Pursuant to §§ 6514 and 6515 of the New York State Education
Law, authorizing disciplinary action against any physician
"convicted in a court of competent jurisdiction, either within or
without this state, of a crime," appellant's license to practice as
a physician was suspended for six months because he had been
convicted in the United States District Court for the District of
Columbia, under 2 U.S.C. § 192, of failing to produce before a
Congressional Committee certain papers subpoenaed by that
Committee.
Held: the New York law, on its face or as so construed
and applied, does not violate the Due Process Clause of the
Fourteenth Amendment. Pp.
347 U. S.
443-456.
(a) The decision of the highest state court that a violation of
2 U.S.C. § 192, though not a crime under New York law, was a
"crime" within the meaning of § 6514-2(b) of the State Education
Law, is conclusive here. P.
347 U. S.
448.
(b) Section 6514-2(b) is not unconstitutionally vague. P.
347 U. S.
448.
(c) The subsequent designation of certain other contempts of
Congress as federal "crimes" (18 U.S.C. § 402) does not prevent a
violation of 2 U.S.C. § 192 from being a "crime" within the meaning
of the New York law. P. 449,
n
8.
(d) The establishment and enforcement of standards of conduct
within its borders relative to the health of its people is a vital
part of a state's police power. P.
347 U. S.
449.
(e) The practice of medicine is a privilege granted by the State
under its substantially plenary power to fix the terms of
admission. P.
347 U. S.
451.
(f) A state's legitimate concern for maintaining high standards
of professional conduct extends beyond initial licensing. P.
347 U. S.
451.
(g) The suspension of appellant's license because of his
conviction in a foreign jurisdiction, for an offense not involving
moral turpitude and not criminal under New York law, does not so
far transcend the State's legitimate concern in professional
standards as to violate the Fourteenth Amendment. Pp.
347 U. S.
451-452.
Page 347 U. S. 443
(h) The provisions of § 6515 of the State Education Law
prescribing the procedure for disciplinary action are, on their
face, reasonable and satisfy the requirements of due process. Pp.
347 U. S.
452-453.
(i) The record in this case does not support a conclusion that
the Board of Regents, in fixing the measure of discipline at a six
months' suspension of appellant's license as a physician, made an
arbitrary or capricious decision or relied upon irrelevant
evidence. Pp.
347 U. S.
453-456.
305
N.Y. 89, 691, 111 N.E.2d 222, 112 N.E.2d 773, affirmed.
MR. JUSTICE BURTON delivered the opinion of the Court.
The principal question here presented is whether the New York
State Education Law, [
Footnote
1] on its face or as here construed and applied, violates the
Constitution of the United States by authorizing the suspension
from practice, for six months, of a physician because he has been
convicted, in the United States District Court for the District of
Columbia, of failing to produce, before a Committee of the United
States House of Representatives, certain papers subpoenaed by that
committee. [
Footnote 2] For the
reasons hereafter stated, we hold that it does not.
Page 347 U. S. 444
In 1945, the Committee of the United States House of
Representatives, known as the Committee on Un-American Activities,
was authorized to make investigations of "the extent, character,
and objects of un-American propaganda activities in the United
States." [
Footnote 3] In 1946,
in the course of that investigation, the committee subpoenaed Dr.
Edward K. Barsky, appellant herein, who was then the national
chairman and a member of the executive board of the Joint
Anti-Fascist Refugee Committee, to produce
"all books, ledgers, records and papers relating to the receipt
and disbursement of money by or on account of the Joint
Anti-Fascist Refugee Committee or any subsidiary or any
subcommittee thereof, together with all correspondence and
memoranda of communications by any means whatsoever with persons in
foreign countries for the period from January 1, 1945, to March 29,
1946. [
Footnote 4]"
Similar subpoenas were served on the executive secretary and the
other members of the executive board of the Refugee Committee.
Appellant appeared before the Congressional Committee, but,
pursuant to advice of counsel and the action of his executive
Page 347 U. S. 445
board, he and the other officers of the Refugee Committee failed
and refused to produce the subpoenaed papers.
In 1947, appellant, the executive secretary, and several members
of the executive board of the Refugee Committee were convicted by a
jury, in the United States District Court for the District of
Columbia, of violating R.S. § 102, as amended, 2 U.S.C. § 192, by
failing to produce the subpoenaed papers. Appellant was sentenced
to serve six months in jail and pay $500.
See United States v.
Bryan, 72 F. Supp.
58;
United States v. Barsky, 72 F. Supp.
165. In 1948, this judgment was affirmed by the Court of
Appeals,
Barsky v. United States, 83 U.S.App.D.C. 127, 167
F.2d 241, and certiorari was denied, 334 U.S. 843. In 1950, a
rehearing was denied. Two Justices noted their dissents, and two
did not participate. 339 U.S. 971. Appellant served his sentence,
being actually confined five months. [
Footnote 5]
Appellant was a physician who practiced his profession in New
York under a license issued in 1919. However, in 1948, following
the affirmance of his above-mentioned conviction, charges were
filed against him with the Department of Education of the State of
New York by an inspector of that department. This was done under §
6515 of the Education Law, seeking disciplinary action pursuant to
subdivision 2(b) of § 6514 of that law:
"2. The license or registration of a practitioner of medicine,
osteopathy, or physiotherapy may be revoked, suspended or annulled
or such practitioner reprimanded or disciplined in accordance with
the provisions and procedure of this article upon decision after
due hearing in any of the following cases:"
"
* * * *
Page 347 U. S.
446
"
"(b) That a physician, osteopath, or physiotherapist has been
convicted in a court of competent jurisdiction, either within or
without this state, of a crime; or . . ."
In 1951, after filing an amended answer, appellant was given an
extended hearing before a subcommittee of the Department's Medical
Committee on Grievances. The three doctors constituting the
subcommittee made a written report of their findings,
determination, and recommendation, expressly taking into
consideration the five months during which appellant had been
separated from his practice while confined in jail, and also the
testimony and letters submitted in support of his character. They
recommended finding him guilty as charged and suspending him from
practice for three months. The ten doctors constituting the full
Grievance Committee unanimously found appellant guilty as charged.
They also adopted the findings, determination and recommendation of
their subcommittee, except that, by a vote of six to four, they
fixed appellant's suspension at six months. Promptly thereafter,
the Committee on Discipline of the Board of Regents of the
University of the State of New York held a further hearing at which
appellant appeared in person and by counsel. This committee
consisted of two lawyers and one doctor. After reviewing the facts
and issues, it filed a detailed report recommending that, while
appellant was guilty as charged, his license be not suspended, and
that he merely be censured and reprimanded. [
Footnote 6] The Board of Regents, however,
returned to and sustained the
Page 347 U. S. 447
determination of the Medical Committee on Grievances, and
suspended appellant's license for six months. [
Footnote 7]
Appellant sought a review of this determination, under § 6515 of
the Education Law,
supra, and Article 78 of the New York
Civil Practice Act, Gilbert-Bliss' N.Y.Civ.Prac., Vol. 6B, 1944, §§
1283-1306. The proceeding was instituted in the Supreme Court for
the County of Albany and transferred to the Appellate Division,
Third Department. That court confirmed the order of the Board of
Regents.
