno (Village Vice-Mayor)
• Geraldine A. Genco (Village Councilmember)
Pat Watkins (Village Councilmember)
Richard B. Rosenthal (Counsel for Appellant)
Edward G. Guedes (Counsel for Appellee)
Robert Luck (Counsel for Appellee)
Hon. Donald Middlebrooks (United States District Judge)
Hon. Linnea Johnson (United States Magistrate Judge)
_/s/
Richard B. Rosenthal
Counsel for Appellant Basil E. Dalack
C-1 of 1
• STATEMENT REGARDING ORAL ARGUMENT
Appellant, Basil E. Dalack, respectfully requests oral argument as it would
assist the Courtin evaluating the issues presented. This appeal concerns whether the
Village of Tequesta, Florida's loyalty oath is unconstitutionally vague or overbroad.
The Village has mandated that before Mr. Dalack can assume the public office
to which he has been duly elected, he must swear to the Village's loyalty oath, which
among other things, requires the oath taker to swear -under penalty ofperjury -that
he or she "will support, protect and defend the ...Government of the United States
and the State of Florida[.]" Mr. Dalack's reading of this phrase is that he must swear
to support the current Administrations inoffice -the George W. Bush Administration
in Washington, D.C. and the Jeb Bush Administration in Tallahassee, Florida. But
Mr. Dalack does not support either of these Administrations, and will not so swear.
The Village claims the loyalty oath's reference to "the Government" means the
same thing as "the Constitution," or "our present representative form of government."
We submit that both Mr. Dalack's interpretation and the Village's interpretation are
reasonable readings of the oath, and hence the oath is vague. And even if the oath
can mean only what the Village claims, it is still overbroad. No case has "directly
examined the phrase `support the Government' that is at issue here." Dist. Ct. Op. at
7. Oral argument would assist in resolving this question of first impression.
•
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .............................................C-1 of 1
STATEMENT REGARDING ORAL ARGUMENT .................................................i
TABLE OF CONTENTS ...........................................................................................ii
TABLE OF AUTHORITIES ....................................................................................iv
STATEMENT OF JURISDICTION ..........................................................................1
ISSUES PRESENTED ...............................................................................................1
INTRODUCTION ......................................................................................................2
STATEMENT OF THE CASE AND FACTS ...........................................................4
SUMMARY OF ARGUMENT ...............................................................................10
ARGUMENT ...........................................................................................................11
I. THE VILLAGE'S LOYALTY OATH IS
UNCONSTITUTIONALLY VAGUE BECAUSE
REASONABLE PEOPLE CAN DISAGREE AS TO ITS MEANING.......13
A. Vagueness Principles .........................................................................16
B. Vagueness Principles Applied to Loyalty Oaths ................................20
C. Under These Principles, The Village's Loyalty Oath
is Unconstitutionally Vague ................................................................35
1. The Text and Structure of the Village's Loyalty Oath
Demonstrate that Mr. Dalack's Interpretation is Reasonable..39
2. The Common Understanding of the Terms Supports
Mr. Dalack's Interpretation .......................................................48
ii
II. THE VILLAGE'S LOYALTY OATH IS OVERBROAD
IN THAT IT IMPERMISSIBLY REGULATES LEGITIMATE
BELIEF AND CONDUCT PROTECTED BY THE FIRST
AND FOURTEENTH AMENDMENTS ......................................................59
CONCLUSION ........................................................................................................67
CERTIFICATE OF COMPLIANCE .......................................................................68
CERTIFICATE OF SERVICE ................................................................................68
•
iii
TABLE OF AUTHORITIES
Cases
Bag~ett v. Bullitt,
377 U.S. 360 (1964) ..........................................................................................passim
Board of Pub. Instruction of Orange County, Florida v. Cramp,
368 U.S. 287 (1961) ..........................................................................................passim
Bond v. Floyd,
385 U.S. 116 (1966) .................................................................................................28
Bonner v. City of Prichard, Alabama,
661 F.2d 1206 (11th Cir. 1981) (en banc) ...............................................................18
Broadrick v. Oklahoma,
413 U.S. 601 (1973) .................................................................................................60
Buckley v. Valeo,
424 U.S. 1 (1976) .....................................................................................................33
Chandler v. Miller,
520 U.S. 305 (1997) .................................................................................................11
City of Lakewood v. Plain Dealer Publishing Co.,
486 U.S. 750 (1988) .................................................................................................20
Cole v. Richardson,
405 U.S. 676 (1972) ...............................................................................11, 30-32, 57
Communist Party of Indiana v. Whitcomb (Whitcomb I),
410 U.S. 976 (1973) ...........................................................................................27, 61
Communist Party of Indiana v. Whitcomb (Whitcomb II),
414 U.S. 441 (1974) .....................................................................................27, 60-61
iv
Connell v. Higginbotham,
403 U.S. 207 (1971) ...........................................................................................12, 26
Diversified Numismatics, Inc. v. City of Orlando, Florida,
949 F.2d 382 (11th Cir. 1991) .................................................................................18
Dimitt v. City of Clearwater, Florida,
985 F.2d 1565 (1 lth Cir. 1993) ...............................................................................33
Elf6randt v. Russell,
384 U.S. 11 (1966) .............................................................................................25-26
Farrell v. Burke,
No. OS-1069, 2006 WL 1486998 (2d Cir., May 31, 2006) ...............................50, 60
Gooding v. Wilson,
405 U.S. 518 (1972) .................................................................................................33
Gough v. State,
667 A.2d 1057 (N.J. Super. Ct. App. Div. 1995) .........................................31, 33-34
Grayned v. City of Rockford,
408 U.S. 104 (1972) ...........................................................................................16, 59
Hicks v. Miranda,
422 U.S. 332 (1975) .................................................................................................26
Hiett v. United States,
415 F.2d 664 (5th Cir. 1969) ...................................................................................18
High Ol' Times v. Busbee,
673 F.2d 1225 (11th Cir. 1982) ...............................................................................18
Hosack v. Smiley,
276 F. Supp. 339 (D. Colo. 1967), aff d, 390 U.S. 774 (1968) ...............................28
Hynes v. Mayor of Oradell,
425 U.S. 610 (1976) .................................................................................................33
•
Jacobs v. The Florida Bar,
S 50 F.3d 901 (11th Cir. 1995) ...................................................................................19
Keyishian v. Bd. of Regents of the Univ. of the State of New York,
385 U.S. 589 (1967) ...........................................................................................26, 62
Knight v. Bd. of Re ents,
269 F. Supp. 339 (S.D.N.Y. 1967), aff d, 390 U.S. 36 (1968) ...............................28
Kolender v. Lawson,
461 U.S. 352 (1983) .................................................................................................59
Law Students Civil Rights Rsch. Council v. Wadmond,
401 U.S. 154 (1970) .................................................................................................29
McKay v. Rafferty,
321 F. Supp. 1177 (N.D. Cal. 1970), aff d, 400 U.S. 954 (1970) .....................26, 35
NAACP v. Button,
371 U.S. 415 (1963) .................................................................................................25
Nunez by Nunez v. City of San Diego,
114 F.3d 935 (9th Cir. 2001) ...................................................................................20
Ohlson v. Phillips,
304 F. Supp. 1152 (D. Colo. 1969) afPd, 397 U.S. 317 (1970) .............................28
Ray v. Blair,
343 U. S 214 (1952) ..................................................................................................45
Schiefer by Schliefer v. City of Charlottseville, Florida,
159 F.3d 843 (4th Cir. 1998) ...................................................................................20
Shapiro v. Roudebush,
431 F. Supp 1177 (D. Mass. 1976) ..........................................................................62
Smith v. Go uen,
415 U.S. 566 (1974) .................................................................................................17
v~
•
Socialist Workers Party v. Hardy,
607 F.2d 704 (5th Cir. 1979) .............................................................................27, 53
Socialist Workers Party v. Hill,
483 F.2d 554 (5th Cir. 1973) ............................................................................passim
Socialist Workers Party v. Martin,
345 F. Supp. 1132 (S. D. Tex. 1972) .......................................................................65
Socialist Workers Party v. Hard~v. O ilvie,
357 F. Supp. 109 (N.D. Ill. 1972) ............................................................................62
Tanner v. Advertising Group, LLC v. Fayette County, Georgia,
2006 WL 1567244 (11 th Cir., June 9, 2006) (en banc) .........................................60
United States v. Canals-Jimenez,
943 F.2d 1284 (1 lth Cir. 1991) ...............................................................................57
• United States v. Loy,
237 F.3d 251 (3d Cir. 2001) ....................................................................................38
United States v. R, by icki,
354 F.3d 124 (2d Cir. 2003) ....................................................................................20
United States v. Salerno,
481 U.S. 739 (1984) .................................................................................................19
United States v. Williams,
444 F.3d 1286 (1 lth Cir. 2006) ...................................................................18, 19, 59
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) .........................................................................................passim
Village of Schamburg v. Citizens for a Better Env't,
444 U.S. 620 (1980) ................................................................................................60
• vii
• Virginia v. Hicks,
539 U.S. 113 (2003) .................................................................................................60
West Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) .................................................................................................63
Whitehill v. Elkins,
389 U.S. 54 (1967) ...................................................................................................26
Wie~and v. Seaver,
504 F.2d 303 (5th Cir. 1974) ................................................................................18
viii
• STATEMENT OF JURISDICTION
The district court had original jurisdiction over this action under 28 U.S.C. §
1331, 28 U.S.C. § 2201, and 42 U.S.C. § 1983. This court has appellate jurisdiction
over the district court's final judgment under 28 U.S.C. § 1291.
ISSUES PRESENTED
I. Whether the wording of the Village of Tequesta, Florida's loyalty oath is
unconstitutionally vague.
II. Whether the Village of Tequesta, Florida's loyalty oath is unconstitutionally
overbroad in that it conditions elective office (to which A ellant has been
pP
duly elected) upon his swearing that "I will support, protect, and defend the
..Government of the United States and of the State of Florida against all
enemies, domestic or foreign, and that I will bear true faith, loyalty, and
allegiance to the same[.]"
• 1
• INTRODUCTION
This appeal concerns a First Amendment challenge to the loyalty oath
mandated by the Village of Tequesta, Florida. The Village's Charter requires the
loyalty oath to be sworn as a precondition for public service as a Village
Councilmember. Under Florida law, making a false statement in the taking of a
required oath of office constitutes perjury, a felony punishable by up to five years'
imprisonment. The First Amendment challenge below sought declaratory judgment
that the wording of the Village's loyalty oath is unconstitutionally vague and is
unconstitutionally overbroad.
• The challenge was brought by Appellant Basil E. Dalack, a 76 year-old resident
of the Village of Tequesta. Mr. Dalack served his country in the Korean War; he
served his community as a 40-year member of the Florida Bar; and he has previously
served two terms on the Tequesta Village Council, from 1999-2001 and 2001-2003.
In 2006, Mr. Dalack ran for a third term as Village Councilmember and, as the
only candidate who qualified for the office, he was elected to the seat unopposed.
Upon reviewing the oath of office carefully, Mr. Dalack realized that he could not in
good conscience swear to it. He told the Village Manger about the problem and
offered to take any one of several other, differently-worded oaths. The Village
Manager refused to alter the oath specificed by the Village Charter.
• 2
• Mr. Dalack then brought the instant declaratory judgment action. Although the
position of Village Councilmember is a paid position, Mr. Dalack has consciously
chosen not to seek monetary damages -his interest in this matter is to vindicate core
constitutional rights, and to serve the term to which he has been duly elected.
On Apri113, 2006, Mr.Dalack's two-year term as Village Councilmember was
set to begin. When the district court declined to issue a preliminary injunction, Mr.
Dalack reached a fork in the road, with only two possible paths. One path for him
was to swear to an oath whose words he did not truly understand and did not believe,
and thereby violate his conscience and subject himself to a possible perjury charge.
The other path was to refrain from swearing to the Village's oath, and thereby lose
precious days, weeks, and months of his two-year term as Village Councilmember -
and perhaps even his entire term of office. Faced with this wrenching choice, Mr.
Dalack has chosen the path of conscience.
He has now lost nearly three months of his two-year term of service. The
district court granted summary judgment for the Village, concluding essentially that
no reasonable person could interpret the Village's loyalty oath in the manner that Mr.
Dalack interprets it, and thus that no constitutional infirmity exists.
Respectfully, we will demonstrate that the district court erred. The Village's
loyalty oath is unconstitutional, and therefore the judgment below shouldbe reversed.
• 3
• STATEMENT OF THE CASE AND FACTS
As the district court correctly noted, there are no material facts in dispute; this
case presents a pure issue of law.l Plaintiff is a 76 year-old resident of the Village of
Tequesta. After serving his country in the Korean War, he returned home and became
a member of the Florida Bar. He practiced law as an appellate lawyer for nearly 40
years, and now is semi-retired. He has previously served 2 two-year terms on the
Tequesta Village Council, from 1999-2001 and 2001-2003.
