Petitioner, a 1968 law school graduate and a member of the New
York Bar, applied for admission to the Ohio Bar. He made available
to Ohio all the information he had given the New York Bar
Committee, including answers to questions concerning organizations
with which he was associated, his loyalty to the Government, and
whether he was a member of a group seeking to effect changes in our
form of government or to advance the interests of a foreign
country. But petitioner refused to answer three questions on the
Ohio application on the ground that they infringed his rights under
the First and Fifth Amendments: (1) Question 12(g), which asked
whether he was a member of "any organization which advocates the
overthrow of the government of the United States by force," (2)
Question 13, which asked for a list of all "organizations of which
you are or have been a member," and (3) Question 7, which sought a
list of all "organizations of which you are or have become a member
since registering as a law student." The Ohio Supreme Court
approved the bar investigating committee's recommendation that
petitioner's application to take the bar examination be denied.
Held: The judgment of the Ohio Supreme Court is
reversed, and the case is remanded. Pp.
401 U. S.
27-31.
Reversed and remanded.
MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE MARSHALL, concluded that it was a denial
of petitioner's First Amendment rights to refuse him admission to
the Ohio bar simply because he declined to answer questions about
his beliefs and associations.
Baird v. State Bar of Arizona,
ante, p.
401 U. S. 1. Pp.
401 U. S.
27-31.
MR. JUSTICE STEWART concluded that Questions 7 and 13 are
unconstitutional under
Shelton v. Tucker, 364 U.
S. 479, and that Question 12(g), like Question 27 in
Baird v. State Bar of Arizona, ante, p.
401 U. S. 1, is
constitutionally infirm under the First and Fourteenth Amendments,
since it is not confined to knowing membership in any organization
that advocates violent overthrow of the Government. P.
401 U. S.
31.
Page 401 U. S. 24
BLACK, J., announced the Court's judgment and delivered an
opinion in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined.
STEWART, J., filed an opinion concurring in the judgment,
post, p.
401 U. S. 31.
HARLAN, J., filed a dissenting opinion,
post, p.
401 U. S. 34.
WHITE, J., filed a dissenting opinion,
ante, p.
401 U. S. 10.
BLACKMUN, J., filed a dissenting opinion in which BURGER, C.J., and
HARLAN and WHITE, JJ., joined,
post, p.
401 U. S.
31.
MR. JUSTICE BLACK announced the judgment of the Court and
delivered an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE MARSHALL join.
This is the second of two cases
* involving the
refusal of States to admit applicants to practice law because they
declined to answer questions relating to their beliefs about
government and their affiliations with organizations suspected of
advocating the overthrow of government by force. These cases, which
concern inquisitions about loyalty and government overthrow, are
relics of a turbulent period known as the "McCarthy era," which
drew its name from Senator Joseph McCarthy from Wisconsin. We have
just referred in our opinion in
Baird v. State Bar of Arizona,
ante, p.
401 U. S. 1, to the
confusion and uncertainty created by past cases in this
constitutional field. The central question in all of them has been
the same, whether involving lawyers, doctors, marine workers,
Page 401 U. S. 25
or State or Federal Government employees, namely: to what extent
does the First or Fifth Amendment or other constitutional provision
protect persons against governmental intrusion and invasion into
private beliefs and views that have not ripened into any punishable
conduct? Without attempting in that case to bring about a complete
reconciliation of all that this Court has previously said about
this particular phase of First Amendment protection, we held that,
under the circumstances present there, Mrs. Baird could not,
consistently with the First Amendment, be denied a state license to
practice law because she refused to state whether she had belonged
to the Communist Party or any organization that advocated overthrow
of the United States Government by force. Here, we hold that
Stolar's refusals to answer certain questions asked him by the Ohio
Bar Committee were also protected by the First Amendment.
The facts are these: Stolar, whose home is in Rochester, New
York, has an A.B. degree from the University of Rochester and
received an LL.B. degree from New York University Law School in
1968. The dean of that school has certified that Stolar has
received instructions in legal ethics, has a good moral character,
and has sufficient knowledge and ability to discharge the duties of
an attorney at law. He has a license to practice law in New York
State. To become a member of the New York Bar, Stolar was asked and
answered the following questions, along with many others:
"18. State whether you have participated in activities of a
public or patriotic nature or in philanthropic, religious, or
social services? If so, state the facts fully."