In re Barsky, 279 App.Div. 1117, 112 N.Y.S.2d
778,
and see 279 App.Div. 447, 111 N.Y.S.2d 393,
and 279 App.Div. 1101, 112 N.Y.S.2d 780, 781. The Court of
Appeals, with one judge dissenting, affirmed.
305 N.Y.
89, 111 N.E.2d 222. That court allowed an appeal to this Court
and amended its remittitur by adding the following:
"Upon the appeals herein, there were presented and necessarily
passed upon questions under the Federal Constitution,
viz., whether sections 6514 and 6515 of the Education Law,
. . . as construed and applied here,
Page 347 U. S. 448
are violative of the due process clause of the Fourteenth
Amendment. The Court of Appeals held that the rights of the
petitioners under the Fourteenth Amendment of the Constitution of
the United States had not been violated or denied."
305 N.Y. 691, 112 N.E.2d 773.
We noted probable jurisdiction, THE CHIEF JUSTICE not
participating at that time. 346 U.S. 807.
That appellant was convicted of a violation of R.S. § 102, as
amended, 2 U.S.C. § 192, in a court of competent jurisdiction is
settled. In the New York courts, appellant argued that a violation
of that section of the federal statutes was not a crime under the
law of New York and that, accordingly, it was not a "crime" within
the meaning of § 6514, subd. 2(b) of the New York Education Law. He
argued that his conviction, therefore, did not afford the New York
Board of Regents the required basis for suspending his license.
That issue was settled adversely to him by the Court of Appeals of
New York, and that court's interpretation of the state statute is
conclusive here.
He argues that § 6514, subd. 2(b) is unconstitutionally vague.
As interpreted by the New York courts, the provision is extremely
broad, in that it includes convictions for any crime in any court
of competent jurisdiction within or without New York State. This
may be stringent and harsh, but it is not vague. The professional
standard is clear. The discretion left to enforcing officers is not
one of defining the offense. It is merely that of matching the
measure of the discipline to the specific case.
A violation of R.S. § 102, as amended, 2 U.S.C. § 192, is
expressly declared by Congress to be a misdemeanor. It is
punishable by a fine of not more than $1,000 nor less than $100 and
imprisonment for not less than one month nor more than twelve
months.
See note 2
supra.
Page 347 U. S. 449
For its violation, appellant received a sentence of one-half the
maximum and served five months in jail. There can be no doubt that
appellant was convicted in a court of competent jurisdiction of a
crime within the meaning of the New York statute. [
Footnote 8]
It is elemental that a state has broad power to establish and
enforce standards of conduct within its borders relative to the
health of everyone there. It is a vital part of a state's police
power. The state's discretion in that field extends naturally to
the regulation of all professions concerned with health. In Title
VIII of its Education Law, the State of New York regulates many
fields of professional practice, including medicine, osteopathy,
physiotherapy, dentistry, veterinary medicine, pharmacy, nursing,
podiatry and optometry. New York has had long experience with the
supervision of standards of medical practice by representatives of
that profession exercising wide discretion as to the discipline to
be applied. It has established detailed procedures for
investigations, hearings and reviews with ample opportunity for the
accused practitioner to have his case thoroughly considered and
reviewed.
Section 6514, as a whole, [
Footnote 9] demonstrates the broad field of professional
conduct supervised by the Medical Committee on Grievances of the
Department of Education
Page 347 U. S. 450
and the Board of Regents of the University of the State of New
York. In the present instance, the violation of § 6514, subd. 2(b)
is obvious. The real problem for the state agencies is that of the
appropriate disciplinary action to be applied.
Page 347 U. S. 451
The practice of medicine in New York is lawfully prohibited by
the State except upon the conditions it imposes. Such practice is a
privilege granted by the State under its substantially plenary
power to fix the terms of admission. The issue is not before us,
but it has not been questioned that the State could make it a
condition of admission to practice that applicants shall not have
been convicted of a crime in a court of competent jurisdiction
either within or without the State of New York. It could at least
require a disclosure of such convictions as a condition of
admission and leave it to a competent board to determine, after
opportunity for a fair hearing, whether the convictions, if any,
were of such a date and nature as to justify denial of admission to
practice in the light of all material circumstances before the
board.
It is equally clear that a state's legitimate concern for
maintaining high standards of professional conduct extends beyond
initial licensing. Without continuing supervision, initial
examinations afford little protection. Appellant contends, however,
that the standard which New York has adopted exceeds reasonable
supervision and deprives him of property rights in his license
and
Page 347 U. S. 452
his established practice, without due process of law in
violation of the Fourteenth Amendment.
He argues that New York's suspension of his license because of
his conviction in a foreign jurisdiction, for an offense not
involving moral turpitude [
Footnote 10] and not criminal under the law of New York,
so far transcends that State's legitimate concern in professional
standards as to violate the Fourteenth Amendment. We disagree, and
hold that New York's governmental discretion is not so
restricted.
This statute is readily distinguishable from one which would
require the automatic termination of a professional license because
of some criminal conviction of its holder. [
Footnote 11] Realizing the importance of high
standards of character and law observance on the part of practicing
physicians, the State has adopted a flexible procedure to protect
the public against the practice of medicine by those convicted of
many more kinds and degrees of crime than it can well list
specifically. It accordingly has sought to attain its justifiable
end by making the conviction of any crime a violation of its
professional medical standards, and then leaving it to a qualified
board of doctors to determine initially the measure of discipline
to be applied to the offending practitioner.
Section 6515 of the New York Education Law thus meets the charge
of unreasonableness. All charges are passed upon by a Committee on
Grievances of the department. That committee consists of ten
licensed physicians, appointed by the Board of Regents. The term of
each member is five years. They serve without compensation. Three
are "members of conspicuous professional
Page 347 U. S. 453
standing" appointed upon the board's own nomination. § 6515,
subd. 2. The others are appointed from lists of nominees submitted
respectively by the New York State Medical, homeopathic, and
Osteopathic Societies. Charges must be filed in writing, and a
subcommittee of three or more members hears and reports on them. At
least ten days' notice of a hearing is required, and opportunity is
afforded the accused to appear personally, or by counsel, with the
right to produce witnesses and evidence on his own programs in
which the committee participated examine evidence produced against
him and to have subpoenas issued by the committee. The subcommittee
transmits its report, findings, and recommendation, together with a
transcript of evidence, to the Committee on Grievances. That
committee may take further testimony. It determines the merit of
the charges and, if the practitioner is found guilty by a unanimous
verdict, the record, together with the findings and determination
of the committee, is transmitted to the Board of Regents. That
board, "after due hearing," may accept or modify the committee's
recommendation or find the practitioner not guilty and dismiss the
charges. § 6515, subd. 7.
