Petitioners Reply Brief — Konigsberg v. State Bar of Cal.

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IN THI.

>upreme Court: of (Ire United Sates -

: ‘Oc “TOBER Trea, a 00.

Bors Se oe 7°

MEL JNONIGSBERG, :

. ei etitioner,

. "OS.

ve EXAMINERS OF THE State or Cartrornti.

PETITIONER'S REPLY BRIEF.

° . ‘

IepWARD - Mosk, _

6303 Yucca Street, i

\ bo ss Angeles 28, California,

Pxtorney for Petit wren.

: a

° ’

; \

ROSENWEIN, ; he. 7a a

Of Counsel. eo }

BAR OF CALIFQRNIA AND. EE -CouMITTER OF

---

o”

~~.

een

* _ PAGE

‘.

2 Introduction dapetesientiscnlicstsimbideassiciianep et tais taba AEA ee Pere eS SEN :.

| | S-; ae

Petitioner’s response... ..-cccccsseceeeeeeeeeeeesosse Tee NH TER Sg PO

A.;: The questions as presented by respondent’ incorrectly

, Pose the issues of this case... ccc. Stieniaiicineagee

B. - Respondent's restatement. of the applicable constitu-

tional and statutory provisions emphasizes the denial

of due process to this petitioner... cecececedeeeees 4

il Respondent’ $ statement of facty does not adequately

‘present the pos “Span sense a RED 6.

* D.. It*is no answer \to the constitutional issue of this ease

to state that the. power to avoid the issues of this case

are in the hands of the petitioner mee saeeudiiirmneniisifessbsiuaiie 9

_ E. Petitioner did not “misgauge the effect of the existing

oi EO SRE ca GR 5 SRR 9

F. Reliance on the first amendment cannot be analogized

to refusal to answer questions regarding criminal | ac-

ee ee Seumanpuoceage 11

G.. Petitiorrer socks to iene rather than weaken the ;

integrity and the moral fiber of the law..................... 12

H. The respondent assumes the basic -fact at issue in rely-

ing on the very decision of the. Supreme Court of Cali-

fornia which is here in question as proof of prior

existing Califopnia law.:........ccceccccssecsssssssssvecssseeeescresesenees .

I. The prigr decisions of California couris are inapplica- |

ble to the present case........ tevcenseseesenvessnessevecaseresessdersweseeseeees 14

pa The breadth of the rule sought by respondent violates

RR I I ith irsatcssistis nies Seinen cee 15

* K.° The prior decisions of this court do not justify the

— s avi hadputiaintconmineciqedeubcthigilennieante oo 16

Il... |

IE satin aabanads 18

. . ° :

TABLE OF AUTHORITIES CITED

Cases ws "PAGE

* Barenblatt v. United States, 360 U_S-109.... oe 17, 18

Beilan v. Board ‘of EAucation, 357 U. S. 398.........-+ 16, 17,-48—

* Communist.Party v. Peek, 20 Cal. 2d $36..cccsccsonnececisnseee 10

Konjgsberg v. State Bar, 353 U.S. 252...cceenou 2, 5, 6, 7, 17

Lertier v. Cavey, 357 U. Se 468....cscoscsseusoeeessseennene oe Se

Schneiderman ve United States, 320° U. S. 118...:............. Se 16

. Schware v. New Mexico, 353 U. S. 232........... MLB Re ae .

Speiser v. Randall, 357 U. S. ee Es < ' 13

Wieniaar’v. Updegra6t; 344. Us S. 18S ccccenecorecemereneeneeeee 16

Yates j v. United States, 354 U.S. 298.:.....Qccceedereeee camicaie 10, 16

RULES

_ Rules Regulating Admission '» the Practice seta in Cali-

fornia, Rule X, footnote, p. 22...ccccceeeeeeeeen Soe tees en Romeenes a 13

STATUTES

California Business and ‘Sakeuion Code, Sec. 6047. React ey

California Business and Professions (Code, Sec. 6060........... 4

California Business and Professions Cpde, Sec. 6064.1........ 5, 13

United States Code Annotated, Ti®fe 50, See. 783(f).ecccoe M

* United States Constitution, First Amendments...ccccccoote 152 5

—

——— —

"IN, THE

Supreme Court of the United States

‘Ocroser Term, 1960

No. 28

RAPHAEL ‘KONIGSBERG,

Petitioner,

US.

STATE Bar oF > CALIFORNIA AND THE COMMITTEE OF

Bar EXAMINERS OF THE STATE OF CALIFORNIA. s

PETITIONER'S REPLY BRIEF.

eee a

f Introduction. .

Respondent has completely failed -to come to grips

with the’ basic fgets of this case. In essence respond-

ent treats this case as though it had not already once

been decided by this Court. Only by ignoring the his- —

‘tory of the case and the true factual situation which

‘presents itself could respondent fail to recognize the fun-

dantental denial of due precess which petitioner has sur

fered at the hands of the State of California,

Respondent overlooks petitioner's long record of. high .

repute attested by more than fifty prominent citizens

af the Los Angeles o mmunity. Respondent overlooks

the findings of this Court that petitioner had met his

burden of proof that he was a person of good moral

character and the finding that no credible evidence could

support an infererice that he advocated the overthrow_

of the government by force and—vislence: Respondent.

___fails to-even-note that the present record in. every. ma-

terial aspect is identical with the record before the Court

in the 1956 term.

~ Since respondent has failed to meet the basic prob- +

lems as. set forth in petitioner's brief, petitioner will |

confine his response in this brief to meeting indivduab

arguments rased in the reply even though in petitioner’ §

view the entire argument of respondent is predicated on’

a faulty analysis of the record. The points raised "

~Tespondent will, therefore, be taken up in this reply a

presented, without endeavoring to reiterate in any :

tail the statement of position set forth in petitioner’s

~ Opening Brief.

II.

Petitioner’ s Response, .

A. The Questions as Presented. by Respondent Incor-

7, rectly Pose the Issues of This Case.

The First Question* is framed by respondent in broad

‘terms but those terms da not necessarily apply to -this

case. This question, as fornjulated need not be deter-

mined by this Court in cal to resolve the basic is-

sues of this’ case. Respondent seeks te have this Court.

validate a principle requiring an applicant for admission |

*“1. Is the denial by the California Supreme Court ” the pe-

titioner’s application for admission to the Bar on the Ground that

he refused to.disclose his relationship with the Communist Party .

