I dissent.
Section 19 of article XX of the California Constitution and section 32 of the Revenue and Taxation Code unjustifiably restrict free speech. Section 19 in effect imposes a penalty in the form of withholding a tax exemption upon any person or organization that chooses to speak in a certain manner, namely, by advocating overthrow of the federal or state governments by force or support of a foreign government against the United States in event of hostilities. Section 32 provides a special method of enforcing these restrictions as to certain tax exemptions. A person claiming one of these exemptions must make a declaration that he does not advocate the conduct specified in section 19. In effect the provisions impose a tax measured by the exemptions allowed to others not only upon those who advocate overthrow of the government by force or support of a foreign government in event of hostilities, but also upon those who do not advocate such conduct but refuse to declare that they do not.
A restraint on free speech is not less a restraint when it is imposed indirectly through withholding a privilege rather than directly through taxation, fine, or imprisonment. This *444court so held in Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 547-548 [171 P.2d 885], involving a comparable privilege, the use of school buildings for public meetings. “It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable. . . . The very purpose of a forum is the interchange of ideas, and that purpose cannot be frustrated by a censorship that would label certain convictions and affiliations suspect, denying the privilege of assembly to those who hold them, but granting it to those whose convictions and affiliations happen to be acceptable and in effect amplifying their privilege by making it a special one. In the competitive struggle of ideas for acceptance they would have a great strategic advantage in making themselves known and heard in a forum where the competition had been diminished by censorship, and their very freedom would intensify the suppression of those condemned to silence. It is not for the state to control the influence of a public forum by censoring the ideas, the proponents, or the audience; if it could, that freedom which is the life of a democratic assembly would be stilled. And the dulling effects of censorship on a community are more to be feared than the quickening influence of a live interchange of ideas.”
The tax exemptions in question are likewise comparable to the privilege of using the mails at less than cost. In Hannegan v. Esqtiire, Inc., 327 U.S. 146, 156 [66 S.Ct. 456, 90 L.Ed. 586], the court declared that, “grave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever. . . . Under that view the second-class rate could be granted on condition that certain economic or political ideas not be disseminated. The provisions of the [statute] . . . would have to be far more explicit for us to assume that Congress made such a radical departure from our traditions and undertook to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country.” The dissent of Mr. Justice Brandeis in United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 430-431 [41 S.Ct. 352, 65 L.Ed. 704], invoked in the Esquire case, reasoned that, “Congress may not through its postal police power put limitations upon the freedom of the press which if directly attempted would be *445unconstitutional. This court also stated in Ex parte Jackson that ‘Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.’ It is argued that although a newspaper is barred from the second-class mail, liberty of circulation is not denied, because the first and third-class mail and also other means of transportation are left open to a publisher. Constitutional rights should not be frittered away by arguments so technical and unsubstantial. ‘The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. ’ (Cummings v. Missouri, 4 Wall. (U.S.) 277, 325 [18 L.Ed. 356].) The Government, might, of course, decline altogether to distribute newspapers; or it might decline to carry any at less than the cost of the service; and it would not thereby abridge the freedom of the press, since to all papers other means of transportation would be left open. But to carry newspapers generally at a sixth of the cost of the service and to deny that service to one paper of the same general character, because to the Postmaster General views therein expressed in the past seem illegal, would prove an effective censorship and abridge seriously freedom of expression.”
Although free speech may not be an absolute right, it must be jealously guarded. As the court stated in American Communications Assn. v. Douds, 339 U.S. 382, 412 [70 S.Ct. 674, 94 L.Ed. 925], the first amendment “requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom.” That test is still a valid one. It was not repudiated in Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137]. The court was there concerned not to abolish the clear and present danger test but to bend it to the special situation of a critical time and the diabolic strategy of the Communist Party. As before, the key word in its solution was danger: “ ‘In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ ” (341 U.S. at 510.) There was evidence that the defendants, members of the Communist Party, advocated overthrow of the government by force and violence. The jury was instructed that it could not find them guilty under the statute unless it found that they had conspired with the intent that their advocacy “be of a rule or principle of action and by language reasonably and ordinarily calculated to incite *446persons to such action, all with the intent to cause the overthrow or destruction” of the government by force. The jury had also to determine whether the defendants intended to overthrow the government “as speedily as the circumstances would permit.” Moreover, the court of appeals held that the record supported the conclusion that “the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language ; that the Party is rigidly controlled; that Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party. . . .” (341 U.S. at 498, 511-512.)
It is essential in each case to inquire into the character of the speech to be restrained and the surrounding circumstances. The probability that advocacy will break out in action depends on the numbers, methods, and organization of the advocates.
