MR. JUSTICE BRENNAN delivered the opinion of the Court.
The appellants are honorably discharged veterans of World War II who claimed the veterans' property-tax
To effectuate this constitutional amendment the California Legislature enacted § 32 of the Revenue and Taxation Code, which requires the claimant, as a prerequisite to qualification for any property-tax exemption, to sign a statement on his tax return declaring that he does not engage in the activities described in the constitutional amendment.
The appellants attack these provisions, inter alia, as denying them freedom of speech without the procedural safeguards required by the Due Process Clause of the Fourteenth Amendment.
It cannot be gainsaid that a discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. The Supreme Court of California recognized that these provisions were limitations on speech but concluded that "by no standard can the infringement upon freedom of speech imposed by section 19 of article XX be deemed a substantial one." 48 Cal.2d 419, 440, 311 P.2d 508, 521. It is settled that speech can be effectively limited by the exercise of the taxing power. Grosjean v. American Press Co., 297 U.S. 233. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mistaken in their argument that, because a tax exemption is a "privilege" or "bounty," its denial may not infringe speech. This contention did not prevail before the California courts, which recognized that conditions imposed upon the granting of privileges or gratuities must be "reasonable." It has been said that Congress may not by withdrawal of mailing privileges place limitations upon the freedom of speech which if directly attempted would be unconstitutional. See Hannegan v. Esquire, Inc., 327 U.S. 146, 156; cf. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 430-431 (Brandeis, J., dissenting). This Court has similarly rejected the contention that speech was not abridged when the
The Supreme Court of California construed the constitutional amendment as denying the tax exemptions only to claimants who engage in speech which may be criminally punished consistently with the free-speech guarantees of the Federal Constitution. The court defined advocacy of "the overthrow of the Government . . . by force or violence or other unlawful means" and advocacy of "support of a foreign government against the United States in event of hostilities" as reaching only conduct which may constitutionally be punished under either the California Criminal Syndicalism Act, Cal. Stat. 1919, c. 188, see Whitney v. California, 274 U.S. 357, or the Federal Smith Act, 18 U. S. C. § 2385. 48 Cal. 2d, at 428, 311 P. 2d, at 513. It also said that it would apply the standards set down by this Court in Dennis v. United States, 341 U.S. 494, in ascertaining the circumstances which would justify punishing speech as a crime.
But the question remains whether California has chosen a fair method for determining when a claimant is a member of that class to which the California court has said the constitutional and statutory provisions extend. 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. Kingsley Books, Inc., v. Brown, 354 U.S. 436, 441-442; Near v. Minnesota, 283 U.S. 697; cf. Cantwell v. Connecticut, 310 U.S. 296, 305; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495; Winters v. New York, 333 U.S. 507; Niemotko v. Maryland, 340 U.S. 268; Staub v. City of Baxley, 355 U.S. 313.
To experienced lawyers it is commonplace that the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important
The principal feature of the California procedure, as the appellees themselves point out, is that the appellants, "as taxpayers under state law, have the affirmative burden of proof, in Court as well as before the Assessor. . . . [I]t is their burden to show that they are proper persons to qualify under the self-executing constitutional provision for the tax exemption in question—i.e., that they are not persons who advocate the overthrow of the government of the United States or the State by force or violence or other unlawful means or who advocate the support of a foreign government against the United States in the event of hostilities. . . . [T]he burden is on them to produce evidence justifying their claim of exemption."
It is of course within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, "unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105. "[O]f course the legislature may go a good way in raising . . . [presumptions] or in changing the burden of proof, but there are limits. . . . [I]t is not within the province of a legislature
It is true that due process may not always compel the full formalities of a criminal prosecution before criminal advocacy can be suppressed or deterred, but it is clear that the State which attempts to do so must provide procedures amply adequate to safeguard against invasion speech which the Constitution protects. Kingsley Books, Inc., v. Brown, supra. It is, of course, familiar practice in the administration of a tax program for the taxpayer to carry the burden of introducing evidence to rebut the determination of the collector. Phillips v. Dime Trust Co., 284 U.S. 160, 167; Brown v. Helvering, 291 U.S. 193, 199. But while the fairness of placing the burden of proof on the taxpayer in most circumstances is
It is true that in the present case the appellees purport to do no more than compute the amount of the taxpayer's liability in accordance with the usual procedures, but in fact they have undertaken to determine whether certain speech falls within a class which constitutionally may be curtailed. As cases decided in this Court have abundantly demonstrated, the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Thomas v. Collins, 323 U.S. 516; cf. Yates v. United States, 354 U.S. 298. The separation of legitimate from illegitimate speech calls for more sensitive tools than California has supplied. In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Co. v. Dunlap, 308 U.S. 208; United States v. New York, N. H. & H. R. Co., 355 U.S. 253; Sampson v. Channell, 110 F.2d 754, 758. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first
The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding— inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free. "It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions." Bailey v. Alabama, 219 U.S. 219, 239.