" in the presént and recent past consistent with the decision of this

Court in Konigsberg v. State Bar; 353 U. §. 252?”

to the Bar to respond to questions relating to. possi ble

Communist Party affiliat under all circumstances and:

without regard to other factors which appear in the

_reestds— No such broad decision fs required by the rec-

-ord at bar wherein petitioner has established beyond any

doubt his good moral character and “has shown. by his

. Statements, the evidence of other persons, and his writ’

_ ings\at a time too early to be self serving that -he does .

‘not advocate the overthrow of the government by force -

and violence. © On this record, thén, this-Court can hold

it would be a denial of due process to require this pe-

titioner td -answer these questions: asked in the manner

and at the time that ‘the questions were asked. There-

fore, the posing of theft question in the broad and gen-

eral terms chy$en by respondent \places* an unnecessary

burden upon; _ Court for the purposes ai, this case.

¥, the second question* presented by ‘respond:

the: real question, This question assumes that

fornia law existed before petitioner entered law school’

requiring ‘the answering. of the questions at issue in this

éase. It should be noted, however, that this case was

before this Court in’ its October Term 1956, and the .

same respondent failed to -call-to the’ attention of the

Court. any such law, case, orCommittee rule at that

time and in’ the present brief the only authority “cited

is the ‘decision of the. Court below. in this sélf-samie case.

It-is submited that to thus lay claim to ‘a “long stand-

ing role of Califcrnia Law” is sheer sophistry.

a’ “¢ A

“2 Does the Senial by the California Supreme Court of the

petitioner's “application for admission to the -Bar. onthe basis .

of California law in existence before’ the petitioner entered law

school raise any constitutional. issue independent of those’ pre-

- sented. by the substance of the law applied?" —.—

The. third questi m* presented : by respondent assumes

‘that the “adequate warning” to: which this Court alluded

in its prior decision’ was intended to apply to the across-

the-table Statements of the Committee chairman relied

upon by respondent in this record, rather than'a rule of .-

stature, Oe ars

Finally the’ manner in which the fourth question** is

presented to this Court indicates by its very phrasing

that the respondent is in reality drawing unfavorable

inferences about petitioner from his -fadlure to ariswer

the question; not merely barring, his admission to prac-

tice law because shis failure to answer -an allegedly rele-

vant question “obstructed” its: inquiry into his morality

and advocacy. Sa ohana ae

_* a

B. Respondent's Restatement of the Applicable Consti-

tutional and Statutory Provisions Emphasizes the

Denial of Due Process to This Petitioner.

Respondent's setting forth of the pertinent provisions

of California Law draws attention. to’ the fundamental

fact that petitioner .here ‘has complied« with every one

of the requirementg of California Law and reaffirms -

that the refusal .of ‘the State of California to admit

{petitioner to the Bar denies him. due process of’ law.

_ For example, Section 6060 of the Business and Profes-

sions Code of the State of California as set forth by. -

° ’

..*"3. Was the petitioner given. adequate warning by the Com-

mittee investigating his fitness to practice law that his continued

refusal to disclosé his relationship with the Communist Party in

the .present and the recent past would result in the denjal of his

application for admission to the bar?”

**"4. Does the denial by the Califorgia.Supreme’ Court of the

petitioner's application for admission to the, Bar on the’ ground

that he refused to disclose his relationship with the Communist

Party in the present andthe recent past deny any of the peti-

tianer’s constitutional rights?” Py af at

—5— 3

the * respondent, establishes tour basic. cgnditions. . There

is no assertion arly where in Respondent's Brief that pe-

titigner has’ failed In any particular to comply with these

provisions. Nowhere in Respondent's Brief is thére a

suggestion that petitioner is not of good moral character

~ and in view of the’ finding of this Court on -an identical

_ record in Konigsberg v. State’ Bar, 353 U..S. 252, no

such assertion could be made in good Faith by. respond-

ent. : ‘

‘Similarly, with reference to- Section’ 6064.1 of ‘the

. Business and Prdéfessions Code of the State. of Califor-

‘nia the record ‘remains devoid of evidence indicating that

" petitioner advocates overthrow of the. Goyernment by” -

force and violence or“other unconstitutional means. Again

on this point, the récord stands"on all fours with the

record before’ this Court when it held that. petitioner

vas worthy of admission.

One then n. camtines in vajn the, iemainder of the ‘Cited ’

statutory, provisions to find any ‘authority for the posi- *

tion that petitioner is not duly qualified to be a mem-

ber of the Bar of the State of California. One notes

that Section 6047. of the California Business and Pro-

fessions Code specifically empowers. the Committee of

Bar Examiners, subject to the approval of ‘the “State

Bar's Board of Gevernors. to adopt such “reasonable

‘rules and regulations” as may be necessary from time

_to time. While petitioner believes that a rule that bars

trom admission under -all circumstances a ‘person who,

fails or declines to answer a question which the Com-

mittee deems to be relevant would be apen to grave con.

_ Suitytionah doubt, nevertheless on the facts of this .case

na such rule had ever been enacted or adopted by the

le -gislature; the courts or the organized Bar of the- State

-*@

; 7 . :

oteCalifornia. This Court, theretore, is not taced with. ~

Je difficult constitutic mal que stions to which it Teferred .

in the Konigsherg decision. .

° ¢

. C,. Respondent's Statement of Facts Does Not Adequately

Present the Posture of This Case. - ‘le

The Statement of Faets presented by respondent, “cori:

taining: primarily qiiviations from the Chairman of the

C ommittee of Bar Examiners. and. petitioner, fails to

give the entire, picture, and in some cases.the statements,

taker by respondent out of context, fail .to fully. disclose

the principled positign upon which ™ petitioner has

. Tested at all times.

Petigioger has ¢arefully reviewed the “facts Yin his

_ Opening Statement and these facts need not be: répeated

again’ here except ‘to ‘pint out that petitioner at no time -

obstructed the. irivestigation of respondent, even assum- .