In 2006, Mr. Dalack again decided to run for Village Councilmember, and he
filled out the requisite forms to run for the vacancy in Seat 5 of the Village Council.
It is undisputed that he was qualified to seek office under State and local law.
To become a qualified candidate, Mr. Dalack, among other things, filled out
a form that included the State of Florida's statutory loyalty oath, found in Section
876.05 of the Florida Statutes. The form that he filled out stated "I, , a
citizen of the State of Florida, ... and a candidate for public office ... do hereby
solemnly swear or affirm that I will support the Constitution of the United States and
1/Unless otherwise noted, all facts in this section derive from the Sworn Amended
Complaint and the Exhibits attached to our summary judgment filings in the district
court. Those items are included in our Appendix, which we will refer to in the format
"App. _"where appropriate. The district court docket sheet is also in our Appendix,
and often we will refer to items by their docket sheet entry number: "D.E. # "
• 4
of the State of Florida." Florida Form DS-DE 24B (App. 4) (ellipses in the original
document). Mr. Dalack signed his assent to this oath.
It is also undisputed that Mr. Dalack was the only candidate who qualified to
serve as Councilmember for Seat 5 -and that, as such, he now has been duly elected
to that office. Under the Village's Charter, the position to which he was duly elected
"shall be entitled to an annual salary to be fixed by ordinance[.]" Village of Tequesta
Charter, § 2.01. (App. 15). Village Councilmembers serve two-year terms, and the
current annual salary for the office is approximately $250 per month.
The unopposed qualified candidates for the Council's three vacant seats - Mr.
Dalack and two other individuals, Ms. Geraldine Genco and Mr. Jim Humpage -were
scheduled to be inducted to office at the Village Council's public meeting on April
13, 2006. In late March or early April, after having qualified as the Councilmember
for Seat 5, Mr. Dalack received an agenda packet for the upcoming Apri113 meeting.
The agenda listed as an item of business "Council Oaths of Office" and "Remarks of
Incoming Council Members," under which it listed the names of the three elected
candidates and their respective Council seat numbers.
Around this time, Mr. Dalack reviewed the loyalty oath that the Village of
Tequesta mandated each Councilmember to take before assuming office. Although
he had taken this oath before his previous terms, he previously did so only casually
and never carefully reviewed its wording. Upon careful review of the Village's
loyalty oath, he became concerned that he could not in good conscience swear to that
particular oath. The Village of Tequesta's loyalty oath, which is contained in Section
2.03 of the Village Charter, states:
I do solemnly swear (or affirm) that I will support, protect and defend the
Constitution, and Government of the United States and of the State of Florida
against all enemies, domestic or foreign, and that I will bear true faith, loyalty
and allegiance to the same and that I am entitled to hold office under the
Constitution and that I will faithfully perform all the duties of the office of
on which I am about to enter so help me God.
On Apri14, Mr. Dalack delivered a letter to the Village Manager explaining
why he did not believe that he could take the oath. He explained that his
interpretation of the loyalty oath's phrase "the Government" was that it meant the
present Administrations in office in Washington, D.C. and Tallahassee, and he could
not truthfully swear to support them. He further explained that he would happily
swear to "support, protect, and defend the Constitution of the United States and the
Constitution of the State of Florida," but he could not truthfully swear the wording
of the Village's particular loyalty oath. He also offered to re-take the Florida
statutory oath he had previously sworn in his 2006 qualifying documents. The
Village Manager responded that he did not have the power to alter the Village's oath,
and thus Mr. Dalack's name would have to be removed from the April 13 agenda.
• The next day (Apri15), Mr. Dalack received another agenda packet. This one
included only Ms. Genco and Mr. Humpage's names under the heading "Council
Oaths of Office" and "Remarks of Incoming Council Members." Mr. Dalack's name
had been removed from the agenda.
He visited the Village Manager again the next day (April 6). Again he offered
to take an oath that did not include swearing "to support the Government." Again the
Manager refused.
On April 7 -with the April 13 swearing-in date looming and the Village unable
or unwilling to allow Mr. Dalack to assume office by swearing any other loyalty oath
- he filed this action against the Village for declaratory and injunctive relief.
• Founded upon the First and Fourteenth Amendments of the United States
Constitution, he sought a declaration that the Village's conduct violated his
constitutional rights, and an injunction directing the Village to let him take office
upon his swearing to a loyalty oath that is constitutionally-valid.
On April 12, he then filed a Sworn Amended Complaint, essentially asserting
the same legal claims as before regarding the loyalty oath. However, the amended
pleading further stated that on Aprill 1, the Village Manager told Mr. Dalack that he
was "back on the agenda." Still uncertain as to what this meant, Mr. Dalack then
received two e-mail messages from Village officials. One of the messages included
•
yet another agenda for the April 13 meeting, this time with his name back on the
document but with asterisks next to it and the notation: "Asterisk indicates no back
up materials provided." Believing that his right to assume office was in imminent and
irreparable jeopardy, Mr. Dalack's Sworn Amended Complaint asked for a
preliminary injunction to maintain the status quo.
On April 12, the Court held a status conference that quickly evolved into a
preliminary injunction hearing. At the close of that hearing, the Court orally denied
Mr. Dalack's request for a preliminary injunction, and the Court issued a written
order to that effect shortly thereafter. The Court also directed the parties to brief the
diapositive legal issues in expedited fashion.
• On April 13 -the day after the Court denied the preliminary injunction - Ms.
Genco and Mr. Humpage swore the Village's loyalty oath and assumed their
respective offices as Village Councilmembers. The Village did not announce any
formal position on what would happen with respect to Seat 5.
On May 25, the district court held a hearing on the parties' cross-motions for
summary judgment. At the close of the hearing, the court announced its oral ruling
in favor of the Village. Approximately an hour later, the court issued a 24-page
written ruling formalizing its ore tenus ruling. (App. 12) ("Dist.Ct. Op.").
• ft
The district court concluded that Mr. Dalack's vagueness challenge failed
because "[i]n the context ofthe Village's oath, `Government' cannot refer specifically
to the current administration or individual elected leaders." Dist. Ct. Op. at 19. The
district court also found that Mr. Dalack's overbreadth challenge failed because "one
can disagree with the policies of the Government but continue to `support' its
authority and republican structure by working to change policies through established,
legitimate, and lawful means." Id. at 22.2
2/ The district court's order included two factual misstatements which should be
clarified at the outset. First, the district court noted that Mr. Dalack's complaint was
• made "implicitly" under 42 U.S.C. § 1983. Id. at 2 n.2. That is incorrect. Mr. Dalack
had moved to amend his complaint by interlineation to make explicit that § 1983 was
one basis for jurisdiction (D.E. # 12), and the district court had granted the
interlineation approximately one month before summary judgment. (D.E. # 16).
Second, the district court incorrectly stated: "although his memorandum of law
implies that the `protect and defend ...the Government' and `bear true faith, loyalty,
and allegiance to [the Government]' language is constitutionally impermissible,
neither his Complaint nor his comments challenge these phrases." Dist. Ct. Op. at 3
n.2 (brackets in district court's opinion). That, too, is mistaken. While it is true that
Mr. Dalack's pre-litigation letters to the Village Manager highlighted his concern
with the specific term "support," Mr. Dalack's Sworn Amended Complaint (the
operative pleading for summary judgment purposes) specified that the reliefhe sought
was not the simply the elimination of the term "support" from the Village's oath.
Rather, as his prayer for relief made clear, he prayed "that the words `the
Government' be deleted from Section 2.03 so that it will comply with the
Constitution of the United States." D.E. # 7 at 7 (ad damnum clause) (emphasis
supplied). When the Sworn Amended Complaint discussed the word support, it
specified that "[alt the very least, the inclusion of the word `support' renders Section
2.03 unconstitutionally vague." Id. at 7, ¶ 21 (emphasis supplied).
• v
Since summary judgment was issued, the Village of Tequesta has publicly
announced that it will not immediately hold a new election to fill Seat 5. However,
the Village has not formally specified how long it will refrain from attempting to fill
the seat. Mr. Dalack therefore remains uncertain about whether he will be permitted
to assume the public office to which he has been duly elected. This appeal followed.
SUMMARY OF ARGUMENT
The Village of Tequesta's loyalty oath is unconstitutional for two independent
reasons. First, the loyalty oath is unconstitutionally vague because people "of
common intelligence must necessarily guess at its meaning and differ as to its
application[.]" Board of Pub. Instruction of Orange County, Florida v. Cramp, 368
U.S. 278 287 1961 . Contra to the district court's conclusion there is more than
~ ) rY
one objectively reasonable interpretation of what it means to swear to "support,
protect and defend the ...Government" and to "bear true ...allegiance to the
same[.]" To prevail, Mr. Dalack need not prove that his interpretation is the only
objectively reasonable reading of the Village's loyalty oath. Rather, if the oath's
language is also susceptible to another objectively reasonable interpretation -with
the attendant consequence that the oath-taker cannot know for certain what he or she
would be swearing to -then the oath is unconstitutionally vague and cannot be
sustained. This point is addressed in subsection I of the Argument.
10
Second, the loyalty oath is unconstitutionally overbroad because-even
assuming, arguendo, that its only plausible meaning is what the Village asserts it
means-the loyalty oath would still proscribe entirely legitimate conduct and belief.
Under the law of this Circuit, the state may not condition public service upon an
individual's swearing that he or she "will support" our "representative form of
government." Socialist Workers Party v. Hill, 483 F.2d 554 (5th Cir.1973). The law
is clear: this would impose ideological orthodoxy in a manner incompatible with First
and Fourteenth Amendment rights. Thus, even if one were to accept the district
court's interpretation of the Village's oath, the oath is still unconstitutional. This
point is addressed in subsection II of the Argument.
ARGUMENT
The essential legal framework for analyzing the critical issue is beyond dispute.
That framework is the Supreme Court's holding that "neither the federal nor state
government may condition employment on taking oaths that impinge on rights
guaranteed by the First and Fourteenth Amendments respectively, as for example
those relating to political beliefs." Cole v. Richardson, 405 U.S. 676, 680 (1972}.
States "enjoy wide latitude to establish conditions of candidacy for state office, but
in setting such conditions, they may not disregard basic constitutional protections."
Chandler v. Miller, 520 U.S. 305, 317 (1997). This appeal turns on whether the oath
11
in question is worded so as to infringe upon constitutional rights.
The Constitution of the United States requires that "all executive and judicial
Officers, both of the United States and of the several States, shall be bound by Oath
or Affirmation, to support this Constitution." U. S. Const., Art. VI, cl. 3. The Florida
Constitution requires every state and county officer to swear or affirm that he or she
"will support, protect, and defend the Constitution and Government of the United
States and the State of Florida[.]" Fla. Const., Art II, § 5(b). Under Florida law,
making a false statement in taking the required oath of office constitutes perjury, §
876.10, Fla. Stat., and thus is a felony punishable by up to five years' imprisonment,
plus the imposition of up to a $5,000 fine. §§§ 837.02(1); 775.082(3)(d);
775.083(1)(c), Fla. Stat.
We do not dispute that Mr. Dalack can be required to swear an oath that he will
"support the Constitution of the United States and the State of Florida." Connell v.
Higginbotham, 403 U.S. 207, 208 (1971). Mr. Dalack would happily take such an
oath; he has formally extended such an offer to the Village in his Apri141etter; he
formally reiterated that offer in the district court; and he does so again here. The
Village, however, has steadfastly refused to alter its oath in any way or to permit him
to swear to any other oath. This Court must therefore determine the constitutionality
of the Village's oath. Again, that oath provides (emphasis supplied):
12
I do solemnly swear (or affirm) that I will support, protect and defend the
Constitution, and Government of the United States and of the State of Florida
against all enemies, domestic or foreign, and that I will bear true faith, loyalty
and allegiance to the same and that I am entitled to hold office under the
Constitution and that I will faithfully perform all the duties of the office of
on which I am about to enter so help me God.
I. THE VILLAGE'S LOYALTY OATH IS UNCONSTITUTIONALLY
VAGUE BECAUSE REASONABLE PEOPLE CAN DISAGREE AS TO
ITS MEANING
A loyalty oath is essentially a form of State-compelled speech. In order to
secure some public benefit, the State requires an individual to stand in a public square
and audibly speak the exact words that the State has commanded, often (as here)
under penalty of perjury and with the solemn and concluding phrase, "So help me
God." If the individual remains silent or if he or she deviates at all from the State's
exact script, the State denies the government benefit. In the case at bar, the
government benefit at issue is of the highest order -the very right to participate in
our democracy as an elected official. But the application of aState-imposed loyalty
oath could also theoretically extend to any number of government benefits, from
employment as a public school teacher, or as a sanitation worker, or as a nurse at a
public hospital - or even to receipt of public assistance such as Medicaid or Social
Security.
