|Broadrick v. Oklahoma
338 F.Supp. 711, affirmed.
[ White ]
[ Douglas ]
[ Brennan ]
Broadrick v. Oklahoma
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
MR. JUSTICE WHITE delivered the opinion of the Court.
Section 818 of Oklahoma's Merit System of Personnel Administration Act, Okla.Stat.Ann., Tit. 74, § 801 et seq., restricts the political activities of the State's classified civil servants in much the same manner that the Hatch Act proscribes partisan political activities of federal employees. Three employees of the Oklahoma Corporation Commission who are subject to the proscriptions of § 818 seek to have two of its paragraphs declared unconstitutional on their face and enjoined because of asserted vagueness and overbreadth. After a hearing, the District Court upheld the provisions and denied relief. 338 F.Supp. 711. We noted probable jurisdiction of the appeal, 409 U.S. 1058, so that appellants' claims could be considered together with those of their federal counterparts in CSC v. Letter Carriers, ante p. 548. We affirm the judgment of the District Court. [p603]
Section 818 was enacted in 1959, when the State first established its Merit System of Personnel Administration. [n1] The section serves roughly the same function as [p604] the analogous provisions of the other 49 States, [n2] and is patterned on § 9(a) of the Hatch Act. [n3] Without question, a broad range of political activities and conduct [p605] is proscribed by the section. Paragraph six, one of the contested portions, provides that
[n]o employee in the classified service . . . shall, directly or indirectly, [p606] solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose.
Paragraph seven, the other challenged paragraph, provides that no such employee
shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office.
That paragraph further prohibits such employees from
tak[ing] part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.
As a complementary proscription (not challenged in this lawsuit) the first paragraph prohibits any person from "in any way" being "favored or discriminated against with respect to employment in the classified service because of his political . . . opinions or affiliations." Responsibility for maintaining and enforcing § 818's proscriptions is vested in the State Personnel Board and the State Personnel Director, who is appointed by the Board. Violation of § 818 results in dismissal from employment and possible criminal sanctions and limited state employment ineligibility. Okla.Stat.Ann., Tit. 74, §§ 818 and 819.
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from "political extortion." [n4] See United Public Workers v. Mitchell, 330 U.S. 75, 99-103 (1947). Rather, appellants maintain that however permissible, [p607] even commendable, the goals of § 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, [n5] appellants assert that the sixth and seventh paragraphs of § 818 are void in toto and cannot be enforced against them or anyone else. [n6]
We have held today that the Hatch Act is not impermissibly vague. CSC v. Letter Carriers, ante, p. 548. We have little doubt that § 818 is similarly not so vague that "men of common intelligence must necessarily guess at its meaning." Connally v. General Construction Co., 269 U.S. 385, 391 (1926). See Grayned v. City of Rockford, 408 U.S. 104, 108-1 14 (1972); Colten v. Kentucky, 407 U.S. 104, 110-111 (1972); Cameron v. Johnson, 390 U.S. 611, 616 (1968). Whatever other problems there are with § 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out "explicit standards" for those who must apply it. Grayned v. City of Rockford, supra, at 108. In the plainest language, it [p608] prohibits any state classified employee from being "an officer or member." of a "partisan political club" or a candidate for "any paid public office." It forbids solicitation of contributions "for any political organization, candidacy or other political purpose" and taking part "in the management or affairs of any political party or in any political campaign." Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in § 818 as "partisan," or "take part in," or "affairs of" political parties. But what was said in Letter Carriers, ante at 578-579, is applicable here:
there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that, although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. [n7]
Moreover, even if the outermost boundaries of § 818 may be imprecise, any such uncertainty has little relevance here, where appellants' conduct falls squarely within the "hard core" of the statute's proscriptions and appellants concede as much. [n8] See Dombrowski v. Pfister, 380 U.S. 479, 491-492 (1965); United States v. National Dairy Products Corp., 372 U.S. 29 (1963); Williams v. United States, 341 U.S. 97 (1951); Robinson v. United States, 324 U.S. 282, 286 (1945); United States v. Wurzbach, 280 U.S. 396 (1930). [p609]
Shortly before appellants commenced their action in the District Court, they were charged by the State Personnel Board with patent violations of § 818. [n9] According to the Board's charges, appellants actively participated in the 1970 reelection campaign of a Corporation Commissioner, appellants' superior. All three allegedly asked other Corporation Commission employees (individually and in groups) to do campaign work or to give referrals to persons who might help in the campaign. Most of these requests were made at district offices of the Commission's Oil and Gas Conservation Division. Two of the appellants were charged with soliciting money for the campaign from Commission employees and one was also charged with receiving and distributing campaign posters in bulk. In the context of this type of obviously covered conduct, the statement of Mr. Justice Holmes is particularly appropriate: "if there is any difficulty . . . , it will be time enough to consider it when raised by someone whom it concerns." United States v. Wurzbach, supra, at 399.