_ ing -for purposes of this discussion that the nature of the |

‘investigation was a proper.one. The mere fact that the ©

". “Chairman of the Committee states on. the record that

the. cammittee’s function would _be ’ frustrated does not

establish this as a fact. Tt should be noted that in the

middle of page 7. of Respondent's $ Brief, the Chairman of

the Committee is quoted. as stating tat“... . investiga-

tion can be carried out in a number wy ways.” (Em-~

phasis supplied. ) * By the same token, petitioner respond-

ed ina number of w ays to the requests of the Committee

for information. He answered in as honest and straight-

*And even if such a rule or regulation or law had been -

adopted ‘subsequen: to the decision in Konigsherg v. State Bar,

353 U.S. 252, it obviously could. not be applied in an ex post

facto manner to Konigsberg. The only issue that would remain

at that time would’ be whether Such a rule, regulation or law

could be constitutional as te subsequent applicants far the Bar

who were properly warned of its, existence. %

“science.

oe : e ae . — ‘ | yy

forward a manner as any witness could passibly answer ,-

ty all of the questions of the Committee save the. re-

mete. few which‘ fell withit the restrictions ot his con-

- Petitioner does not challenge the individual “integrity

of the-members of+ the Committee’ of ‘Bar Examiners

but it is manifest ffom the record that their collective

objective was to find a technical means .to nullify the

effect of the decision of this Court in Konigsberg v.

State Bar. Had. theit objective -been obtaining ‘informa-

" tion, about petitioner, a “number ‘of” chagnels were open. ¢

‘to the committee which would ‘not have encroached upon

‘ the obvious and thoroughly ‘articulated’ scruples vf cor |

s ‘ience which prevented the , Petitioner ‘from: responding»

» this single question.

— Committee had nanies of more than fifty per-

‘Sons* given it by petitioner: of whom it could have in-

quired regarding his activities and charactér. _ It may be

‘assumed that such inquires were made, because the’ Com-

mittee conceded that it had an. investigator looking into

the background at this petitioner. . These. i Witnesses could

have been subpoenaed and required to testify concerning ¢

_ petitioner ‘and. their knowledge of him, but none was

_in the truth’ to’ do this it could at least have ‘cross-ex-

called. «If the Committee was not ‘sufficiently interested

amined the* witness produced in person. by petitioner.

Rut. the Committee” chi se, H* excuse that witness w ithout

turther inquiry. The admitted availability of other chan- °

nels of information cleafly indicates that ‘the frustra-

tion or obstruction argument is 4 specious one which at

least on the record of: this case cannot be utilized. with-.

ut becoming a denial of due process of law to the pe-

thioner. ; . a ,

*See 1956 Record 287-334; 1960 Record 39-50, .

Q ‘

Again in the footnote on page 9, the respondent sug-

gests that*petitioner’s ‘statement that he never advocated

the overthrow ot the G vernment of belonged to an or-

waniz: tien that advocated the overthrow of the Govern-

ment: is. * “unsupported.” One is impelled to question

why, with no‘ contrary ev idence in the record, the State-

. ment, should require any. Support: But beyond that, re-

spondents suggestion overlooks the fact. that'one of the

“newspaper articles mffered by the respondent at the first

series of hearings’ was an article in which petitioner:

clearly, forthrightly* and without hesitation. and at a

“time. v wgren jthe issues. of this case- had not yet arisen,

spoke out: strongly against any doctrine of advocacy of

‘eertircAy of the Government by force and violence, or.

ny other utilization of unconstitutional means. :

The er; cumeni advan ced at the bottom of. page .10

and top of page 11 « i Respondent’s Brief again shows:

A compete lack of pees of the basic prin-

cipks oF petitioner's position here. Respondent endeav-

ors to equate the refusal (f some bar. appligants.to an-

swer questions regarding’ specific criminal activities

with petitioner's principled ceclinaton to respond to an-

invasion of the Constitutional. protection of the -First

Amendment. Respondent's failure to understand this

fandamental distinction is indic ated later in Respondent's

Brief wherein respondent cffés cases’ (pp. 2629) of law-

vers denied admission 40 the Bar for. ‘fraudulent. state-

ments or affirmativ e failures to disclose’ proven past ille-

gal activities. These cases, as will be pointed out, cannot

be equated with-the assertion by petstioner af his right to

_~ remain silent in a constitutionally protected area.

*1956 Record |. 95. . ee

“Fe: —— 9. .

D. It Is No Answer to the Constitutional Issues of This

Case to State That the Power to Avoid the Issues of

This Case Are in the Harids of the Petitiorier.

Respondent: suggests at several points in its grief that

“the power to’ remove this impedimert to his qualifi-

cations always Was and. ts now in -the petitioner’ s hand.”

This, of? course, begs the issues even as. presented by

respondent. cq ie

# There has never. heen 3 any ‘doubt in petitioner's mind

that if he were walling to, stifle his conscience and if hé

were- willing to, waive his Constitutional - ‘rights he could

and would secure his admission. to the Bar of the State

of California. - Any citizen faced with an ‘invasion of

his rights can settle. for exped ency by waiving them: but’

it certainly need not be labored before this Court that if

all citizens accepted this Opportunistic position the virility

of the Constitution and this nation heel soon ‘be sapped.

E. Petitioner: Did Not “Misgauge in Effect - of the

: Existing Law”. .

Respondent, in apparent disregard of this Come s state-

ment that even in another case arising under other cir-

cumstances the right of an admittee to decline to answer

_sjuestions of ‘the type’ put to the petitioner would raise

-grave Constitutional questions, (333 U. S. 252; 261).

suggests that there Was some kind of a clear levislative

mandate requiring petitioner to answer this specific ques-

. tigm Aside from brushing off the: “difficult “Consti-

tutional questions” involved respondent misstates: the law

of California at the time that these hearings, were held.

It ‘has already been pointed ote in. prior briefs and

“inthis” brief “that there was no law. ‘Tule-or- court “deci-

sion substantiating ‘the position advanced by respond-

adie

ent In ‘addition it is submitted that, there was ample

reason for petitioner in good faith: to assume the con-

trary. L.

Mrst of all, this Court stated that, “If and when. a_ .