"
I was a Cub Scout and Boy Scout and Explorer Scout during
elementary and high school."
"
I also participated fully in my Temple's religious
education programs until I went to college. "
Page 401 U. S. 26
"
In addition, my time spent as a VISTA is a service of the
above described nature."
"19. Do you believe in the principles underlying the form of
government of the United States?
Yes."
"20.
State whether you have been or are a member of any
party or organization engaged in propagating or pledged to effect
changes in the form of government provided for by the United States
Constitution, or in advancing the interests of a foreign
country? If so, state the facts fully.
No."
(Emphasis supplied in part.)
"21. Can you conscientiously, and do you, affirm, without any
mental reservation, that you have been and are loyal to the
Government of the United States?
Yes."
"
* * * *"
"24. (a) Have you studied the Canons of Ethics adopted by the
American Bar Association?
Yes."
"(b) Do you unconditionally subscribe to the same?
Yes."
"(c) Will you conscientiously endeavor to conform your
professional conduct to them?
Yes."
In 1969, Mr. Stolar applied to the Ohio Bar for admission to
practice. He made available to Ohio all the information he had
previously given the New York Bar Committee, including his answers
to the New York questions stated above. Stolar then answered a long
series of questions posed by the Ohio committee. In response to
oral interrogation, he stated:
"that he is not now and has never been a member of the Communist
Party, of any socialist party, or of the Students for a Democratic
Society, and . . . that he has signed the standard U.S. Army
preinduction security oath, which has reference to the 'Attorney
General's List.' "
Page 401 U. S. 27
However, Stolar declined to answer certain questions on the Ohio
application on the grounds they infringed his rights under the
First and Fifth Amendments. These questions were:
"12. State whether you have been, or presently are . . . (g) a
member of any organization which advocates the overthrow of the
government of the United States by force. . . ."
"13. List the names and addresses of all clubs, societies or
organizations of which you are or have been a member."
"7. List the names and addresses of all clubs, societies or
organizations of which you are or have been a member since
registering as a law student."
Because of his refusal to answer these questions, one member of
the committee who investigated Stolar recommended that he be denied
admission. The other stated:
"I found Mr. Stolar to be honest and forthright. His statements
evidenced also a certain commitment to principle for its own sake,
an unusually great amount of social awareness, and a degree of
self-interest not reprehensible. On the basis of the interview and
the background actually revealed in Mr. Stolar's applications, I
have no reluctance to recommend Mr. Stolar for admission to the
practice of law."
The full committee then recommended that petitioner's
application to take the Ohio Bar examination be denied. The Ohio
Supreme Court approved the committee's recommendation without
opinion. We granted certiorari. 3 96 U.S. 816.
We deal first with Ohio's demands that petitioner Martin Stolar
list all the organizations to which he has belonged since
registering as a law student and those of which he has ever been a
member. In our view, requiring
Page 401 U. S. 28
a Bar applicant to answer these questions is impermissible in
light of the First Amendment, as was made clear in
Shelton v.
Tucker, 364 U. S. 479
(1960). At issue in
Shelton was an Arkansas statute that
required every state teacher, as a condition of employment, to file
an affidavit listing every organization to which he had belonged
within the preceding five years. The Court noted that this
requirement impinged upon the teacher's right to freedom of
association because it placed "pressure upon a teacher to avoid any
ties which might displease those who control his professional
destiny. . . ."
Id. at
364 U. S. 486.
Similarly, here, the listing of an organization considered by
committee members to be controversial or "subversive" is likely to
cause delay and extensive interrogation, or simply denial of
admission to the Bar. Respondent committee frankly suggests that
the listing of an organization which it felt "espoused illegal
aims" would cause it to "investigate further." Law students who
know they must survive this screening process before practicing
their profession are encouraged to protect their future by shunning
unpopular or controversial organizations.
Cf. Speiser v.
Randall, 357 U. S. 513
(1958).
The committee suggests its "listing" question serves a
legitimate interest because it needs to know whether an applicant
has belonged to an organization which has "espoused illegal aims"
and whether the applicant himself has espoused such aims. But the
First Amendment prohibits Ohio from penalizing an applicant by
denying him admission to the Bar solely because of his membership
in an organization.
Baird v. State Bar of Arizona, supra; cf.
United States v. Robel, 389 U. S. 258,
389 U. S. 266
(1967);
Keyishian v. Board of Regents, 385 U.