Moreover, the oaths required in those cases performed a very different function from the declaration in issue here. In the earlier cases it appears that the loyalty oath, once signed, became conclusive evidence of the facts attested so far as the right to office was concerned. If the person took the oath he retained his position. The oath was not part of a device to shift to the officeholder the burden of proving his right to retain his position.
Believing that the principles of those cases have no application here, we hold that when the constitutional
The judgments are reversed and the causes are remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE BURTON concurs in the result.
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins, concurring.
California, in effect, has imposed a tax on belief and expression. In my view, a levy of this nature is wholly out of place in this country; so far as I know such a thing
This case offers just another example of a wide-scale effort by government in this country to impose penalties and disabilities on everyone who is or is suspected of being a "Communist" or who is not ready at all times and all places to swear his loyalty to State and Nation. Compare Adler v. Board of Education, 342 U.S. 485, 496 (dissenting
I am convinced that this whole business of penalizing people because of their views and expressions concerning government is hopelessly repugnant to the principles of freedom upon which this Nation was founded and which have helped to make it the greatest in the world. As stated in prior cases, I believe "that the First Amendment grants an absolute right to believe in any governmental system, [to] discuss all governmental affairs, and [to] argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment's unequivocal command that freedom of assembly, petition, speech and press shall not be abridged. I happen to believe this was a wise choice and that our free way of life enlists such respect and love that our Nation cannot be imperiled by mere talk." Carlson v. Landon, 342 U.S. 524, 555-556 (dissenting opinion).
If it be assumed however, as MR. JUSTICE BRENNAN does for purposes of this case, that California may tax the expression of certain views, I am in full agreement with him that the procedures it has provided to determine whether petitioners are engaged in "taxable" advocacy violate the requirements of due process.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK agrees, concurring.
While I substantially agree with the opinion of the Court, I will state my reasons more fully and more explicitly.
I. The State by the device of the loyalty oath places the burden of proving loyalty on the citizen. That procedural
Alexander Hamilton, writing in 1784 under the name Phocion, said:
Hamilton compared that hypothetical law to an actual one passed by New York on March 27, 1778, whereby a person who had served the King of England in enumerated ways was declared "to be utterly disabled disqualified and incapacitated to vote either by ballot or viva voce at any election" in New York. N. Y. Laws 1777-1784, 35. An oath was required
If one conspires to overthrow the Government, he commits a crime. To make him swear he is innocent to avoid the consequences of a law is to put on him the burden of proving his innocence. That method does not square with our standards of procedural due process, as the opinion of the Court points out.
The Court in Cummings v. Missouri, 4 Wall. 277, 328, denounced another expurgatory oath that had some of the vices of the present one.
II. If the aim of the law is not to apprehend criminals but to penalize advocacy, it likewise must fall. Since the time that Alexander Hamilton wrote concerning these oaths, the Bill of Rights was adopted; and then much later came the Fourteenth Amendment. As a result of the latter a rather broad range of liberties was newly guaranteed to the citizen against state action. Included were those contained in the First Amendment—the right to speak freely, the right to believe what one chooses, the right of conscience. Stromberg v. California, 283 U.S. 359; Murdock v. Pennsylvania, 319 U.S. 105; Staub v. City of Baxley, 355 U.S. 313. Today what one thinks or believes, what one utters and says have the full protection
In Murdock v. Pennsylvania, supra, we stated, "Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful." 319 U. S., at 116. If the Government may not impose a tax upon the expression of ideas in order to discourage them, it may not achieve the same end by reducing the individual who expresses his views to second-class citizenship by withholding tax benefits granted others. When government denies a tax exemption because of the citizen's belief, it penalizes that belief. That is different only in form, not substance, from the "taxes on knowledge" which have had a notorious history in the English-speaking world. See Grosjean v. American Press Co., 297 U.S. 233, 246-247.
We deal here with a type of advocacy which, to say the least, lies close to the "constitutional danger zone." Yates v. United States, 354 U.S. 298, 319. Advocacy which is in no way brigaded with action should always be protected
The California oath is not related to unlawful action. To get the tax exemption the taxpayer must swear he "does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in event of hostilities."