State makes a failure to answer a question an independ-

ent ground for exclusion from the Bar, then this court,

as the case arises@will have to determine whether the

_ exclusion is Constitutionally permissible.”” (353 -U.. S.

252, 261.) cone es

In addition, California courts had, in a case degling

with the Jegality of the Communist Party, deternpined

only a few years before petitioner entered into the {tidy

of law that the’ Communist Party was a legai pohtical

party in -the State of California. and had erected no

proscription or prohibition against membership. .(See

Communist Party v7. Peek, 20 Cal. 2d 536:) Also, prior

to the date of petitioner’s 1957 hearing before the B-

Committee, in a case arising in the United States Dis:

“trict Court .in the City of ‘Los Angeles, this Court

_had held that even leadership of the Communist Par-

ty in California was not to-be equated with advocacy

of the overthrow of .the Government of the United

States by ‘force and violence. (See Vaies v. United

States, 354 U. S.,298.)

Under these circumstances it certainly cannot be safd

that the petitioner was “indifferent” to the -established

‘ status of the California Law as-of the .time of the hear- -

‘ing with which we are concerned in this case. To sug- .

gest that the petitioner was “boldly defiant” in this con-

text is to ignore the record. Certainly there is a vast

difference between “bold defiance” and determined and

reasoned adherence. +0- principles of conscience and eon--

stitution.

F. Reliance on the First Amendment Cannot Be ‘Analo-

gized -to Refusal to Answer Questions Regarding

Criminal Actions. :

Respondent endeavors lo establish an absolute rule re-

quiring an applicant’ to answer all questions which

holds to be re levant .under all circumstances and ede

regard to the state of the record. Such a rule would be

arbitrary. and capricious. .

_ Petitioner would not quatrel with a rule making re-

fusal to ‘answer questions ‘regarding the commtission of

specific crimes about which ee is before the com-

certify the applicant for iboats ssion to the ‘Bar. ‘By the

same token petitioner would® assume that respordemt must

agtee that questioning an applicant for admission about

his religious «ffiliations, or how he voréed in an election,

or his: national origin would be improper and to deny

an applicant admission for his refusal to respond to such’

questions would deny him due process.

If thin we conclude that the kindof absolute. rule ap-*

parently argued for by respondent cannot constitutionally

exist, then the record must be examined to determine

‘whether the: unanswered question in this case falls ::.

the area of criminal activities or’ in the. area controlled

ly the. Bill of Rights. The question, first of all, did

not concern commission of a specific crime. Member-

ship as such in the Communist party as such has not

been proscribed in California nor by ci (Cf. 50

U SC, A. 783(4 ).)

Secondly, petit ioners positign has never heen one of a

declination to-answf because of a fe: ar oF self inc rimina-

tions — Orr thee rary it has” always: heen one of re-

fusal t@ be coerc®d into ‘an abridgement of the First

os) ere

Amendment. Third, he has presented an oxerwhleming

record establishing his good moral character ande non-

advocacy of violent overthrow. On balance. one can not

find, quite unlike the inquiry into’ specific ‘criminal acts,

any importance to the State in requiring the answering

‘of the questions sought for here. We must then con-

“clude that under the ‘facts of this case the questions

asked fall within a privileged | area and this denial of

admission to the Bar” is a denial of due process’ to this

| petitionér.

G. Petitioner Seeks to Strengthen Rather Than, Weaken

the Integrity and the Moral Fiber of the Law.

Respondent suggests on page 16 that the State has

an equally vital concern in the integrity of m nbers of

_ the Bar-as in the integrity of school teachers afd sub-

way conductors. With this Sgatement petitioner has no

quarrel. But this agreement does not advance the re-

‘ spondent’s’ position,.for we must _immediately ask who

has challenged the integrity of ‘the: petitioner héretn and

in what way has this integrity been chal! énged?. The.

record establishes the good moral character of the ‘\peti-

_ tioner. and this* Court has so found. Only. by drawing

inferences of misconduct from petitioner’s invocation of

constitutional right can respondent challenge his ‘‘in-

tegrity.” Bot this Court has said that ~such“imferences

drawn from a substantially identical record are arbi-

trary and capricious. The respondent's demand that pe-

‘ titioner answer the questions which in good conscience

he has said he cannot answer Is: designed to. destroy his

moral fiber rather than to maintain the moral fiber of

the legal profession, ,

—13—

‘He The Respondent Assumes the Basic Fact at Issue in

Relying on the Very Decision of the Supreme Court

of California Which Is‘Here in Question as Proof of

Prior Existing California-Law. _ , Me

In the fbotnote on page 22, respondent refers to

Rule X, Section 101 of the Rules Regulating Admission

to the Practice of Law in California; this Section’ places

the burden of proof for@stablishing good moral charac-

ter Gn the applicant. But respondent seeks to place a fur-

ther burden upon petitioner relating to Section 6064.1 of

the California Business:and P rofessions Code—the ad-

vocacy of force and violence section—which j is in no wise .

‘covered by Rule X, Section 101. While a bar candidate

was required to prove his moral fitness, no rule prior. to

the opinion of the California Supreme Court in this case -

below ever reqtired him to prove the negative—his non-

advocacy of force and violence.*. Proof of advocacy ot

force and violence in this case is a burden which must -

be assfimed and met by respondent and not the neg

tive thereof by petitioner. And at this point we must

Not forget that the record discloses a st: aggering amount

of evidence’ showing petitioner's‘ non-advoxiey. without

any evidence to the contrary.

Nevertheless, the respondent asserts, that "the decision

of the California Supreme Court in this case is in some

‘manner proot of the existence of prior law in Cali-

fornia. requiring the answering of all questions by pe--

titioner. It is submitted, however that this is as spurious

as an argument that because a le: gislature is aware of the

_ existence of the Constitution, it _could ot pass an un-_

“constitutional statute. iL ee

*See inane v. Randall, 357 U..S. 513. . :

Whether or.not petitioner has ‘been accorded. due | —

ess of law in the decision of the Supreme Court «

CNifornia is the ‘ultimate decision Which this pei

must determine. To say that this has been determined »

by the very decision below is of course a specious at-

tempt to. foreclase this Court’ s examination 6f the cause.

