Under California law, the State Supreme Court may admit to the
practice of law any applicant whose qualifications have been
certified to it by the California Committee of Bar Examiners. In
hearings by that Committee on his application for admission to the
Bar, petitioner refused to answer any questions pertaining to his
membership in the Communist Party, not on the ground of possible
self-incrimination, but on the ground that such inquiries were
beyond the purview of the Committee's authority and infringed
rights of free thought, association and expression assured him
under the State and Federal Constitutions. The Committee declined
to certify him as qualified for admission to the Bar on the ground
that his refusals to answer had obstructed a full investigation
into his qualifications. The State Supreme Court denied him
admission to practice.
Held: Denial of petitioner's application for admission
to the Bar on this ground did not violate his rights under the
Fourteenth Amendment. Pp.
366 U. S.
37-56.
(a) The State's refusal to admit petitioner to practice on the
ground that his refusal to answer the Committee's questions had
thwarted a full investigation into his qualifications was not
inconsistent with this Court's decision in
Konigsberg v. State
Bar, 353 U. S. 252. Pp.
366 U. S.
40-44.
(b) The Fourteenth Amendment's protection against arbitrary
state action does not forbid a State from denying admission to a
bar applicant so long as he refuses to answer questions having a
substantial relevance to his qualifications, and California's
application of such a rule in this instance cannot be said to have
been arbitrary or discriminatory. Pp.
366 U. S.
44-49.
(c) Petitioner was not privileged to refuse to answer questions
concerning membership in the Communist Party on the ground that
they impinged upon rights of free speech and association protected
by the Fourteenth Amendment.
Speiser v. Randall,
357 U. S. 513,
distinguished. Pp.
366 U. S.
49-56.
52 Cal. 2d
769, 344 P.2d 777, affirmed.
Page 366 U. S. 37
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case, involving California's second rejection of
petitioner's application for admission to the state bar, is a
sequel to
Konigsberg v. State Bar, 353 U.
S. 252, in which this Court reversed the State's initial
refusal of his application.
Under California law the State Supreme Court may admit to the
practice of law any applicant whose qualifications have been
certified to it by the California Committee of Bar Examiners.
Cal.Bus. & Prof.Code § 6064. To qualify for certification an
applicant must, among other things, be of "good moral character,"
id. § 6060(c), and no person may be certified "who
advocates the overthrow of the Government of the United States or
of this State by force, violence, or other unconstitutional means.
. . ."
Id., § 6064.1. The Committee is empowered and
required to ascertain the qualifications of all candidates.
Id., § 6046. Under rules prescribed by the Board of
Governors of the State Bar, an applicant before
Page 366 U. S. 38
the Committee has
"the burden of proving that he is possessed of good moral
character, of removing any and all reasonable suspicion of moral
unfitness, and that he is entitled to the high regard and
confidence of the public."
Id., Div. 3, c. 4, Rule X, § 101. Any applicant denied
certification may have the Committee's action reviewed by the State
Supreme Court.
Id., § 6066.
In 1953, petitioner, having successfully passed the California
bar examinations, applied for certification for bar membership. The
Committee, after interrogating Konigsberg and receiving
considerable evidence as to his qualifications, declined to certify
him on the ground that he had failed to meet the burden of proving
his eligibility under the two statutory requirements relating to
good moral character and nonadvocacy of violent overthrow. That
determination centered largely around Konigsberg's repeated
refusals to answer Committee questions as to his present or past
membership in the Communist Party. [
Footnote 1] The California Supreme Court denied review
without opinion.
See 52 Cal. 2d
769, 770, 344 P.2d 777, 778.
On certiorari this Court, after reviewing the record, held the
state determination to have been without rational support in the
evidence, and therefore offensive to the Due Process Clause of the
Fourteenth Amendment.
Konigsberg v. State Bar, supra. At
the same time, the Court declined to decide whether Konigsberg's
refusals to answer could constitutionally afford "an independent
ground for exclusion from the Bar," considering that such an issue
was not before it.
Id. 353 U. S.
259-262. The case was remanded
Page 366 U. S. 39
to the State Supreme Court "for further proceedings not
inconsistent with this opinion."
Id. 353 U. S.
274.
On remand petitioner moved the California Supreme Court for
immediate admission to the bar. The court vacated its previous
order denying review and referred the matter to the Bar Committee
for further consideration. At the ensuing Committee hearings,
Konigsberg introduced further evidence as to his good moral
character (none of which was rebutted), reiterated unequivocally
his disbelief in violent overthrow, and stated that he had never
knowingly been a member of any organization which advocated such
action. He persisted, however, in his refusals to answer any
questions relating to his membership in the Communist Party. The
Committee again declined to certify him, this time on the ground
that his refusals to answer had obstructed a full investigation
into his qualifications. [
Footnote
2] The California Supreme Court, by a divided vote, refused
review, and also denied Konigsberg's motion for direct admission to
practice. [
Footnote 3]
52 Cal. 2d
769,
Page 366 U. S. 40
344 P.2d 777. We again brought the case here. 362 U.S. 910.
Petitioner's contentions in this Court in support of reversal of
the California Supreme Court's order are reducible to three
propositions: (1) the State's action was inconsistent with this
Court's decision in the earlier
Konigsberg case; (2)
assuming the Committee's inquiries into Konigsberg's possible
Communist Party membership were permissible, it was
unconstitutionally arbitrary for the State to deny him admission
because of his refusals to answer, and (3) in any event, Konigsberg
was constitutionally justified in refusing to answer these
questions.
I
Consideration of petitioner's contentions as to the effect of
this Court's decision in the former
Konigsberg case
requires that there be kept clearly in mind what is entailed in
California's rule, comparable to that in many States, that an
applicant for admission to the bar bears the burden of proof of
"good moral character" [
Footnote
4] -- a
Page 366 U. S. 41
requirement whose validity is not, nor could well be, drawn in
question here. [
Footnote 5]
Under such a rule, an applicant must initially furnish enough
evidence of good character to make a
prima facie case. The
examining Committee then has the opportunity to rebut that showing
with evidence of bad character. Such evidence may result from the
Committee's own independent investigation, from an applicant's
responses
Page 366 U. S. 42
to questions on his application form, or from Committee
interrogation of the applicant himself. This interrogation may well
be of decisive importance, for, as all familiar with bar admission
proceedings know, exclusion of unworthy candidates frequently
depends upon the thoroughness of the Committee's questioning,
revealing as it may infirmities in an otherwise satisfactory
showing on his part. This is especially so where a bar committee,
as is not infrequently the case, has no means of conducting an
independent investigation of its own into an applicant's
qualifications. If, at the conclusion of the proceedings, the
evidence of good character and that of bad character are found in
even balance, the State may refuse admission to the applicant, just
as in an ordinary suit a plaintiff may fail in his case because he
has not met his burden of proof.
In the first
Konigsberg case, this Court was concerned
solely with the question whether the balance between the favorable
and unfavorable evidence as to Konigsberg's qualifications had been
struck in accordance with the requirements of due process. It was
there held, first, that Konigsberg had made out a
prima
facie case of good character and of nonadvocacy of violent
overthrow, and, second, that the other evidence in the record could
not, even with the aid of all reasonable inferences flowing
therefrom, cast such doubts upon petitioner's
prima facie
case as to justify any finding other than that these two California
qualification requirements had been satisfied. [
Footnote 6] In assessing the significance of
Konigsberg's refusal to answer questions as to Communist Party
membership, the Court dealt only with the fact that this refusal
could not provide any reasonable indication of a character not
meeting
Page 366 U. S. 43
these two standards for admission. The Court did not consider,
but reserved for later decision, all questions as to the
permissibility of the State treating Konigsberg's refusal to answer
as a ground for exclusion, not because it was evidence from which
substantive conclusions might be drawn, but because the refusal had
thwarted a full investigation into his qualifications.
See
353 U.S. at
353 U. S.
259-262. The State now asserts that ground for
exclusion, an issue that is not foreclosed by anything in this
Court's earlier opinion which decided a quite different
question.
It is equally clear that the State's ordering of the rehearing
which led to petitioner's exclusion manifested no disrespect of the
effect of the mandate in that case, which expressly left the matter
open for further state proceedings "not inconsistent with" the
Court's opinion. There is no basis for any suggestion that the
State, in so proceeding, has adopted unusual or discriminatory
procedures to avoid the normal consequences of this Court's earlier
determination. In its earlier proceeding, the California Bar
Committee may have found further investigation and questioning of
petitioner unnecessary when, in its view, the applicant's
prima
facie case of qualifications had been sufficiently rebutted by
evidence already in the record. While, in its former opinion, this
Court held that the State could not constitutionally so conclude,
it did not undertake to preclude the state agency from asking any
questions or from conducting any investigation that it might have
thought necessary had it known that the basis of its then decision
would be overturned. In recalling Konigsberg for further testimony,
the Committee did only what this Court has consistently held that
federal administrative tribunals may do on remand after a reviewing
court has set aside agency orders as unsupported by requisite
findings of fact.
Federal
Communications
Page 366 U. S. 44
Comm'n v. Pottsville Broadcasting Co., 309 U.
S. 134;
Fly v. Heitmeyer, 309 U.
S. 146.
In the absence of the slightest indication of any purpose on the
part of the State to evade the Court's prior decision, principles
of finality protecting the parties to this state litigation are,
within broad limits of fundamental fairness, solely the concern of
California law. Such limits are broad even in a criminal case,
see Bryan v. United States, 338 U.
S. 552;
Hoag v. New Jersey, 356 U.
S. 464;
cf. Palko v. Connecticut, 302 U.