However the California opinion may be read, these judgments should fall. If the construction of the oath is the one I prefer, then the Supreme Court of California has obliterated the line between advocacy of abstract doctrine and advocacy of action. If the California oath has been limited by judicial construction to the type of advocacy condemned in Dennis, it still should fall. My disagreement with that decision has not abated. No conspiracy to overthrow the Government was involved. Speech and speech alone was the offense. I repeat that thought and speech go hand in hand. There is no real freedom of thought if ideas must be suppressed. There can be no freedom of the mind unless ideas can be uttered.
I know of no power that enables any government under our Constitution to become the monitor of thought, as this statute would have it become.
MR. JUSTICE CLARK, dissenting.
The decision of the Court turns on a construction of California law which regards the filing of the California tax oath as introductory, not conclusive, in nature. Hence, once the oath is filed, it may be "accepted or rejected on the basis of incompetent information or no information at all." And the filing is "only a step in a process throughout which the taxpayer must bear the burden of proof."
No California case, least of all the present one, compels such an understanding of § 32 of the California Revenue and Taxation Code. Neither appellant here filed the required oath, so the procedural skeleton of this case is not enlightening. If anything, the opinion of the state
Moreover, the recourse of the State in the event a false oath is filed is expressly provided by § 32: "Any person or organization who makes such declaration knowing it to be false is guilty of a felony." The majority relies heavily on the duty of the assessor to "[investigate] the facts underlying all tax liabilities," as well as his subpoena power incident thereto under § 454 of the California Tax Code. But the California court adverts to those matters only under a hypothetical state of facts, namely, in the absence of the aid provided by § 32. 48 Cal. 2d, at 430-432, 311 P. 2d, at 515. The essential point is that, whatever the assessor's duty, § 32 provides for its discharge on the basis of the declarations alone.
On the other hand, if it be thought that the Supreme Court of California is ambiguous on this matter, then it is well established that our duty is to so construe the state oath as to avoid conflict with constitutional guarantees of due process. Garner v. Board of Public Works, 341 U.S. 716, 723-724 (1951); Gerende v. Board of
Even if the Court's interpretation of California law is correct, I cannot agree that due process requires California to bear the burden of proof under the circumstances of this case. This is not a criminal proceeding. Neither fine nor imprisonment is involved. So far as Art. XX, § 19, of the California Constitution and § 32 of the California Tax Code are concerned, appellants are free to speak as they wish, to advocate what they will. If they advocate the violent and forceful overthrow of the California Government, California will take no action against them under the tax provisions here in question. But it
The majority, however, would require that California bear the burden of proof under the circumstances of this case because "the transcendent value of speech is involved." This is a wholly novel doctrine, unsupported by any precedent, and so far as I can see, inapposite to several other decisions of this Court upholding the application of similar oaths to municipal employees, Garner v. Board of Public Works, 341 U.S. 716 (1951); public school teachers, Adler v. Board of Education, 342 U.S. 485 (1952); candidates for public office, Gerende v. Board of Supervisors, 341 U.S. 56 (1951); and labor union officials, American Communications Assn. v. Douds, 339 U.S. 382
The majority assumes, without deciding, that California may deny a tax exemption to those in the proscribed class. I think it perfectly clear that the State may do so, since only that speech is affected which is criminally punishable under the Federal Smith Act, 18 U. S. C. § 2385, or the California Criminal Syndicalism Act, Cal. Stat., 1919, c. 188. And California has agreed that its interpretation of criminal speech under those Acts shall be in conformity with the decisions of this Court, e. g., Yates v. United States, 354 U.S. 298 (1957); Dennis v. United States, 341 U.S. 494 (1951); Whitney v. California, 274 U.S. 357 (1927). The interest of the State that justifies restriction of speech by imposition of criminal sanctions surely justifies the far less severe measure of denying a tax exemption, provided the lesser sanction bears reasonable relation to the evil at which the State
Refusal of the taxing sovereign's grace in order to avoid subsidizing or encouraging activity contrary to the sovereign's policy is an accepted practice. We have here a parallel situation to federal refusal to regard as "necessary and ordinary," and hence deductible under the federal income tax, those expenses deduction of which would frustrate sharply defined state policies. See Tank Truck Rentals, Inc., v. Commissioner, 356 U.S. 30 (1958).
If the State's requirement of an oath in implementing denial of this exemption be thought to make an inroad upon speech over and above that caused by denial of the exemption, or even by criminal punishment of the proscribed speech, I find California's interest still sufficient to justify the State's action. The restriction must be considered in the context in which the oath is set—appeal to the largesse of the State. The interest of the State, as before pointed out, is dual in nature, but its primary thrust is summed up in an understandable desire to insure that those who benefit by tax exemption do not bite the hand that gives it.