“Again on page 24, the respondent refers to the Ratles

“and ‘Regulations qf -the Committee of Bar Examiners

and ‘the fact that the Committee wa’ authorized to adopt

- such rules and regulations .as might be negessary or

advisable. As hasealready been “indicated the committee

had that power, subject-to approval of the Board of

Governors; but neither prior to the first decision of

this Court nor -subsequent has the Cofnmittee of Bar

Examiners seen fit to enact a rule covering the position

which it now asserts before this Court.*

I, The ‘Prior Decisions of California. Courts Are In-

applicable to the Present Case.

-® Respondent cites a number of prior Calitornia cases

as: authority for the Principle that “refusal to answer

pertinent questions posed by, the Committee” ‘Is ground

for. denial of admission to the Bar.

* Even a cursory examination of the cases cited shows

their inapplicability. ie eeres

: Respondent seeks t to’equate a false oath Or the proven

‘concealment ‘of prior disharnicut proceedings and. false

» statements to the Committee with the petitioner’ s highly

principled declination to respond to ee previliged

—

"Paitin mer seriously questions. whether - a a-tule-coutd be> >

“Tramed in terms consistent with the Constitution, but certainly

the inability to frame such a rule Constitutionally does not justi-.

‘fy the application of the same proposition in .an ‘unconstitutional

. manner without framing a formal rule.

\ : . —s

. eee

eC > P

: |

se . ° ms 2

within the purview ot the First Amendnient. © One look:

in vain at the briets tiled ‘by the r respondent here to

find any reference to a single California case’ in. which

t a California court has stated that the refusal toc-answer

questions of a political nature wr questions falling, with-

in the purview 6f the: First Amendment can provide a

dasis for denial of admission to the Bar.” Until such a

case tan be produced (and no such case exists j, “re-

spondent eannot rely on precedent within the Califor.

nia Law for its position in: this case. -

‘J. The Breadth —— Sensi by Respondent

, Violates Due Process of Law. ° 7.

Respondent refers io. Rule VIP of the. ¢ a of

Bar Examiners and again tquates “qreestions relating: to

Se aah ONL tot

age, address, citizenShip, ecctipation, legal character; and

legal education, te questions falling within the treedom

ot speech pri tection of the F irst ‘Amendment,

‘Respondent - protest tS its concerp and interest in’ the

“protection of constitutional liberties but. then’ proceeds

“immediately to _analogize association - with Matia, or a

_erwminal group ‘conspiring to rob a bank, with questions

relating to membership in the Communist Party. There

can’ be no question that when re spondent uses the term °

“Mafia” it intends it in its most: scurrilous connotation

in order to set up the straw man which it thereafter ”

seeks to strike down, Accepting for purposes of this,

argument that there are no —_ thle and legal activi.

I ties of the Mafia cand that all of ts activities are «¥

an illegal n: = hit 1 Atat Tato io Oe

wom quires participation Ta “Wegal activi ities © then one could .

not quarrel with. respondent's position thag ques one

} about menbership in the Mafia must he answered, But

too many decisions of ghis Court (see lVieman lp

- —_ .

pa,

degraff. 344 U.S. 183: Schware 2. New Vertco, 3323

U.S. 232; Yateshe. United States; -supra, 354 U.S.

298: Schneiderman wv. t ‘nited States, 320 U.S: 118),

have indicated that: Communist Party membership can

be legal and noncriminal and that there must be proved

participation in the claimed illegal activities on the part

of a member before ‘penalties may béfall him: to make

> \ - -

‘this a proper equating of terms. At this point, in

order to maintain the purported. relevancy of its ques-

tions and to destroy the _ privilege involved in this

case, respondent must draw improper inferences and

equate membership in the Communist Party with the

Mafia. In order ti do this the respondent must. as it

apparently does in this section, drop. the pretense that

petitioner has been denied admission to the Bar ‘solely

for his refusal to answer relevant questions and accept its

position for what it really is—that petitioner is being

barred because respondent improperly draws inferences

of membership in the Communist Party and participa.

tion in and lvecacy of oy ertnrow of the Government

by force ang violence from petitioner’s tefusal to an-

swer. This Court in- the previous Konigshery case

held that such inferences were impr: per.

K. The Prior Decisions af ‘This Court Do Not Justify -

\ The Respondent's Position.

In the final sectton. respondent seeks to rely on th:

Beilan,* Lernex** and Barcnblatt*** decisions as jus-

tification for its pésition. ‘ °

o. y . - . oe . . . . . - ;

“as already pointed out-in petitioner's Opening Brief —

— and which will wette-repeated yr apy detail here: there

PD A OP ne een One, 5 “8. re. a.

: te Be oe, —

~ ~~.

*Reilan v. Roard of Education, 357 U. S. 398!

** Lerner v. Casey, 352. U. S. 468;

_ ***Barenblatt &. United States, 360 U.S. 109."

a %

titioner: or. any

|, ee

‘are striking and cogent differences between the factual

situations in these: cases and the instant case. These

¢ . é

are’ summarized under the. yeheral statement that. the

Bevan and Lerner cases involved public emplovees and

did not. involve an applicant for admission, to the inde-

pendent practice of the law. More than: that. the

Beflan avid Lerner -cases were situations where the State

Court was able on the basis of prior decisions to equate ~

- refusal to answer. the questions with lack of, candor

and /or incompetency. Barexhl tt, op the other hand.

* dealt hasemtttr ith whether the organic act of the House

un- \mericah Actitities Cominittee sufficiently and spe-

cifically delineated its authority thi at a prosecution for

contempt of Congress could follow a refusal to answer ;

its questions. ues ; ree

-In the Koniasher “case, the Issue canhot be redueed

” down to the matter of candor since we are concerned

with moral character and advoc acy of force “and vio-

lence. We must ook at the entire record to see whether:

there is any challen nge to the moral character of the pe-

Ny reasonable grounds to believe he ad-

vocates force cand violence and must intmediately con-

_ clude that his character st ands and renfains impeccable.