S. 589,
385 U. S. 607
(1967). Nor may the State penalize petitioner solely because he
personally, as the committee suggests,
Page 401 U. S. 29
"espouses illegal aims."
See Cantwell v. Connecticut,
310 U. S. 296,
310 U. S.
303-304 (1940);
Baird v. State Bar of Arizona,
supra.
The committee also argues it needs answers to Questions 7 and 13
because responses might direct its attention to persons who have
known an applicant and who could supply information relevant to his
qualifications. Undoubtedly Ohio has a legitimate interest in
determining whether an applicant has "the qualities.of character
and the professional competence requisite to the practice of law."
Baird v. State Bar of Arizona, supra. But petitioner
Stolar, already a member in good standing of the New York Bar,
supplied the Ohio committee with extensive personal and
professional information, as well as numerous character references,
to enable it to make the necessary investigation and determination.
Moreover, even though irrelevant to his fitness to practice law,
Stolar's answers to questions on the New York application provided
Ohio with substantially the information it was seeking by Questions
7, 12(g), and 13. The information contained in the two applications
included petitioner's law school; every address at which he had
ever lived; the names, addresses, and occupations of his parents;
the names and addresses of his elementary school, his high school
and high school principal; the names of nine former employers
(which included three different law firms for which he had done
summer work); his "criminal record" (which consisted of two
speeding convictions); nine different people as character
references (two of whom had known Stolar for more than 20 years);
and extensive information about his previous activities
(
e.g., law school moot court, graduate advisor at N.Y.U.,
Cub Scout, Boy Scout, Explorer Scout, and his temple's religious
education programs).
Page 401 U. S. 30
We conclude also that Ohio may not require an applicant for
admission to the Bar to state whether he has been or is a "member
of any organization. which advocates the overthrow of the
government of the United States by force." As we noted above, the
First Amendment prohibits Ohio from penalizing a man solely because
he is a member of a particular organization.
See also Baird v.
State Bar of Arizona, supra. Since this is true, we can see no
legitimate state interest which is served by a question which
sweeps so broadly into areas of belief and association protected
against government invasion.
Cantwell v. Connecticut,
310 U. S. 296,
310 U. S.
303-304 (1940);
United States v. Robel,
389 U. S. 258,
389 U. S. 266
(1967);
Keyishian v. Board of Regents, 385 U.
S. 589,
385 U. S. 607
(1967);
Baird v. State Bar of Arizona, supra; Baggett v.
Bullitt, 377 U. S. 360
(1964).
There is not one word in this entire record that reflects
adversely on Mr. Stolar's moral character or his professional
competence. Although there were three questions that he did not
answer with a simple "yes" or "no," he did answer all of the
Committee's questions relevant to his fitness and competence to
practice law. It is difficult, if not impossible, to see how the
State of Ohio could have been obstructed or frustrated to any
extent in determining Mr. Stolar's fitness to practice law by his
failure to answer the questions more fully. The record shows a
young man who, from his boyhood up, had no adverse marks except for
two speeding convictions. He answered numerous prying questions
about personal affairs that could hardly have been necessary for a
State interested only in whether he would make an honest lawyer
faithful to his clients. The questions he did not answer related
only to his beliefs and associations, both protected by the First
Amendment. The State points to not one overt act on Stolar's part
that even suggests a possible reason for denying his
application.
Page 401 U. S. 31
Here, as in
Baird v. State Bar of Arizona, it was a
denial of a Bar applicant's First Amendment rights to refuse him
admission simply because he declined to answer questions about his
beliefs and associations.
The judgment of the Ohio Supreme Court is reversed, and the case
remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
[For dissenting opinion of MR. JUSTICE WHITE,
see ante,
p.
401 U. S.
10.]
* The other is No. 15,
Baird v. State Bar of Arizona,
ante, p.
401 U. S. 1.
Cf. No. 49,
Law Students Civil Rights Research Council
v. Wadmond, post, p.
401 U. S. 154.
MR. JUSTICE STEWART, concurring in the judgment.
Ohio's Questions 7 and 13 are plainly unconstitutional under
Shelton v. Tucker, 364 U. S. 479. In
addition, Question 12(g) suffers from the same constitutional
deficiency as does Arizona's Question 27 in
Baird v. State Bar
of Arizona, ante, p.