S. 319,
302 U. S. 328.
In this instance, they certainly have not been transgressed by the
State's merely taking further action in this essentially
administrative type of proceeding. [
Footnote 7]
II
We think it clear that the Fourteenth Amendment's protection
against arbitrary state action does not forbid a State from denying
admission to a bar applicant so long as he refuses to provide
unprivileged answers to questions having a substantial relevance to
his qualifications. An investigation of this character, like a
civil suit, requires procedural, as well as substantive, rules. It
is surely not doubtful that a State could validly adopt an
administrative rule analogous to Rule 37(b) of the Federal Rules of
Civil Procedure, which provides that that refusal, after due
warning, to answer relevant questions may result in "the matters
regarding which the questions were asked" being
Page 366 U. S. 45
considered for the purposes of the proceeding to be answered in
a way unfavorable to the refusing party, or even that such refusal
may result in "dismissing the action or proceeding" of the party
asking affirmative relief.
The state procedural rule involved here is a less broad one, for
all that California has in effect said is that, in cases where, on
matters material to an applicant's qualifications, there are gaps
in the evidence presented by him which the agency charged with
certification considers should be filled in the appropriate
exercise of its responsibilities, an applicant will not be admitted
to practice unless and until he cooperates with the agency's
efforts to fill those gaps. The fact that this rule finds its
source in the supervisory powers of the California Supreme Court
over admissions to the bar, rather than in legislation, is not
constitutionally significant.
Nashville, C. & St.L. R. Co.
v. Browning, 310 U. S. 362.
Nor, in the absence of a showing of arbitrary or discriminatory
application in a particular case, is it a matter of federal concern
whether such a rule requires the rejection of all applicants
refusing to answer material questions, or only in instances where
the examining committee deems that a refusal has materially
obstructed its investigation.
Compare Beilan v. Board of
Education, 357 U. S. 399,
with Nelson v. County of Los Angeles, 362 U. S.
1.
In the context of the entire record of these proceedings,
[
Footnote 8] the application of
the California rule in this instance cannot be said to be arbitrary
or discriminatory. In the first
Konigsberg case, this
Court held that neither the somewhat weak but uncontradicted
testimony that petitioner had been a Communist Party member in 1941
nor his refusal to answer questions relating to Party membership
could rationally support any substantive adverse
Page 366 U. S. 46
inferences as to petitioner's character qualifications, 353 U.S.
at
353 U. S.
266-274. That was not to say, however, that these
factors, singly or together, could not be regarded as leaving the
investigatory record in sufficient uncertainty as constitutionally
to permit application of the procedural rule which the State has
now invoked, provided that Konigsberg had been first given due
warning of the consequences of his continuing refusal to respond to
the Committee's questions.
Cf. 353 U.S. at
353 U. S.
261.
It is no answer to say that petitioner has made out a
prima
facie case of qualifications, for this is precisely the
posture of a proceeding in which the Committee's right to examine
and cross-examine becomes significant. Assuming, as we do for the
moment, that there is no privilege here to refuse to answer,
petitioner could no more insist that his
prima facie case
makes improper further questioning of him than he could insist that
such circumstance made improper the introduction of other forms of
rebutting evidence.
We likewise regard as untenable petitioner's contentions that
the questions as to Communist Party membership were made irrelevant
either by the fact that bare, innocent membership is not a ground
of disqualification or by petitioner's willingness to answer such
ultimate questions as whether he himself believed in violent
overthrow or knowingly belonged to an organization advocating
violent overthrow. The Committee Chairman's answer to the former
contention was entirely correct:
"If you answered the question, for example, that you had been a
member of the Communist Party during some period since 1951 or that
you were presently a member of the Communist Party, the Committee
would then be in a position to ask you what acts you engaged in to
carry out the functions and purposes of that party, what the aims
and purposes of
Page 366 U. S. 47
the party were, to your knowledge, and questions of that type.
You see, by failing to answer the initial question, there certainly
is no basis and no opportunity for us to investigate with respect
to the other matters to which the initial question might very well
be considered preliminary."
And the explanation given to petitioner's counsel by another
Committee member as to why Konigsberg's testimony about ultimate
facts was not dispositive was also sound:
"Mr. Mosk, you realize that, if Mr. Konigsberg had answered the
question that he refused to answer, an entirely new area of
investigation might be opened up, and this Committee might be able
to ascertain from Mr. Konigsberg that perhaps he is now and for
many years past has been an active member of the Communist Party,
and from finding out who his associates were in that enterprise we
might discover that he does advocate the overthrow of this
government by force and violence. I am not saying that he would do
that, but it is a possibility, and we don't have to take any
witness' testimony as precluding us from trying to discover if he
is telling the truth. That is the point."
Petitioner's further miscellaneous contentions that the State's
exclusion of him was capricious are all also insubstantial.
[
Footnote 9]
Page 366 U. S. 48
There remains the question as to whether Konigsberg was
adequately warned of the consequences of his refusal to answer. At
the outset of the renewed hearings, the Chairman of the Committee
stated:
"As a result of our twofold purpose [to investigate and reach
determinations], particularly our function of investigation, we
believe it will be necessary for you, Mr. Konigsberg, to answer our
material questions or our investigation will be obstructed. We
would not then, as a result, be able to certify you for
admission."
After petitioner had refused to answer questions on Communist
Party membership, the Chairman asked:
"Mr. Konigsberg, I think you will recall that I initially
advised you a failure to answer our material questions would
obstruct our investigation and result in our failure to certify
you. With this in mind do you wish to answer any of the questions
which you heretofore up to now have refused to answer?"
At the conclusion of the proceeding, another Committee member
stated:
"I would like to make this statement so that there will be no
misunderstanding on the part of any court that may review this
record in the future, that I feel that, as a member of the
Committee, that the failure
Page 366 U. S. 49
of Mr. Konigsberg to answer the question as to whether or not he
is now a member of the Communist Party is an obstruction of the
function of this Committee, not a frustration if that word has been
used. I think it would be an obstruction. There are phases of his
moral character that we haven't been able to investigate simply
because we have been stopped at this point, and I, for one, could
not certify to the Supreme Court that he was a proper person to be
admitted to practice law in this State until he answers the
question about his Communist affiliation."
The record thus leaves no room for doubt on the score of
"warning," and petitioner does not indeed contend to the
contrary.
III
Finally, petitioner argues that, in any event, he was privileged
not to respond to questions dealing with Communist Party membership
because they unconstitutionally impinged upon rights of free speech
and association protected by the Fourteenth Amendment.
At the outset, we reject the view that freedom of speech and
association (
NAACP v. Alabama, 357 U.
S. 449,
357 U. S.
460), as protected by the First and Fourteenth
Amendments, are "absolutes," not only in the undoubted sense that,
where the constitutional protection exists it must prevail, but
also in the sense that the scope of that protection must be
gathered solely from a literal reading of the First Amendment.
[
Footnote 10] Throughout its
history, this Court
Page 366 U. S. 50
has consistently recognized at least two ways in which
constitutionally protected freedom of speech is narrower than an
unlimited license to talk. On the one hand, certain forms of
speech, or speech in certain contexts, has been considered outside
the scope of constitutional protection. [
Footnote 11]
See, e.g., Schenck v. United
States, 249 U. S. 47;
Chaplinsky v. New Hampshire, 315 U.
S. 568;
Dennis v. United States, 341 U.
S. 494;
Beauharnais v. Illinois, 343 U.
S. 250;
Yates v. United States, 354 U.
S. 298;
Roth v. United States, 354 U.
S. 476. On the other hand, general regulatory statutes,
not intended to control the content of speech but incidentally
limiting its unfettered exercise, have not been regarded as the
type of law the First or Fourteenth Amendment forbade Congress
or
Page 366 U. S. 51
the States to pass, when they have been found justified by
subordinating valid governmental interests, a prerequisite to
constitutionality which has necessarily involved a weighing of the
governmental interest involved.
See, e.g., Schneider v.
State, 308 U. S. 147 161;
Cox v. New Hampshire, 312 U. S. 569;
Prince v. Massachusetts, 321 U. S. 158;
Kovacs v. Cooper, 336 U. S. 77;
American Communications Assn. v. Douds, 339 U.
S. 382;
Breard v. Alexandria, 341 U.
S. 622. It is in the latter class of cases that this
Court has always placed rules compelling disclosure of prior
association as an incident of the informed exercise of a valid
governmental function.
Bates v. Little Rock, 361 U.
S. 516,
361 U. S. 524.
Whenever, in such a context, these constitutional protections are
asserted against the exercise of valid governmental powers a
reconciliation must be effected, and that perforce requires an
appropriate weighing of the respective interests involved.
Watkins v. United States, 354 U.
S. 178,
354 U. S. 198;
NAACP v. Alabama, supra; Barenblatt v. United States,
360 U. S. 109,
360 U. S.
126-127;
Bates v. Little Rock, supra; Wilkinson v.
United States, 365 U. S. 399;
Braden v. United States, 365 U. S. 431.
With more particular reference to the present context of a state
decision as to character qualifications, it is difficult indeed to
imagine a view of the constitutional protections of speech and
association which would automatically, and without consideration of
the extent of the deterrence of speech and association and of the
importance of the state function, exclude all reference to prior
speech or association on such issues as character, purpose,
credibility, or intent. On the basis of these considerations, we
now judge petitioner's contentions in the present case.
Petitioner does not challenge the constitutionality of § 6064.1
of the California Business and Professions Code forbidding
certification for admission to practice of those advocating the
violent overthrow of government. It
Page 366 U. S. 52
would indeed be difficult to argue that a belief, firm enough to
be carried over into advocacy, in the use of illegal means to
change the form of the State or Federal Government is an
unimportant consideration in determining the fitness of applicants
for membership in a profession in whose hands so largely lies the
safekeeping of this country's legal and political institutions.
Cf. Garner v. Board of Public Works, 341 U.
S. 716. Nor is the state interest in this respect
insubstantially related to the right which California claims to
inquire about Communist Party membership. This Court has long since
recognized the legitimacy of a statutory finding that membership in
the Communist Party is not unrelated to the danger of use for such
illegal ends of powers given for limited purposes.
See American
Communications Assn. v. Douds, 339 U.