"The committee on grievances shall not be bound by the laws of
evidence in the conduct of its proceedings, but the determination
shall be founded upon sufficient legal evidence to sustain the
same."
§ 6515, subd. 5. If the accused is found guilty, he may
institute proceedings for review under Article 78 of the Civil
Practice Act, returnable before the Appellate Division of the Third
Judicial Department.
The above provisions, on their face, are well within the degree
of reasonableness required to constitute due process of law in a
field so permeated with public responsibility as that of
health.
The statutory procedure as above outlined has been meticulously
followed in this case, and no objection is
Page 347 U. S. 454
made on that score. Appellant nevertheless complains that, as
construed and applied by the Medical Committee on Grievances and
its subcommittee, his hearing violated the due process of law
required by the Fourteenth Amendment. He contends that evidence was
introduced which was immaterial and prejudicial, and that the
committee based its determination upon that evidence. He contends,
in effect, that the committee reached its determination without
"sufficient legal evidence to sustain the same," thus exceeding its
statutory authority. He claims further that the committee acted
capriciously and arbitrarily upon immaterial and prejudicial
evidence, thus not only exceeding its statutory authority but
depriving him of his property without due process of law.
The state courts have determined that the hearing did not
violate the statute, and, accordingly, we are concerned only with
the constitutional question. The claim is that immaterial and
prejudicial evidence of the alleged subversive activities of the
Refugee Committee was introduced and relied upon. Emphasis is given
to evidence that the Refugee Committee had been placed on the
Attorney General's list of subversive or Communistic organizations.
To emphasize the prejudicial character of this testimony, appellant
refers to the fact that at the time of the subcommittee hearing,
litigation involving such list was pending in the courts and had
resulted in a decision adverse to appellant, whereas that decision
subsequently was set aside by this Court. [
Footnote 12] The State's answer to these claims
is that such testimony was invited by appellant's own testimony as
to the activities of the Refugee Committee. [
Footnote 13] The State shows also that, while
such evidence was not necessary to establish appellant's
Page 347 U. S. 455
violation of the federal statute as to the subpoenaed papers, it
was material and admissible to assist the Committee on Grievances
and the other agencies in determining the appropriate disciplinary
measures to be applied to appellant under the state law. Appellant
recognized this materiality by endeavoring to use evidence as to
the Refugee Committee's charitable activities to justify and excuse
his failure to produce the subpoenaed papers.
We find nothing sufficient to sustain a conclusion that the
Board of Regents or the recommending committees made an arbitrary
or capricious decision or relied upon irrelevant evidence. The
report made by the original subcommittee of three that heard the
evidence indicates that it was not influenced by the character of
the Refugee Committee. It said:
"We do not feel that we are now concerned, nor would we be able
to determine, whether the books and records of that Committee would
disclose whether the Committee was completely philanthropic in
character, or whether it was engaged in subversive activities."
The painstaking complete review of the evidence and the issues
by the Committee on Discipline of the Board of Regents demonstrates
a high degree of unbiased objectivity. Before the final action of
the Board of Regents, the Committee on Discipline in its report to
that board noted that --
"After the hearing below and the determination of the Medical
Committee on Grievances, the Supreme Court of the United States
reversed an order of the District Court dismissing a complaint by
the Refugee Committee in an action by it for declaratory and
Page 347 U. S. 456
injunctive relief (
Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U. S. 123), some of the
majority justices going on the ground that a determination of this
kind could not constitutionally be made without a hearing and
opportunity to offer proof and disproof. In view of this decision,
no evidentiary weight can be given in the present proceeding to the
listing by the Attorney General."
That committee thus recognized the existence of a valid basis
for disciplinary action, but found "no valid basis for discipline
beyond the statutory minimum of censure and reprimand." With this
recommendation before the Board of Regents, we see no reason to
conclude that the board disregarded it or acted arbitrarily,
capriciously, or through prejudice and deprived appellant of due
process of law. The board made no specific findings. It accepted
and sustained the unanimous determination of the Medical Committee
on Grievances, which was that appellant was guilty. Then, in
compliance with the recommendation of that committee, it fixed the
measure of discipline at a six months' suspension of appellant's
registration as a physician.
The Court has considered the other points raised by appellant,
but finds no substantial federal constitutional objection in them,
even assuming that they are before us as having been considered by
the Court of Appeals, although not mentioned in its opinion or the
amendment to its remittitur.
The judgment of the Court of Appeals of the State of New York,
accordingly, is
Affirmed.
[
Footnote 1]
McKinney's N.Y.Laws, c. 16, Education Law, §§ 6514, 6515.
[
Footnote 2]
The conviction was for violating R.S. § 102, as amended, 52
Stat. 942, 2 U.S.C. § 192:
"SEC. 102. Every person who having been summoned as a witness by
the authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either House,
or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or any committee of
either House of Congress, willfully makes default, or who, having
appeared, refuses to answer any question pertinent to the question
under inquiry, shall be deemed guilty of a misdemeanor, punishable
by a fine of not more than $1,000 nor less than $100 and
imprisonment in a common jail for not less than one month nor more
than twelve months."
[
Footnote 3]
"The Committee on Un-American Activities, as a whole or by
subcommittee, is authorized to make from time to time
investigations of (1) the extent, character, and objects of
un-American propaganda activities in the United States, (2) the
diffusion within the United States of subversive and un-American
propaganda that is instigated from foreign countries or of a
domestic origin and attacks the principle of the form of government
as guaranteed by our Constitution, and (3) all other questions in
relation thereto that would aid Congress in any necessary remedial
legislation."
91 Cong.Rec. 10, 15. This was carried into the Rules of the
House as Rule XI (q)(2), 60 Stat. 823, 828.
[
Footnote 4]
United States v. Bryan, 72 F.
Supp. 58, 60.
[
Footnote 5]
For related litigation,
see United States v. Bryan,
339 U. S. 323;
United States v. Fleischman, 339 U.
S. 349;
Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U. S. 123.
[
Footnote 6]
The committee said:
"Since violation of the Federal statute which Respondent has
been convicted of violating involves inherently no moral turpitude,
and since there has been no impeachment by evidence of Respondent's
explanation (sufficient if unimpeached) of his failure to produce
the subpoenaed documents, we find in the record no valid basis for
discipline beyond the statutory minimum of censure and reprimand;
and we therefore recommend that Respondent's license be not
suspended, as the Medical Committee on Grievances has recommended,
but that he be censured and reprimanded."
[
Footnote 7]
The order suspending appellant's license was issued by the
Commissioner of Education in 1951, but its effect was stayed by the
New York Court of Appeals, pending an appeal to this Court. 305
N.Y. 691, 112 N.E.2d 773.
At about the same time, the board fixed at three months the
suspension of the license of another doctor who was a member of the
executive board of the Refugee Committee and who had been convicted
with appellant. It also directed that a third doctor, who was a
member of the same board, be censured and reprimanded. Each such
determination was confirmed by the New York courts simultaneously
with the confirmations relating to appellant.