Respondent here moves quickly and ‘deftly trom: the

failure to-answer questions into issties of loyalty. aml

“frustration” but: neither of these “arguments can. pri-’

Videva proper basis for denial on thts record. We have

here a bar applicant w hy had disc losud all that the resprind

ent sought, bared his s nul to the respond lerft on eve Fy ques

to other sources OT Inform: ation. The Committee has

itself had inytsuidators htking into His background.

and character. When one adds theetetality of the rec-

ttn but the ones and exposed his citire lite as FY Tead

)

eae ee

ord in this: case, one can only conclude that the mere re: —

tusal on high moral principles to respond to the single ©

question cannot be deemed as ary reflectign on the moral.

character nor can it be deeme ‘to be a lack of candor.

. Under these” circumstances the holdings of the Beilan

and Lerner cases. can not be considered as. applicable

to the situation before the court.. For here: the societal

balance must’ be tound to ‘favor the petitioner.

Similarly, with referenice to the Barenblatt case, the

relevancy’ and importance of an answer to the Commu- -

nist party, membershyp question’ when asked by’ a legis-

lative committee whose function it is to investigate the

administration of exiSting “subversive control” legisla-

tion anid the need for new: legislation as to ‘w hich Baren-

blatt might have had informationg is far different trom

the relevancy and impertance of the same question asked °

of petitioner, where the bar committee’s sole function

is to determine whether he personally advocates force

and violence and he has produced overw helming evidence

that he does not w hile no evidence at all. indicates that

he does. aoe \:

Conclusion.

Respondent agrees with petitioner that there is a need

for’a free, independent and fearless bay. Petitioner ; agrees

_with respondent that members of the Bar should be of the

highest possible integrity and, that th State has the re-

sponsibility to maintain the highest educatjonal standard

On all of these factors. there is no. dispute. between, the _

"parties,

Spusesnnnnes

| : ID r oe

Petitioner. has presented an overwhelming record es-

tablishing his gocd moral character; he has alsu estab-

lished beyond | any doubt that he does not advgcate oyer-

_ threw of the Government by force and violence or any

. other unconstitutional means, , although the burden on

this point would, seem the respondent's. Petitioner has

answered €very question but the one ‘and has given to

respondent every possible lead for further investigation

Respondent has: carried on such. an investigation and

found no single flaw in the character of the petitioner.

This Court. has found that petitioner has sustained

the -burden of p?oof that’ he has a good moral charac-

ter. This Court’ hag found ‘hat nothing in the record

shows that he advocates overthrow of the Government

"by force and vivlence. The new yecord' before the Conrt

vin this proceeding has not changed that showing.

Without fegard te what ruling’ mixht \be followed in

another case under other circumstances and at another

time, it -seems clear that here the actions ‘of the Com-

mittee of Bar . Examiners off the State of California

‘are inconsistent with fair pay and due proves Tt ds

urged that this Court ca;“now properly make ‘an order

that this petitioner be admitted to the Bar of the Sfate.

_ of California.

Respectfully submitted, el

: Ps oo Mosk, |

torney for Petitioner.

‘Sam. Rosexwetn, ————————"-—-—"_-_+----_----—-

Of Counsel. ;

. 7 .

i .

o .

be .

‘\ :

’

PAS AD ORE ads ct

+ ei te 2 ENM l Pa ot Naat NN We AES DE in sy" ADS

Raphael Konigsberg, Petitioner.

“Committee of Bar Examiners |.

SUPREME COURT OF THE UNITED STATES

. No. 28.—OctToser TERM, 1960.

v. : ae

“es ca nae to the Supreme Court

State Bar of California and the

: aoe fornia.

of the State of California. |

[April 24, 1961. ]

» Mr. Justice Haran delivered the opinion of the Court.

» This case, involving California's second rejection of

petitioner's application for admissioneto 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. é

‘Under California law the State Supreme. Court may »

admit %o the practice of law any applicant whose qualifi-

cations have been certified to it by the California Com- .

mittee of Bar Examiners. Cal. Bus. & Prof. Code & 6064.

To qualify for certification an applicant must. among.

other things, be of “good moral chafacter,” id., $-6060 (c).

anid no person’ may be certified “who advocates the over-

throw of the Government of the United States or of.

this State by forge, violence, or other unconstitutional

means ....” Id., $6064.1. The Committee is empow-

ered and tequired to ascertain the qualifications of all

candidates. Jd., § 6046. Undet rules prescri by the:

Board of Governors of the State Bar, an applicant before.

the Committee has “the burden of proving that he is pos-

sessed 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, ¢. 4, Rule .X, $101. Any applicant denied

On Writ of Certiorari

of the State of Cali- .

? KONIG SBE RG » ST ATE BAR, (" ALIFORNIS

rertifestion may aaa the C ommittee’s action reviewed

by the State Supreme Court. #d., deg eee

Tn 1953 pe titioner, having successfulf¥ passed the Cali- ; <

fornia dar examin: itlons,, applied for certification for

bar membership, The Committee, afte interrogating

Konigsherg and: receiving considerable fe. ae as to his

qualifieations, declinedsto certify him. on the ground that f

he had failed to-meet the burden of proving his eligibility

under the two Statutory requirements re lating to wood

inoral character arid nonadvoeacy of violent overthrow,

That determination centered ¥ targely’around Konigsbe TEs

repeated ret us als to answer Cotnmittee questions as terhis a

_present or” past anembership in the Communist Party.’

ia The ¢ California .Supreme Court denigl review F anus: Py

opinion. . See 52 Cal. 2d 769, 770. *

On certiorari this Court. after reviewing the reeord.

Pires oe held the si state deterinination to have been without ratioual

support: in the evidence and-therefore offensive to the Due

Process Clayse of the’ Fourteenth: Amendment. Konigs-

-herg 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,” considezing that sue an IssuG.- |

was not before it. 7d.; 259-262... The case was remanded

to-the State Supreme Court “for further ptdceedings n not

" inéonsistent with this opinion.” Id., 274. . :

On remand petitioner moved the California Supreme hie

Court for. immediate admission ‘to the bar. The court ~

vacated Jts. previous order denying review and referred

the matter to the Bar Conmunittee for further considera- .