401 U. S. 1. For
these reasons, I agree that the judgment before us must be
reversed.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE, MR. JUSTICE
HARLAN, and MR. JUSTICE WHITE join, dissenting.
This case, also argued here for the second time, presents
another instance of a well educated (academic degree from the
University of Rochester; law degree from New York University) and
obviously able young person who seeks admission to the Bar, but, to
an extent, at least, upon his own terms. His case is made the more
acute and appealing because he already has been admitted to
practice in the State of New York, but now finds himself thwarted
in a like endeavor in Ohio. The decisions in
Konigsberg v.
State Bar, 366 U. S. 36
(1961), and
In re Anastaplo, 366 U. S.
82 (1961), are again challenged.
Page 401 U. S. 32
The plurality opinion has set forth the pertinent questions
asked of Martin Robert Stolar, when he sought admission to the New
York Bar in 1968, and Stolar's answers to those questions. At that
time, he was willing to go so far as specifically to profess even
his belief in the principles underlying the form of government of
the United States and his loyalty to that government, and also,
just as specifically, to go so far as to deny that he was, or ever
had been, a member of any party or organization pledged to effect
changes in the form of our government or engaged in advancing the
interest of a foreign country. The propriety of these very
questions, which Stolar answered apparently without hesitation in
New York in 1968, was seriously questioned subsequently in
Law
Students Civil Rights Research Council v.
Wadmond, 299 F.
Supp. 117, 130 (SDNY 1969), now affirmed,
post, p.
401 U. S. 154.
In 1969, in Ohio, Stolar apparently again had no hesitation in
professing at oral interview that he was not, and never had been, a
member of the Communist Party. But, although the one seems to
include the other, he flatly refused, on stated Fifth Amendment
grounds, to say (Question 12(g)) whether he was or had been a
member of any organization which advocates the overthrow of the
Government of the United States by force. He also refused, on Fifth
Amendment grounds, to list (Questions 13 and 7) organizations of
which he was or had been a member.
I may assume, for present purposes, that the general and broadly
phrased "list your organizations" inquiries, that is, Questions 13
and 7, are improper and impermissible under the Court's holding, by
another five-to-four vote, in
Shelton v. Tucker,
364 U. S. 479
(1960), despite the presence of what seems to me to be a somewhat
significant difference between nontenured school teachers and
"about to be licensed" attorneys. This assumption,
Page 401 U. S. 33
however, does not terminate Stolar's case, for Question 12(g),
with its specific inquiry about membership in organizations
advocating overthrow by force, remains to be considered.
My position with respect to a refusal to respond to a question
such as Question 12(g) is set forth in my dissent in
Baird v.
State Bar of Arizona, ante, p.
401 U. S. 11, and
needs no detailed repetition here. I note only (a) the
inconsistency of Stolar's willingness to respond orally and his
unwillingness to respond in writing, and (b) that, here again,
membership, present or past, in an organization of the kind
specified, although relevant in the Bar admission context, in and
of itself, is not conclusive upon the issue of admission to the
Bar. Ohio concedes, as Arizona did in
Baird, that the
significance lies in something more than mere membership.
Neither am I content with the conclusion reached in the
plurality opinion that Stolar's responses to New York in 1968
should suffice for responses to Ohio in 1969. That kind of
reasoning would compel one to conclude that, because an applicant
is admitted to the Bar of one State, he surely must be admitted to
the Bar of any other State. We might reach that frontier one day on
some new and as yet undeveloped constitutional concept, but I doubt
whether we have reached it yet. New York's range of inquiry and her
area of particular interest may very well differ from Ohio's, and
each may be constitutionally permissible. Further, an answer true
in 1968 may not be true at all in 1969. Time passes, and changes
can take place even within a few months.
Although I readily concede that the Ohio question (just as the
Arizona question in
Baird) could have been better phrased,
the approach of the plurality for reversal to the inquiry is, I
feel, somewhat unrealistic. As in
Baird, and as noted
above, it is not a mere question of membership present or past. It
is a question of knowing
Page 401 U. S. 34
membership, and of willingness to participate in the forceful
destruction of government. This is the crux. To forestall inquiry
at the threshold stultifies Ohio's appropriate concern as to
faithful adherence to a lawyer's trust when the State is about to
vest great professional and fiduciary power in those who seek
entrance to the Bar.
On this record, I would affirm.
MR. JUSTICE HARLAN, concurring in No. 49,
post, p.