Under such circumstances, it should come as no surprise that a government
13
entity, if it wishes to impose its own loyalty oath obligation at all, must craft the
wording of its loyalty oath with great precision. After all, fundamental constitutional
rights are being regulated, and the oath taker is also exposed to a perjury prosecution
if it is perceived that the oath taker has sworn to something that he or she does not
truly believe.
Fortunately for a government entity wanting to avoid constitutional problems,
there are well-established guidelines for navigating these rocky shoals. For example,
the government entity can dispense with its own a loyalty oath requirement
altogether. This option may be especially attractive to local governments because,
in addition to the loyalty oath mandated by the United States Constitution itself -
found in Article VI, clause 3 and applicable to "all executive and judicial Officers,
both of the United States and of the several States" -the States themselves have
separate loyalty oaths, often contained in the State's own Constitution. As we have
previously noted, Florida's loyalty oath is contained in Article II, Section 5(b) of the
Florida Constitution. Thus, a local government in Florida desirous of retaining its
governmental benefits only for "loyal" citizens could in all probability find adequate
assurance by relying on the federal or Florida loyalty oaths.
But even if a locality in Florida wanted further assurance by drafting its own
loyalty oath to supplement the federal and state oaths, the Supreme Court has
14
highlighted an number of permissible constructions thatthe wording may take. While
certainly there is no requirement that particular "magic words" be utilized, a
community that is conscientiously drafting its loyalty oath to avoid constitutional
problems need look no further than a long line of Supreme Court decisions. Those
decisions have struck down certain loyalty oath constructions as unconstitutional, and
upheld other loyalty oath language as constitutionally permissible. A cautious drafter
of a loyalty oath could simply parrot the language from some other loyalty oath that
has already been upheld as constitutional.
Alternatively, a community drafting its own loyalty oath could choose its own
unique formulation, but it could do so with great precision. Either the locality could
use words in its loyalty oath whose meaning is not reasonably subject to doubt, or the
locality could seek to clarify potentially unclear words in its loyalty oath with
additional legislation -whether in the form of explanatory resolutions, rulemaking
from a body exercising delegated authority, or perhaps even with explicit legislative
history for the oath.
Unfortunately, the Village of Tequesta has not followed any of these safe
routes. The Village has chosen to draft its own loyalty oath. In so doing, it has
chosen not to echo the same wording of loyalty oaths that have previously withstood
constitutional challenges. It has chosen to use terms that are subject to different
15
reasonable interpretations by reasonable people. It has chosen not to alter its own
oath by a single syllable, even after Mr. Dalack explained the constitutional infirmity
that inheres in the oath's present wording, or after he offered to resolve the matter and
avoid litigation by swearing to any number of different oaths, including two oaths
taken directly from the Florida Statutes. And the Village has chosen not to remedy
these unclear terms through subsequent clarifying legislation, even after this litigation
was instituted. Put simply, the Village has chosen the result which follows from this
litigation -for the reasons set forth below, the Village's loyalty oath must be declared
unconstitutionally vague.
A. Vagueness Principles
• Althou h va ueness challen es have been common throu hout American
g g g g
constitutional jurisprudence, perhaps the Supreme Court's clearest articulation of the
standards for evaluating vagueness was in Grayned v. City ofRockford, 408 U.S.104
(1972). The Court explained (id. at 108-109 (footnotes omitted)):
Vague laws offend several important values. First, because we assume that
man is free to steer between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards for those
who apply them. A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory applications.
16
In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498-99 (1982) (footnotes omitted), the Court quoted the Grayned standards and
further explained:
These standards should not, or course, be mechanically applied. The degree
of vagueness that the Constitution tolerates - as well as the relative importance
of fair notice and fair enforcement -depends in part on the nature of the
enactment. Thus, economic regulation is subject to a less strict vagueness test
because its subject matter is often more narrow, and because businesses, which
face economic demands to plan behavior carefully, can be expected to consult
relevant legislation in advance of action. Indeed, the regulated enterprise may
have the ability to clarify the meaning of the regulation by its own inquiry, or
by resort to an administrative process. The Court has also expressed greater
tolerance of enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe. And the Court has
recognized that a scienter requirement may mitigate a law's vagueness,
• especially with respect to the adequacy of notice to the complainant that his
conduct is proscribed. Finally, perhaps the most important factor affecting the
clarity that the Constitution demands of a law is whether it threatens to inhibit
the exercise of constitutionally protected rights. If, for example, the law
interferes with the right of free speech or of association, a more stringent
vagueness test should apply.
Put simply, "[w]here a statute's literal scope, unaided by a narrowing state
court interpretation, is capable of reaching expression sheltered by the First
Amendment, the [vagueness] doctrine demands a greater degree of specificity than
in other contexts. Smith v. Goguen, 415 U.S. 566, 573 (1974).
In evaluating vagueness challenges to various legislation, this Court has
repeatedly applied the teachings of Grayned, Village of Hoffman Estates, and Smith.
17
In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498-99 (1982) (footnotes omitted), the Court quoted the Gra ed standards and
further explained:
These standards should not, or course, be mechanically applied. The degree
of vagueness that the Constitution tolerates - as well as the relative importance
of fair notice and fair enforcement -depends in part on the nature of the
enactment. Thus, economic regulation is subject to a less strict vagueness test
because its subj ect matter is often more narrow, and because businesses, which
face economic demands to plan behavior carefully, can be expected to consult
relevant legislation in advance of action. Indeed, the regulated enterprise may
have the ability to clarify the meaning of the regulation by its own inquiry, or
by resort to an administrative process. The Court has also expressed greater
tolerance of enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe. And the Court has
recognized that a scienter requirement may mitigate a law's vagueness,
especially with respect to the adequacy of notice to the complainant that his
conduct is proscribed. Finally, perhaps the most important factor affecting the
clarity that the Constitution demands of a law is whether it threatens to inhibit
the exercise of constitutionally protected rights. If, for example, the law
interferes with the right of free speech or of association, a more stringent
vagueness test should apply.
Put simply, "[w]here a statute's literal scope, unaided by a narrowing state
court interpretation, is capable of reaching expression sheltered by the First
Amendment, the [vagueness] doctrine demands a greater degree of specificity than
in other contexts. Smith v. Gowen, 415 U.S. 566, 573 (1974).
In evaluating vagueness challenges to various legislation, this Court has
repeatedly applied the teachings of Grayned, Village of Hoffman Estates, and Smith.
17
Generally speaking, when the legislation at issue is run-of-the-mill economic
regulation, the Court has rejected vagueness challenges by permitting a fair degree
of imprecision in the legislation at issue. See High Ol' Times v. Busbee, 673 F.2d
1225 (11th Cir. 1982) (upholding Georgia head shop laws prohibiting the sale of any
"drug related object");Diversified Numismatics, Inc. v. City of Orlando, Florida, 949
F.2d 382 (11th Cir. 1991) (upholding City of Orlando's ordinance which regulated
the sale of "precious metals").
On the other hand, where the legislation at issue regulates core constitutional
rights, this Court has engaged in searching inquiry that tolerates very little ambiguity,
and that consequently has resulted in a conclusion that the legislation is
unconstitutionallyvague. United States v. Williams, 444 F.3d 1286 (1 lth Cir. 2006)
(concluding that pandering provision of PROTECT Act, a statute which restricted
certain speech with criminal penalties, was unconstitutionally vague); Wiegand v.
Seaver, 504 F.2d 303 (5th Cir. 1974) (holding Florida's breach of the peace statute
was unconstitutionallyvague and overbroad), cert. denied, 421 U.S. 924 (1975); Hiett
v. United States, 415 F.2d 664 (5th Cir. 1969) (holding unconstitutionally vague a
Texas statute prohibiting the mailing of certain information about divorce).3
3/ As this Court is aware, all rulings from the old Fifth Circuit operate as binding
precedent in this Circuit. Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th
Cir. 1981) (en banc).
18
Just two months ago, in Williams, 444 F.3d at 1305, this Court struck down
certain legislation as unconstitutionally vague and reiterated the core interpretive
principles governing a vagueness challenge:
Laws that are insufficiently clear are void for three reasons: (1) to avoid
punishing people for behavior that they could not have known was illegal; (2)
to avoid subjective enforcement of the laws based on arbitrary or
discriminatory interpretations by government officers; and (3) to avoid any
chilling effect on the exercise of sensitive First Amendment freedoms.
We note one final point before turning specifically to vagueness challenges to
various loyalty oaths: The challenge we have presented to the Village's loyalty oath
is a facial challenge.4 Typically, a facial challenge is "the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances
• exists under which the Act "
would be valid. United States v. Salerno, 481 U.S. 739,
745 (1984).
However, that general rule is not applicable in the circumstances presented
here. "In a facial vagueness challenge, the ordinance need not be vague in all
applications if it reaches a substantial amount of constitutionally protected conduct."
4/Notwithstanding the fact that our pleading specifies that this is a facial challenge,
this Court has made clear that it is the substance of the challenge, rather than the
plaintiff's label, that governs. Thus, if the Court believes our challenge is more
properly characterized an as-applied challenge, then the Court must analyze our
challenge as such. Jacobs v. The Florida Bar, 50 F.3d 901, 905 n.17 (1 lth Cir. 1995).
19
Nunez by Nunez v. City of San Diego, 114 F.3d 935, 940 (9th Cir. 2001) (citing
Village of Hoffman Estates, 455 U.S. at 494-95: "The court should then examine the
facial vagueness challenge and, assuming the enactment implicates no
constitutionallyprotectedconduct, should uphold the challenge only if the enactment
is impermissibly vague in all of its applications.") (emphasis ours); United States v.
Rybicki, 354 F.3d 124 (2d Cir. 2003). Cf. City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750, 757 (1988) (facial vagueness challenge is the proper
vehicle to remedy possible chilling effect on First Amendment rights of everyone
potentially affected by the legislation, not merely the plaintiff); Schliefer by Schliefer
v. City of Charlottesville, Vir inia, 159 F.3d 843, 868-69 & n.10 (4th Cir. 1998)
(Michael, J., dissenting) (explaining the proper standard for facial vagueness
challenges to statutes that regulate constitutionally protected conduct) .
Here, of course, the Village's loyalty oath implicates among the most "core
constitutionally protected conduct" imaginable -the bedrock rights to freedom of
speech and political belief, and the right to participate in civic institutions and public
employment. As such, the high hurdle that ordinarily faces the proponent of a facial
challenge is substantially lower here. With these background principles in mind, we
now turn directly to the case law interpreting various loyalty oaths.
B. Vagueness Principles Applied to Loyalty Oaths
20
• The district court's opinion includes a long discussion about previous rulings
on vagueness challenges to various loyalty oaths. Dist. Ct. Op. at 7-16. While some
of that discussion is accurate and instructive, unfortunately the court painted a
misleading portrait of the state of the case law by omitting several key decisions that
struck down vague loyalty oaths, and by mis-analyzing several others. Morever, in
several instances, the district court merely summarized the holding of certain cases,
without ever applying those principles to the loyalty oath at hand.5
For example, the district court summarized Cramp, but it did not fully apply its
reasoning. In Cramp, the Supreme Court held unconstitutionally vague the phrase in
Florida's statutory loyalty oath that required the oath taker to swear "that I have not
• and will not lend m aid su ort advice counsel or influence to the Communist
Y Pp >
Party." 368 U.S. at 278. The Court concluded that terms such as "aid" and "support"
were not susceptible of objective measurement or evaluation, and thus the oath
created two independent constitutional harms: (1) it might create a chilling effect and
5/ We wholeheartedly agree with the district court's statement that no reported case
has "directly examined the phrase `support the Government' that is at issue here."
Dist. Ct. Op. at 7. Indeed, because the phraseology of each particular loyalty oath
may differ from any other loyalty oath, judicial review of each oath is, in a sense, sui
generis. We therefore will not obsess over the wording of every single loyalty oath
case we cite. However, the principles derived from previous loyalty oath cases can
inform the analysis, and for the Court's convenience, Tab 16 of our Appendix
includes the text of each loyalty oath from the principal cases we cite.
21
• deter certain individuals from participating in civic affairs, for fear that they may not
be able to live up to the perceived dictates of the oath; and (2) the oath's lack of
clarity opened to the door to any attention-seeking prosecutor who might want to
accuse an oath-taker of failing to live up to his or her promise. Id. at 286-87. As the
Court cogently explained (id.):
With such vagaries in mind, it is not unrealistic to suggest that the compulsion
of this oath provision might weight most heavily upon those whose
conscientious scruples were the most sensitive. While it is perhaps fanciful to
suppose that a perjury prosecution would ever be instituted for past conduct of
the kind suggested, it requires no strain of the imagination to envision the
possibility of prosecution for other types of equally guiltless knowing
behaviour. It would be blinking reality not to acknowledge that there are some
among us always ready to affix a Communist label upon those whose ideas
they violently oppose. And experience teaches that prosecutors too are human.