S. 382;
see also Barenblatt v. United States,
360 U. S. 109,
360 U. S.
128-129;
cf. Wilkinson v. United States,
365 U. S. 399;
Braden v. United States, 365 U. S. 431.
As regards the questioning of public employees relative to
Communist Party membership, it has already been held that the
interest in not subjecting speech and association to the deterrence
of subsequent disclosure is outweighed by the State's interest in
ascertaining the fitness of the employee for the post he holds, and
hence that such questioning does not infringe constitutional
protections.
Beilan v. Board of Public Education,
357 U. S. 399;
Garner v. Board of Public Works, 341 U.
S. 716. With respect to this same question of Communist
Party membership, we regard the State's interest in having lawyers
who are devoted to the law in its broadest sense, including not
only its substantive provisions, but also its procedures for
orderly change, as clearly sufficient to outweigh the minimal
effect upon free association occasioned by compulsory disclosure in
the circumstances here presented.
There is here no likelihood that deterrence of association may
result from foreseeable private action,
see
Page 366 U. S. 53
NAACP v. Alabama, supra, at
357 U. S. 462,
for bar committee interrogations such as this are conducted in
private.
See Rule 58, Section X, Rules of Practice and
Procedure of the Supreme Court of Illinois;
cf. Cal.Bus.
& Prof.Code, Rules of Procedure of the State Bar of California,
Rule 8;
Anonymous v. Baker, 360 U.
S. 287,
360 U. S.
291-292. Nor is there the possibility that the State may
be afforded the opportunity for imposing undetectable arbitrary
consequences upon protected association,
see Shelton v.
Tucker, 364 U. S. 479,
364 U. S. 486,
for a bar applicant's exclusion by reason of Communist Party
membership is subject to judicial review, including ultimate review
by this Court, should it appear that such exclusion has rested on
substantive or procedural factors that do not comport with the
Federal Constitution.
See Konigsberg v. State Bar,
353 U. S. 252;
Schware v. Board of Examiners of New Mexico, 353 U.
S. 232;
cf. Wieman v. Updegraff, 344 U.
S. 183. In these circumstances, it is difficult indeed
to perceive any solid basis for a claim of unconstitutional
intrusion into rights assured by the Fourteenth Amendment.
If this were all there was to petitioner's claim of a privilege
to refuse to answer, we would regard the
Beilan case as
controlling. There is, however, a further aspect of the matter. In
Speiser v. Randall, 357 U. S. 513, we
held unconstitutional a state procedural rule that, in order to
obtain an exemption a taxpayer must bear the burden of proof,
including both the burdens of establishing a
prima facie
case and of ultimate persuasion, that he did not advocate the
violent overthrow of government. We said (p.
357 U. S.
526):
"The vice of the present procedure is that, where particular
speech falls close to the line separating the lawful and the
unlawful, the possibility of mistaken factfinding -- inherent in
all litigation -- will create the danger that the legitimate
utterance will be
Page 366 U. S. 54
penalized. The man who knows that he must bring forth proof and
persuade another of the lawfulness of his conduct necessarily must
steer far wider of the unlawful zone than if the State must bear
these burdens. This is especially to be feared when the complexity
of the proofs and the generality of the standards applied,
cf.
Dennis v. United States, supra, provide but shifting sands on
which the litigant must maintain his position. How can a claimant
whose declaration is rejected possibly sustain the burden of
proving the negative of these complex factual elements? In
practical operation, therefore, this procedural device must
necessarily produce a result which the State could not command
directly. It can only result in a deterrence of speech which the
Constitution makes free."
It would be a sufficient answer to any suggestion of the
applicability of that holding to the present proceeding to observe
that
Speiser was explicitly limited so as not to reach
cases where, as here, there is no showing of an intent to penalize
political beliefs. Distinguishing
Garner v. Board of Public
Works, 341 U. S. 716;
Gerende v. Board of Supervisors, 341 U. S.
56, and
American Communications Assn. v. Douds,
339 U. S. 382, the
Court said (p.
357 U. S.
527):
"In these cases . . . , there was no attempt directly to control
speech, but rather to protect, from an evil shown to be grave, some
interest clearly within the sphere of governmental concern. . . .
Each case concerned a limited class of persons in or aspiring to
public positions by virtue of which they could, if evilly
motivated, create serious danger to the public safety. The
principal aim of those statutes was not to penalize political
beliefs, but to deny positions to persons supposed to be dangerous
because the position might be misused to the detriment of the
public. "
Page 366 U. S. 55
But there are also additional factors making the rationale of
Speiser inapplicable to the case before us. There is no
unequivocal indication that California in this proceeding has
placed upon petitioner the burden of proof of nonadvocacy of
violent overthrow, as distinguished from its other requirement of
"good moral character." [
Footnote 12] All it has presently required is an
applicant's cooperation with the Committee's search for evidence of
forbidden advocacy. Petitioner has been denied admission to the
California bar for obstructing the Committee in the performance of
its necessary functions of examination and cross-examination, a
ruling which indeed presupposes that the burden of producing
substantial evidence on the issue of advocacy was not upon
petitioner, but upon the Committee. Requiring a defendant in a
civil proceeding to testify or to submit to discovery has never
been thought to shift the burden of proof to him. Moreover, when
this Court has allowed a State to comment upon a criminal
defendant's failure to testify, it has been careful to note that
this does not result in placing upon him the burden of proving his
innocence.
Adamson v. California, 332 U. S.
46,
332 U. S.
58.
In contrast to our knowledge with respect to the burden of
establishing a
prima facie case, we do not now know where,
under California law, would rest the ultimate burden of persuasion
on the issue of advocacy of violent overthrow. But it is for the
Supreme Court of California first to decide this question. Only if
and when that burden is placed by the State upon a bar applicant
can there be drawn in question the distinction made in
Page 366 U. S. 56
the
Speiser case between penalizing statutes and those
merely denying access to positions where unfitness may lead to the
abuse of state-given powers or privileges. The issue is not now
before us.
Thus, as matters now stand, there is nothing involved here which
is contrary to the reasoning of
Speiser, for, despite
compelled testimony, the prospective bar applicant need not "steer
far wider of the unlawful zone" (357 U.S. at
357 U. S. 526)
for fear of mistaken judgment or fact finding declaring unlawful
speech which is, in fact, protected by the Constitution. This is so
as to the ultimate burden of persuasion for, notwithstanding his
duty to testify, the loss resulting from a failure of proof may,
for all we now know, still fall upon the State. It is likewise so
as to the initial burden of production, for there is no indication
in the proceeding on rehearing of petitioner's application that the
Bar Committee expected petitioner to "sustain the burden of proving
the negative" (357 U.S. at
357 U. S. 526) of those complex factual elements which
amount to forbidden advocacy of violent overthrow. To the contrary,
it is clear that the Committee had assumed the burden of proving
the affirmative of those elements, but was prevented from
attempting to discharge that burden by petitioner's refusal to
answer relevant questions.
The judgment of the Supreme Court of California is
Affirmed.
[
Footnote 1]
Konigsberg rested his refusals not on any claim of privilege
against self-incrimination, but on the ground that such inquiries
were beyond the purview of the Committee's authority, and infringed
rights of free thought, association, and expression assured him
under the State and Federal Constitutions. He affirmatively
asserted, however, his disbelief in violent overthrow of
government.
[
Footnote 2]
The Committee made the following findings relevant to the issues
now before us:
"(1) That the questions put to the applicant by the Committee
concerning past or present membership in or affiliation with the
Communist Party are material to a proper and complete investigation
of his qualifications for admission to practice law in the State of
California."
"(2) That the refusal of applicant to answer said questions has
obstructed a proper and complete investigation of applicant's
qualifications for admission to practice law in the State of
California."
[
Footnote 3]
The essence of the state court's decision appears in the
following extracts from its opinion:
". . . The committee action now before us contains no findings
or conclusion that petitioner had failed to establish either his
good moral character or his abstention from advocacy of overthrow
of the government."
"Here, it is the refusal to answer material questions which is
the basis for denial of certification. . . ."
". . . [T]o admit applicants who refuse to answer the
committee's questions upon these subjects would nullify the
concededly valid legislative direction to the committee. Such a
rule would effectively stifle committee inquiry upon issues
legislatively declared to be relevant to that issue."
Id. at 772, 774, 344 P.2d at 779, 780.
Justice Traynor dissented on the ground that the California
Supreme Court, not being required by statute to exclude bar
applicants on the sole ground of their refusal to answer questions
concerning possible advocacy of the overthrow of government, should
not adopt such an exclusionary rule, at least where the Committee
of Bar Examiners has not come forward with some evidence of
advocacy. He declined to reach constitutional issues. Justice
Peters dissented on federal constitutional grounds and in the
belief that this Court's decision in the first
Konigsberg
case required immediate admission of the applicant. Chief Justice
Gibson did not participate in the decision.
[
Footnote 4]
All of the 50 States, as well as Puerto Rico and the District of
Columbia, prescribe qualifications of moral character as
preconditions for admission to the practice of law.
See
West Publishing Co., Rules for Admission to the Bar (35th ed.1957);
Survey of the Legal Profession, Bar Examinations and Requirements
for Admission to the Bar (1952); Jackson, Character Requirements
for Admission to the Bar, 20 Fordham L.Rev. 305 (1951); Annot., 64
A.L.R.2d 301 (1959).
The burden of demonstrating good moral character is regularly
placed upon the bar applicant.
Ex parte Montgomery, 249
Ala. 378, 31 So. 2d 85;
In re Stephenson, 243 Ala. 342, 10
So. 2d 1;
Application of Courtney, 83 Ariz. 231,
319 P.2d 991;
Ark.Stat.Ann., 1947, §§ 25-101, 25-103;
Spears v. State
Bar, 211 Cal. 183, 294 P. 697;
O'Brien's Petition, 79
Conn. 46, 63 A. 777;
In re Durant, 80 Conn. 140, 147, 67
A. 497; Del.Sup.Ct.Rule 31(1)(A)(a), (2)(A)(a);
Coleman v.