Appellants assert that § 818 has been construed as applying to such allegedly protected political expression as the wearing of political buttons or the displaying [p610] of bumper stickers. [n10] But appellants did not engage in any such activity. They are charged with actively engaging in partisan political activities -- including the solicitation of money -- among their coworkers for the benefit of their superior. Appellants concede -- and correctly so, see Letter Carriers, supra -- that § 818 would be constitutional as applied to this type of conduct. [n11] They nevertheless maintain that the statute is overbroad, and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.
Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. See, e.g., Austin v. The Aldermen, 7 Wall. 694, 698-699 (1869); Supervisors v. Stanley, 105 U.S. 305, 311-315 ( 1882); Hatch v. Reardon, 204 U.S. 152, 160-161 (1907); Yazoo & M. v. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220 (1912); United States v. Wurzbach, supra, at 399; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 (1937); United States v. Raines, 362 U.S. 17 (1960). A closely related principle is that constitutional rights are personal, and may not be asserted vicariously. See McGowan v. Maryland, 366 U.S. 420, 429-430 (1961). These principles rest on more than the fussiness of judges. They reflect the conviction that, under our constitutional system, courts [p611] are not roving commissions assigned to pass judgment on the validity of the Nation's laws. See Younger v. Harris, 401 U.S. 37, 52 (1971). Constitution,al judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court:
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Marbury v. Madison, 1 Cranch 137, 178 (1803).
In the past, the Court has recognized some limited exceptions to these principles, but only because of the most "weighty countervailing policies." United States v. Raines, 362 U.S. at 22-23. [n12] One such exception is where individuals not parties to a particular suit stand to lose by its outcome, and yet have no effective avenue of preserving their rights themselves. See Eisenstadt v. Baird, 405 U.S. 438, 444-446 (1972); NAACP v. Alabama, 357 U.S. 449 (1958). Another exception has been carved out in the area of the First Amendment.
It has long been recognized that the First Amendment needs breathing space, and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn, and represent a considered legislative judgment that a particular mode of expression [p612] has to give way to other compelling needs of society. Herndon v. Lowry, 301 U.S. 242, 258 (1937); Shelton v. Tucker, 364 U.S. 479, 488 (1960); Grayned v. City of Rockford, 408 U.S. at 116-117. As a corollary, the Court has altered its traditional rules of standing to permit -- in the First Amendment area --
attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.
Dombrowski v. Pfister, 380 U.S. at 486. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate "only spoken words." Gooding v. Wilson, 405 U.S. 518, 520 (1972). See Cohen v. California, 403 U.S. 15 (1971); Street v. New York, 394 U.S. 576 (1969); Brandenburg v. Ohio, 395 U.S. 444 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U.S. 589 (1967); United States v. Robel, 389 U.S. 258 (1967); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Shelton v. Tucker, supra. Facial [p613] overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, at 114-121; Cameron v. Johnson, 390 U.S. at 617-619; Zwickler v. Koota, 389 U.S. 241, 249-250 (1967); Thornhill v. Alabama, 310 U.S. 88 (1940), and where such conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); Cox v. Louisiana, 379 U.S. 536, 553-558 (1965); Kunz v. New York, 340 U.S. 290 (1951); Lovell v. Griffin, 303 U.S. 444 (1938).