See 279
App.Div. 447, 111 N.Y.S.2d 393; 279 App.Div. 1101, 112 N.Y.S.2d
780, 781; 279 App.Div. 1117, 112 N.Y.S.2d 778; and
305 N.Y.
89, 111 N.E.2d 222.
[
Footnote 8]
The subsequent designation of certain other contempts of
Congress as federal "crimes" 18 U.S.C. § 402, does not prevent this
misdemeanor from being a crime within the meaning of the New York
statute.
[
Footnote 9]
"§ 6514. Revocation of certificates; annulment of
registrations"
"1. Whenever any practitioner of medicine, osteopathy or
physiotherapy shall be convicted of a felony, as defined in section
sixty-five hundred two of this article, the registration of the
person so convicted may be annulled and his license revoked by the
department. It shall be the duty of the clerk of the court wherein
such conviction takes place to transmit a certificate of such
conviction to the department. Upon reversal of such judgment by a
court having jurisdiction, the department, upon receipt of a
certified copy of such judgment or order of reversal, shall vacate
its order of revocation or annulment."
"2. The license or registration of a practitioner of medicine,
osteopathy, or physiotherapy may be revoked, suspended or annulled
or such practitioner reprimanded or disciplined in accordance with
the provisions and procedure of this article upon decision after
due hearing in any of the following cases:"
"(a) That a physician, osteopath, or physiotherapist is guilty
of fraud or deceit in the practice of medicine, osteopathy, or
physiotherapy or in his admission to the practice of medicine,
osteopathy or physiotherapy; or"
"(b) That a physician, osteopath, or physiotherapist has been
convicted in a court of competent jurisdiction, either within or
without this state, of a crime; or"
"(c) That a physician, osteopath, or physiotherapist is an
habitual drunkard, or is or has been addicted to the use of
morphine, cocaine or other drugs having similar effect, or has
become insane; or"
"(d) That a physician, osteopath, or physiotherapist offered,
undertook or agreed to cure or treat disease by a secret method,
procedure, treatment or medicine or that he can treat, operate and
prescribe for any human condition by a method, means or procedure
which he refuses to divulge upon demand to the committee on
grievances; or that he has advertised for patronage by means of
handbills, posters, circulars, letters, stereopticon slides, motion
pictures, radio, or magazines; or"
"(e) That a physician, osteopath, or physiotherapist did
undertake or engage in any manner or by any ways or means
whatsoever to perform any criminal abortion or to procure the
performance of the same by another or to violate section eleven
hundred forty-two of the penal law, or did give information as to
where or by whom such a criminal abortion might be performed or
procured."
"(f) That a physician, osteopath, or physiotherapist has
directly or indirectly requested, received, or participated in the
division, transference, assignment, rebate, splitting, or refunding
of a fee for, or has directly or indirectly requested, received, or
profited by means of a credit or other valuable consideration as a
commission, discount, or gratuity in connection with the furnishing
of medical, surgical or dental care, diagnosis, or treatment or
service, including x-ray examination and treatment, or for or in
connection with the sale, rental, supplying, or furnishing of
clinical laboratory services or supplies, x-ray laboratory services
or supplies, inhalation therapy service or equipment, ambulance
service, hospital or medical supplies, physiotherapy, or other
therapeutic service or equipment, artificial limbs, teeth or eyes,
orthopedic or surgical appliances or supplies, optical appliances,
supplies or equipment, devices for aid of hearing, drugs,
medication or medical supplies or any other goods, services or
supplies prescribed for medical diagnosis, care or treatment under
this chapter, except payment, not to exceed thirty-three and
one-third per centum of any fee received for x-ray examination,
diagnosis, or treatment, to any hospital furnishing facilities for
such examination, diagnosis or treatment. . . ."
[
Footnote 10]
See Sinclair v. United States, 279 U.
S. 263,
279 U. S.
299.
[
Footnote 11]
A conviction for a crime which, under the law of New York, would
amount to a felony has been given such an automatic effect in some
instances.
See McKinney's N.Y. Laws, Education Law, §
6613, subd. 12, as to dentists and McKinney's N.Y. Laws, Judiciary
Law, § 90-4, as to attorneys.
Cf. § 6514, subd. 1,
note 9 supra, as to
physicians.
See In re Raab, 156 Ohio St. 158, 101 N.E.2d
294.
[
Footnote 12]
Joint Anti-Fascist Refugee Committee v. McGrath,
341 U. S. 123.
[
Footnote 13]
The character of the activities of the Joint Anti-Fascist
Refugee Committee was placed in issue by appellant's amended
answer. He volunteered much testimony as to the benevolent and
charitable in which the committee participated, and he introduced
many exhibits on the same subject. Reference to the Attorney
General's list of subversives developed naturally during the
resulting cross-examination of appellant.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs,
dissenting.
Dr. Barsky has been a practicing physician and surgeon since his
graduation from the medical college of Columbia
Page 347 U. S. 457
University in 1919, except for time spent doing postgraduate
work in Europe. Beginning with his internship, he has been almost
continuously on the staff of Beth Israel Hospital in New York, the
city of his birth. During the Spanish Civil War, Dr. Barsky and
others became actively concerned with the medical needs of Loyalist
soldiers. The doctor went over to Spain to head an American
hospital for the Loyalist wounded. Following his return to practice
in New York, Dr. Barsky became chairman of the Joint Anti-Fascist
Refugee Committee, an organization founded in 1942 to help with
problems of Spanish refugees from the Franco government. In 1945,
the House Committee on Un-American Activities began an
investigation of the Refugee Committee to see if it was spreading
political propaganda. Dr. Barsky and other members of the
organization's executive board were summoned before the
congressional Committee and asked to produce the records of
contributions and disbursements of the Refugee Committee. Dr.
Barsky and the others refused, explaining that many contributors
had relatives in Spain whose lives might be endangered if the
contributors' names were given out publicly. Instead, the
organization was willing to give the required information to the
President's War Relief Control Board. In making his refusal, Dr.
Barsky had the advice of attorneys that his action was justified
because the congressional Committee's subpoena transcended its
constitutional powers. Concededly, this advice was reasonable and
in accord with the legal opinion of many lawyers and jurists
throughout the country. [
Footnote
2/1] Moreover, the Refugee Committee was advised that the only
way to raise its constitutional claim and test the
Page 347 U. S. 458
subpoena's validity was for its executives to risk jail by
refusing to produce the requested papers. Dr. Barsky was sentenced
to six months in jail as punishment for his disobedience of the
order to produce, and the Court of Appeals affirmed his sentence,
overruling his constitutional arguments. This Court denied
certiorari without approving or disapproving the constitutional
contentions. 334 U.S. 843.