Watts, 81 So. 2d
650 (Fla.) (burden of proof on applicant;
prima facie
showing shifts burden of going forward to Examiners);
Gordon v.
Clinkscales, 215 Ga. 843,
114 S.E.2d 15;
In re Latimer, 11 Ill. 2d
327,
143 N.E.2d 20
(
semble);
Rosencranz v. Tidrington, 193 Ind. 472,
141 N.E. 58;
In re Meredith, 272 S.W.2d 456 (Ky.);
In
re Meyerson, 190 Md. 671, 59 A.2d 489 (
semble);
Matter of Keenan, 313 Mass. 186, 47 N.E.2d 12;
Application of Smith, 220 Minn.197, 19 N.W.2d 324
(
semble);
On Application for Attorney's License,
21 N.J.L. 345;
Application of Cassidy, 268 App.Div. 282,
51 N.Y.S.2d 202,
aff'd, 296 N.Y. 926, 73 N.E.2d 41;
Application of Farmer, 191 N.C. 235, 131 S.E. 661;
In
re Weinstein, 150 Ore. 1, 42 P.2d 744;
State ex rel. Board
v. Poyntz, 152 Ore. 592, 52 P.2d 1141 (burden of proof on
applicant;
prima facie showing shifts burden of going
forward to Examiners);
In the Matter of Eary, 134 W.Va.
204, 58 S.E.2d 64 (
semble).
[
Footnote 5]
For reasons given later (pp.
366 U. S. 55-56,
infra), we need not decide whether California's burden of
proof rule could constitutionally be applied, as it was by the
Committee after the first
Konigsberg proceedings, to the
requirement of nonadvocacy of violent overthrow.
[
Footnote 6]
The Court assumed, but did not discuss, the constitutionality of
California's burden of proof rule as applied to the "nonadvocacy of
forcible overthrow" requirement of the California statute.
[
Footnote 7]
Moreover, even if there could be debate as to whether this
Court's prior decision prevented new hearings on matters that had
already transpired at the time of the first state hearings, there
can be no doubt that such decision did not prevent California from
investigating petitioner's actions during the period subsequent to
the first hearing. Therefore, we would in any case be presented
with the question of the constitutionality of the State's refusing
to admit petitioner to the practice of law because of his declining
to answer whether he has been a member of the Communist Party since
the termination of the first set of hearings.
[
Footnote 8]
The transcript of the original hearing before the Committee has
been made part of the record before us in the present case.
[
Footnote 9]
There is no basis for any intimation that the California Supreme
Court fashioned a special procedural rule for the purposes of this
particular case. The California Bar Committee has in the past
declined to certify applicants who refused to answer pertinent
questions.
See Farley (Secretary, Committee of Bar
Examiners), Character Investigation of Applicants for Admission, 29
Cal.State Bar Journal, 454, 457, 466 (1954). No more does the
State's action bear any of the hallmarks of a bill of attainder or
of an
ex post facto regulation,
See Cummings
v. Missouri, 4 Wall. 277;
cf. United States v.
Lovett, 328 U. S. 303,
especially in light of the fact that petitioner was explicitly
warned in advance of the consequences of his refusal to answer.
Likewise, there is no room for attributing to the Committee a
surreptitious purpose to exclude Konigsberg by the device of
putting to him questions which it was known in advance he would not
answer, and then justifying exclusion on the premise of his refusal
to respond. So far as this record shows, Konigsberg was excluded
only because his refusal to answer had impeded the investigation of
the Committee, a ground of rejection which it is still within his
power to remove.
[
Footnote 10]
That view, which, of course, cannot be reconciled with the law
relating to libel, slander, misrepresentation, obscenity, perjury,
false advertising, solicitation of crime, complicity by
encouragement, conspiracy, and the like, is said to be compelled by
the fact that the commands of the First Amendment are stated in
unqualified terms: "Congress shall make no law . . . abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble. . . ." But as Mr. Justice Holmes once
said:
"[T]he provisions of the Constitution are not mathematical
formulas having their essence in their form; they are organic
living institutions transplanted from English soil. Their
significance is vital, not formal; it is to be gathered not simply
by taking the words and a dictionary, but by considering their
origin and the line of their growth."
Gompers v. United States, 233 U.
S. 604,
233 U. S. 610.
In this connection,
also compare the equally unqualified
command of the Second Amendment: "the right of the people to keep
and bear arms shall not be infringed."
And see United States v.
Miller, 307 U. S. 174.
[
Footnote 11]
That the First Amendment immunity for speech, press and assembly
has to be reconciled with valid but conflicting governmental
interests was clear to Holmes, J. ("I do not doubt for a moment
that, by the same reasoning that would justify punishing persuasion
to murder, the United States constitutionally may punish speech
that produces or is intended to produce a clear and imminent danger
that it will bring about forthwith certain substantive evils that
the United States constitutionally may seek to prevent."
Abrams
v. United States, 250 U. S. 616,
250 U. S.
627); to Brandeis, J. ("But, although the rights of free
speech and assembly are fundamental, they are not, in their nature,
absolute."
Whitney v. California, 274 U.
S. 357,
274 U. S.
373), and to Hughes, C.J. ("[T]he protection [of free
speech] even as to previous restraint is not absolutely unlimited."
Near v. Minnesota, 283 U. S. 697,
283 U. S.
716.)
[
Footnote 12]
Indeed, we cannot tell whether California did so even in the
earlier proceeding, since the California Supreme Court's denial of
review of the Committee's original rejection of Konigsberg was
without opinion, and, for all we know, may have rested alone on
petitioner's failure to meet his state burden of proof as to "good
moral character."
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS concur, dissenting.
When this case was here before, we reversed a judgment of the
California Supreme Court barring the petitioner Konigsberg from the
practice of law in that State on the ground that he had failed to
carry the burden of proving his good moral character and that he
did not advocate forcible overthrow of the Government. In doing
Page 366 U. S. 57
so, we held that there was "no evidence in the record" which
could rationally justify such a conclusion. [
Footnote 2/1] Upon remand, the Supreme Court of
California referred the matter back to the Committee of State Bar
Examiners for further hearings, at which time Konigsberg presented
even more evidence of his good character. The Committee produced no
evidence whatever which tended in the slightest degree to reflect
upon the good character and patriotism which we had already held
Konigsberg to have established. The case is therefore now before us
with the prior adjudication that Konigsberg possesses the requisite
good character and patriotism for admission to the Bar
unimpaired.
What the Committee did do upon remand was to repeat the
identical questions with regard to Konigsberg's suspected
association with Communists twenty years ago that it had asked and
he had refused to answer at the first series of hearings.
Konigsberg again refused to answer these questions, and the
Committee again refused to certify him as fit for admission to the
Bar, this time on the ground that his refusal to answer had
obstructed the required investigation into his qualifications, a
ground subsequently adopted by a majority of the Supreme Court of
that State. [
Footnote 2/2]
Thus, California purports to be denying Konigsberg admission to
its Bar solely on the ground that he has refused to answer
questions put to him by the Committee of Bar Examiners. But when
the case was here before, we observed:
"There is nothing in the California statutes,
Page 366 U. S. 58
the California decisions, or even in the Rules of the Bar
Committee, which has been called to our attention that suggests
that failure to answer a Bar Examiner's inquiry is,
ipso
facto, a basis for excluding an applicant from the Bar,
irrespective of how overwhelming is his showing of good character
or loyalty or how flimsy are the suspicions of the Bar Examiners.
[
Footnote 2/3]"
And we have been pointed to no subsequent California statutes,
rules, regulations or court decisions which require or even permit
rejection of a lawyer's application for admission solely because he
refuses to answer questions. [
Footnote
2/4] In this situation, it seems to me that Konigsberg has been
rejected on a ground that is not supported by any authoritatively
declared rule of law for the State of California. [
Footnote 2/5] This alone would be
Page 366 U. S. 59
enough for me to vote to reverse the judgment. There are other
reasons, however.
Konigsberg's objection to answering questions as to whether he
is or was a member of the Communist Party has, from the very
beginning, been based upon the contention that the guarantees of
free speech and association of the First Amendment as made
controlling upon the States by the Fourteenth Amendment preclude
California from denying him admission to its Bar for refusing to
answer such questions. In this I think Konigsberg has been correct.
California has apparently not even attempted to make actual present
membership in the Communist Party a bar to the practice of law, and
even if it had, I assume it would not be contended that such a law
could be applied to conduct that took place before the law was
passed. For such an application would, I think, not only be a clear
violation of the
ex post facto provision of the Federal
Constitution, but would also constitute a bill of attainder
squarely within this Court's holdings in
Cummings v.
Missouri [
Footnote 2/6] and
Ex parte Garland. [
Footnote
2/7] And yet it seems to me that this record shows, beyond any
shadow of a doubt, that the reason Konigsberg has been rejected is
because the Committee suspects that he was at one time a member of
the Communist Party. [
Footnote 2/8]
I agree with the implication of the majority opinion that this
is
Page 366 U. S. 60
not an adequate ground to reject Konigsberg, and that it could
not be constitutionally defended. [
Footnote 2/9]
The majority avoids the otherwise unavoidable necessity of
reversing the judgment below on that ground by simply refusing to
look beyond the reason given by the Committee to justify
Konigsberg's rejection. In this way, the majority reaches the
question as to whether the Committee can constitutionally reject
Konigsberg for refusing to answer questions growing out of his
conjectured past membership in the Communist Party even though it
could not constitutionally reject him if he did answer those
questions and his answers happened to be affirmative. The majority
then goes on to hold that the Committee, by virtue of its power to
reject applicants who advocate the violent overthrow of the
Government, can reject applicants who refuse to answer questions in
any way related to that fact, even though the applicant has sworn
under oath that he does not advocate violent overthrow of the
Government and even though, as the majority concedes, questions as
to the political associations of an applicant subject "speech and
association to the deterrence of subsequent disclosure." I cannot
agree with that holding.