The state provisions in question penalize advocacy in a totally different context from that in the Dennis case. The penalty falls indiscriminately on all manner of advocacy, whether it be a call to action or mere theoretical prophecy that leaves the way open for counteradvocacy by others. Moreover, with regard to advocacy of support of a foreign government, the state provisions penalize not only advocacy during actual hostilities but also advocacy during peacetime of action during hostilities that may occur, if at all, in the remote future.
There is no evidence in the present case that plaintiff church or its members advocate the overthrow of the government by force or otherwise. There is no evidence that plaintiff church or any of the organizations seeking tax exemptions are infiltrated by Communists or other disloyal persons, or that they are in any danger of such infiltration. The evidence is all to the contrary. It is baldly assumed that plaintiff church advocates the overthrow of the government by force because it refuses to declare that it does not. It is one thing for a court to sustain convictions after it has concluded following a full trial that it is dealing with an organization wielding the power of a centrally controlled international Communist movement ; it is quite another to deprive a church of a tax exemption on the ground that it will not declare that it does not advocate overthrow of the government.
If it is unconstitutional to restrain plaintiff from advocating overthrow of the government, it is a fortiori unconstitu*447tional to require it to prove or declare that it does not advocate overthrow of the government. (See Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 548 [171 P.2d 885].) Such a restraint is the more vicious because it penalizes not only those who advocate overthrow of the government but also those who do not but will not declare that they do not. There are some who refuse to make the required declaration, not because they advocate overthrow of the government, but because they conscientiously believe that the state has no right to inquire into matters so intimately touching political belief. Rightly or wrongly they fear that such an inquiry is the first step in censorship of unpopular ideas. Even in the face of a bona fide danger, the state has no power to embark on an unnecessary wholesale suppression of liberty. (See Butler v. Michigan, 25 U.S.L. Week 4165, 4166.)
The majority opinion, however, invokes the rule that the government may attain a legitimate objective through means reasonably related thereto even though there is an incidental restraint on speech. Thus, in securing qualified and trustworthy employees for government service a loyalty oath may be required, not for the purpose of restraining speech, but as a means of selection. (Adler v. Board of Education, 342 U.S. 485, 492 et seq. [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472]; Garner v. Board of Public Works Los Angeles, 341 U.S. 716, 720 et seq. [71 S.Ct. 909, 95 L.Ed. 1317]; Gerende v. Baltimore etc. Board of Elections, 341 U.S. 56 [71 S.Ct. 565, 95 L.Ed. 745] ; Steinmetz v. California State Bd. of Education, 44 Cal.2d 816 [285 P.2d 617] ; Pockman v. Leonard, 39 Cal.2d 676 [249 P.2d 267].) Similarly, American Communications Assn. v. Douds, 339 U.S. 382 [70 S.Ct. 674, 94 L.Ed. 925], held that in seeking to keep interstate commerce free of political strikes, Congress may require labor officials to file non-Communist affidavits as a condition to their unions’ invoking the jurisdiction of the National Labor Relations Board.
In such cases it is necessary to determine whether the provisions that incidentally restrain speech are in fact reasonably related to the attainment, of the governmental objective. In Lawson v. Housing Authority, 270 Wis. 269 [70 N.W.2d 605], cert, denied, 350 U.S. 882 [76 S.Ct. 135, 100 L.Ed. 778], the Supreme Court of Wisconsin considered a federal statute that provided in effect that no housing unit constructed under the statute could be occupied by a member of an organization designated as subversive by the attorney general. Pursuant to this statute, the Milwaukee Housing Authority adopted a reso*448lution that required its tenants to execute a certificate of non-membership in the listed organizations. The court held the resolution unconstitutional, and after discussing the Douds ease stated: “It is beyond our power to comprehend how the evil which might result from leasing units in a federally aided housing project to tenants who are members of organizations designated subversive by the Attorney General is in any way comparable in substantiality to that which would result to the general welfare through communists in control of labor organizations disrupting commerce by calling strikes to carry out Communist Party policy. This court deems the possible harm which might result in suppressing the freedoms of the First Amendment outweigh any threatened evil posed by the occupation by members of subversive organizations of units in federally aided housing projects.” (270 Wis. at 287-288.) In considering the same problem, the Supreme Court of Illinois pointed out that, “The purpose of the Illinois Housing Authority Act is to eradicate slums and provide housing for persons of low-income class. [Citation.] It is evident that the exclusion of otherwise qualified persons solely because of membership in organizations designated as subversive by the Attorney General has no tendency whatever to further such purpose.” (Chicago Housing Authority v. Blackman, 4 Ill.2d 319 [122 N.E.2d 522, 526].)