• Thus contra to the district court's o inion below Cram does not merel
ry P ~ ~ Y
stand for the narrow proposition that a loyalty oath cannot "require denial of past or
future associational activity or advocacy of political doctrine." Dist. Ct. Op. at 16
(citing Cramp, 368 U.S. 278). With no pun intended, that is an entirely cramped
reading of Cramp. In reality, the reasoning and holding of Cramp are much broader,
instructing that any loyalty oath whose language might be reasonably interpreted in
a manner that could cause men and women to refrain themselves from free
involvement in civic affairs must be stricken:
Words which are vague and fluid ...maybe as much a trap for the innocent
22
as the ancient laws of Caligula. In light of our decisions, it appears upon a
mere inspection that these general words and phrases are so vague and
indefinite that any penalty prescribed for their violation constitutes a denial of
due process of law. It is not the penalty itself that is invalid, but the exaction
of obedience to a rule or standard that is so vague and indefinite as to be really
no rule or standard at all. The vice of unconstitutional vagueness is further
aggravated where, as here, the statute in question operates to inhibit the
exercise of individual freedoms affirmatively protected by the Constitution. .
.. [S]tricter standards of permissible statutory vagueness maybe applied to a
statute having a potentially inhibiting effect on speech; a man may the less be
required to act at his peril here, because the free dissemination of ideas maybe
the loser. The maintenance of the opportunity for free political discussion to
the end that government may be responsive to the will of the people and that
changes may be obtained by lawful means, an opportunity essential to the
security of the Republic, is a fundamental principle of our constitutional
system. A statute which upon its face ... is so vague and indefinite as to
permit the punishment of the fair use of this opportunity is repugnant to the
guaranty of liberty contained in the Fourteenth Amendment.
Id. at 287-88 (internal citations and quotation marks omitted).
This same reasoning guided the Court to strike down a vague Washington state
loyalty oath in Baggett v. Bullitt, 377 U.S. 360 (1964). The relevant portion of the
loyalty oath in Baggett required the oath taker to swear that he or he "will by precept
and example promote respect for the flag and the institutions of the United States of
America and the State of Washington ...and undivided allegiance to the government
of the United States." Id. at 361-62. Among other things, the Court held that the
"allegiance to the government" clause of Washington's oath was unconstitutionally
vague:
• 23
• It is likewise difficult to ascertain what might be done without transgressing
the promise to "promote ...undivided allegiance to the government of the
United States." It would not be unreasonable for the serious-minded oath-taker
to conclude that he should dispense with lectures voicing far-reaching criticism
of any old or new policy followed by the Government of the United States. He
could find it questionable under this language to ally himself with any interest
group dedicated to opposing any current public policy or law of the Federal
Government, for if he did, he might well be accused of placing loyalty to the
group above allegiance to the United States.
Id. at 371-72. The Bag~tt Court reiterated and expanded upon the Cramp reasoning
that the constitutional problem from a vague loyalty oath is not in any way dependent
on the likelihood of actual prosecution for perjury; the broader concern is that good
men and women will be chilled into silence; that they will refrain from expressing
novel or unpopular views, for fear that doing so will exclude them from participation
in our civic institutions, and ma even sub'ect them to criminal enalt
Y J P Y
It will not do to say that a prosecutor's sense of fairness and the Constitution
would prevent a successful perjury prosecution for some of the activities
seemingly embraced within the sweeping statutory definitions. The hazard of
being prosecuted for knowing but guiltless behavior nevertheless remains. "It
would be blinking reality not to acknowledge that there are some among us
always ready to affix a Communist label upon those whose ideas they violently
oppose. And experience teaches us that prosecutors too are human." Cramp,
368 U.S. at 286-87. Well-intentioned prosecutors and judicial safeguards do
not neutralize the vice of a vague law. Nor should we encourage the casual
taking of oaths by upholding the discharge or exclusion from public
employment of those with a conscientious and scrupulous regard for such
undertakings.... The State may not require one to choose between subscribing
to an unduly vague and broad oath, thereby incurring the likelihood of
prosecution, and conscientiously refusing to take the oath with the consequent
loss of employment[.]
• 24
Ba ett, 377 U.S. at 373-74.6
The district court also failed to analyze fully an important principle that arose
from the next Supreme Court decision striking down a loyalty oath, Elfbrandt v.
Russell, 3 84 U. 5.11 (1966). In Elfhrandt, the Court held that an Arizona loyalty oath
was itself not problematic; however, the words of the loyalty oath itself could not be
viewed in isolation. Id. at 13. Rather, the Court held that it also had to consider
whatever other pronouncements the legislature had made (if any) about the loyalty
oath in order to assess its true meaning. Id. at 16. Indeed, the Arizona legislature had
added a provision subjecting a person to a perjury prosecution and discharge from
public office if he or she took the oath and then "knowingly and willingly bec[ame]
• or remain[ed] a member of the communist party." Id. at 13. That provision, when
read in concert with the loyalty oath, rendered the loyalty oath unconstitutionally
vague -even though the language of the oath, standing alone, would have been
6/ Accord NAACP v. Button, 371 U.S. 415, 432-33 (1963):
The objectionable quality of vagueness and overbreadth does not depend on
the absence of fair notice to a criminally accused or upon unchanneled
delegation of legislative powers, but upon the danger of tolerating, in the area
of First Amendment freedoms, the existence of a penal statute susceptible of
sweeping and improper application. These freedoms are delicate and
vulnerable, as well as supremely precious in our society. The threat of
sanctions may deter their exercise almost as potently as the actual application
of sanctions. Because First Amendment freedoms need breathing space to
survive, government may regulate in this area only with narrow specificity.
• 25
• permissible. Id. at 16-17. A key lesson from Elfbrandt, then, is that a legislative
body that drafts a loyalty oath can help to clarify the terms of an otherwise vague oath
through contemporaneous or subsequent legislation -and sometimes the legislature
can enact measures that render problematic an otherwise permissible oath.
Reading only the district court's opinion, one could be forgiven for thinking
that Cramp, Baggett, and Elfbtandt are the only three Supreme Court cases striking
down loyalty oaths as unconstitutionally vague. That is not so. In actuality, the
Supreme Court has struck down various loyalty oaths at least nine times in the past
forty years. Cramp, 368 U.S. 278 (striking down Florida loyalty oath); Baggett, 377
U.S. 360 (striking down Washington loyalty oath); Elfbrandt, 384 U.S. 11 (striking
• down Arizona to alt oath • Ke ishian v. Bd. of Re ents of the Univ. of the State of
Y Y )~ ~ ~
New York, 385 U.S. 589 (1967) (striking down New York loyalty oath); Whitehall
v. Elkins, 389 U.S. 54 (1967) (striking down Maryland loyalty oath); McKay v.
Rafferty, 400 U.S. 954 (1970), aff'~, 321 F. Supp. 1177 (N.D.Cal. 1970) (striking
down California loyalty oath)'; Connell v. Higginbotham, 403 U.S. 207 (1971)
7/ Summary affirmances by the Supreme Court are decisions on the merits of the case
and remain binding authority as would any other Supreme Court precedent. Hicks
v. Miranda, 422 U.S. 332, 344 (1975). Loyalty oath cases were formally heard by
three judge district court panels pursuant to 28 U.S.C. § 2281 -with an immediate
appeal as of right to the Supreme Court under 28 U.S.C. § 1253 -because such a
challenge typically sought a permanent injunction on the ground that a state statute
was unconstitutional. Congress repealed 28 U.S.C. § 2281 in 1976, and perhaps as
i 26
• (striking down Florida loyalty oath); Communist Party of Indiana v. Whitcomb, 410
U.S. 976 (1973) ("Whitcomb I") (striking down provision of Indiana loyalty oath);
Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974) ("Whitcomb II")
(striking down a different provision of Indiana loyalty oath). Only space limitations
prevent us from fully addressing the precise details of every one of those precedents,
but it suffices to say that the Supreme Court has not shied away from rigorous
scrutiny of the language of loyalty oaths, and from striking them down when the
language impedes the critical constitutional values at stake.
Nor has this Court hesitated to strike down unconstitutional loyalty oaths.
Indeed, this Court (as part of the old Fifth Circuit) has encountered challenges to
loyalty oaths two times, and on both occasions, the Court struck down the loyalty
oath as unconstitutional. Socialist Workers Party v. Hardy, 607 F.2d 704 (5th Cir.
1979) (striking down Louisiana loyalty oath as unconstitutionally vague); Socialist
Workers Party v. Hill, 483 F.2d 554 (5th Cir. 1973) (striking down Texas loyalty oath
as unconstitutionally overbroad).
Another shortcoming of the district court's opinion is that it presents an
inaccurate view by mis-analyzing the import of those cases where the Supreme Court
has upheld various oaths against a vagueness challenge.
a result, no Supreme Court decision on a loyalty oath has been issued since.
i 27
• First, the district court misconstrued Bond v. Floyd, 385 U.S. 116 (1966).
According to the district court, Bond "upheld an oath `to support the Constitution of
this State and of the United States."' Dist. Ct. Op. at 10 (quoting Ga. Constit., Art 3,
s. 4). That is incorrect. Bond did not involve a constitutional challenge to the
Georgia oath, so the Supreme Court could not possibly have "upheld" it. Bond, 385
U.S. at 132. Rather, Bond concerned a situation where the duly elected official
affirmatively wanted to take the oath as written, but other members of the state
legislature refused to let him take the oath, believing that Bond's previous public
comments about the Vietnam War were incompatible with his taking the oath. Id. at
125. The Supreme Court held that Bond's swearing "I will support the Constitution
• of this State and of the United States" would not be incom atible with his ublic
p P
criticism of local or national policy. Id. at 135. As we will explain in greater detail,
supra at 41-47, this holding sheds no light on the operative question in the case at bar
- i.e., what exactly is meant by the phrase "support, protect, and defend the
Government" in the Village of Tequesta's loyalty oath?8
8/ Similarly unhelpful is the district court's analysis of the Supreme Court's three
summary affirmances in Knight v. Bd. of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967),
aff d, 390 U.S. 36 (1968); Hosackv. Smiley, 276 F. Supp. 876 (D. Colo. 1967), aff d,
390 U.S. 774 (1968); and Ohlson v. Phillips, 304 F. Supp.1152 (D. Colo. l 969), aff d,
397 U.S. 317 (1970). All three cases involved loyalty oaths that required the oath
taker to swear either to "support the Constitution" (Knight and Ohlson), or to
"support the Constitution and laws" (Hosack . We will explain (supra at 41-47) why
• 28
The district court also failed to analyze properly Law Students Civil Rights
Rsch. Council, Inc. v. Wadmond, 401 U.S. 154 (1970). While the district court
accurately set forth the facts and holding of that case, it unfortunately failed to
recognize the clear impact of the Wadmond reasoning to the case at bar. There, a
New York loyalty oath required the oath-taker to swear that he or she "believes in the
form of the government of the United States and is loyal to such government." Id. at
161. The Court noted that: "If all we had before us were the language of [the oath],"
its language "lends itself to a construction that could raise substantial constitutional
questions." Id. at 162. However, the Court sustained the oath because, as the Court
stated: "This case comes before us in a significant and unusual posture: the appellees
are the very state authorities entrusted with the definitive interpretation of the Rule."
Id. Thus, applying principles of deference to a state regulatory body which had
separately specified what the oath meant, the Court accepted that formal explanation
and concluded that no vagueness existed. Id.
Unfortunately, the district court never mentioned the obvious impact of the
Wadmond reasoning to the present case. Here, there is no legislative or
administrative ruling that might solve the vagueness problem in the Village's oath.
such oaths are meaningfully different from the Village's oath, which requires the oath
taker to swear to "support, protect, and defend the Government."
29
Indeed, Tequesta's Village Council has retained at all times the ability to clarify the
language of its loyalty oath -the Village Council in fact once clarified the
applicability of the loyalty oath's "So help me God" clause -but the Village Council
has steadfastly refused to make any attempt to clarify the vagueness problem that Mr.
Dalack has identified. Unlike the Wadmond Court, this Honorable Court is left with
nothing but the language of the oath itself - a scenario the Wadmond Court said
would have raised "substantial constitutional questions." In the absence of any
clarifying legislation, the Village's oath is thus at least as vague as the New York oath
in Wadmond would have been without its clarifying administrative ruling- and we
respectfully submit, it is even more vague.
