Konigsberg v. State Bar of California

No. 28

Argued December 14, 1960

Decided April 24, 1961

366 U.S. 36

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

Syllabus



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.



(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.



(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.



(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.



52 Cal.2d 769, 344 P.2d 777, affirmed. [366 U.S. 37] HARLAN, J., lead

opinion



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 [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.  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. 259-262. 

The case was remanded [366 U.S. 39] to the State Supreme Court "for

further proceedings not inconsistent with this opinion."  Id. 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.  The California Supreme Court, by a divided vote,

refused review, and also denied Konigsberg's motion for direct admission

to practice.  52 Cal.2d 769, [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" -- a [366 U.S. 41]

requirement whose validity is not, nor could well be, drawn in question

here.



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 [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.  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

[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 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 [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, 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. 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 [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, 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 [366 U.S. 46] inferences as to petitioner's

character qualifications, 353 U.S. at 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 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 [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. [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 [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, 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.{10}  Throughout

its history, this Court [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.{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 [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, 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, 198; NAACP v. Alabama, supra; Barenblatt v.

United States, 360 U.S. 109,  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 [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,  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 [366 U.S. 53] NAACP v. Alabama,

supra, at 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, 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, 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. 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 [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. 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.

[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."{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, 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 [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 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 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. BLACK, J., dissenting



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 [366 U.S. 57] so, we held that

there was "no evidence in the record" which could rationally justify

such a conclusion.  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.



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, [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. 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.  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.  This

alone would be [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 and Ex parte

Garland.  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.  I agree with the implication of the majority opinion

that this is [366 U.S. 60] not an adequate ground to reject Konigsberg,

and that it could not be constitutionally defended.



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 [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,{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.{11}  Of course, the First Amendment originally applied only

to the Federal Government, [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.{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.{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.{14}  The "clear [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.{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,{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 [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.{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.{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 [366

U.S. 65] are limited to somewhat broad areas like those.{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.{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,{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,{22} this Court there concluded that [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.{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"{24} or "fighting words,"{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 [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.{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 [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 [366 U.S. 69] purposes.{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.{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 [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{29} and Dennis v. United

States.{30}  And the use being made of those cases here must be

considered as falling squarely within that class.{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 [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.{32}  So the issue

in [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.{33}  And besides, it taxes credulity to suppose [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,{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 [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.{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.{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 [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{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. . . ."{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 [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."{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.{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

[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.{41}  And I believe the

[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.{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 [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.{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 [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. BRENNAN, J.,

dissenting



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. 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 [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. Footnotes HARLAN, J., lead opinion (Footnotes)



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.



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.



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.



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).



5. For reasons given later (pp. 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.



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.



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.



8. The transcript of the original hearing before the Committee has been

made part of the record before us in the present case.



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.



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, 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.



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, 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, 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, 716.)



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." BLACK, J.,

dissenting (Footnotes)



1. Konigsberg v. State Bar of California, 353 U.S. 252, 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.



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.



3. 353 U.S. at 260-261.



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.



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. 117, at 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].



6. 4 Wall. 277.



7. 4 Wall. 333.



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 266-268.



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 246 (concurring opinion) 251.  I cannot believe that such evidence

becomes more probative when, as here, it would, if obtained, have been

five years older.



10. See, e.g., my dissenting opinions in Braden v. United States, 365

U.S. 431, 441 446; Wilkinson v. United States, 365 U.S. 399, 422-423;

Uphaus v. Wyman, 364 U.S. 388, 392-393; Barenblatt v. United States, 360

U.S. 109,  American Communications Assn. v. Douds, 339 U.S. 382,



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.)



12. See, e.g., Minersville District v. Gobitis, 310 U.S. 586, 593;

Murdock v. Pennsylvania, 319 U.S. 105, 108; Board of Education v.

Barnette, 319 U.S. 624, 639; Staub v. City of Baxley, 355 U.S. 313 321.



13. See Schenck v. United States, 249 U.S. 47, 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.



14. Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting).

 See also Gitlow v. New York, 268 U.S. 652, 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, 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.)



15. See Abrams v. United States, 250 U.S. 616, (dissenting opinion);

Gitlow v. New York, 268 U.S. 652, (dissenting opinion); Whitney v.

California, 274 U.S. 357, (concurring opinion).



16. See Bridges v. California, 314 U.S. 252,



17. 83 F.2d 201, 212; 341 U.S. 494, 510.



18. Roth v. United States, 354 U.S. 476, 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.



19. See, e.g., Meiklejohn, What Does the First Amendment Mean?  20 U. of

Chi.L.Rev. 461, 464.



20. Cf. Boyd v. United States, 116 U.S. 616, 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.



21. 343 U.S. 250.



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 268-269.  See also the dissent of

Mr. Justice Jackson at 287-305.



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.



24. See, e.g., Roth v. United States, 354 U.S. 476.



25. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568.



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, 501 (dissenting

opinion).



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.



28. Schneider v. State, 308 U.S. 147, 161.



29. 339 U.S. 382, especially at



30. 341 U.S. 494, especially at



31. See also the discussion of these street regulation cases in my

dissenting opinion in Barenblatt v. United States, 360 U.S. 109,



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. 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."



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

486.



34. In re Anastaplo, supra.  See also the discussion in my dissenting

opinion in that case, especially at pp. 108-112.



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, 526.



36. Cf. Shelton v. Tucker, supra, at 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.



37. 357 U.S. 513.



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  n. 2.



39. 357 U.S. at 526.



40. Id. at 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.



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.



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).



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, (dissenting opinion). 