The recognition that California has subjected "speech and
association to the deterrence of subsequent disclosure" is, under
the First Amendment, sufficient in itself
Page 366 U. S. 61
to render the action of the State unconstitutional unless one
subscribes to the doctrine that permits constitutionally protected
rights to be "balanced" away whenever a majority of this Court
thinks that a State might have interest sufficient to justify
abridgment of those freedoms. As I have indicated many times
before, [
Footnote 2/10] I do not
subscribe to that doctrine for I believe that the First Amendment's
unequivocal command that there shall be no abridgment of the rights
of free speech and assembly shows that the men who drafted our Bill
of Rights did all the "balancing" that was to be done in this
field. The history of the First Amendment is too well known to
require repeating here except to say that it certainly cannot be
denied that the very object of adopting the First Amendment, as
well as the other provisions of the Bill of Rights, was to put the
freedoms protected there completely out of the area of any
congressional control that may be attempted through the exercise of
precisely those powers that are now being used to "balance" the
Bill of Rights out of existence. [
Footnote 2/11] Of course, the First Amendment
originally applied only to the Federal Government,
Page 366 U. S. 62
and did not apply to the States. But what was originally true
only of Congress is now no less true with respect to the
governments of the States, unless a majority of this Court wants to
overrule a large number of cases in which it has been held
unequivocally that the Fourteenth Amendment made the First
Amendment's provisions controlling upon the States. [
Footnote 2/12]
The Court attempts to justify its refusal to apply the plain
mandate of the First Amendment in part by reference to the
so-called "clear and present danger test" forcefully used by Mr.
Justice Holmes and Mr. Justice Brandeis not to narrow, but to
broaden, the then-prevailing interpretation of First Amendment
freedoms. [
Footnote 2/13] I think
very little can be found in anything they ever said that would
provide support for the "balancing test" presently in use. Indeed,
the idea of "balancing" away First Amendment freedoms appears to me
to be wholly inconsistent with the view, strongly espoused by
Justices Holmes and Brandeis, that the best test of truth is the
power of the thought to get itself accepted in the competition of
the market. [
Footnote 2/14] The
"clear
Page 366 U. S. 63
and present danger test" was urged as consistent with this view
in that it protected speech in all cases except those in which
danger was so imminent that there was no time for rational
discussion. [
Footnote 2/15] The
"balancing test," on the other hand, rests upon the notion that
some ideas are so dangerous that Government need not restrict
itself to contrary arguments as a means of opposing them even where
there is ample time to do so. Thus, here, where there is not a
semblance of a "clear and present danger," and where there is more
than ample time in which to combat by discussion any idea which may
be involved, the majority permits the State of California to adopt
measures calculated to suppress the advocacy of views about
governmental affairs.
I recognize, of course, that the "clear and present danger
test," though itself a great advance toward individual liberty over
some previous notions of the protections afforded by the First
Amendment, [
Footnote 2/16] does
not go as far as my own views as to the protection that should be
accorded these freedoms. I agree with Justices Holmes and Brandeis,
however, that a primary purpose of the First Amendment was to
insure that all ideas would be allowed to enter the "competition of
the market." But I fear that the creation of "tests" by which
speech is left unprotected under certain circumstances is a
standing invitation to abridge it. This is nowhere more clearly
indicated
Page 366 U. S. 64
than by the sudden transformation of the "clear and present
danger test" in
Dennis v. United States. In that case,
this Court accepted Judge Learned Hand's "restatement" of the
"clear and present danger test":
"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. [
Footnote 2/17]"
After the "clear and present danger test" was diluted and
weakened by being recast in terms of this "balancing" formula,
there seems to me to be much room to doubt that Justices Holmes and
Brandeis would even have recognized their test. And the reliance
upon that weakened "test" by the majority here, without even so
much as an attempt to find either a "clear" or a "present" danger,
is only another persuasive reason for rejecting all such "tests"
and enforcing the First Amendment according to its terms.
The Court suggests that a "literal reading of the First
Amendment" would be totally unreasonable because it would
invalidate many widely accepted laws. I do not know to what extent
this is true. I do not believe, for example, that it would
invalidate laws resting upon the premise that, where speech is an
integral part of unlawful conduct that is going on at the time, the
speech can be used to illustrate, emphasize and establish the
unlawful conduct. [
Footnote 2/18]
On the other hand, it certainly would invalidate all laws that
abridge the right of the people to discuss matters of religious or
public interest, in the broadest meaning of those terms, for it is
clear that a desire to protect this right was the primary purpose
of the First Amendment. Some people have argued, with much force,
that the freedoms guaranteed by the First Amendment
Page 366 U. S. 65
are limited to somewhat broad areas like those. [
Footnote 2/19] But I believe this
Nation's security and tranquility can best be served by giving the
First Amendment the same broad construction that all Bill of Rights
guarantees deserve. [
Footnote
2/20]
The danger of failing to construe the First Amendment in this
manner is, I think, dramatically illustrated by the decision of
this Court in
Beauharnais v. Illinois, [
Footnote 2/21] one of the cases relied upon for
this holding today. In that case, a majority of this Court upheld
the conviction of a man whose only "crime" was the circulation of a
petition to be presented to the City Council of Chicago urging that
body to follow a policy of racial segregation in language that the
State of Illinois chose to regard as "libelous" against Negroes.
Holding that "libelous utterances" were not included in the
"speech" protected against state invasion by the Due Process Clause
of the Fourteenth Amendment, [
Footnote 2/22] this Court there concluded that
Page 366 U. S. 66
the petition which had been circulated fell within that
exception and therefore outside the area of constitutionally
protected speech because it made charges against the entire Negro
population of this country. Thus,
Beauharnais was held to
have simultaneously "libelled" some fifteen million people. And by
this tremendous expansion of the concept of "libel," what some
people might regard as a relatively minor exception to the full
protection of freedom of speech had suddenly become a vehicle which
could be used to justify a return to the vicious era of the laws of
seditious libel, in which the political party in power, both in
England and in this country, used such laws to put its opponents in
jail. [
Footnote 2/23]
Whatever may be the wisdom, however, of an approach that would
reject exceptions to the plain language of the First Amendment
based upon such things as "libel," "obscenity" [
Footnote 2/24] or "fighting words," [
Footnote 2/25] such is not the issue in
this case. For the majority does not, and surely would not, contend
that the kind of speech involved in this case -- wholly related as
it is to conflicting ideas about governmental affairs and policies
-- falls outside the protection of the First Amendment, however
narrowly that Amendment may be interpreted. So the only issue
presently before us is whether speech that must be well within the
protection of the Amendment should be given complete protection or
whether it is entitled only to such protection
Page 366 U. S. 67
as is consistent in the minds of a majority of this Court with
whatever interest the Government may be asserting to justify its
abridgment. The Court, by stating unequivocally that there are no
"absolutes" under the First Amendment, necessarily takes the
position that even speech that is admittedly protected by the First
Amendment is subject to the "balancing test," and that, therefore,
no kind of speech is to be protected if the Government can assert
an interest of sufficient weight to induce this Court to uphold its
abridgment. In my judgment, such a sweeping denial of the existence
of any inalienable right to speak undermines the very foundation
upon which the First Amendment, the Bill of Rights, and, indeed,
our entire structure of government rest. [
Footnote 2/26] The Founders of this Nation attempted to
set up a limited government which left certain rights in the people
-- rights that could not be taken away without amendment of the
basic charter of government. The majority's "balancing test" tells
us that this is not so. It tells us that no right
Page 366 U. S. 68
to think, speak or publish exists in the people that cannot be
taken away if the Government finds it sufficiently imperative or
expedient to do so. Thus, the "balancing test" turns our
"Government of the people, by the people and for the people" into a
government over the people.
I cannot believe that this Court would adhere to the "balancing
test" to the limit of its logic. Since that "test" denies that any
speech, publication or petition has an "absolute" right to
protection under the First Amendment, strict adherence to it would
necessarily mean that there would be only a conditional right, not
a complete right, for any American to express his views to his
neighbors -- or for his neighbors to hear those views. In other
words, not even a candidate for public office, high or low, would
have an "absolute" right to speak in behalf of his candidacy, no
newspaper would have an "absolute" right to print its opinion on
public governmental affairs, and the American people would have no
"absolute" right to hear such discussions. All of these rights
would be dependent upon the accuracy of the scales upon which this
Court weighs the respective interests of the Government and the
people. It therefore seems to me that the Court's "absolute"
statement that there are no "absolutes" under the First Amendment
must be an exaggeration of its own views.
These examples also serve to illustrate the difference between
the sort of "balancing" that the majority has been doing and the
sort of "balancing" that was intended when that concept was first
accepted as a method for insuring the complete protection of First
Amendment freedoms even against purely incidental or inadvertent
consequences. The term came into use chiefly as a result of cases
in which the power of municipalities to keep their streets open for
normal traffic was attacked by groups wishing to use those streets
for religious or political
Page 366 U. S. 69
purposes. [
Footnote 2/27] When
those cases came before this Court, we did not treat the issue
posed by them as one primarily involving First Amendment rights.
