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U.S. Supreme Court

Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974)

Communist Party of Indiana v. Whitcomb

No. 72-1040

Argued October 16, 1973

Decided January 9, 1974

414 U.S. 441


The application of appellants (the Communist Party of Indiana, certain of its officers and potential voters, and its candidates for President and Vice President) for a place on the Indiana ballot for the 1972 general election was rejected for failure to submit a statutory loyalty oath stating that the Party "does not advocate the overthrow of local, state or national government by force or violence." Appellants, contending that the statute was unconstitutional, thereupon filed this action in the District Court for injunctive and declaratory relief. On September 28, 1972, a three-judge court declared the statute constitutional and ordered the Election Board to place the Party on the ballot, but only if the required oath was submitted. After a qualified oath submitted by the Party was rejected, appellants, on October 3, sought a District Court order directing the Board to accept such oath, and, on the same day, the Board requested reconsideration of the September 28 order. The next day, the District Court denied both motions. On October 10, appellants filed a notice of appeal to this Court, which it later sought to withdraw so that the District Court might act on appellants' motion of the same day that the September 28 order be amended in certain respects. On October 31, the District Court allowed withdrawal of the appeal notice, but denied the motion to amend. Appellants refiled their notice of appeal to this Court on November 29, which appellees contend is untimely.


1. Appellants' notice of appeal was within the 60-day appeal period prescribed by 28 U.S.C. § 2101(b), since appellees' October 3 motion for reconsideration suspended the finality of the September 28 judgment until the District Court's denial of such motion on October 4 restored it, so that the time for appeal thus began to run from October 4. Pp. 414 U. S. 45-44.

2. The loyalty oath requirement of the Indiana statute violates the First and Fourteenth Amendments. Pp. 414 U. S. 446-450.

Page 414 U. S. 442

(a) The 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 produce such action, applies to state regulation burdening access to the ballot, rights of association in the political party of one's choice, casting an effective ballot, and in running for office, which are interests as substantial as those in other areas that this Court has protected against statutory schemes contrary to the First and Fourteenth Amendments. Pp. 414 U. S. 448-449.

(b) For purposes of determining whether to grant a place on the ballot, a group advocating violent overthrow as abstract doctrine need not be regarded as necessarily advocating unlawful action. Pp. 414 U. S. 449-450.


BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. POWELL, J., filed an opinion concurring in the result, in which BURGER, C.J.,and BLACKMUN and REHNQUIST, JJ., joined, post, p. 414 U. S. 451.

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