In the present case the majority opinion thus states the governmental objective: “Encouragement to loyalty to our institutions and an incentive to defend one’s country in the event of hostilities . . . doctrines which the state has plainly promulgated and intends to foster. It is the high purpose residing in its people that the state is attempting to encourage in its endeavor to protect itself against subversive infiltration. . . . Obviously a program of tax exemption designed to promote adherence to the principles of our government but constrained to include within its bounty persons or organizations actively advocating subversion and the support of enemies in time of hostilities, would be wholly without reason and result in its own defeat. ’ ’
The issue thus narrows to whether a state can properly restrain free speech in the interest of promoting what appears to be eminently right thinking. A state with such power becomes a monitor of thought to determine what is and what is not right thinking. Great as a state’s police power is, however, the United States Supreme Court has yet to sanction its breaking into people’s minds to make them orderly. In *449holding that school children may not be compelled to salute the flag as a condition to attending public schools, the Supreme Court through Mr. Justice Jackson stated that, “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If 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. If there are any circumstances which permit an exception, they do not now occur to us.” (West Virginia Board of Education v. Barnette, 319 U.S. 624, 641-642 [63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674].)
Advocacy does not occur in an intellectual vacuum. Usually it answers or challenges other advocacy. As Mr. Justice Frankfurter aptly stated in Dennis v. United States, 341 U.S. 494, 549-550 [71 S.Ct. 857, 95 L.Ed. 1137] : “Of course no government can recognize a ‘right’ of revolution, or a ‘right’ to incite revolution if the incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its effects may be manifold. A public interest is not wanting in granting freedom to speak their minds even to those who advocate the overthrow of the Government by force. For, as the evidence in this ease abundantly illustrates, coupled with such advocacy' is criticism of defects in our society. Criticism is the spur to reform; and Burke’s admonition that a healthy society must reform in order to conserve has not lost its force. Astute observers have remarked that one of the characteristics of the American Republic is indifference to fundamental criticism. Bryce, The American Commonwealth, e. 84. It is a commonplace that there may be a grain of truth in the most uncouth doctrine, however false and repellan! the balance may be. Suppressing advocates of overthrow *450inevitably will also silence critics who do not advocate overthrow but fear that their criticism may be so construed. No matter how clear we may be that the defendants now before us are preparing to overthrow our Government at the propitious moment, it is self-delusion to think that we can punish them for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a sobering fact that in sustaining the convictions before us we can hardly escape restriction on the interchange of ideas.”
Section 32 impedes not only advocacy itself but discussion short of advocacy that may be of the utmost value. As Mr. Justice Jackson pointed out in the Dennis case, “Of course, it is not always easy to distinguish teaching or advocacy in the sense of incitement from teaching or advocacy in the sense of exposition or explanation,” and Mr. Justice Frankfurter recognized that, “there is no divining rod by which we may locate ‘advocacy.’ Exposition of ideas readily merges into advocacy.” (341 U.S. at 545, 572.) Yet section 32 compels the cautious to forego discussion for fear they will overstep the line that no divining rod can locate.
Errors in thought or expression are best counteracted by deeper thought and more cogent expression. Only through free discussion can subversive doctrines be understood and effectively combatted. “ ‘The interest, which [the First Amendment] guards, and which gives it its importance, presupposes that there are no orthodoxies—religious, political, economic, or scientific—which are immune from debate and dispute. Back of that is the assumption—itself an orthodoxy, and the one permissible exception—that truth will be most likely to emerge, if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies. ’ ... In the last analysis it is on the validity of this faith that our national security is staked.” (Mr. Justice Frankfurter concurring in Dennis v. United States, 341 U.S. 494, 550 [71 S.Ct. 857, 95 L.Ed. 1137].)
The majority opinion in the present case goes far beyond any United States Supreme Court decision in upholding legislation that restricts the citizen’s right to speak freely. Section 19 of article XX, implemented by section 32 of the Revenue and Taxation Code, arbitrarily assumes that those who seek tax exemptions advocate overthrow of the government unless they declare otherwise. The provisions infringe the right to *451engage in such advocacy without reference to its seriousness, inhibit free discussion short of advocacy, and penalize the belief that the government has no right to require professions of innocence in the absence of proof of guilt. A law with such consequences cannot stand in the face of the constitutional guarantees.
I would reverse the judgment.
Gibson, C. J., concurred.