Recognizing instead that public streets are avenues of travel which
must be kept open for that purpose, we upheld various city
ordinances designed to prevent unnecessary noises and congestions
that disrupt the normal and necessary flow of traffic. In doing so,
however, we recognized that the enforcement of even these
ordinances, which attempted no regulation at all of the content of
speech and which were neither openly nor surreptitiously aimed at
speech, could bring about an "incidental" abridgment of speech. So
we went on to point out that even ordinances directed at and
regulating only conduct might be invalidated if, after "weighing"
the reasons for regulating the particular conduct, we found them
insufficient to justify diminishing "the exercise of rights so
vital to the maintenance of democratic institutions" as those of
the First Amendment. [
Footnote
2/28]
But those cases never intimated that we would uphold as
constitutional an ordinance which purported to rest upon the power
of a city to regulate traffic, but which was aimed at speech or
attempted to regulate the content of speech. None of them held, nor
could they constitutionally have held, that a person rightfully
walking or riding along the streets and talking in a normal way
could have his views controlled, licensed or penalized in any way
by the city -- for that would be a direct abridgment of speech
itself. Those cases have only begun to take on that meaning by
being relied upon, again and again as they
Page 366 U. S. 70
are here, to justify the application of the "balancing test" to
governmental action that is aimed at speech and depends for its
application upon the content of speech. Thus, those cases have been
used to support decisions upholding such obviously anti-speech
actions on the part of government as those involved in
American
Communications Assn. v. Douds [
Footnote 2/29] and
Dennis v. United States.
[
Footnote 2/30] And the use being
made of those cases here must be considered as falling squarely
within that class. [
Footnote
2/31]
The Court seeks to bring this case under the authority of the
street regulation cases, and to defend its use of the "balancing
test" on the ground that California is attempting only to exercise
its permissible power to regulate its Bar, and that any effect its
action may have upon speech is purely "incidental." But I cannot
agree that the questions asked Konigsberg with regard to his
suspected membership in the Communist Party had nothing more than
an "incidental" effect upon his freedom of speech and association.
Why does the Committee of Bar Examiners ask a bar applicant whether
he is or has been a member of the Communist Party? The avowed
purpose of such questioning is to permit the Committee to deny
applicants admission to the Bar if they "advocate" forcible
overthrow of the Government. Indeed, that is precisely the ground
upon which the majority is here upholding the Committee's right to
ask Konigsberg these questions. I realize that there has been
considerable talk, even in the opinions of this Court, to the
effect that "advocacy" is not "speech." But, with the highest
respect for those who believe that there is such a distinction, I
cannot agree with it. For this reason, I think the conclusion is
inescapable that this case presents the question of the
constitutionality
Page 366 U. S. 71
of action by the State of California designed to control the
content of speech. As such, it is a "direct," and not an
"incidental," abridgment of speech. Indeed, if the characterization
"incidental" were appropriate here, it would be difficult to
imagine what would constitute a "direct" abridgment of speech. The
use of the "balancing test" under these circumstances thus permits
California directly to abridge speech in explicit contradiction to
the plain mandate of the First Amendment.
But even if I thought the majority was correct in its view that
"balancing" is proper in this case, I could not agree with its
decision. In the first place, I think that the decision here is
unduly restrictive upon individual liberty even under the penurious
"balancing test." The majority describes the State's interest which
is here to be "balanced" against the interest in protecting the
freedoms of speech and association as an interest in
"having lawyers who are devoted to the law in its broadest
sense, including not only its substantive provisions, but also its
procedures for orderly change."
But is that an accurate statement of the interest of the State
that is really at stake here? Konigsberg has stated unequivocally
that he never has, does not now, and never will advocate the
overthrow of the Government of this country by unconstitutional
means, and we held when the case was here before that his evidence
was sufficient to establish that fact. Since the Committee has
introduced no evidence at any subsequent hearing that would lead to
a contrary conclusion, the fact remains established. [
Footnote 2/32] So the issue in
Page 366 U. S. 72
this case is not, as the majority's statement of the State's
interest would seem to indicate, whether a person who advocates the
overthrow of existing government by force must be admitted to the
practice of law. All we really have on the State's side of the
scales is its desire to know whether Konigsberg was ever a member
of the Communist Party.
The real lack of value of that information to the State is, to
my mind, clearly shown by the fact that the State has not even
attempted to make membership in the Communist Party a ground for
disqualification from the Bar. Indeed, if the State's only real
interest was, as the majority maintains, in having good men for its
Bar, how could it have rejected Konigsberg, who, undeniably and as
this Court has already held, has provided overwhelming evidence of
his good character? Our former decision, which I still regard as
resting on what is basically just good common sense, was that a man
does not have to tell all about his previous beliefs and
associations in order to establish his good character and
loyalty.
When the majority turns to the interest on the other side of the
scale, it admits that its decision is likely to have adverse
effects upon free association caused by compulsory disclosures, but
then goes on to say that those adverse effects will be "minimal"
here, first, because Bar admission interrogations are private and,
secondly, because the decisions of Bar admission committees are
subject to judicial review. As to the first ground, the Court
simply ignores the fact that California law does not require its
Committee to treat information given it as confidential. [
Footnote 2/33] And besides, it taxes
credulity to suppose
Page 366 U. S. 73
that questions asked an applicant and answers given by him in
the highly emotional area of communism would not rapidly leak out
to the great injury of an applicant -- regardless of what the facts
of his particular case may happen to be. As to the second ground
given, the Court fails to take into account the fact that judicial
review widens the publicity of the questions and answers and thus
tends further to undercut its first ground. At the same time, such
review, as is demonstrated by this and the companion case decided
today, [
Footnote 2/34] provides
small hope that an applicant will be afforded relief against
stubborn efforts to destroy him arbitrarily by innuendoes that will
subject him to lasting suspicions. But even if I thought the Court
was correct in its beliefs that the interrogation of a Bar
applicant would be kept confidential and that judicial review is
adequate to prevent arbitrary exclusions from the Bar, I could not
accept its conclusion that the First Amendment rights involved in
this case are "minimal."
The interest in free association at stake here is not merely the
personal interest of petitioner in being free from burdens that may
be imposed upon him for his past beliefs and associations. It is
the interest of all the people in having a society in which no one
is intimidated with respect to his beliefs or associations. It
seems plain to me that the inevitable effect of the majority's
decision is to condone a practice that will have a substantial
deterrent effect upon the associations entered into by anyone who
may want to become a lawyer in California. If every person who
wants to be a lawyer is to be required to account for his
associations as a prerequisite to admission into the practice of
law, the only safe course for those desiring admission would seem
to be scrupulously to avoid
Page 366 U. S. 74
association with any organization that advocates anything at all
somebody might possibly be against, including groups whose
activities are constitutionally protected under even the most
restricted notion of the First Amendment. [
Footnote 2/35] And, in the currently prevailing
atmosphere in this country, I can think of few organizations active
in favor of civil liberties that are not highly controversial.
[
Footnote 2/36] In addition, it
seems equally clear that anyone who had already associated himself
with an organization active in favor of civil liberties before he
developed an interest in the law would, after this case, be
discouraged from spending the large amounts of time and money
necessary to obtain a legal education in the hope that he could
practice law in California.
Thus, in my view, the majority has reached its decision here
against the freedoms of the First Amendment by a fundamental
misapplication of its own currently, but I hope only temporarily,
prevailing "balancing" test. The interest of the Committee in
satisfying its curiosity with respect to Konigsberg's "possible"
membership in the Communist Party two decades ago has been inflated
out of all proportion to its real value -- the vast interest of the
public in maintaining unabridged the basic freedoms of speech,
press and assembly has been paid little if anything more than lip
service -- and important constitutional rights have once again been
"balanced" away. This, of course, is an ever-present danger of the
"balancing
Page 366 U. S. 75
test" for the application of such a test is necessarily tied to
the emphasis particular judges give to competing societal values.
Judges, like everyone else, vary tremendously in their choice of
values. This is perfectly natural and, indeed, unavoidable. But it
is neither natural nor unavoidable in this country for the
fundamental rights of the people to be dependent upon the different
emphasis different judges put upon different values at different
times. For those rights, particularly the First Amendment rights
involved here, were unequivocally set out by the Founders in our
Bill of Rights in the very plainest of language, and they should
not be diluted by "tests" that obliterate them whenever particular
judges think values they most highly cherish outweigh the values
most highly cherished by the Founders.
Moreover, it seems to me that the "balancing test" is here being
applied to cut the heart out of one of the very few
liberty-protecting decisions that this Court has rendered in the
last decade.
Speiser v. Randall [
Footnote 2/37] struck down, as a violation of the
Federal Constitution, a state law which denied tax exemptions to
veterans who refused to sign an oath that they did not advocate
"the overthrow of the Government of the United States or of the
State of California by force or violence or other unlawful means. .
. ." [
Footnote 2/38] The case
arose when certain veterans insisted upon their right to the
exemptions without signing the oath. The California Supreme Court
rejected the veterans' constitutional contention that the state law
violated due process by placing the burden of proof upon the
taxpayer to prove that he did not advocate violent overthrow of the
Government. This Court reversed, with only
Page 366 U. S. 76
one Justice dissenting, on the ground that the necessary effect
of such an imposition of the burden of proof "can only result in a
deterrence of speech which the Constitution makes free." [
Footnote 2/39] Indeed, the majority
opinion in the
Speiser case distinguished the very cases
upon which the majority here is relying on the ground that
"the oaths required in those cases performed a very different
function from the declaration in issue here. In the earlier cases,
it appears that the loyalty oath, once signed, became conclusive
evidence of the facts attested so far as the right to office was
concerned. If the person took the oath, he retained his position.
The oath was not part of a device to shift to the officeholder the
burden of proving his right to retain his position. [
Footnote 2/40]"
But that is precisely what is happening here. For, even though
Konigsberg has taken an oath that he does not advocate the violent
overthrow of the Government, the Committee has persisted in the
view that he has not as yet demonstrated his right to admission to
the Bar. If that does not amount to the sort of shifting of the
burden of proof that is proscribed by
Speiser, I do not
know what would.
The situation in the present case is closely analogous to that
condemned in the
Speiser case, and, indeed, the major
factual difference between the two cases tends to make this case an
even stronger one. Here, as in
Speiser, the State requires
an oath that the person involved does not advocate violent
overthrow of the Government. Here, as there, the taking of the oath
is not conclusive of the rights of the person involved. And here,
as there, contrary to the implications in the majority opinion, I
think it clear that the State places upon each applicant for
admission to the Bar the burden of proving that he does
Page 366 U. S. 77
not advocate the violent overthrow of the Government. There is
one difference between the two cases, for here Konigsberg agreed to
take the oath required, and he refused to answer only when the
State insisted upon more. Surely he cannot be penalized for his
greater willingness to cooperate with the State.