When Dr. Barsky was released from jail and ready to resume his
practice, an agent of the Board of Regents of the University of the
State of New York [
Footnote 2/2]
served him with a complaint demanding that his license to practice
medicine be revoked. This action was not based on any alleged
failing of Dr. Barsky in his abilities or conduct as a physician or
surgeon. The sole allegation was that he had been convicted of a
crime -- refusal to produce papers before Congress. New York law
authorizes revocation or suspension of a physician's license if he
is convicted of a crime. Hearings were held before a Grievance
Committee of physicians appointed by the Regents, and there was
much testimony to the effect that Dr. Barsky was both a skillful
surgeon and a good citizen. No witness testified to any conduct of
Dr. Barsky which in any way reflected on his personal or
professional character. Nothing was proven against him except that
he had refused to produce papers. In reviewing the findings of
fact, pursuant to § 211 of the State's Education Law, the Regents'
Discipline Committee reported that Dr. Barsky's refusal to produce
the Refugee Committee's papers was shown to be due to a desire to
preserve the constitutional rights of his organization, that his
offense involved no
Page 347 U. S. 459
moral turpitude whatever, [
Footnote
2/3] and that he had already been punished. The right to test
the constitutional power of a Committee is itself a
constitutionally protected right in this country. [
Footnote 2/4] But, despite all these things, the
Regents suspended Dr. Barsky's medical license for six months,
giving no reason for their action.
I have no doubt that New York has broad power to regulate the
practice of medicine. But the right to practice is, as MR. JUSTICE
DOUGLAS shows, a very precious part of the liberty of an individual
physician or surgeon. It may mean more than any property. Such a
right is protected from arbitrary infringement by our Constitution,
which forbids any state to deprive a person of liberty or property
without due process of law. Accordingly, we brought this case here
to determine if New York's action against Dr. Barsky violates the
requirements of the Federal constitution.
This record reveals, in my opinion, that New York has
contravened the Constitution in at least one, and possibly two
respects. First, it has used in place of probative evidence against
Dr. Barsky an attainder published by the Attorney General of the
United States in violation of the Constitution. Second, it has
permitted Dr. Barsky to be tried by an agency vested with
intermingled legislative-executive-judicial powers so broad and so
devoid of legislative standards or guides that it is, in effect,
not a tribunal operating within the ordinary safeguards of law, but
an agency with arbitrary power to decide, conceivably on the basis
of suspicion, whim, or caprice, whether or not physicians shall
lose their licenses.
Page 347 U. S. 460
First. At the hearing before a subcommittee of the
Medical Grievance Committee, appointed by the Regents, the lawyer
for the Regents introduced evidence that the Refugee Committee
headed by Dr. Barsky had been listed by the Attorney General of the
United States as subversive. Pages and pages of the record are
devoted to this listing, to arguments about its meaning and to
other innuendoes of suspected communistic associations of Dr.
Barsky, without a single word of legal or credible proof. Excerpts
from the record are printed in the
347
U.S. 442app|>Appendix to this opinion. The Grievance
Committee made a formal finding of fact that the Refugee Committee
had been listed as subversive. This Court, however, has held that
the Attorney General's list was unlawful,
Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.
S. 123. My view was and is that the list was the
equivalent of a bill of attainder, which the Constitution expressly
forbids. The Regents' own reviewing Committee on Discipline
recognized the illegality of the list and advised the Regents that
no weight should be given to it. This reviewing committee also
recommended that the Regents not accept the Grievance Committee's
recommendation of a six months' suspension, but instead give no
suspension at all. The Regents, however, accepted and sustained the
determination of the Grievance Committee. Dr. Barsky sought review
in the Court of Appeals, but New York's highest court said it was
without power to review the use of the Attorney General's list. Our
responsibility is, however, broader. We must protect those who come
before us from unconstitutional deprivation of their rights,
whether the state court is empowered to do so or not. The record
shows that the Grievance Committee made a finding of fact that,
"Ever since 1947, the [Refugee] Committee has been listed as
subversive by the Attorney General of the United
Page 347 U. S. 461
States." It seems perfectly natural for the Grievance Committee
to rely on this list, for the Regents are charged with the duty of
making up their own list of "subversive" organizations for the
purpose of dismissing teachers, and New York law authorizes the
Regents to make use of the Attorney General's list. [
Footnote 2/5] Dr. Barsky had a
constitutional right to be free of any imputations on account of
this illegal list. That reason alone should, in my judgment,
require reversal of this case.
Second. Even if the evidence considered by the Regents
and the Grievance Committee had been proper, I would still have
grave doubts that Dr. Barsky was tried by procedures meeting
constitutional requirements. The Regents who tried and suspended
him exercise executive, legislative, and judicial powers. [
Footnote 2/6] The Regents have broad
supervisory and disciplinary controls over schools, school boards,
and teachers. They also have powers over libraries and library
books, and they censor movies. [
Footnote 2/7] Doctors, dentists, veterinarians,
accountants,
Page 347 U. S. 462
surveyors, and other occupational groups are also subject to
discipline by the Regents, and must obey their rules. [
Footnote 2/8] For example, the Department
of Education, headed by the Regents, has its own investigators,
detectives and lawyers to get evidence and develop cases against
doctors. [
Footnote 2/9] Persons
appointed by the Department prefer charges and testify against an
accused before a committee of doctors appointed by the Regents.
This committee, after hearing evidence presented by departmental
prosecutors, makes findings and recommendations which are reviewed
by another Regents' committee with power to make its own findings
and recommendations. Then the Regents themselves, apparently bound
in no way by the recommendations of either of their committees,
make the final decision as to doctors' professional fate.
A doctor is subject to discipline by the Regents whenever he is
convicted of a "crime" within or without the State. Whether his
"crime" is the most debasing or the most trivial, the Regents have
complete discretion to impose any measure of discipline from mere
reprimand to full revocation of the doctor's license. [
Footnote 2/10] No legislative standards
fetter the Regents in this respect. And no court in New York can
review the exercise of their "discretion" if it is shown that the
Regents had authority to
Page 347 U. S. 463
impose any discipline at all. [
Footnote 2/11] Should they see fit to let a doctor
repeatedly guilty of selling narcotics to his patients continue to
practice, they could do so and at the same time bar for life a
doctor guilty of a single minor infraction having no bearing
whatever on his moral or professional character. They need give no
reasons. Indeed, the Regents might discipline a doctor for wholly
indefensible reasons, such as his race, religion, or suspected
political beliefs, without any effective checks on their
decisions.
In this case, one can only guess why the Regents overruled their
Discipline Committee and suspended Dr. Barsky. Of course, it may be
possible that the Regents thought that every doctor who refuses to
testify before a congressional committee should be suspended from
practice. [
Footnote 2/12] But, so
far as we know, the suspension may rest on the Board's unproven
suspicions that Dr. Barsky had associated with Communists. This
latter ground, if the basis of the Regents' action, would indicate
that in New York a doctor's right to practice rests on no more than
the will of the Regents. This Court, however, said many years ago
that
"the nature and the theory of our institutions of government . .
. do not mean to leave room for the play and action of purely
personal and arbitrary power. . . . For the very idea that one man
may be compelled to hold his life, or the means of living, or
Page 347 U. S. 464
any material right essential to the enjoyment of life at the
mere will of another, seems to be intolerable in any country where
freedom prevails. . . ."