• The district court also mis-analyzed Cole v. Richardson, 405 U.S. 676 (1972)
in at least two respects. First, the district court overstated the impact of language in
Cole suggesting that "support" oaths do not "create specific responsibilities but .. .
assure that those in positions of public trust were willing to commit themselves to live
by the constitutional processes of our system." Dist. Ct. Op. at 14 (quoting Cole, 405
U.S. at 684). This may well be true for loyalty oaths that require the oath-taker to
swear to "support the Constitution" or "support the laws" or "support the
constitutional processes of our system" -but that is not what the Village of
Tequesta's loyalty oath says. It says that the oath taker will "support, protect, and
30
defend the Government." Notably, in the 34 years since the Supreme Court decided
• Cole, 41 published opinions have cited it, and of those 41 opinions, 40 have not read
it for the blanket proposition that "support oaths" survive vagueness challenges. (The
single outlier is the New Jersey intermediate appellate court decision in Gough v.
State, 667 A.2d 1057 (N.J. Super. Ct. App. Div. 1995), which we discuss
momentarily.)
Second, the district also court mis-analyzed Cole by failing to note the
significant differences between the language ofthe Massachusetts loyalty oath upheld
in Cole and the Village's oath here. The relevant part of the Massachusetts oath in
Cole read as follows: "I will oppose the overthrow of the government of the United
States or America or of this Commonwealth by force, violence or by any illegal or
unconstitutional method." Cole, 405 U.S. at 677-78 (emphasis supplied). The phrase
"will oppose the overthrow of the government" is meaningfully different from the
phrase "will support the Government." One appears to deal with conduct; the other
appears to deal with belief. When one swears that he or she "will oppose the
overthrow of the government," that necessarily connotes that someone else may first
be attempting to "overthrow the government," and then the oath-taker swears that he
or she will "oppose" such activity. Thus, the phrase "oppose the overthrow" regulates
the swearer's conduct in response to another person's conduct. That is a permissible
31
•
•
phraseology because it regulates the swearer's conduct, not thoughts.
By contrast, however, the Village's oath requires the oath-taker to swear to
"support the Government," which imposes apre-emptive obligation that regulates the
oath-taker's thoughts, belief, and conscience. The oath-taker is not sworn to respond
or oppose any sort of conduct, but rather must "support the Government ...against"
what is essentially an abstraction - "all enemies." Lest there be any doubt that
thoughts (and not conduct) is being regulated, the Village's oath goes on to require
one to swear that he "will bear true faith, loyalty and allegiance" to the Government.
Moreover, the oath in Cole specified that the oath-taker was bound to oppose
actions that utilized "force, violence, or any illegal or unconstitutional method." Id.
at 678. Thus, it should come as no surprise that Cole Court deemed this clause to be
"essentially the same" as a clause swearing to support "the Constitution." Id. at 684-
84. By contrast, the "support the Government" phrase of the Village's oath is not
merely redundant because it requires support for the Government, without any
qualification for whether the Government is being opposed by legitimate means, as
opposed to illegitimate means. In short, as virtually every following court has
properly recognized, Cole is necessarily circumscribed by its particular facts, and it
does not stand for the proposition (embraced by the district court here, see Dist. Ct.
32
•
Op. at 18) that affirmative "support oaths" are not vague.9
Finally, the district court placed too much reliance upon the New Jersey
decision in Gou h, 667 A.2d 1057. While at first blush Gough may have appeared
an attractive source because of its recency and its discussion of many of the previous
9/The district court missed also the mark in its citation to Buckley v. Valeo, 424 U.S.
1 (1976), for the ostensible proposition that the court has an obligation "to construe
the statute, if that can be done consistent with the legislature's purpose, to avoid the
shoals of vagueness." Dist. Ct. Op. at 19. There are a whole range of problems with
this suggestion. First, as we have explained, discerning "the legislature's purpose"
here is next to impossible because there is no legislative history accompanying the
Village's loyalty oath. Indeed, the only clues available - i.e., its timing and pedigree
- suggest that the oath is the by-product of an era of communist witch-hunts and
McCarthyism, in which those who disagreed with Government policies were singled
out for scorn, denial of benefits, or worse. Second, to the extent that the district court
was suggesting that a court can simply avoid the constitutional question altogether
by accepting the most inoffensive reading of the Village's loyalty oath imaginable,
that is simply incorrect. As the Supreme Court has explained many times, the very
constitutional harm from a vague oath is the vagueness itself, so if a court cannot
"cure" the problem by turning its back on the uncertainty that inheres, under the guise
of avoiding a constitutional question. If such a rule were operative, no loyalty oath
could ever found unconstitutionally vague; but of course many have been struck
down as vague. Third, no limiting construction has been offered by the Village of
Tequesta or any Florida official, so principles of federalism preclude this Court from
offering its own narrowing construction now. A federal court may be able to construe
a disputed provision of a federal statute to remove its vagueness -and with respect
to state statutes it must "consider any limiting construction that a state court or
enforcement agency has proffered [,]" Village of Hoffman Estates, 455 U.S. at 494
n.5 -but where, as here, no narrowing interpretation has been provided by the state,
a federal court is "without power to remedy the [statute's] defects by giving [it]
constitutionally precise content." Hynes v. Manor of Oradell, 425 U.S. 610, 622
(1976); Accord Smith, 415 U.S. at 575; GoodingLv. Wilson, 405 U.S. 518, 520
(1972); Dimitt v. City of Clearwater, Florida, 985 F.2d 1565, 1572 (11th Cir. 1993).
r~
~J
33
C,
loyalty oath cases that preceded it, the district court failed to recognize that the New
Jersey oath differed from the Village's oath in three critical ways: (1) the oath did not
require the oath-taker to "support" the Government; (2) it specified that the
Government to whom allegiance was owed was the "established" Government
(cutting against the notion that it meant the presently elected Administration); and (3)
it specified that the swearer's allegiance to the Government was subservient to "the
authority of the people." Id. at 1058 n.2.
Moreover, the limited applicability of Gou his rendered even more dubious
for three other reasons. First, the Gough court cited this Court's precedent in Hill, but
simply decided not to follow it. Id. at 1068. A panel of this Court obviously does not
have that prerogative. Second, the Gough court was "satisfied" that the New Jersey
oath was not meaningfully different from a Colorado oath which merely required
swearing to "support the Constitution ..and laws." Id. at 1069. Later we will
address the folly of such a view (supra at 41-47). Third, the Gou h court was guided
by its sense that a prosecution for perjury was "unrealistic," id. at 1070 - a
consideration the Supreme Court has explained is irrelevant to the constitutional
analysis. See Cramp, 368 U.S. at 286-87; Ba~gett, 377 U.S. at 373.
If the district court wanted to try to find the closest match between the
Village's loyalty oath and an another oath from a reported decision, we respectfully
34
•
submit that case appears to be McKay v. Rafferty, 400 U.S. 954 (1970), aff'~, 321 F.
Supp. 1177 (N.D. Cal. 1970). We cited McKay in our summary judgment papers
below as "perhaps the closest match in any reported decision," but the district court
never even mentioned it in its 24-page order.
The California loyalty oath in McKay required the oath taker to swear to
support the Constitution and laws, and also required the oath taker to swear that he
or she "will promote respect for the flag and respect for law and order and allegiance
to the g~Lovernment of the United States of America." 321 F. Supp at 1177 (emphasis
supplied). The Supreme Court held that this language was unconstitutionally vague.
Id. at 1177-78, aff d, 400 U.S. 954. We respectfully submit that there is virtually no
meaningful difference between swearing to "support, protect and defend the
Government of the United States" (the Village's oath) and swearing to "promote
allegiance to the government of the United States" (the unconstitutional California
oath). To repeat: the district court never even addressed this argument.
Having now discussed at some length important background principles of
vagueness challenges and a small sample of the cases applying those principles to
loyalty oaths (as well as the cases the district court mis-applied or simply ignored),
we turn specifically to the vagueness problem with the Village loyalty oath.
C. Under These Principles, The Villag_e's Loyalty Oath is
35
•
Unconstitutionally Vague
The provision of Village's loyalty oath requiring the oath taker to swear that
he or she will "support, protect and defend the ...Government of the United States
and of the State of Florida against all enemies, domestic and foreign, and that I will
bear true faith, loyalty and allegiance to the same" is unconstitutionally vague
because "men of common intelligence must necessarily guess at its meaning."
Cramp, 368 U.S. at 287. In the district court's view, this provision is not vague for
two reasons: (1) because an oath requiring the oath-taker to swear to "support the
Government" is no more vague an oath requiring that person to "support the
Constitution," and the constitutionality of the latter has been upheld many times by
the Supreme Court (Dist. Ct. Op. at 17) ;and (2) no reasonable person could interpret
the Village's loyalty oath in the manner that Mr. Dalack interprets it -i.e., that
"support the Government" means that the swearer must support the present
Administrations inWashington, D.C. and Tallahassee, Florida. (Dist. Ct. Op. at 19).
Each of these two rationales widely miss the mark. In reality, whether one
considers the text of the Village's loyalty oath; its structure; its history; dictionary
definitions; the common understanding of the terms; ordinary common sense; the
factual record available to the district court on summary judgment; or the governing
case law -indeed, when one considers any and all of the above, all roads lead to
36
Rome. All of these modes of analysis confirm that the district court was wrong, and
that the Village's loyalty oath is unconstitutionally vague.
Both of the district court's two rationales are incorrect for a shared reason -
i.e., because it is entirely reasonable to believe, as Mr. Dalack does, that "the
Government" is not the same thing as "the Constitution," and thus swearing to
"support the Government" is meaningfully different from swearing to "support the
Constitution." The district court's fundamental mistake was that -after correctly
stating that the vagueness inquiry turns on how "men [and women] of common
intelligence" could reasonably interpret the Village's loyalty oath -the district court
• then proceeded to base its decision on what the court itself thought the Village's
loyalty oath meant. The district court never engaged in the proper inquiry, which is
to evaluate how a people of "common intelligence" could reasonably interpret the
oath.
Had the district court conducted the proper inquiry, it would have concluded
that while Mr. Dalack's interpretation of the Village's loyalty oath is not the only
possible interpretation, his interpretation is entirely reasonable, and it certainly
comports with how people of "common intelligence" could read it. People of
common intelligence could reasonably read the Village's oath to mean that the oath
taker must swear to support the present Administrations in Washington, D.C. and
37
•
Tallahassee; and other people of common intelligence could reasonably interpret the
oath to mean that the oath taker is simply swearing to support our general form of
democracy. The oath is thus susceptible to at least two reasonable interpretations,
one of which would plainly be unconstitutional. Because the Village's loyalty oath
is subject to more than one objectively reasonable interpretation -and one of those
interpretations issomething that Plaintiff honestly does not believe -Plaintiff cannot
know what he is swearing to; whether it offends his constitutionally-protected
political beliefs; and indeed whether or not he would be perjuring himself by
swearing to this particular oath.10 Accordingly, the oath is unconstitutionally vague.
The district court rejected this reasoning because, in its own view, "[i]n the
context of the Village's oath, `Government' cannot refer specifically to the current
administration or individual elected leaders." Dist. Ct. Op. at 19. In other words, the
district court believed that Mr. Dalack's interpretation of the oath was unreasonable.
10/ The district court's assurance that any perjury prosecution against Mr. Dalack
would not proceed "while this Court sits" (Dist. Ct. Op. at 24) rings hollow. The
Supreme Court has repeatedly explained that the probability of an actual perjury
prosecution is constitutionally irrelevant - it is the ever-present specter that matters.
Moreover, "the constitution does not, in and of itself, provide a bright enough line to
guide primary conduct, and .. a law whose reach into protected spheres is limited
only by the background assurance that unconstitutional applications will eventually
be set aside is a law that will deter too much." United States v. Loy, 237 F.3d 251,
264-65 (3d Cir. 2001) (quoting Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW
(2d ed. 1988) § 12-29, at 1031).
38
But as we set forth below, that is simply wrong. For many reasons, Mr. Dalack's
reading is certainly one of several objectively reasonable interpretations of the
Village's loyalty oath.
1 The Text and Structure of the Village's Loyalt~Oath Demonstrate that Mr.
Dalack's Interpretation is Reasonable
In the district court's view, the phrase "I will support the Government" is
merely "a recognition of the legitimacy of our Constitutional institutions and a
commitment to conduct one's public duties within the law and the Constitution's
republican structure." Dist. Ct. Op. at 20. But the actual words of the oath say
• nothing about "our Constitutional institutions" or "the Constitution's republican
structure" -the oath says that the oath-taker must support, protect and defend "the
Government" and must "bear true allegiance to the same." We respectfully submit
that it is not unreasonable to read the words that are actually printed on the page. By
contrast, the district court's view adds words that are not even in the oath, and then
makes an additional leap of logic by assuming that a person of common intelligence
knows that these phantom words are what were intended all along -indeed, to the
exclusion of what has actually been written, and to the exclusion of any other
interpretation.