”

San oes

> + Konigeber rz rested ifs refurals, not on anv claim of privilege

against felf-j -incrimination, but ‘on the ground that syech Inqparies

were bevond.the purview of the Committee’ * authority, and infringed ‘oo

* rights of free thought, assOplation, and gypression - ‘ured him under 4

the State and Federal Cons titutions: He affirmatively asserted, how- .

ever, his disbelief in vidlent overthrow ot government

* KONIGSBERG, v. STATE BAR. CALIFORNIA, 3 -

tion. At the ensuing Committee. hearings Konigsberg: °

+. introduced further evidence as te his good moralecharacter *

. (none of which was rebutted), reiterated unequivocally —.

his disbelief mvielekt 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-hist member-

* ship in the Communist Party. The Committee again. .

e declined to certify him, this time on the ground that, his

grefusals to answer had obstructed a full investigation inte

his qualifications.” The California*Supreme Court, by a-

divided vote, refused review, atid also denied nNonigsberg s Tei aly

motion for direct admissionto practice, 52 Cal. 2d THO, ss

We again brought the case heres 362 U8. O10.

> The c ommut tee made the following” finding: re sles vant. to the issue-

now before us: °

: “(1) That the questions put to thé appheart by the Comimutter

* eoncerfing past‘ or present anember-hip in vor athlanon with the

Comn waist Party are materta! to a proper anil complete Investigation - ales

of his qualifieations for admission to practice law in the State: ro

California: ‘ ‘. :

“(2) That the refusal of applicant to answer said questions ha

( structed a proper and complete investigation of appheant’s quah-

fications for admission to practice Inw own the State of Cahtornia’.

The esserice of the state court’ aleci» ton appears in-the fyllowmg +

extracts from #+ opinion:

. The commifteecaction now hn fore fls contiihs no finding cit

conclus sion ‘that peritionyt had failed to establizh either his good

moral characte ‘ror his abstention from advocacy of overthrow of the ,

government. ” ne ‘. A. ;

“Herg it is the re ‘fysal to Answer material questions which i the

Hasts for denia! of certificeation.- : “¢ .

{Tjo-admit applieants ioe refuse to agewer the CORUMAT LEG s

‘iad upon these subjects would nullits the comevdediy” valid

legislative direction to-the’eommittee. Stich a rule would effectively

stifle committee inquiry’ upon issnes legislativels declared to+ be

celevant to that issue.” Td... at 772, 774, 344 Pod, at 779, TSO et

. Justice Traynor dissented on the ground that. the California Su-

preéme Court, not being required by statute-to exdlude bar appleant-

, c idl : .

| a . .

4 KONIGSBERG >, STATE -BAR, CALIFORNIA

Petitioner's contentions in this Court in support of

reversal of the California Supreme Court's order are

teducible to three propositions: (1) the States aétion

was incorkistent with this Court's decision in she earlier

Konigsberg. ease; (2) assuming the Committee's jn-

quiries into Konigsberg’s. possible Communist Party

membership were permissible, it was unconstitutionally

arbitrary for the State totdeny hit admission because of -

_ his refusals to answer: and (3). in any everit. Konigs-

_ berg was constitutionally Justified in refusing to answer .

these questions. ,

‘ok ,

Consideration of petitioner's contentions as ts the’

wffect of this Court's decision in the former Konigshberg

case requires that there be kept clearly in-mind what is

entatled in € ‘alifornia’ 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

ee . - s

on the sole ground of their refusal to answer questions ‘cones rning

‘possible advocacy f the overthrow of government, should not adept

such an Xelusionary rule. at least where the Committee of Bar

Examiners has not come forward with some evidence of advoesey

He declined to reach constitutional ‘issues, Justier Peters disse nted

on federal constitutional grounds and in thesbeliof that this Court’ >,

decision in the first Kongsberg case required immediate admission

of the ap yplicant” Chief Justice Gibson did: not participate ine the

decision’

* All of the 50 States, as well as Puerto Rico and the District of

Columbia, prescribe qualifications of moral character as precondi-

tions for admission to the practice of ' ©. See West Publishing Co,

Rul.s for Admission to the Bar (5th -d. 1957): Survey of the Legal

Profession, Bar Examinations and Requirements for Admission to the”

Rar (1952); Jackson, agg Requirements for Admission to the

Bar, 20 Fordham L. Rev. 305 (1950): Annot., 54 Aok. R. 2d 301.

(1959). . .

- The burden of eae good moral charieter ts poiges

e placéd upon theebar applicant. Ex parte Montgomery, 249 Ala’ 378

31 °So. 2d 85; Ex parte’ Stephenson, 243 Ala. 342, 1@ So. 2d 4: Appli-

eo.

a :

KONIGSBERG v. STATE BAR, CALIFORNIA. | 5

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

ease. The examining Committee ‘Men has the oppor-

tunity to rebut that showing with evidence of bad charac-

ter. Such evidence may result from the Committee's own |

independent investigation, from’ an applicant's responses

to questions on his application form, or from Committee

interrogation of the applicant himself. This interroga-

tion may well be of decisive ynportance for, as all familiar

with” bar; admission proceedings know, exclusion of

_ unworthy. candidates gfrequently depends upon the

- thoroughness of the Committee's questioning, revealing

as it may infirmities in an otherwise satisfactory showing

cation of Courtney, S38 Amz. 231, 319 P. 2d GOL: Ark Stat. Ann.

17, §§ 25-101, 25-103; Spears v. State Bar. 211 Cato 183, 204 P

97: O'Brien's Petition, 79 Conw. 46, 63 A. 777: In re Durant. SO

Conn. 140, 147, 67 AL 497: Del.-Sup. Ct. Rule 30 (1i(ad, (2) fa)

Coleman v. Watts, 81 So. 2d 650 (Fla.) (burden of proof on apph-

cant; prima facie showing shifts burden «* going forward to Examin-

ets); Gordon v. Chinkscales, 215 Ga. 843, 114 SE. 2d 13: In rv

Latimer. ll Il. 2d 327, 143 N. E 2d 20 (2emble rg Rose nerant? \

Tidcington, 193 Ind. 472, 141 N. E. 58; In re. Meredith, 272 8 WV

24456 (Ky.); Jn re Meyerson, 190 Md. 671,59 A. 2d 489 (semble)