401 U. S. 154, and
dissenting in No. 15,
ante, p.
401 U. S. 1, and No.
18.
In joining MR. JUSTICE STEWART's opinion for the Court in the
Wadmond case, No. 49,
post, p.
401 U. S. 154, and
MR. JUSTICE BLACKMUN's dissenting opinions in the
Baird
case, No. 15,
ante, p.
401 U. S. 11, and
in the present case, I am constrained to add these remarks.
*
My Brother BLACK's opinion announcing the judgments of the Court
in
Baird and in the present case, and his dissenting
opinion in the
Wadmond case, could easily leave the
impression that the three States involved are denying Bar admission
to professionally qualified candidates solely by reason of their
membership in so-called subversive organizations, irrespective of
whether that membership is born of a purely philosophical cast of
mind or of a specific purpose to engage in illegal action, or that
these States are at least trying to discourage prospective Bar
candidates from joining such organizations. In the latter respect,
my Brother MARSHALL's opinion,
post, p.
401 U. S. 185,
seems to me to lend itself to a similar interpretation. If anything
in these records could fairly be taken as pointing to either such
conclusion, I would be found on the "reversing" side of these
cases. The records, however, adumbrated
Page 401 U. S. 35
by the representations of the responsible lawyers who appeared
for the States, in my opinion, belie any such inferences. They show
no more than a refusal to certify candidates who deliberately,
albeit in good faith, refuse to assist the Bar admission
authorities in their "fitness" investigations by declining fully to
answer the questionnaires.
I could hardly believe that anyone would dispute a State's right
to refuse admission to the Bar to an applicant who avowed or was
shown to possess a dedication to overthrowing governmental
authority by force or to supplanting the rule of law by incitement
to individual or group violence as the best means of attaining
desired goals. One could question the efficacy or wisdom of
questionnaires of the kind involved in these cases as a means of
weeding out occasional misfits from the general run of Bar
candidates, or criticize as unduly complicated or pervasive some
aspects of such questionnaires. And one may also be understanding
of the considerations which, in this day and age, breed lawsuits
like these. But we should nonetheless take care lest the indulging
of such points of view lead us into warped constitutional
decision.
In my opinion, the course chosen by these States cannot be said
to be forbidden by the Constitution. I do not consider that the
"less drastic means" test which has been applied in some First
Amendment cases,
see NAACP v. Alabama, 377 U.
S. 288,
377 U. S.
307-308 (1964), and cases cited therein, suffices to
justify this Court in assuming general oversight of state
investigatory procedures relating to Bar admissions. Nor do I think
that the questioning of candidates as to their beliefs in violent
overthrow necessarily runs afoul of true First Amendment concerns.
I do not dispute that the First Amendment, as reflected in the
Fourteenth, prevents States from denying admission to candidates
merely because of theoretical beliefs in the "right" of revolution,
but I do maintain that there
Page 401 U. S. 36
is no constitutional barrier to denying admission to those who
seek entry to the profession for the very purpose of doing away
with the orderly processes of law, and that temperate inquiry into
the character of their beliefs in this regard, which is all that is
shown here, is a relevant and permissible course to that end. It
seems to me little short of chimerical to suggest that the
independence of the Bar is threatened unless this Court steps in
and puts a constitutional end to such a practice.
Cf. Bates v.
Little Rock, 361 U. S. 516
(1960);
Barenblatt v. United States, 360 U.
S. 109 (1959).
While I hope that I am no less sensitive than others on the
Court to First Amendment values, I must say that the pervasive
supervision over state Bar admission procedures which is now asked
of us would work a most extravagant expansion of the current
"chilling effects" approach to First Amendment doctrine. Knowing
something of the great importance which the New York Bar attaches
to the independence of the individual lawyer, I have little doubt
but that the candidates involved in
Wadmond will promptly
gain admission to the Bar if they straightforwardly answer the
inquiries put to them without further ado. And I should be greatly
surprised if the same were not true as to Mrs. Baird and Mr. Stolar
in Arizona and Ohio. But, if I am mistaken, and it should develop
that any of these candidates is excluded simply because of
unorthodox or unpopular beliefs, it would then be time enough for
this Court to intervene.
* While petitioners in Nos. 15 and 18 have also sought to assert
Fifth Amendment claims against self-incrimination, today's opinions
have treated all the cases only in terms of First Amendment
considerations, and I too shall proceed on that basis.