The district court's response is that "it makes little sense to ascribe a single
39
•
voice to `the Government." Dist Ct. Op. at 19. With all respect, the district court has
simply erected a straw man here. We have never argued that "the Government"
consist of only one person -rather, Mr. Dalack submits that when one is asked to
swear to "support the Government," one reasonable interpretation is that the oath
taker is being asked to support the present Administration - i.e., the President, his
Cabinet, and other high officials currently in office. It is therefore irrelevant, as the
district court noted, that two government officials, President Bush and Congressman
John Murtha, have expressed opposing views on the current war in Iraq. During the
summary judgment hearing below, the district court took this faulty line of reasoning
i one step further, expressing the view that even individuals jurors become part of "the
Government" when they are sworn in for jury duty. Tr. of Summary Judgment
Hearing at 49 (App. 11).
We respectfully submit that this line of argumentation completely misses the
point. The point is not whether a learned federal judge realizes that "the
Government" may technically be viewed as including tens thousands of people (all
the way down to jurors in every county courthouse in America). The point is that Mr.
Dalack,11 and many other people of"common intelligence"-the people who, after all,
11/The fact that Mr. Dalack is an attorney does not alter the analysis. The Village
has never doubted the fact that Mr. Dalack's expressed interpretation of the Village's
loyalty oath is indeed his honest belief about what it means. Nor would any dispute
40
•
may be forced to take a loyalty oath to become a Village Councilmember, or a public
school teacher, or a local sanitation worker -can reasonably believe that supporting
"the Government" means supporting those few people who are currently running the
Government.lz
The district court also defended its own interpretation of the Village's loyalty
oath by referring to the fact that the oath includes the verb "support," and terms such
as this do not "impose any specific responsibilities for action." Dist. Ct. Op. at 18.
But the question is not whether Mr. Dalack would be required to act in some specific
way to "support the Government." The question is, assuming his interpretation of the
• term "the Government" is reasonable, whether the Village can condition his elective
office on his swearing to "support, protect and defend" the present Administration
about Mr. Dalack's subjective experience be relevant anyway, because the proper
inquiry focuses on how the objective person might interpret the loyalty oath.
12/ The view that, in the context of the Village's loyalty oath, the term "the
Government" means a the present Administration (i.e., a specific, particular thing),
finds further support in the fact that the Village's oath employs the definite article
"the" and capitalizes the "G" in "Government." If, as the district court believed, the
reference to "the Government" can only mean the abstract concept of representative
democracy, presumably the lowercase term "government" would have been used.
Notably, when Congress wanted Americans to pledge allegiance to our Nation and
its system of governance, it did not use the term "the Government," in either a
capitalized or un-capitalized form; it directed them to pledge allegiance "to the
Republic." See 4 U.S.C. § 4 (setting forth America's Pledge of Allegiance).
41
•
and "bear true faith, loyalty and allegiance" to it, when in actuality he does not hold
those views about the present Administration. Thus, the district court went astray by
attempting to isolate the verb "support" and decouple it from the object of the noun
"the Government."
Indeed, during the summary judgment hearing, the Village all but conceded
that reasonable people could interpret "the Government" to mean "the present
Administration"; instead the Village insisted that the word "support" rendered the
oath - in the Village's words - "an innocuous oath." Tr. of Summary Judgment
Hearing at 40. Counsel for the Village repeatedly explained that the Village's
position was predicated on the "innocuous" nature of the word "support":
MR. GUEDES: I'm suggesting to the Court that the word "government," just
because the word "government" may be susceptible to one individual as the
present administration does not mean that the present --does not mean that that
individual's support of that particular administration precludes him from
dissent, precludes him from disagreeing with the policies, vocally opposing it,
seeking to have those individuals removed from office through the electoral
process.
Id. at 34 (emphasis supplied). See also id. at 39 (MR. GUEDES: "The analysis
should not change, because what is pivotal is the word `support.' It is not -- it is not
the government; it is not any other terminology."); id. at 45 (MR. GUEDES: "If I
swear an oath that I will not be able to protest the Iraq war, the gas prices, whatever
42
it may be that's a policy of the Bush administration, I'm not going to be able to do that
because `support' somehow ties my hands. The word `support' doesn't do that. And
if the word `support' does not do that, then Mr. Dalack doesn't have a case.")
In two separate colloquies, the district court tested the Village's theory that the
"innocuous" nature of the word "support" eliminated any vagueness problem. We
respectfully submit that the Village's responses in both colloquies actually prove our
point. The first colloquy was as follows (id. at 36-38):
THE COURT: I thought the Supreme Court in Baggett seems to say "promote
undivided allegiance to the government" was impermissibly vague. So is
"promote" different from "support"?
MR. GUEDES: Yes, your Honor. I believe it is. I think there's a distinction
to be drawn between cases -- there's a difference to be drawn between cases
that merely require support -
THE COURT: What's the difference between "support" and "promote"?
MR. GUEDES: Apparently, the cases draw a distinction between one that
merely says support and one that says promote. * * * [t]he United States
Supreme Court has said the oaths that say "support the Constitution" do not
impose an affirmative obligation on the oath taker, which is --that's language
from Cole, where they say that just because you're swearing to support
something didn't impose an affirmative obligation on you to do certain things.
THE COURT: What does it mean, then?
MR. GUEDES: It's a good question, your Honor. I mean, all I can think to do
43
•
is resort to the language that the courts have used in cases like Cole and
Hosack and Olson and Knight, where it has been interpreted to mean simply
a commitment to abide by our constitutional system. That's the language they
pick. Is there an arbitrary distinction being between -- sometimes between the
meaning of the word "support" or "promote" or "approve of or what the words
"believe in" mean? Possibly.
Whereas this first colloquy exposed the fact that the Village was relying on an
unprincipled distinction (and, in fact, a distinction never articulated by any court)
between the verbs "support" and "promote," the second colloquy fully exposed the
absurdity of the Village's position (id. at 46):
THE COURT: Could Robert E. Lee support an oath -- could he ascribe to an
oath to support the government of the United States?
•
MR. GUEDES: I would think so, your Honor. I would think so, because I
don't think that prevents him from thinking, "I think this government has gone
the wrong way. I think I have the right that I'm going to support the United
States government, to take action, to have these people removed from office."
I don't think the word "support" means what he wants it to mean. If the oath
had said, "I expect you to believe in the government; I expect you to approve
of the government; I expect you to promote the government," you start getting
a little bit farther afield maybe.
While the operative inquiry is not how Robert E. Lee (or Abraham Lincoln)
might have interpreted this oath, the reality, of course, is that Robert E. Lee did not
"support" the Government of the United States in any reasonable sense of the term.
General Lee supported the Government of the Confederacy, which seceded from the
• Government of the United States, and he engaged in a terrible, bloody war to avoid
44
•
being brought back under the rule of the Government of the United States.13
To the common person, the term "support" may indeed impose some specific
responsibility,14 as the term typically means "to aid the cause of by approving,
favoring, or advocating." The American Heritage Dictionary, 2d College Ed. 1985
at p.1222. In the context of the phrase "support he Government," this can reasonably
be read to mean that the oath taker must swear to "approv[e]" of, or "advocat[e]" for,
the present Administration.
13/Notably, the States that seceded from the Union and joined the Confederacy made
it clear that they were rejecting the Government of the United States, but not the
Constitution of the United States. Indeed, they believed the act of secession (while
plainly a repudiation of the Government of the United States) in fact proved their
support for the United States Constitution. For example, The South Carolina
Declaration of Secession, adopted on December 24, 1860, stated in relevant part:
The ends for which the Constitution was framed are declared by itself to be `to
form a more perfect union, establish justice, insure domestic tranquility,
provide for the common defence, promote the general welfare, and secure the
blessings of liberty to ourselves and our posterity.' These ends it endeavored
to accomplish by a Federal Government, in which each State was recognized
as an equal, and had separate control over its own institutions.... We affirm
that these ends for which this Government was instituted have been defeated,
and the Government itself has been made destructive of them by the action of
non-slaveholding States.
14/ We certainly do not concede that the term "support" (even standing alone) is
essentially devoid of meaning or that it renders an entire oath "innocuous." An oath
to "support" something can impose an obligation to act or think a certain way. Cf.
Ray v. Blair, 343 U.S. 214, 221-22 (1952) ("The requirement of a pledge from the
candidate participating in primaries to support the nominee is not unusual. Such a
provision protects a party from intrusion by those with adverse political principles.").
45
•
In virtually any sentence in the English language, decoupling the verb is from
its object noun can be problematic because each term cannot be evaluated without
reference to the other; changing either the verb or the object noun can make all the
difference. Consider the differences between each of these sentences: "Billy visited
the farm." vs. "Billy bou ht the farm." vs. "Billy bought the puppy." This is why the
district court's reference to cases where the object of the verb "support" was "the
Constitution" or "the Constitution and laws" (e.g., Knight, Hosack, Ohlson, Bond,
etc.) is unilluminating here, and why the district court was simply wrong in asserting
that the phrase "support the Government" is no more vague than the permissible
phrase "support the Constitution." The whole point is that when the object of the
verb is "the Government," the verb "support" can take on a very different flavor.
There may be nothing vague about a requirement to "support the Constitution and
laws" -that simply means that one should generally respect the law and should not
seek to overthrow our Constitutional order. People of common intelligence know
what that "the Constitution" is, and they know what "laws" are.
But a requirement to "support the Government" is meaningfully different, and
presents much thornier questions. Does it mean that the oath-taker cannot advocate
for impeachment of current officials? If he believes the current President has
intentionally violated the Constitution by knowingly wiretapping innocent individuals
46
•
without getting a search warrant, must he still "approve of and "advocate for" such
a President? If he believes that the current Vice President and Secretary of Defense
are war criminals who should immediately be tried in The Hague, must he still
"support" them? And lest there be any doubt that "support[ing] the Government"
means approving of it, the Village's oath cements this point by also requiring the
oath-taker to swear that he or she "will bear true faith, loyalty and allegiance to the
same." Put simply, even if the term "support" imposes no "specific obligation to act"
a certain way toward whatever the object noun happens to be, when the object noun
is susceptible to more than one reasonable meaning ("the Government"), the oath-
• taker cannot even know what he or she is pledging to support.ls
As mentioned, the Village's position has been that the words of its loyalty oath
are essentially "innocuous" -empty platitudes having no real substantive meaning.
Tr. at 49. Unfortunately, it appears that the district court, while professing not to
agree with this view, eventually adopted it. Instead of looking at the words on the
page and asking itself how a person of common intelligence might reasonably
15/ To illuminate this point further, consider an admittedly extreme hypothetical.
Imagine an oath that required the oath-taker to swear "always to support goodness."
While perhaps well-intentioned, such an oath would plainly be unconstitutionally
vague. But under the district court's faulty reasoning, such an oath would not be
vague because the verb "support" imposed "no specific actions and responsibilities
• on the oath-taker" and was "merely a recognition of the legitimacy" of goodness.
47
interpret them, the district court constructed its own interpretation -cobbled together
from cases interpreting language different from the language of the Village's loyalty
oath- and arrived at what the court itself believed those terms necessarily meant.
That is simply not how the Supreme Court has directed vagueness challenges to be
analyzed.
2. The Common Understanding of the Terms Supports Mr. Dalack's
Interpretation
As previously mentioned, the Supreme Court standard is that a loyalty oath is
impermissibly vague when people of "common intelligence" can differ as to what the
oath means. It is therefore remarkable that the district court never attempted to
discern how a erson of common intelli ence mi ht rote ret the Village's loyalty
P g g ~
oath. Indeed, the district court consciously avoided such an inquiry, believing that
it would allow "the vagueness doctrine [to] swallow all of judicial interpretation"
because the "central role of courts is to interpret the law when language itself could
yield multiple reasonable meanings." Dist Ct. Op. at 18.
With all respect, that view is profoundly misguided. We have never suggested
that a reviewing court has no role in a vagueness challenge, and of course it is the
province of the courts to say what the law is. Our point is that the necessary objective
of a court evaluating a vagueness challenge is to determine - in the court's judgment-
• 48
• whether people of common intelligence could reasonably disagree about the meaning
of the legislation. Put differently, this inquiry by definition turns on what people of
common intelligence might reasonably believe the provision to mean. To operate
otherwise would swallow the vagueness doctrine, because a reviewing court in every
case could simply apply its own interpretation of an unclear law, without regard for
how others might reasonably interpret it.
Had the district court engaged in the proper inquiry, it would have been
compelled to conclude that reasonable people can interpret the Village's loyalty oath
precisely as Ms. Dalack has interpreted it, and thus the oath is impermissibly vague.