The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly, and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. See Dombrowski v. Pfister, 380 U.S. at 491; Cox v. New Hampshire, 312 U.S. 569 (1941); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971); cf. Breard v. Alexandria, 341 U.S. 622 (1951). Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. In Cantwell v. Connecticut, 310 U.S. 296 (1940), Jesse Cantwell, a Jehovah's Witness, was convicted of common law breach of the peace for playing a phonograph record attacking the [p614] Catholic Church before two Catholic men on a New Haven street. The Court reversed the judgment affirming Cantwell's conviction, but only on he ground that his conduct, "considered in the light of the constitutional guarantees," could not be punished under "the common law offense in question." Id. at 311 (footnote omitted). The Court did not hold that the offense "known as breach of the peace" must fall in toto because it was capable of some unconstitutional applications, and, in fact, the Court seemingly envisioned its continued use against "a great variety of conduct destroying or menacing public order and tranquility." Id. at 308. See Garner v. Louisiana, 368 U.S. 157, 202, 203, 205 (1961) (Harlan, J., concurring in judgment). Similarly, in reviewing the statutory breach-of-the-peace convictions involved in Edwards v. South Carolina, 372 U.S. 229 (1963), and Cox v. Louisiana, supra, at 544-552, the Court considered in detail the State's evidence, and in each case concluded that the conduct at issue could not itself be punished under a breach of the peace statute. On that basis, the judgments affirming the convictions were reversed. [n13] See also Teamsters Union v. Vogt, Inc., 354 U.S. 284 (1957). Additionally, overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner. See United States [p615] v. Harriss, 347 U.S. 612 (1954); United States v. CIO, 335 U.S. 106 (1948); cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); Pickering v. Board of Education, 391 U.S. 563, 565 n. 1 (1968); Eastern Railroad Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).
It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate. Coates v. City of Cincinnati, 402 U.S. 611, 617 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice, and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct, and that conduct -- even if expressive -- falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect -- at best a prediction -- cannot, with confidence, justify invalidating a statute on its face, and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175 (1969). To put the matter another way, particularly where conduct, and not merely speech, is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that § 818 is not substantially overbroad, and that whatever overbreadth may exist should be cured through case-by-case [p616] analysis of the fact situations to which its sanctions, assertedly, may not be applied. [n14]
Unlike ordinary breach of the peace statutes or other broad regulatory acts, § 818 is directed, by its terms, at political expression which, if engaged in by private persons, would plainly be protected by the First and Fourteenth Amendments. But at the same time, § 818 is not a censorial statute, directed at particular groups or viewpoints. Cf. Keyishian v. Board of Regents, supra. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicated, such statutes have, in the past, been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that § 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers, supra. Under the decision in Letter Carriers, there is no question that § 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, [p617] or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.
These proscriptions are taken directly from the contested paragraphs of § 818, the Rules of the State Personnel Board and its interpretive circular, and the authoritative opinions of the State Attorney General. Without question, the conduct appellants have been charged with falls squarely within these proscriptions.
Appellants assert that § 818 goes much farther than these prohibitions. According to appellants, the statute's prohibitions are not tied tightly enough to partisan political conduct and impermissibly relegate employees to expressing their political views "privately." The State Personnel Board, however, has construed § 818's explicit approval of "private" political expression to include virtually any expression not within the context of active partisan political campaigning, [n15] and the State's Attorney General, in plain terms, has interpreted § 818 as prohibiting "clearly partisan political activity" only. [n16] [p618] Surely a court cannot be expected to ignore these authoritative pronouncements in determining the breadth of a statute. Law Students Research Council v. Wadmond, 401 U.S. 154, 162-163 (1971). Appellants further point to the Board's interpretive rules purporting to restrict such allegedly protected activities as the wearing of political buttons or the use of bumper stickers. It may be that such restrictions are impermissible and that § 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that § 818 must be discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and is not, therefore, unconstitutional on its face.
The judgment of the District Court is affirmed.
It is so ordered.
1. The section reads as follows:
 No person in the classified service shall be appointed to, or demoted or dismissed from any position in the classified service, or in any way favored or discriminated against with respect to employment in the classified service because of his political or religious opinions or affiliations, or because of race, creed, color or national origin or by reason of any physical handicap so long as the physical handicap does not prevent or render the employee less able to do the work for which he is employed.
 No person shall use or promise to use, directly or indirectly, my official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for consideration; provided, however, that letters of inquiry, recommendation and reference by public employees of public officials shall not be considered official authority or influence unless such letter contains a threat, intimidation, irrelevant, derogatory or false information.
 No person shall make any false statement, certificate, mark, rating, or report with regard to any test, certification or appointment made under any provision of this Act or in any manner commit any fraud preventing the impartial execution of this Act and rules made hereunder.
 No employee of the department, examiner, or other person shall defeat, deceive, or obstruct any person in his or her right to examination, eligibility, certification, or appointment under this law, or furnish to any person any special or secret information for the purpose of effecting [sic] the rights or prospects of any person with respect to employment in the classified service.