The majority also suggests that the
Speiser case may be
distinguishable because it involved merely the power of the State
to impose a penalty, by way of a heavier tax burden, upon a person
who refused to take an oath, while this case involves the power of
the State to determine the qualifications a person must have to be
admitted to the Bar -- a position of importance to the public. This
distinction seems to me to be little more than a play on words.
Speiser had the burden of proving that he did not advocate the
overthrow of the Government, and, upon his refusal to satisfy this
burden, he was forced to pay additional taxes as a penalty.
Konigsberg has the burden of proving that he does not advocate the
violent overthrow of the Government, and, upon his supposed failure
to meet this burden, he is being denied an opportunity to practice
the profession for which he has expended much time and money to
prepare himself. So far as I am concerned, the consequences to
Konigsberg, whether considered from a financial standpoint, a
social standpoint, or any other standpoint I can think of,
constitute a more serious "penalty" than that imposed upon
Speiser.
In my judgment, this case must take its place in the
ever-lengthening line of cases in which individual liberty to
think, speak, write, associate and petition is being abridged in a
manner precisely contrary to the explicit commands of the First
Amendment. [
Footnote 2/41] And I
believe the
Page 366 U. S. 78
abridgment of liberty here, as in most of the other cases in
that line, is based upon nothing more than a fear that the American
people can be alienated from their allegiance to our form of
government by the talk of zealots for a form of government that is
hostile to everything for which this country now stands or ever has
stood. I think this fear is groundless, for I believe that the
loyalty and patriotism of the American people toward our own free
way of life are too deeply rooted to be shaken by mere talk or
argument from people who are wedded to totalitarian forms of
government. It was this kind of faith in the American people that
brought about the adoption of the First Amendment, which was
expressly designed to let people say what they wanted to about
government -- even against government, if they were so inclined.
The idea underlying this then revolutionary idea of freedom was
that the Constitution had set up a government so favorable to
individual liberty that arguments against that government would
fall harmless at the feet of a satisfied and happy citizenship.
Thomas Jefferson voiced this idea with simple eloquence on the
occasion of his first inauguration as President of the United
States:
"If there be any among us who would wish to dissolve this Union
or to change its republican form, let them stand undisturbed as
monuments of the safety with which error of opinion may be
tolerated where reason is left free to combat it. [
Footnote 2/42]"
In the main, this is the philosophy under which this country has
lived and prospered since its creation. There have, however, been
two notable exceptions, the first being the period of the
short-lived and unlamented alien and sedition laws of the late
1700's, and the other
Page 366 U. S. 79
being the period since the beginning of the "cold war" shortly
after the close of World War II, in which there has been a
widespread fear of an imagined overwhelming persuasiveness in
Communist arguments. The most commonly offered justification for
the liberty-stifling measures that have characterized this latter
period is that the Communists do not themselves believe in the
freedoms of speech, press and assembly, so they should not be
allowed to take advantage of the freedoms our Constitution
provides. But, as illustrated by this and many other cases, the
effect of repressive laws and inquisitions of this kind cannot be,
and is not, limited to Communists. [
Footnote 2/43] Moreover, the fact that Communists
practice repression of these freedoms is, in my judgment, the last
reason in the world that we should do so. We do not have to imitate
the Communists in order to survive. Our Bill of Rights placed our
survival upon a firmer ground -- that of freedom, not
repression.
Nothing in this record shows that Konigsberg has ever been
guilty of any conduct that threatens our safety. Quite the
contrary, the record indicates that we are fortunate to have men
like him in this country, for it shows that Konigsberg is a man of
firm convictions who has stood up and supported this country's
freedom in peace and in war. The writings that the record shows he
has published constitute vehement protests against the idea
Page 366 U. S. 80
of overthrowing this Government by force. No witness could be
found throughout the long years of this inquisition who could say,
or even who would say, that Konigsberg has ever raised his voice or
his hand against his country. He is, therefore, but another victim
of the prevailing fashion of destroying men for the views it is
suspected they might entertain.
[
Footnote 2/1]
Konigsberg v. State Bar of California, 353 U.
S. 252,
353 U. S. 273.
That decision was reached on the basis of a record containing a
large quantity of evidence favorable to Konigsberg and some scanty
evidence arguably adverse to him.
[
Footnote 2/2]
Konigsberg v. State Bar of California, 52 Cal. 2d
769, 344 P.2d 777. Mr. Justice Traynor and Mr. Justice Peters
dissented in separate opinions.
[
Footnote 2/3]
353 U.S. at
353 U. S.
260-261.
[
Footnote 2/4]
The total absence of any authoritative source for this rule is,
in my judgment, merely accentuated by the reference in the majority
opinion to the article written for the California State Bar Journal
by the Secretary of the Committee of Bar Examiners. So far as the
cases relied upon in that article are even available for study,
they do not in any way support the action of the Bar Committee
here.
[
Footnote 2/5]
Thus, it seems to me that California's rejection of Konigsberg
is not supported by any "law of the land," as required by the Due
Process and Equal Protection Clauses of the Fourteenth Amendment.
See Cohen v. Hurley, decided today,
post, p.
366 U. S. 117, at
366 U. S.
135-150 (dissenting opinion). As Daniel Webster argued
in the
Dartmouth College case:
"Are then these acts of the legislature, which affect only
particular persons and their particular privileges, laws of the
land? Let this question be answered by the text of Blackstone:"
"And first, it (
i.e. law) is a
rule: not a
transient sudden order from a superior, to, or concerning, a
particular person; but something permanent, uniform, and universal.
Therefore, a particular act of the legislature to confiscate the
goods of Titius, or to attaint him of high treason, does not enter
into the idea of a municipal law: for the operation of this act is
spent upon Titius only, and has no relation to the community in
general; it is rather a sentence than a law."
"Lord Coke is equally decisive and emphatic. Citing and
commenting on the celebrated 29th chap. of
Magna Charta,
he says,"
"no man shall be disseized, &c. unless it be by the lawful
judgment, that is, verdict of equals, or by the
law of the
land, that is, (to speak it once for all)
by the due
course and process of law."
(Emphasis as in source.)
Dartmouth College v.
Woodward, 4 Wheat. 518, 580-581 [argument of
counsel omitted from electronic version].
[
Footnote 2/6]
71 U. S. 4 Wall.
277.
[
Footnote 2/7]
71 U. S. 4 Wall.
333.
[
Footnote 2/8]
The suspicions of the Committee doubtless relate to the period
around 1941, for the Committee had heard testimony from an
ex-Communist that Konigsberg had attended meetings of a Communist
Party unit during that period. The unreliability of that testimony
was discussed in the Court's opinion when the case was here before.
See 353 U.S. at
353 U. S.
266-268.
[
Footnote 2/9]
Under the circumstances of this case, it seems clear to me that
the action of the State of California in rejecting Konigsberg is
also contrary to our decision in
Schware v. Board of Bar
Examiners of New Mexico, 353 U. S. 232. In
that case, every member of this Court who participated in the
decision expressed serious doubts with regard to the probative
value of evidence as to a Bar applicant's membership in the
Communist Party 15 years previous to our consideration of the case.
Id. at
353 U. S. 246
(concurring opinion)
353 U. S. 251.
I cannot believe that such evidence becomes more probative when, as
here, it would, if obtained, have been five years older.
[
Footnote 2/10]
See, e.g., my dissenting opinions in
Braden v.
United States, 365 U. S. 431,
365 U. S. 441
446;
Wilkinson v. United States, 365 U.
S. 399,
365 U. S.
422-423;
Uphaus v. Wyman, 364 U.
S. 388,
364 U. S.
392-393;
Barenblatt v. United States,
360 U. S. 109,
360 U. S.
140-144;
American Communications Assn. v.
Douds, 339 U. S. 382,
339 U. S.
445-453.
[
Footnote 2/11]
James Madison, for example, indicated clearly that he did not
understand the Bill of Rights to permit
any encroachments
upon the freedoms it was designed to protect.
"If they [the first ten Amendments] are incorporated into the
Constitution, independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights; they
will be an
impenetrable bulwark against
every
assumption of power in the Legislative or Executive; they will be
naturally led to resist every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of
rights."
1 Annals of Congress 439 (1789). (Emphasis supplied.)
[
Footnote 2/12]
See, e.g., Minersville District v. Gobitis,
310 U. S. 586,
310 U. S. 593;
Murdock v. Pennsylvania, 319 U. S. 105,
319 U. S. 108;
Board of Education v. Barnette, 319 U.
S. 624,
319 U. S. 639;
Staub v. City of Baxley, 355 U. S. 313
321.
[
Footnote 2/13]
See Schenck v. United States, 249 U. S.
47,
249 U. S. 52,
where Mr. Justice Holmes, writing for the Court, said:
"The question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils
that Congress has a right to prevent."
[
Footnote 2/14]
Abrams v. United States, 250 U.
S. 616,
250 U. S. 630
(Holmes, J., dissenting).
See also Gitlow v. New York,
268 U. S. 652,
268 U. S.
673:
"If in the long run the beliefs expressed in proletarian
dictatorship are destined to be accepted by the dominant forces of
the community, the only meaning of free speech is that they should
be given their chance and have their way."
(Holmes, J., dissenting.)
And see Whitney v.
California, 274 U. S. 357,
274 U. S.
378:
"Among free men, the deterrents ordinarily to be applied to
prevent crime are education and punishment for violations of the
law, not abridgment of the rights of free speech and assembly."
(Brandeis, J., concurring.)
[
Footnote 2/15]
See Abrams v. United States, 250 U.
S. 616,
250 U. S.
630-631 (dissenting opinion);
Gitlow v. New
York, 268 U. S. 652,
268 U. S.
672-673 (dissenting opinion);
Whitney v.