Yick Wo v. Hopkins, 118 U. S. 356,
118 U. S.
369-370. [
Footnote
2/13]
[
Footnote 2/1]
And certainly, since our recent holding in
United States v.
Rumely, 345 U. S. 41, it
cannot be said that it is "fanciful or factitious" to claim that
the First Amendment bars congressional committees from seeking the
names of contributors to an organization alleged to be engaged in
"political propaganda."
[
Footnote 2/2]
The University of the State of New York is the historic name of
the corporate body which the Regents make up. It has no faculty or
students of its own.
See McKinney's N.Y. Laws, Education
Law, § 201
et seq.
[
Footnote 2/3]
This Court has authoritatively construed the federal offense of
refusing to comply with a congressional subpoena as involving no
moral turpitude.
Sinclair v. United States, 279 U.
S. 263,
279 U. S.
299.
[
Footnote 2/4]
See Ex parte Young, 209 U. S. 123,
209 U. S. 148,
and
Oklahoma Operating Co. v. Love, 252 U.
S. 331,
252 U. S.
335-338.
[
Footnote 2/5]
Education Law, § 3022.
See Adler v. Board of Education of
the City of New York, 342 U. S. 485.
[
Footnote 2/6]
The New York Constitution, Art. 5, § 4, makes the Regents head
of the Department of Education with power to appoint and remove at
pleasure a Commissioner of Education who is the Department's chief
administrative officer. These nonsalaried Regents are almost
entirely independent of the Governor, being elected on joint ballot
of the two houses of the Legislature for thirteen-year terms.
Education Law, § 202. Executive power over the State's educational
system is vested in the Regents by § 101 of the Education Law.
Section 207 provides that
"the regents shall exercise legislative functions concerning the
educational system of the state, determine its educational
policies, and, except, as to the judicial functions of the
commissioner of education, establish rules for carrying into effect
the laws and policies of the state. . . ."
[
Footnote 2/7]
See Education Law, §§ 120
et seq., 214, 215,
216, 219, 224, 245
et seq., 704, 801
et seq. On
motion picture censorship by the Regents
see Joseph Burstyn,
Inc. v. Wilson, 343 U. S. 495.
[
Footnote 2/8]
Education Law, §§ 211, 6501-7506. The professions of pharmacy,
optometry, podiatry, nursing, shorthand reporting, architecture,
and engineering are also under the Regents' jurisdiction.
[
Footnote 2/9]
For examples of entrapment of doctors by the Regents'
investigators and the narrowness of judicial review afforded
accused doctors,
see Weinstein v. Board of Regents, 267
App.Div. 4, 44 N.Y.S.2d 917,
reversed, 292 N.Y. 682, 56
N.E.2d 104;
Application of Epstein, 267 App.Div. 27, 44
N.Y.S.2d 921,
reversed, 295 N.Y. 154, 65 N.E.2d 756.
[
Footnote 2/10]
Barsky v. Board of Regents, 305 N.Y.
89, 99, 111 N.E.2d 222.
[
Footnote 2/11]
The Regents, with their many law enforcement duties, are plainly
not a judicial body in the ordinary sense, yet court review is
virtually precluded. Whether due process of law can be satisfied in
this type of case by procedures from which effective review by the
regular judicial branch of the government is barred is certainly
not wholly clear.
Compare Ohio Valley Water Co. v. Ben Avon
Borough, 253 U. S. 287,
Ng Fung Ho v. White, 259 U. S. 276, and
St. Joseph Stock Yards Co. v. United States, 298 U. S.
38,
with Yakus v. United States, 321 U.
S. 414.
[
Footnote 2/12]
But see note 7 of the
Court's opinion
[
Footnote 2/13]
See Davis v. Schnell, 81 F.
Supp. 872, 877, where, in an opinion by Mullins, D.J., a
three-judge district court, following
Yick Wo v. Hopkins,
struck down a state constitutional provision limiting voters to
those who could "understand and explain" the Constitution. County
Boards of Registrars were by statute given discretion to determine
whether persons seeking to vote had satisfied the constitutional
provision. Judge Mullins said:
"The words 'understand and explain' do not provide a reasonable
standard. A simple test may be given one applicant; a long,
tedious, complex one to another; one applicant may be examined on
one article of the Constitution; another may be called upon to
'understand and explain' every word and article and provision of
the entire instrument."
"To state it plainly, the sole test is: has the applicant by
oral examination or otherwise understood and explained the
Constitution to the satisfaction of the particular board? To state
it more plainly, the board has a right to reject one applicant and
accept another, depending solely upon whether it likes or dislikes
the understanding and explanation offered. To state it even more
plainly, the board, by the use of the words 'understand and
explain,' is given the arbitrary power to accept or reject any
prospective elector that may apply. . . . Such arbitrary power
amounts to a denial of equal protection of the law within the
meaning of the Fourteenth Amendment. . . ."
81 F. Supp. at 878. This Court affirmed without writing an
opinion of its own. 336 U.S. 933.
|
347
U.S. 442app|
APPENDIX TO OPINION OF MR. JUSTICE BLACK
At the hearing before the Subcommittee of the Medical Grievance
Committee, there was a great deal of testimony as to the nature and
purposes of the Joint Anti-Fascist Refugee Committee. Mr.
Tartikoff, assistant attorney general of New York, representing the
Department of Education, repeatedly attempted to show that the
Committee had engaged in "subversive" or "Un-American"
Page 347 U. S. 465
activities. However, he presented no probative evidence tending
to prove this allegation. Finally, Mr. Tartikoff sought to bring
out that the Committee had been listed by the Attorney General of
the United States as "subversive." Excerpts from the record of his
questioning of Dr. Barsky on this point are quoted below.
"MR. TARTIKOFF: resuming --"
"Q. Doctor, is it not a fact that, on or about November 24,
1947, the Attorney General of the United States, in pursuance of a
directive contained in an executive order of the President of the
United States, listed and published a classification of
organizations deemed to be subversive and Un-American, and that
included amongst those organizations at that time by the Attorney
General deemed to be subversive and Un-American was the Joint
Anti-Fascist Refugee Committee?"
At this point, Mr. Fishbein, Dr. Barsky's attorney, objected to
the question. After a brief colloquy between counsel, the record
continues:
"MR. TARTIKOFF: I think this committee is entitled to know
whether this organization is listed by the Attorney General of the
United States as being subversive and Un-American, particularly in
light of Dr. Barsky's testimony that the activity of the
organization since its inception in 1942 down to and including all
through 1950 has been substantially the same during that period of
time."
After further discussion:
"MR. TARTIKOFF: You have introduced document after document to
show this is one of the finest organizations in the world. I think
I am entitled to counter that with evidence that the Attorney
General of the United States reviewed the activities
Page 347 U. S. 466
of this organization in whatever fashion he is supposed to
review it, and has come to an opposite conclusion."