• We have already discussed how the plain words themselves permit just such a
plausible reading. But consider, for example, what a conscientious, reasonable
person like Mr. Dalack might do if he was uncertain as to what the Village's loyalty
oath meant and wanted to find out precisely what he would be swearing to.
He might first turn to an ordinary dictionary. But he would find little guidance
there. The American Heritage Dictionary, for example, lists no fewer than 8 separate
definitions of the term "government," and the capitalized term "Government" does
not even appear. One of the definitions is exactly as Mr. Dalack interprets the term:
"those persons who comprise a governing body." The American Heritage
49
Dictionary, 2d College Ed. 1985 at p. 569 (emphasis supplied).16 Another definition
is closer to what the district court has said the term means: "a system by which a
political unit is governed." Id."
Having found 8 separate definitions of the term (or, more accurately, zero
definitions of the capitalized term, which is how it has been used in the loyalty oath),
a conscientious person might then go to Village Hall in order to research the history
of the Village's loyalty oath for additional clues as to what it means. But the effort
to find clarity would again be stymied. The only legislative history available about
the oath is that came into being in 1957, as part of the Bill whereby the Florida
. Legislature established the Village of Tequesta. Laws of Florida, Ch. 57-1915
(House Bill No. 1492) (App. 14). Neither that Bill nor the Town Charter (which the
Bill enacts) include any comments about what the loyalty oath is intended to mean.
The researcher might remember that around 1957 -the year the loyalty oath was
created -America was gripped by another Red Scare and McCarthysism, in which
many who disagreed with the Government were unfairly singled out for scorn and
16/ Recall that at the summary judgment hearing, the Village all but conceded that
the is a reasonable way to read this term. Tr. at 34.
17/See Farrell v. Burke, No. OS-1069, 2006 WI, 1486998 at * 13-* 14 & n. 5 (2d Cir.,
May 3 1, 2006) (the term "pornographic" is "inherently vague" because the term has
never been defined by the legislature and ordinary dictionary definitions provide "a
bewildering panoply of definitions").
50
• punishment. But there would be no hard evidence either to confirm or deny the
plausible notion that the Village's loyalty oath's mandate that the one swear to
"support the Government" was enacted in a similar vein.18
Going forward in time, the conscientious person might check to see if perhaps
the Village's loyalty oath had ever been clarified or modified, and in fact, it has been
on one occasion. On July 26, 1977, the Village Council adopted Tequesta Ordinance
No. 255, § 2, which indicated that the oath's phrase "so me God" is optional. See
Village Charter , § 2.03, note (App. 15). But unfortunately, the Village Council has
never decided to clarify any other provision of its loyalty oath, including even after
Mr. Dalack pointed out the current vagueness problem.
So where would that leave the conscientious, reasonable person? We
respectfully submit that it could leave him or her with the same reasonable
interpretation that Mr. Dalack has -that the phrase "support the Government" means
support the present Administrations.
The question of how a reasonable person of common intelligence might (or
18/Whatever stock one may put in such historical speculation regarding the drafter's
thinking in 1957, it is certainly more probative that the district court's venture into
18th century loyalty oaths in other States (Dist Ct. Op. at 4), from which the district
court jumped to the wholly unsupported conclusion (id. at 6) that this centuries-old
history somehow explains what the drafters of the Village's oath had in mind in 1957.
51
• does) interpret the term "the Government" is, at bottom, an empirical question that
can be illuminated by evidence. To that end, we attempted to demonstrate to the
district court that Mr. Dalack's interpretation was not idiosyncratic. Along with our
summary judgment papers, we attached the signed views of ahalf--dozen people who
posted their comments on the Village's official internet message board after the
current controversy erupted. Those people (whose comments comprise only a small
sample of the comments posted on the Village's message board) stated that they, too,
believed that swearing to "support the Government" was not the same thing as
swearing to "support the Constitution," and they wished Mr. Dalack well in his
principled stand. This evidence -the only evidence in the Record on this issue -
went undisputed, but the district court did not even mention it in its summary
judgment order.
While certainly there are other people who do not interpret the Village's loyalty
oath in the same manner that Mr. Dalack does, the operative question for a vagueness
challenge is not whether a majority (or even a plurality) of people agree with one
particular interpretation or another. The standard is whether people of common
intelligence can reasonably disagree about its meaning, and therefore have to guess.
Our undisputed evidence demonstrated that reasonable people are disa red eing about
what the Village's loyalty oath means, and many of them are guessing precisely in the
• 52
same way that Mr. Dalack is guessing. That is precisely the harm the old Fifth Circuit
sought to avoid in Hardy, when (in adopting the district court's words) it wrote about
a Louisiana loyalty oath: "Any torturing of the statute which might result in a
constitutional reading could not alter the fact that reasonable men could still read the
plain words of the statute as to be uncertain as to whether their otherwise
constitutionally protected activities are subject to the statute." Hardy, 607 F.2d at
704, aff g, 480 F. Supp. at 943.
We posed the following scenario to the district court, and it bears repeating
here: We dare say that if the Court directed its law clerks to step outside the front
• doors of the courthouse and poll the first 100 people passing by whether they
"support the Government," many (and perhaps the majority) of respondents would
answer something to the effect of: "I like/dislike President Bush" or "I like/dislike
this Administration" or "I like/don't like what they're doing in Iraq." And it bears
repeating: For us to prove that the oath is unconstitutionally vague, we need not prove
that a majority, or even sizable minority, of the population would be confused by its
wording; it is enough that Mr. Dalack's interpretation is shared by other reasonable
people, such that he cannot know what he would be swearing to.
While the Court can conduct its own informal poll, there is actually no need for
it do so, because it has already been done scientifically. Indeed, there is ample social
53
science data to support the conclusion that when people are asked about their views
and attitudes about "the Government," they interpret this to mean that they are being
asked for their views and attitudes about the Administration currently in office. For
many years, Professor Jack Citrin, ahighly-respected political scientist at the
University of California at Berekeley, has studied this very phenomenon. See J.
Citrin, Comment: THE POLITICAL RELEVANCE OF TRUST IN GOVERNMENT, The
American Political Science Review, Vol. 68, No. 3 (Sep., 1974) pp. 973-88.
Professor Citrin's studies revealed that when survey respondent were asked
about their attitudes regarding "the Government," their responses were not merely
highly correlated with -but were often completely supplanted by -the respondents'
attitudes about the current Administration. As Professor Citrin summarized:
[O]pinions about incumbent inevitable color evaluations of political roles or
institutions, and the tendency of respondents in a survey to perceive "the
government in general" in terms of the incumbent president and his
administration is probably the strongest in an electoral context, when partisan
cues are at a maximum.
Id. at 974. By contrast, Professor Citrin found that when the questioner explicitly
asked for a respondent's views regarding "our whole form of government,"
respondents could better differentiate their attitudes about "the Government" on one
hand, and their attitudes about "the current Administration" onthe other hand. When
54
science data to support the conclusion that when people are asked about their views
and attitudes about "the Government," they interpret this to mean that they are being
asked for their views and attitudes about the Administration currently in office. For
many years, Professor Jack Citrin, ahighly-respected political scientist at the
University of California at Berekeley, has studied this very phenomenon. See J.
Citrin, Comment: THE POLITICAL RELEVANCE OF TRUST IN GOVERNMENT, The
American Political Science Review, Vol. 68, No. 3 (Sep., 1974) pp. 973-88.
Professor Citrin's studies revealed that when survey respondent were asked
about their attitudes regarding "the Government," their responses were not merely
• highly correlated with -but were often completely supplanted by -the respondents'
attitudes about the current Administration. As Professor Citrin summarized:
[O]pinions about incumbent inevitable color evaluations of political roles or
institutions, and the tendency of respondents in a survey to perceive "the
government in general" in terms of the incumbent president and his
administration is probably the strongest in an electoral context, when partisan
cues are at a maximum.
Id. at 974. By contrast, Professor Citrin found that when the questioner explicitly
asked for a respondent's views regarding "our whole form of government,"
respondents could better differentiate their attitudes about "the Government" on one
hand, and their attitudes about "the current Administration" on the other hand. When
. 54
Citrin used this explicit description -asking respondents "Some people believe that
change in our whole form of government is needed to solve the problems facing our
country, wile others feel no real change is necessary. [Which] do you think?" -his
results demonstrated that "a diffuse sense of pride in and support for the ongoing
`form of government' can coexist with widespread public cynicism about `the
government in Washington" and the people `running' it." Id. at 975.
A decade after this study, Professor Citrin (along with his Berekeley colleague,
Professor Donald Phillip Green) acknowledged the ongoing validity of its findings.
As Professors Citrin and Green explained:
Research has focused on two interrelated matters. Do negative responses to
pollsters' queries about the credibility, reliability, responsiveness or
effectiveness of `government' principally measure disenchantment with the
fundamental institutions and ideals of the ongoing political order, or
dissatisfaction with the incumbent national administrations? ... We begin by
showing that the presidency is the institutional focus of the recent upsurge in
public confidence. This may not be surprising, given that the modern president
so dominates public attention that he virtually personifies the government. But
in the context of the scholarly debate over the meaning of conventional
measures of system support, the new data confirm Citrin's contention that
when Americans express trust or mistrust in `government' their answers largely
reflect their feelings about the incumbent national administration.
J. Citrin & D.P. Green, Presidential Leadership and the Resurgence of Trust in
Government, British Journal of Political Science, Vol 16, No. 4 (Oct. 1986), pp. 431-
432. See also N. Persily & K. Laramie, PERCEPTIONS OF CORRUPTION AND
55
CAMPAIGN FINANCE: WHEN PUBLIC OPINION DETERMINES CONSTITUTIONAL LAW,
153 U.Pa. L.R.119,158(2004) ("[T]he othervariables we analyze add credence to the
story that those who disapprove of the job the President is doing register their
dissatisfaction by painting government with the broad brush of `crookedness' or
undue influence.").
The bottom line is that Mr. Dalack's interpretation is entirely reasonable, no
matter whether one considers the text of the Village's oath; its broader grammatical
and linguistic structure; a dictionary definition of its terms; the legislative history of
the oath; the way in which it has been clarified (or in this case, not clarified) by the
• body charged with overseeing it; the way in which actual people have stated the way
they interpret it; or the scientifically-tested data that confirms those responses. The
conclusion is inescapable: The Village's loyalty oath is hopelessly unclear.
The district court was nevertheless unmoved. It believed that Mr. Dalack's
interpretation of the oath made "little sense." Dist Ct. Op. at 19. But whatever a
learned district court judge thinks makes sense is not, according to the Supreme
Court, the proper way to resolve a vagueness challenge.
But even if it were, we submit that interpreting the "the Government" to mean
the same thing as "the Constitution" has its own set of logical gaps. At the risk of
stating the obvious, "the Government" is an institution (even in the most
56
• philosophical sense), while "the Constitution" is a legal document that, among other
things, establishes the Government's rough framework. If the two nouns were
merely redundant or synonymous, then by definition the Government could never act
unconstitutionally, because under such a reading, "the Government" is "the
Constitution." And following such strained logic, the Constitution's twenty-seven
Amendments would reflect the only twenty-seven times in American history that "the
Government" has changed.19
Moreover, the following hypothetical also illustrates the difference between
swearing to "support the Constitution" and swearing to "support the Government."
. Consider the hypothetical person who advocates the formal enactment of an
Amendment to the United States Constitution that would abolish the federal
government and devolve all governmental power to the States. Such a person
undoubtedly supports "the Constitution" - in that he wants his proposal to be
implemented through existing constitutional channels (a supermajority of each body
19/ When interpreting legislative enactments, this Court ordinarily adheres to "[a]
basic premise of statutory construction [ ] that a statute is to be interpreted so that no
words shall be discarded as being meaningless, redundant, or surplusage." United
States v. Canals-Jimenez, 943 F.2d 1284, 1287 (1 lth Cir. 1991). The district court's
answer to this well-established principle was to cite the Supreme Court's statement
that redundancy "seems to be the wont of authors of oaths." Dist. Ct. Op. at 20 n. l l
(citing Cole, 405 U.S. at 684). But it would be strange cannon of construction to
assume that redundancy was the intended purpose when two terms -whose common
usages are different from one another -are employed back-to-back in the same oath.
57
of Congress, followed by ratification from a supermajority of the States). But he
would plainly not support "the Government," no matter how that term is defined. He
wants to abolish the Government.20 The same would be true of an individual who
wanted to do away with representative democracy altogether, and through a Twenty-
Eighth Amendment to the Constitution, advocated that all policy matters henceforth
be decided by direct plebecite.
As if more were necessary to prove that "the Government" is not the same
thing as "the Constitution," we return to the reality that occasionally the
Government-whether through the President, the Congress, or an overreaching
prosecutor- violates the Constitution. In such instances, it falls to courts such as this
one to remind us all that the Constitution stands above everyone, and that our ultimate
loyalty is owed to it, and not to the Government.