California, 274 U. S. 357,
274 U. S.
378-379 (concurring opinion).
[
Footnote 2/16]
See Bridges v. California, 314 U.
S. 252,
314 U. S.
260-263.
[
Footnote 2/17]
83 F.2d 201, 212;
341 U. S. 494,
341 U. S.
510.
[
Footnote 2/18]
Roth v. United States, 354 U.
S. 476,
354 U. S. 514
(dissenting opinion).
See also Labor Board v. Virginia Electric
& Power Co., 314 U. S. 469;
Giboney v. Empire Storage Co., 336 U.
S. 490.
[
Footnote 2/19]
See, e.g., Meiklejohn, What Does the First Amendment
Mean? 20 U. of Chi.L.Rev. 461, 464.
[
Footnote 2/20]
Cf. Boyd v. United States, 116 U.
S. 616,
116 U. S.
635:
"[C]onstitutional provisions for the security of person and
property should be liberally construed. A close and literal
construction deprives them of half their efficacy, and leads to
gradual depreciation of the right, as if it consisted more in sound
than in substance. It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy
encroachments thereon."
[
Footnote 2/21]
343 U. S. 250.
[
Footnote 2/22]
The Court opinion here apparently treats the
Beauharnais case as having decided that the Federal
Government has power, despite the First Amendment, to pass
so-called "group libel" laws. This, I think, is wholly unjustified.
The
Beauharnais opinion was written on the assumption that
the protection afforded the freedoms of speech and petition against
state action by the Fourteenth Amendment amounted to something less
than the protection afforded these freedoms against congressional
action by the First Amendment. Thus, as pointed out in my dissent
in that case, the majority in
Beauharnais never even
mentioned the First Amendment, but upheld the state "group libel"
law on the ground that it did not violate "civilized
canons of
decency,' reasonableness, etc." See 343 U.S. at
343 U. S.
268-269. See also the dissent of Mr. Justice
Jackson at 343 U. S.
287-305.
[
Footnote 2/23]
The story of the use by the Federalists of the Alien and
Sedition Acts of 1798 as a weapon to suppress the political
opposition of the Jeffersonians has been graphically told in
Bowers, Jefferson and Hamilton, at 362-411.
[
Footnote 2/24]
See, e.g., Roth v. United States, 354 U.
S. 476.
[
Footnote 2/25]
See, e.g., Chaplinsky v. New Hampshire, 315 U.
S. 568.
[
Footnote 2/26]
"The founders of our federal government were too close to
oppressions and persecutions of the unorthodox, the unpopular, and
the less influential to trust even elected representatives with
unlimited powers of control over the individual. From their
distrust were derived the first ten amendments, designed as a whole
to 'limit and qualify the powers of Government,' to define 'cases
in which the Government ought not to act, or to act only in a
particular mode,' and to protect unpopular minorities from
oppressive majorities. 1 Annals 437. The first of the ten
amendments erected a Constitutional shelter for the people's
liberties of religion, speech, press, and assembly. This amendment
reflects the faith that a good society is not static, but
advancing, and that the fullest possible interchange of ideas and
beliefs is essential to attainment of this goal. The proponents of
the First Amendment, committed to this faith, were determined that
every American should possess an unrestrained freedom to express
his views, however odious they might be to vested interests whose
power they might challenge."
Feldman v. United States, 322 U.
S. 487,
322 U. S. 501
(dissenting opinion).
[
Footnote 2/27]
Typical of such cases are those referred to by the majority in
its opinion here:
Schneider v. State, 308 U.
S. 147;
Cox v. New Hampshire, 312 U.
S. 569;
Prince v. Massachusetts, 321 U.
S. 158;
Kovacs v. Cooper, 336 U. S.
77.
[
Footnote 2/28]
Schneider v. State, 308 U. S. 147,
308 U. S.
161.
[
Footnote 2/29]
339 U. S. 339 U.S.
382, especially at
339 U. S.
398-400.
[
Footnote 2/30]
341 U. S. 341 U.S.
494, especially at
341 U. S.
508-509.
[
Footnote 2/31]
See also the discussion of these street regulation
cases in my dissenting opinion in
Barenblatt v. United
States, 360 U. S. 109,
360 U. S.
141-142.
[
Footnote 2/32]
The majority places some stress upon the fact that the Committee
did not have independent investigatory resources with which to seek
further evidence. In view of the complete reliance upon this
decision to justify the use of an identical procedure in
In re
Anastaplo, decided today, post, p.
366 U. S. 82, where
the bar admission committee not only had investigatory resources,
but also utilized them to the fullest, this fact must be of little
"weight" in the constitutional "balance."
[
Footnote 2/33]
In this regard, the situation is identical to that invalidated
as unconstitutional by our decision in
Shelton v. Tucker,
364 U. S. 479.
Indeed, the absence of such a requirement was there stressed as an
important part of the ground upon which that decision rested.
Id. at
364 U. S.
486.
[
Footnote 2/34]
In re Anastaplo, supra. See also the
discussion in my dissenting opinion in that case, especially at pp.
366 U. S.
108-112.
[
Footnote 2/35]
The situation here is thus identical to that in
Speiser v.
Randall, where the Court expressly recognized the danger to
protected associations.
See 357 U.
S. 513,
357 U. S.
526.
[
Footnote 2/36]
Cf. Shelton v. Tucker, supra, at
364 U. S. 486,
n. 7, where we took note of testimony that efforts were being made
to remove from a school system all teachers who supported such
organizations as the American Civil Liberties Union, the Urban
League, the American Association of University Professors, and the
Women's Emergency Committee to Open Our Schools.
[
Footnote 2/37]
357 U. S. 357 U.S.
513.
[
Footnote 2/38]
Section 32 of the California Revenue and Taxation Code. This
section was set out in full in the majority opinion in
Speiser. 357 U.S. at
357 U. S.
516-517, n. 2.
[
Footnote 2/39]
357 U.S. at
357 U. S.
526.
[
Footnote 2/40]
Id. at
357 U. S. 528.
The cases so distinguished were
Garner v. Board of Public
Works, 341 U. S. 716;
Gerende v. Board of Supervisors, 341 U. S.
56, and
American Communications Assn. v. Douds,
339 U. S. 382.
[
Footnote 2/41]
This line has already been considerably lengthened during this
very Term of Court.
See, e.g., Uphaus v. Wyman,
364 U. S. 388;
Times Film Corp. v. City of Chicago, 365 U. S.
43;
Wilkinson v. United States, 365 U.
S. 399;
Braden v. United States, 365 U. S.
431.
[
Footnote 2/42]
Thomas Jefferson, First Inaugural Address, March 4, 1801. This
address is reprinted in Jones, Primer of Intellectual Freedom 142,
143 (Harvard University Press, 1949).
[
Footnote 2/43]
"Centuries of experience testify that laws aimed at one
political or religious group, however rational these laws may be in
their beginnings, generate hatreds and prejudices which rapidly
spread beyond control. Too often it is fear which inspires such
passions, and nothing is more reckless or contagious. In the
resulting hysteria, popular indignation tars with the same brush
all those who have ever been associated with any member of the
group under attack or who hold a view which, though supported by
reversed Americans as essential to democracy, has been adopted by
that group for its own purposes."
American Communications Assn. v. Douds, 339 U.
S. 382,
339 U. S.
448-449 (dissenting opinion).
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE joins,
dissenting.
This judgment must be reversed even if we assume with Mr.
Justice Traynor in his dissent in the California Supreme Court,
52 Cal. 2d
769, 774, at 776, 344 P.2d 777, 780, at 781-782, that
"a question as to present or past membership in [the Communist
Party] is relevant to the issue of possible criminal advocacy, and
hence to [Konigsberg's] qualifications."
The Committee did not come forward, in the proceeding we passed
upon in
353 U. S. 353 U.S.
252, nor in the subsequent proceeding, with evidence to show that
Konigsberg unlawfully advocated the overthrow of the Government.
Under our decision in
Speiser v. Randall, 357 U.
S. 513, the Fourteenth Amendment therefore protects
Konigsberg from being denied admission to the Bar for his refusal
to answer the questions. In
Speiser, we held that
". . . when the constitutional right to speak is sought to be
deterred by a State's general taxing program due process demands
that the speech be unencumbered until the State comes forward with
sufficient proof to justify its inhibition."
357 U.S. pp. 528-529. "There may be differences of degree," Mr.
Justice Traynor said, "in the public interest in the fitness of the
applicants for tax exemption and for admission to the Bar"; yet, as
to the latter also, "Such a procedure is logically dictated by
Speiser. . . ." 52 Cal.2d p. 776, 344 P.2d p. 782. And
unless mere whimsy governs this Court's decisions in situations
impossible
Page 366 U. S. 81
rationally to distinguish, such a procedure is indeed
constitutionally required here. The same reasons apply. For Mr.
Justice Traynor was entirely right in saying:
"Whatever its relevancy [the question as to past or present
Party membership] in a particular context, . . . it is an
extraordinary variant of the usual inquiry into crime, for the
attendant burden of proof upon any one under question poses the
immediate threat of prior restraint upon the free speech of all
applicants. The possibility of inquiry into their speech, the heavy
burden upon them to establish its innocence, and the evil
repercussions of inquiry despite innocence, would constrain them to
speak their minds so noncommittally that no one could ever mistake
their innocuous words for advocacy. This grave danger to freedom of
speech could be averted without loss to legitimate investigation by
shifting the burden to the examiners. Confronted with a
prima
facie case, an applicant would then be obliged to rebut
it."
Id., p. 776, 344 P.2d p. 782.
The Court admits the complete absence of any such predicate by
the Committee for its questions. The Court attempts to distinguish
the situations in order to escape the controlling authority of
Speiser. The speciousness of its reasoning is exposed in
MR. JUSTICE BLACK's dissent. I would reverse.