 No person shall, directly or indirectly, give, render, pay, offer, solicit, or accept any money, service, or other valuable consideration for or on account of any appointment, proposed appointment, promotion, or proposed promotion to, or any advantage in, a position in the classified service.
 No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.
 No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.
 Upon a showing of substantial evidence by the Personnel Director that any officer or employee in the state classified service, has knowingly violated any of the provisions of this Section, the State Personnel Board shall notify the officer or employee so charged and the appointing authority under whose jurisdiction the officer or employee serves. If the officer or employee so desires, the State Personnel Board shall hold a public hearing, or shall authorize the Personnel Director to hold a public hearing, and submit a transcript thereof, together with a recommendation, to the State Personnel Board. Relevant witnesses shall be allowed to be present and testify at such hearings. If the officer or employee shall be found guilty by the State Personnel Board of the violation of any provision of this Section, the Board shall direct the appointing authority to dismiss such officer or employee; and the appointing authority so directed shall comply.
Okla.Stat.Ann., Tit. 74, § 818 (1965) (paragraph enumeration added).
2. See Ala.Code, Tit. 55, § 317 (1958); Alaska Stat. § 39.25.160 (1962); Ariz.Rev.Stat.Ann. § 16-1301 (1956), Merit System Regulations and Merit System Board Procedures § 1511 (1966); Ark.Stat.Ann. § 83-119 (1947); Cal.Govt.Code §§ 19730-19735 (1963 and Supp. 1973); Colo.Rev.Stat.Ann. § 26-5-31 (1963), Civil Service Comm'n Rules and Regulations, Art. XIV, § 1; Conn.Gen.Stat.Rev. § 5-266 (Supp. 1969), Regulations of the Civil Service Comm'n Concerning Employees in the State Classified Service § 113; Del.Code Ann., Tit. 31, § 110 (1953); Fla.Stat.Ann. § 110.092 (1973); Ga.Merit System of Personnel Administration, Rules and Regulations, Rule 3, 3.101-3.106; Hawaii Rev.Stat. §§ 76-1, 76-91 (1968); Idaho Code § 67-5311 (1973); Ill.Rev.Stat., c. 24 1/2, § 38t (1971); Ind.Ann.Stat. § 60-1341 (1962); Iowa Code Ann. § 19A.18 (Supp. 1973); Kan.Stat.Ann. § 75-2953 (1969); Ky.Rev.Stat.Ann. § 18.310 (1971); La.Const., Art. 14, § 15 (N) (1955); Me.Rev.Stat.Ann., Tit. 5, § 679 (1964); Md.Merit System Rules for Grant-in-Aid Agencies § 602.2; Mass.Gen.Laws Ann., c. 55, §§ 1-15, c. 56, §§ 35-36 (1958 and Supp. 1973); Mich. Rules of Civil Service Comm'n § 7 (1965); Minn.Stat.Ann. § 43.28 (1970); Miss. Merit System Rules, Dept. of Public Welfare, Art. XVI (1965); Mo.Ann.Stat. § 36.150 (1969); Mont.Rev.Codes Ann. §§ 94-1439, 94-1440, 94-1447, 91476 (1947); Neb.Rev.Stat. § 81-1315 (1971), Neb.Joint Merit System Regulations for a Merit System, Art. XVI (1963); Nev.Rules for State Personnel Administration, Rules XVI, XIII (1963); N.H.Rev.Stat.Ann. §§ 98: 18, 98: 19 (1964); N.J.Stat.Ann. § 11:17-2 (1960); N.M.Stat.Ann. § 542 (1953 and Supp. 1971); N.Y.Civ.Serv.Law § 107 (1973); N.C.Gen.Stat. §§ 126-13 to 126-15 (Supp. 1971); Rules and Regulations of N.D. Merit Systems, Art. XVI; Ohio Rev.Code Ann. §§ 143.41, 143.44, 143.45, 143.46 (1969); Ore.Rev.Stat. § 260.432 (1971); Pa.Stat.Ann., Tit. 71, § 741.904 (Supp. 1973-1974); R.I.Gen.Laws Ann. §§ 3651 to 3653 (1969); S.C.Merit System Rules and Regulations, Civil Defense Council, Art. XIV, § 1; S.D.Merit System Regulations, Art. XVI, § 1 (1963); Tenn.Code Ann. § 8-3121 (Supp. 1971), Tenn. Rules and Regulations for Administering the Civil Service Act § 23 (1963); Tex.Penal Code, Arts.195-197 (1952); Utah Code Ann. § 67-13-13 (1968); Vt. Rules and Regulations for Personnel Administration § 3.02; Va.Supp. to Rules for the Administration of the Va.Personnel Act, Rule 15.14(A); Wash.Rev.Code Ann. § 4106-250 (1969); W.Va.Code Ann. § 2919 (1971); Wis.Stat.Ann. § 16.30 (1972); Wyo.Rev.Rules and Regulations, Rule XIII (1960). (For compilation of state rules and regulations, see 2 Commission on Political Activity of Government Personnel, Research 122 et seq. (1967).)