Appellants raise other issues—pre-emption of security legislation under Pennsylvania v. Nelson, 350 U.S. 497 (1956), and denial of equal protection because the oath is not required for all types of tax exemptions—which the majority does not pass upon. I treat of them only so far
If my interpretation of § 32 is correct, I assume that California will afford appellants another opportunity to take the oath, this time knowing that its filing will have conclusive effect. For the reasons stated above, I would affirm the judgment.
Appellant in No. 484 sued in the Superior Court for the City and County of San Francisco to recover taxes paid under protest and for declaratory relief. The court upheld the validity of both the constitutional provision and § 32 of the Code. The Supreme Court affirmed. 48 Cal.2d 472, 311 P.2d 544.
In both cases the Supreme Court adopted the reasoning of its opinion in First Unitarian Church v. County of Los Angeles, 48 Cal.2d 419, 311 P.2d 508, in which identical issues are discussed at length. Hereinafter we will refer to that opinion as expressing the views of the California Supreme Court in the present cases.
"Any statement, return, or other document in which is claimed any exemption, other than the householder's exemption, from any property tax imposed by this State or any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State shall contain a declaration that the person or organization making the statement, return, or other document does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in event of hostilities. If any such statement, return, or other document does not contain such declaration, the person or organization making such statement, return, or other document shall not receive any exemption from the tax to which the statement, return, or other document pertains. Any person or organization who makes such declaration knowing it to be false is guilty of a felony. This section shall be construed so as to effectuate the purpose of Section 19 of Article XX of the Constitution."
Appellants also argue that these provisions are invalid (1) as invading liberty of speech protected by the Due Process Clause of the Fourteenth Amendment; (2) as denying equal protection because the oath is required only as to property-tax and corporation-income-tax exemptions, but not as to the householder's personal-income-tax, gift-tax, inheritance-tax, or sales-tax exemptions; and (3) as violating the Supremacy Clause because this legislation intrudes in a field of exclusive federal control, Pennsylvania v. Nelson, 350 U.S. 497. Our disposition of the cases makes considerations of these questions unnecessary.
In all events, if the assessor "is satisfied from his investigations that the exemption should not be allowed he may assess the property as not exempt and if contested compel a determination of the facts in a suit to recover the tax paid under protest. In such a case it would be necessary for the claimant to allege and prove facts with reference to the nature, extent and character of the property which would justify the exemption and compliance with all valid regulations in the presentation and prosecution of the claim. In any event it is the duty of the assessor to ascertain the facts from any legal source available. In performing this task he is engaged in the assembly of facts which are to serve as a guide in arriving at his conclusion whether an exemption should or should not be allowed. That conclusion is in no wise a final determination that the claimant belongs to a class proscribed by section 19 of article XX or is guilty of any activity there denounced. The presumption of innocence available to all in criminal prosecutions does not in a case such as this relieve or prevent the assessor from making the investigation enjoined upon him by law to see that exemptions are not improperly allowed. His administrative determination is not binding on the tax exemption claimant but it is sufficient to authorize him to tax the property as nonexempt and to place the burden on the claimant to test the validity of his administrative determination in an action at law." 48 Cal. 2d, at 431-432, 311 P. 2d, at 515.
It is also suggested that this Court construe the California legislation contrary to the clearly expressed construction of the California Supreme Court and thus avoid decision of the question of procedural due process. But this construction would not avoid decision of constitutional questions but rather would create the necessity for decision of the broader constitutional question of the validity of § 19 of Art. XX. A more fundamental objection to the suggestion, of course, is that it does violence to the basic constitutional principle that the construction of state laws is the exclusive responsibility of the state courts.
The election oath prescribed by the Council read as follows:
"I ..................... do solemnly, without any mental Reservation or Equivocation whatsoever, swear and declare, and call God to witness (or if of the People called Quakers, affirm) that I renounce and abjure all Allegiance to the King of Great-Britain; and that I will bear true Faith and Allegiance to the State of New-York, as a Free and Independent State, and that I will in all Things, to the best of my Knowledge and Ability, do my Duty as a good and faithful Subject of the said State ought to do. So help me God." Independent Gazette, Dec. 13, 1783.
The Council further provided:
"That if any Person presenting himself to give his Vote, shall be suspected of, or charged with having committed any of the Offences above specified, it shall be Lawful for the Inspectors, or Superintendents (as the Case may be) to inquire into and determine the Fact whereof such Person shall be suspected, or wherewith he shall be charged, as the Cause of Disqualification, on the Oath of one or more Witnesses, or on the Oath of the Party so suspected or charged, at their Discretion; and if such Fact shall, in the Judgement of the Inspectors or Superintendents, be established, it shall be lawful for them, and they are hereby required, to reject the Vote of such Person at such Election." Independent Gazette, Dec. 13, 1783.