Shortly after, Dr. Shearer, the subcommittee chairman, overruled
Mr. Fishbein's objection, and the hearing proceeded as follows:
"MR. TARTIKOFF: resuming --"
"Q. Was it so listed, Dr. Barsky?"
"A. Mr. Tartikoff, the attorney --"
"Q. Question: Was it so listed? That can take a 'yes' or 'no'
answer."
"A. I just would like to bring up --"
"MR. TARTIKOFF:"
"I ask the committee to direct him to answer that question 'yes'
or 'no.'"
"Chairman Shearer: 'Yes' or 'no,' Doctor Barsky."
"A. If I may for a moment, -- off the record --"
"Q. Doctor, will you please answer the question?"
"A. The answer to the question is 'yes.'"
"Q. And was it not again so listed by the Attorney General of
the United States in a release made on May 27, 1948?"
"A. The answer is I really don't know. You have the
statement."
"Q. If I tell you that the statement so indicates, would you
dispute it?"
"A. I certainly would not, Mr. Tartikoff."
"Q. And isn't it a fact that it was again so listed on April 21,
1949, July 20, 1949, September 26, 1949, August 24, 1950, and
September 5, 1950?"
"A. I think you brought out the same list, Mr. Tartikoff. "
Page 347 U. S. 467
"Q. Well, there may have been additional ones added, for your
information."
"A. I really don't remember."
"Q. And doctor, didn't you, as chairman of the Joint
Anti-Fascist Refugee, bring a proceeding against the Attorney
General in the United States courts?"
"A. Yes, sir."
"Q. To restrain him from listing your organization as
subversive?"
"A. Yes, sir."
"Q. And isn't it a fact that the Circuit Court ruled against you
on that on August 11, 1949?"
"A. Yes, sir."
Later, after Dr. Barsky had asked the subcommittee not to "lay
too much stress on the fact that this list was made," Mr. Tartikoff
asked him these questions:
"Q. Wasn't there also an investigation in California by a
Committee on Un-American Activities?"
"A. The House Committee?"
"Q. The Legislative Committee in California. A Legislative
Committee of the State of California, and didn't they likewise list
your organization as Communistic?"
"A. What do you mean?"
"Q. The California Committee on Un-American Activities, that's
the Tenney Committee, did they list your organization as
Communistic?"
"A. I really don't know. If you have the record -- "
MR. JUSTICE FRANKFURTER, dissenting.
While in substantial agreement with what is said in the Court's
opinion, I am constrained to dissent because of what is left
unsaid.
Page 347 U. S. 468
Appellant's suspension from the practice of medicine grew out of
his conviction for refusing to turn over to the House Un-American
Activities Committee documents of the Joint Anti-Fascist Refugee
Committee, an organization of which appellant was Chairman. The
Medical Subcommittee on Grievances of the New York Board of
Regents, which held the original hearing in the disciplinary
proceeding now before us, allowed counsel for the Regents to
introduce evidence that this Joint Anti-Fascist Refugee Committee
was in 1947 listed by the Attorney General of the United States as
a subversive organization, and the Subcommittee accordingly made a
specific finding to this effect in its report. This evidence was
obviously irrelevant to the issue before the Committee -- whether
appellant had been convicted of a crime -- and was also obviously
extremely prejudicial to appellant. The Regents Committee on
Discipline, reviewing the Grievance Committee, commented as follows
on this matter:
"There is, it should be noted, evidence in the record, and
reliance on that evidence in the findings of the Medical Committee
on Grievances, that the Refugee Committee had been listed as
Communist in the list furnished by the Attorney General of the
United States. . . . In view of [the decision in
Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U. S.
123], no evidentiary weight can be given in the present
proceeding to the listing by the Attorney General."
The Committee on Discipline concluded that appellant should not
be suspended for six months, as the Grievance Committee had
recommended, but should only be reprimanded. In face of this
recommendation, the Board of Regents, without stating any reasons,
accepted the decision
Page 347 U. S. 469
of the Grievance Committee and ordered appellant suspended for a
period of six months from his right to practice medicine.
When this question came before the New York Court of Appeals,
that Court disposed of the issue as follows:
"As to the assertions, by appellants . . . that the Regents, in
deciding on punishment, ignored weighty considerations and acted on
matters not proper for consideration, it is enough to say that we
are wholly without jurisdiction to review such questions. . .
."
305 N.Y.
89, 99, 111 N.E.2d 222, 226. Thus, the highest court of the
State of New York tells us, in effect, "Yes, it may be that the
Regents arbitrarily deprived a doctor of his license to practice
medicine, but the courts of New York can do nothing about it." Such
a rule of law, by denying all relief from arbitrary action,
implicitly sanctions it; and deprivation of interests that are part
of a man's liberty and property, when based on such arbitrary
grounds, contravenes the Due Process Clause of the Fourteenth
Amendment.
Of course, a State must have the widest leeway in dealing with
an interest so basic to its wellbeing as the health of its people.
This includes the setting of standards, no matter how high, for
medical practitioners, and the laying down of procedures for
enforcement, no matter how strict. The granting of licenses to
practice medicine and the curtailment or revocation of such
licenses may naturally be entrusted to the sound discretion of an
administrative agency. And, while ordinary considerations of
fairness and good sense may make it desirable for a State to
require that the revocation or temporary suspension of a medical
license be justified by stated reasons, the Due Process Clause of
the Fourteenth Amendment does not lay upon the States the duty
Page 347 U. S. 470
of explaining presumably conscientious action by appropriate
State authorities.
Douglas v. Noble, 261 U.
S. 165,
261 U. S.
169-170. Reliance on the good faith of a state agency
entrusted with the enforcement of appropriate standards for the
practice of medicine is not, in itself, an investiture of arbitrary
power offensive to due process. Likewise, there is nothing in the
United States Constitution which requires a State to provide for
judicial review of the action of such agencies. Finally, when a
State does establish some sort of judicial review, it can certainly
provide that there be no review of an agency's discretion, so long
as that discretion was exercised within the gamut of choices,
however extensive, relevant to the purpose of the power given the
administrative agency. So far as concerns the power to grant or
revoke a medical license, that means that the exercise of the
authority must have some rational relation to the qualifications
required of a practitioner in that profession.
It is one thing thus to recognize the freedom which the
Constitution wisely leaves to the States in regulating the
professions. It is quite another thing, however, to sanction a
State's deprivation or partial destruction of a man's professional
life on grounds having no possible relation to fitness,
intellectual or moral, to pursue his profession. Implicit in the
grant of discretion to a State's medical board is the qualification
that it must not exercise its supervisory powers on arbitrary,
whimsical, or irrational considerations. A license cannot be
revoked because a man is red-headed or because he was divorced,
except for a calling, if such there be, for which red-headedness or
an unbroken marriage may have some rational bearing. If a State
licensing agency lays bare its arbitrary action, or if the State
law explicitly allows it to act arbitrarily, that is precisely the
kind of State action which the Due Process Clause forbids.