3. 5 U.S.C. § 7324(a). See generally CSC v. Letter Carriers, ante p. 548.
4. Brief for Appellants 22.
5. Appellants also claim that § 818 violates the Equal Protection Clause of the Fourteenth Amendment by singling out classified service employees for restrictions on partisan political expression while leaving unclassified personnel free from such restrictions. The contention is somewhat odd in the context of appellants' principal claim, which is that § 818 reaches too far, rather than not far enough. In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. See McGowan v. Maryland, 366 U.S. 420 (1961). And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed.
6. Only the sixth and seventh paragraphs of § 818 are at issue in this lawsuit. Hereinafter, references to § 818 should be understood to be limited to those paragraphs, unless we indicate to the contrary.
7. It is significant in this respect to note that § 818 does not create a "regulatory maze" where those uncertain may become hopelessly lost. See Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967). Rather, the State Personnel Board is available to rule in advance on the permissibility of particular conduct under the explicit standards set out in and under § 818. See Tr. of Rec. 237. See CSC v. Letter Carriers, ante at 580.
8. Tr. of Oral Arg. 48-49
9. The District Court initially requested the parties to brief the question whether appellants were required to complete the Board's proceedings prior to bringing their action under 42 U.S.C. § 1983. The Board, however, on appellants' application, ordered its proceedings stayed pending adjudication of the federal constitutional questions in the District Court. When advised of the Board's decision, and in the absence of any objections from appellees, the District Court proceeded. On this record, we need not consider whether appellants would have been required to proceed to hearing before the Board prior to pursuing their § 1983 action. Cf. Gibson v. Berryhill, 411 U.S. 564, 574-575 (1973); H. Hart & H. Wechsler, The Federal Courts and The Federal System 983-985 (2d ed.1973).
10. The State Personnel Board has so interpreted § 818. See Merit System of Personnel Administration Rules § 1641; the Board's official circular, Tr. of Rec. 237.
11. Tr. of Oral Arg. 48-49
12. See generally Hart & Wechsler, supra, at 184-214; Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).
13. In both Edwards and Cox, at the very end of the discussions, the Court also noted that the statutes would be facially unconstitutional for overbreadth. See 372 U.S. 229, 238; 379 U.S. 536, 551-552. In Cox, the Court termed this discussion an "additional reason" for its reversal. 379 U.S. at 551. These "additional" holdings were unnecessary to the dispositions of the cases, so much so that only one Member of this Court relied on Cox's "additional" holding in Brown v. Louisiana, 383 U.S. 131 (1966), which involved convictions under the very same breach of the peace statute. See id. at 143-150 (BRENNAN, J., concurring in judgment).
14. My Brother BRENNAN asserts, that in some sense, a requirement of substantial overbreadth is already implicit in the doctrine. Post at 630. This is a welcome observation. It perhaps reduces our differences to our differing views of whether the Oklahoma statute is substantially overbroad. The dissent also insists that Coates v. City of Cincinnati, 402 U.S. 611 (1971), must be taken as overruled. But we are unpersuaded that Coates stands as a barrier to a rule that would invalidate statutes for overbreadth only when the flaw is a substantial concern in the context of the statute as a whole. Our judgment is that the Oklahoma statute, when authoritative administrative constructions are accepted, is not invalid under such a rule.
15. The Board's interpretive circular states (Tr. of Rec. 237):
The right to express political opinions is reserved to all such persons. Note: This reservation is subject to the prohibition that such persons may not take active part in political management or in political campaigns.
16. Op.Atty.Gen. Okla., No. 68-356, p. 4 (1968). The District Court similarly interpreted § 818 as intending to permit public expressions of political opinion "so long as the employee does not channel his activity towards party success." 338 F.Supp. 711, 716. Although the Court's interpretation is obviously not binding on state authorities, see United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971), a federal court must determine what a state statute means before it can judge its facial constitutionality.