In conclusion, it is entirely reasonable to interpret the Village of Tequesta's
20/ The district court thought this hypothetical "demonstrates how one can disagree
with policy and still `support' the institution" because "one can disagree with the
policies of the Government but continue to `support' its authority and republican
structure by working to change policies through an established, legitimate, and lawful
means." Dist. Ct. Op. at 22. Noble and high-minded though this language may
sound, it completely ignores our hypothetical. The hypothetical was not of a person
who supports "the republican structure" - it was of a person who wants to abolish
that government structure and replace it with something completely different. If a
person can be deemed to "support" something that he despises and wants to eliminate
forever, then we respectfully submit that we have all gone through the semantic
Looking Glass.
• 58
loyalty oath exactly as Mr. Dalack interprets it. Because the oath is susceptible to
more than one reasonable interpretation, it is impermissibly vague. We will end the
vagueness section of our Argument with a hypothetical:
Imagine that Mr. Dalack swears to the Village's oath exactly as written,
including the phrase that he will "support the Government." If immediately after
concluding the oath with "So help me God," imagine that Mr. Dalack then
announced, "Let me be clear: I will not support the Government we have now in
Washington, D.C., and I will not support the Government we have now in
Tallahassee!" Can anyone be certain that a person of "common intelligence" in the
audience might not accuse Mr. Dalack of violating his oath? And should Mr. Da]ack
have to risk five years' imprisonment to find out?
II. THE VILLAGE'S LOYALTY OATH IS OVERBROAD IN THAT IT
IMPERMISSIBLY REGULATES LEGITIMATE BELIEF AND
CONDUCT PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS
As this Court has explained, vagueness and overbreadth challenges are
"logically related and similar" but distinct. Williams, 444 F.3d at 1305 (citing
Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983)). "A clear and precise enactment
may nevertheless be `overbroad' if in its reach it prohibits constitutionally protected
conduct." Graff, 408 U.S. at 114. "The purpose of an overbreadth challenge is
59
to prevent the chilling of constitutionally protected conduct, as prudent citizens will
avoid behavior that may fall within the scope of a prohibition, even if they are not
entirely sure whether it does." Farrell, 2006 WL 1486998 at *22 (emphasis in
original).21
Here, even if one were to assume, arguendo, that only reasonable interpretation
of the Village's loyalty oath is what the Village has said it means, the oath would still
be unconstitutional because it is overbroad. The Village argued below that the what
phrase "support the Government" means is "support our representative form of
government." Even if this were the case, such a mandate would be improper.
In Whitcomb II, 414 U.S. at 442-46, the Supreme Court held unconstitutional
Indiana's conditioning ofballot-access upon the filing of a sworn affidavit that the
political party "does not advocate the overthrow of local, state or national
governments by force or violence[.]" The Court reasoned that the Indiana oath
21 /First Amendment overbreadth challenges present "an exception to the general rule
against third-party standing." Broadrick v. Oklahoma, 413 U.S. 601 (1973); Village
of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634 (1980); Virginia v.
Hicks, 539 U.S. 113, 119-120 (2003); Dimitt, 985 F.2d at 1571. Cf. Tanner
Advertising Group, LLC v. Fayette County, Georgia, 2006 WL 1567244 (1 lth Cir.,
June 9, 2006) (en banc) (Birch, J., specially concurring). "A party alleging
overbreadth claims that although a a statute did not violate his or her First
Amendment rights, it would violate the First Amendment rights of hypothetical third
parties if applied to them." Farrell, 2006 WL 1486998 at *22 (citing Broadrick, 413
U.S. at 612).
• 60
exacts a broad oath embracing advocacy of abstract doctrine as well as
advocacy of action. Yet this Court has held in many contexts that the First and
Fourteenth Amendments render invalid statutes regulating advocacy that are
not limited to advocacy of action. And, as we have so often emphasized,
precision of regulation must be the touchstone in an area so closely touching
our most precious freedoms.
Id. at 447 (internal quotation marks omitted).zz
The Whitcomb II reasoning is particularly instructive here. As discussed, the
Village's loyalty oath does not merely regulate advocacy of action: e.g., "I swear I
will not violently overthrow the Government." Instead it regulates thought and
advocacy of abstract doctrine: "I will support, protect, and defend the .
Government" and "will bear true ...allegiance to the same." As the holding of
• Whitcomb II makes clear, this problem would not be cured by a facile reading of the
term "government" to mean something like "our form of government" because either
formulation impermissibly regulates the oath-taker's abstract beliefs.z3
22/ The Whitcomb court further explained that the traditional law of incitement
applied: "This principle that the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of force or of
law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action has been
applied ... to regulatory schemes that determine eligibility forpublic employment[.]"
Id. at 448-49 (internal quotation marks and citations omitted).
23/Many other courts have stuck down loyalty oaths on overbreadth grounds. See,
e.g_, Whitcomb I, 410 U.S. at 976 (affirming district court's striking down as vague
and overbroad portion of Indiana statute that conditioned ballot-access on a political
party's swearing "that it is not affiliated with and does not cooperate with or have any
• 61
•
This point is perhaps best expressed in the old Fifth Circuit's decision in Hill.
There, a Texas statute required each candidate for public office to swear:
I believe in and approve of ourpresent representative form of government, and,
if elected I will su ort and defend our resent re resentative form of
government and will resist any effort or movement from any source which
seeks to subvert or destroy the same or any party thereof, and I will support and
defend the Constitution and laws of the United States and of the State of Texas.
Hill, 483 F.2d at 555 (emphasis supplied). The old Fifth Circuit struck down the oath
as unconstitutionally overbroad, holding that an oath requiring the oath-taker to swear
to "support and defend our present representative form of government" impermissibly
imposed orthodoxy of political belief. Id. at 557. The court's plain-spoken wisdom
is worth restating here (id.):
By this enactment Texas would proclaim that our freedom is too fragile to
withstand the onslaught of new political ideologies. (Or, at least that no such
liberties can be extended to candidates -for, as the district court points out, no
such stringent oath is extracted as a condition to holding any office.) Cole v.
Richardson demonstrates this thesis is incompatible with our constitutional
system. The single greatest source of America's strength is our basic premise
that this government may never close the gateway to free men's minds to new
ideas. The market place of politics has nothing to fear from the unencumbered
presentation of novel theories of government. Even a brief glance about
discloses that the majority of the civic systems in operation ... in the United
States are products of twentieth century solons. The fact that these systems are
still embraced within the tent of a republican form of government attests to its
relations with any foreign government"); Keyishian, 385 U.S. at 606; Whitehill, 389
U.S. at 57; Shapiro v. Roudebush, 431 F. Supp. 1177 (D. Mass. 1976); Socialist
• Workers Party of Illinois v. Ogilvie, 357 F. Supp. 109 (N.D. Ill. 1972).
62
enduring utility, but not to any ultimate constitutional prerogative of that
system. The surest way to kill a bad idea is to thoroughly expose it. If it can't
stand the heat in President Truman's kitchen crucible of politics, it's dead. If
it wins acceptance and endures, then constitutional government grows more
not less secure. That is what the First Amendment is all about. No state may
condition the right to seek elective office on the willingness of candidates to
foreswear their political beliefs and thoughts.
This ruling -which operates as the law of this Circuit -reinforces the Supreme
Court's famous edict that "[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be orthodox
in politics, nationalism, religion, or other matters of opinion or force citizens to
confess by word or act their faith therein." West Va. State Bd. of Educ. v. Barnette,
• 319 U.S. 624, 642 (1943).
It is difficult to ignore the striking similarity between the constitutionally-
offensive portion of the Texas loyalty oath and the Village's oath here. Whereas the
Texas required the oath-taker to swear that he or she will "support and defend our
present representative form of government," the Village has claimed that its oath
requires the oath-taker to swear to "support, protect, and defend our representative
form of government." Despite the nearly identical constructions, the district court
stated that Hill was distinguishable. Dist. Ct. Op. at 22. It identified two ostensible
differences, neither of which has merit.
63
First, the district court stated that the Texas oath was only struck down because
of a "gloss" from the Texas legislature that specified that members of certain political
parties could not seek office. A careful reading of Hill exposes the folly of such
reasoning. There is no question that the legislative "gloss" made Hill a much easier
case to decide, but even if the explicit gloss had not existed, the result -that the
loyalty oath itself was unconstitutional -would have been the same. That is because
the court's core holding was not that it is impermissible to exclude certain political
parties; the central holding was that "[n]o state may condition the right to seek
elective office on the willingness of candidates to foreswear their political beliefs and
thoughts." Hill, 483 F.2d at 557.
Moreover, a close review of Hill reveals that the only provision of the Texas
oath that was at issue was Subsection (c) of the oath, which required the oath-taker
to swear, among other things, that he or she "will support and defend our present
representative form of government." Id. at 555. Contrary to the district court's claim,
Subsection (d) ofthe oath-which explicitly stated that Communists, Facists, or Nazis
would not be permitted on the ballot-had not even been made an issue on appeal. Id.
(noting that "the operative portion of the order appealed from provides: [quoting only
64
~~
Subsection (c)]").24 To be sure, the existence of Subsection (d) made Hill an easier
case to decide because, as the court said, it made the thrust of Subsection (c)
"abundantly plain." Id. at 557. But the court emphasized that it was the proscription
in Subsection (c) of new political ideologies that was "incompatible with our
constitutional system." Id.
The district court's second stated basis for distinguishing Hill is equally
without merit. The district court claimed that the Texas oath's mandate that the oath-
taker "believe in and approve of our present representative form of government"
regulated his or her thoughts, beliefs, or advocacy, but the Village's mandate that the
oath-taker "support, protect, and defend our representative form of government"
would not regulate thoughts, belief, or advocacy. Dist. Ct. Op. at 23. With all
respect, this distinction is baseless. As we have noted previously, the dictionary
defines "support" as "to approve of or to "advocate for." It therefore strains
credulity to suggest that Texas's command that a person "approve of X" is
meaningfully different from the Village's command that a person "support X" and
24/ The district court opinion in Hill amplifies the point: "This writer feels that
requiring a candidate to believe in and approve of our present representative form
of government' creates a chilling effect on political beliefs and ideas at the very
moment of a public election when a democratic society needs to freely and openly
explore all possible political theories and beliefs." Socialist Workers Party v. Martin,
345 F. Supp. 1132, 1134 (S.D. Tex. 1972), aff d sub nom., 483 F.2d 554 (5th Cir.
• 1973).
65
•
also to "bear true faith, loyalty and allegiance to X." And there is another flaw with
the district court's position: earlier in its opinion, the district court stated that the verb
"support" does not regulate an oath-taker's "specific actions and responsibilities"
(Dist. Ct. Op. at 17); now the district court opines that "support" does not regulate
thoughts either. If the term does not regulate one's thoughts, and it does not regulate
one's conduct, what does it regulate?
Lastly, we would be remiss if we did not address the district court's statement
that the Village's loyalty oath forces Mr. Dalack and others to "recognize that the
only legitimate way to change the republican structure is to advocate his change
• through that structure." Dist. Ct. Op. at 23. But so long as they do not incite
imminent violence or commit it, Americans are entitled to advocate change through
any means they choose. If Americans want to try to bring down the entire American
system of government through a peace march on the National Mall, or even though
a peaceful revolution, they are free to support it, to advocate it, and to try it. If they
want to radically alter our representative form of government by running for public
office on a platform of World Socialism, they can do that, too. That is the strength
of America. There is no requirement to work through "the existing structure," and
no State may impose such a requirement by conditioning a public benefit on such a
vow.
•
66
In short, if a erson does not su ort "our present form of government," the
P pP
Village cannot constitutionally compel him or her to swear otherwise, and it cannot
condition his or her public service on such a declaration. Thus, even if the Village's
loyalty oath means exactly what the Village claims it does, it is still unconstitutional.
CONCLUSION
The judgment of the district court should be reversed, and final declaratory
judgment should be issued in Mr. Dalack's favor.
Respectfully submitted,
•
Richard B. Rosenthal
Florida Bar No. 0184853
The Law Offices of Richard B. Rosenthal, P.A.
169 East Flagler Street, Suite 1422
Miami, Florida 33131
Tel: (305) 779-6097
Fax: (305) 779-6095
rbr@rosenthalappeals. com
• 67
•
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-size limitation of Fed. R.
App. P. 32(a)(7). However, according to the Word Perfect program on which it is
written, the numbered pages of this brief contains 17,303 words.
/s/
Richard B. Rosenthal
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served by mail this 26t'' day of
June, 2006, upon: Edward G. Guedes, Esq., 1221 Brickell Avenue, Miami, Florida
33131.
/s/
Richard B. Rosenthal
•
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