See Perkins
Page 347 U. S. 471
v. Elg, 307 U. S. 325,
307 U. S.
349-350;
also Rex v. Northumberland Compensation
Appeal Tribunal, [1951] 1 K.B. 711. The limitation against
arbitrary action restricts the power of a State "no matter by what
organ it acts."
Missouri v. Dockery, 191 U.
S. 165,
191 U. S. 171.
If the Regents had explicitly stated that they suspended
appellant's license or lengthened the time of the suspension
because he was a member of an organization on the so-called
Attorney General's list, and the New York Court of Appeals had
declared that New York law allows such action, it is not too much
to believe that this Court would have felt compelled to hold that
the Due Process Clause disallows it.
See Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.
S. 123, 104 F. Supp. 567. Yet that is precisely what we
may have here. It bears repeating that the Court of Appeals, the
ultimate voice of New York law, found itself impotent to give
relief on appellant's claim that the Regents "in deciding on
punishment, ignored weighty considerations and acted on matters not
proper for consideration."
305 N.Y.
89, 99, 111 N.E.2d 222, 226. At the very least, for all that
appears, the Court of Appeals assumed that the Regents relied "on
matters not proper for consideration." Thus, the appellant may have
been deprived of the liberty to practice his profession and of his
property interests in his profession in contravention of due
process. This is not a merely abstract possibility. The
"punishment" -- the Court of Appeals so characterized it --
recommended by the Grievance Committee rested certainly in part on
arbitrary considerations, and the Board of Regents appears to have
adopted this tainted "determination." Since the decision below may
rest on a constitutionally inadmissible ground, the judgment should
not stand.
Stromberg v.
California,
Page 347 U. S. 472
283 U. S. 359,
283 U. S. 368;
Williams v. North Carolina, 317 U.
S. 287,
317 U. S.
292.
I would return this case to the New York authorities for
reconsideration in light of the views here expressed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
MR. JUSTICE Holmes, while a member of the Supreme Judicial Court
of Massachusetts, coined a dictum that has pernicious implications.
"The petitioner may have a constitutional right to talk politics,"
he said, "but he has no constitutional right to be a policeman."
See McAuliffe v. City of New Bedford, 155 Mass. 216, 220,
29 N.E. 517. By the same reasoning, a man has no constitutional
right to teach, to work in a filling station, to be a grocery
clerk, to mine coal, to tend a furnace, or to be on the assembly
line. By that reasoning, a man has no constitutional right to
work.
The right to work, I had assumed, was the most precious liberty
that man possesses. Man has indeed as much right to work as he has
to live, to be free, to own property. The American ideal was stated
by Emerson in his essay on Politics, "A man has a right to be
employed, to be trusted, to be loved, to be reversed." It does many
men little good to stay alive and free and propertied if they
cannot work. To work means to eat. It also means to live. For many,
it would be better to work in jail than to sit idle on the curb.
The great values of freedom are in the opportunities afforded man
to press to new horizons, to pit his strength against the forces of
nature, to match skills with his fellow man.
The dictum of Holmes gives a distortion to the Bill of Rights.
It is not an instrument of dispensation, but one of deterrents.
Certainly a man has no affirmative right to any particular job or
skill or occupation. The Bill of Rights does not say who shall be
doctors or lawyers
Page 347 U. S. 473
or policemen. But it does say that certain rights are protected,
that certain things shall not be done. And so the question here is
not what government must give, but rather what it may not take
away.
The Bill of Rights prevents a person from being denied
employment as a teacher who, though a member of a "subversive"
organization, is wholly innocent of any unlawful purpose or
activity.
Wieman v. Updegraff, 344 U.
S. 183. It prevents a teacher from being put in a lower
salary scale than white teachers solely because he is a Negro.
Alston v. School Board, 112 F.2d 992. Those cases
illustrate the real significance of our Bill of Rights. [
Footnote 3/1]
So far as we can tell on the present record, Dr. Barsky's
license to practice medicine has been suspended not because he was
a criminal, not because he was a Communist, not because he was a
"subversive," but because he had certain unpopular ideas and
belonged to and was an officer of the Joint Anti-Fascist Refugee
Committee, which was included in the Attorney General's "list." If,
for the same reason, New York had attempted to put Dr. Barsky to
death or to put him in jail or to take his property, there would be
a flagrant violation of due process. I do not understand the
reasoning which holds that the State may not do these things, but
may nevertheless suspend Dr. Barsky's power to practice his
profession. I repeat, it does a man little good to stay alive and
free and propertied, if he cannot work.
The distinction between the State's power to license doctors and
to license street vendors is one of degree. The fact that a doctor
needs a good knowledge of biology is no excuse for suspending his
license because he has
Page 347 U. S. 474
little or no knowledge of constitutional law. In this case, it
is admitted that Dr. Barsky's "crime" consisted of no more than a
justifiable mistake concerning his constitutional rights. [
Footnote 3/2] Such conduct is no
constitutional ground for taking away a man's right to work. The
error is compounded where, as here, the suspension of the right to
practice has been based on Dr. Barsky's unpopular beliefs and
associations. As Judge Fuld, dissenting in the New York Court of
Appeals, makes clear, this record is
"barren of evidence reflecting upon appellant as a man or a
citizen, much less upon his professional capacity or his past or
anticipated conduct towards his patients."
305 N.Y.
89, 111 N.E.2d 228.
Neither the security of the State nor the wellbeing of her
citizens justifies this infringement of fundamental rights. S o far
as I know, nothing in a man's political beliefs disables him from
setting broken bones or removing ruptured appendixes safely and
efficiently. A practicing surgeon is unlikely to uncover many state
secrets in the course of his professional activities. When a doctor
cannot save lives in America because he is opposed to Franco in
Spain, it is time to call a halt and look critically at the
neurosis that has possessed us.
[
Footnote 3/1]
As to the right to work,
See also
Cummings v.
Missouri, 4 Wall. 277;
Ex parte
Garland, 4 Wall. 333;
Yick Wo v. Hopkins,
118 U. S. 356;
Truax v. Raich, 239 U. S. 33;
Takahashi v. Fish and Game Commission, 334 U.
S. 410.
[
Footnote 3/2]
Dr. Barsky was convicted for failure to produce certain
documents subpoenaed by a congressional committee. At a hearing
before the Regents' Committee on Discipline, the Assistant Attorney
General representing the State conceded that Dr. Barsky had acted
on the advice of counsel. He conceded that
"the advice given to Dr. Barsky by the attorney, Mr. Wolf, was
not an opinion which he held alone, nor was it at that time an
unreasonable construction of law on his part."
The advice given was that the subpoenas were unconstitutionally
issued, and that Dr. Barsky was not legally required to respond.
The Assistant Attorney General admitted that this opinion was held
by many lawyers, and by some judges. The Committee on Discipline
pointed out that refusal to produce the subpoenaed records was "the
only method by which the legal objections to the Congressional
Committee's course could be judicially determined."