In Speiser v. Randall, 357 U.S. 513 (1958), the Supreme Court ruled, 7-1, that a state cannot condition the receipt of a government benefit — in this case, a tax exemption for veterans — on the requirement that an individual demonstrate eligibility by swearing an oath not to advocate the overthrow of the government by unlawful means.
The Court’s opinion, written by Justice William J. Brennan Jr., established the emphasis on constitutional analysis of the methods used to regulate freedom of speech and applied the guarantee of due process to protect free speech.
Speiser challenged constitutionality of loyalty oath in tax exemption scheme
The case was brought by World War II veterans, among them Lawrence Speiser, who paid a California property tax under protest and then challenged the constitutionality of the tax scheme. The law afforded a property tax exemption to all veterans in California provided they signed an oath that they did not advocate the overthrow of the state or federal government by violence or “other unlawful means.”
The California Supreme Court upheld the tax law and loyalty requirement.
Court said state should bear burden to prove individuals were not acting illegally
Justice Brennan viewed the California law as requiring those seeking the tax exemption to prove that they were not acting illegally to overthrow the government. This placed the burden of proving the absence of unlawful conduct on the individual, rather than on the government, contravening basic due process principles.
Brennan’s focus was novel in centering on the government’s procedures for restricting speech — the burden of proof — and not merely on the content of the speech. He wrote, “When we deal with the complex of strands in the web of freedoms which make up free speech, the operation and effect of the method by which speech is sought to be restrained must be subjected to close analysis and critical judgment in the light of the particular circumstances to which it is applied.”
Justice Tom C. Clark dissented, rejecting the view that the state should bear the burden of proving illegal advocacy of government overthrow and finding the state’s sufficient interest in not subsidizing those who favor rising up against it. Justice Hugo L. Black wrote a concurring opinion. Justice Harold Burton said he agreed only with the result, not the Court’s reasoning. Chief Justice Earl Warren did not take part in the case.
Speiser advanced unconstitutional conditions doctrine
With this ruling, Brennan is also credited with advancing what has come to be called the doctrine of unconstitutional conditions, under which government cannot make the receipt of a government benefit or entitlement conditional in a way that interferes with the exercise of a constitutional right.
Thus, in Speiser, California could not compel a profession of loyalty contrary to an individual’s views to be eligible for a property tax exemption for which a person was otherwise qualified. Although the decision in Speiser remains good law, the prohibition on unconstitutional conditions has not been applied consistently by the Court in other situations.
This article was originally published in 2009. Stephen Wermiel is a professor of practice at American University Washington College of Law, where he teaches constitutional law, First Amendment and a seminar on the workings of the Supreme Court. He writes a periodic column on SCOTUSblog aimed at explaining the Supreme Court to law students. He is co-author of Justice Brennan: Liberal Champion (Houghton Mifflin Harcourt, 2010) and The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (ABA Publishing, 2014).