Matter of Keenan. 313 Mass. 186, 47 N’ E. 2d 22: Application of

Smith, 220 Minn. 197, 19 N. W. 2d 324 (semble): On Appleation for

Attorney's License, 21 N. dL. 345; Application of Cassidy. 268 App

_ Div. 282, 51. N.Y. S. Sd 202, aff'd, 296 N.Y. 928, 73 NOE. Qu 41

Applheation of Farmer, 181 N.C. 235, 131 S. E. 661: Jn re Weinsts TD

150 Ore. 1, 42 P. 2d 744: State ex rel. Board v_ Poyntz. 152 Or

502, 52 P. 2d LAT (burden of proof on applicant; prima facie showing

shifts burden of going forward to, Examiners): Jn the Matter of

Eary, 134 W. Va. 204, 58 S. E. 2d 647 (semble)

‘For redsons given later (pp. —, imfrar, we need not decide

whether Calfornia’s burtien-of-proof. rule could constitutionally bes

apphed, as it was by the Committee after the first Korig-berg pro

cepdings, to the requirement of nonadvocacy of violent -overthrow

6 KONIGSBERG v. STATE BAR, ( ALIFORNIA

ou his part. This is especially so where a bar committee,

4s is not infrequently the case, has no means of conducting

ah. independent investigation of its own, into an appli-

eant’s qualifications. If at the conclusion of the pro-

~ ceedings the evidence of good character and that of bad

character are found in even balance, the State mnay refuse

admission to the ay licant, just as.in an ordinary suit a

plaintiff may fail in\his case because he — not met his.

burden of proof. | ,

_In the first Konigaberg case this Court was conterned -

solely with the question w hether the balance between the

favorable and unfavdrable év idence as to Konigsherg’s

qualifications had been struck -in accordance with’ the

q@equiremengs of due ‘process. It was there held, first.’

‘that Konigsberg had made out a prima facie case of good —

chara id of nonadvocacy of violent overthrow, and.

second, that the other evidence in the record could not,

even with the aid of all reasonable inferenges 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 acharacter not meet-

ing these two standards for admission. The C ourt. 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 kecause tht refusal ‘had thwarted a full.

investigation into his qualifications. See 353 U.S. 259-

262. The State now asserts that ground for exclusion,

“The Court assumed,. but did not discuss, the constitutiona'ity

of Cahfornia’s burden-of-proof rule as-applied to the nonadvocaey -

of- foreible overthrow requirement of the California statute

“te

KONIGSBERG vo STATE BAR, CAEIFORNEA. 7

an issue that is not foreclosed by anything im this

Court's earlier opinion, which dec sided - a quite different -

question. : *

It is equally clear that the state ‘s ordering of the rehear-

» ing which léd to petitioner's exclusion manifested no dis~

respect of the effect of the mandate in that ease, which

* expressly left the matter open for further state proceed-

ings “not inconsistent with” the Court's, Opinion. There’

is no basis for atiy suggestion that the Sgate in‘so pro-

ceeding has adopted unusual or discriminatory procedures

to avoid theppormal consequences of this Court’s earlier

determination. , In its ‘earlier proceeding, the California

Bar (¢ caielinat nas have found further investigation and

questioning of petitioner unnecessarv when, in its view,

the applicant s prima facie case of qualifications had been

_ sufficiently rebitted by evidence already in the record,

While in its former opinion this-Court held that the State

could, not constitutionally so conelude, it did not under-

take to preclude the state agency from asking any ques-

tionsor from conducting any investigation that it might

have thought necessary had it known that the basis of

its then decision would bes overturned. In reealling

Kon igsberg for furthpr téstimony, the Coynmittee did only

what this Court has consistently held thyt federal aqmin-

istrative tribunals may do on remand after a reviewing

court hag set’ aside ageney orders as unsupported by

requisite findings of fact. Fegrral Communications

Comntn vy. Pottsville Broadcasting Co., 300 U.S. 134:

Fly.v. Heitmeyer 309 U: 8.146.

In the-absence of the slightest indication of any: pur-

pose on the part of the State to evade the Court's prior —

decision, pfinciples of finality protecting the parties to this

state litigation are, within broad limits of fundamental

. : . % ° @ q . .

fairness, solely the concern of California law, Such limits

are broad even in a criminal case, see Bryan vy. United’

States, 3388 U.S. 552; Hoag v. New Jersey, 356 Us. 464; *

8 KONIGSBERG v. STATE BAR, CALIFORNIA.

ef. Palko v. Connecticut, 302 U. 8. 319, 328. In this

instance they certainly have not been trafisgressed by the

State merely taking futther action in this essentially

administrative type of proceeding.’

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 administra-

tive rule analogous to Rule 37 (b) of the Federal Rules of -

Civil Proeedure which provides that that refusal. after due

‘warning, to answer relevant questions may result‘in “the

‘matters regarding-which the questions were asked” being

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 progeeding” of the party asking affirmative relief.

The state procedural mule involved her@is a-less broad

one, for all that’ California has in effect said is that in

cases where, on matters material to dn applicant's quali-

fications, there are gaps in the evidence presented by him

which the ageticy charged With certification. considers

* 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, theré can

be no doubt that such decision did not prevent California from inves-

gating 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 refusing to adinit peti-

honer to the practice of law because of his declining to answer

Whether he has béen a member of the Communist Party sinee the

termination of the first set of hearings. Pek ee

-KONIGS BERG: v. STATE BAR, CALIFORNIA: “

- stiould be filled in the appropriate exercise of its responsi-

bilities, an applicant will not be admittetto- practice =

unless and until he cooperates with the agency's efforts té

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

orn eo Nashville, C. & St. *.

*. Browning, 910 U.S. 362. Nor in the absence ty a

psi of arbitrary or discriminatory applicatfon 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 mate-

rially obstructed its inv estigation. Compare Beilan v.

Board of Education, “pt - -. 399, with Noteor v. County

of Los Angeles, 362 U, m

In the context of ioe entire record of these seeeiiian

the application of thé California: rule in this instance

cannot be said to be arbitrary or discriminatory. ‘In the

first Kohiysberg case this Court held ‘that neither the’

somewhat weak, but uncontradicted testimony. that-pe ti

“Torembad>een a Communist Party member in 194%, wor

his refusal to answer questions relating to Party member-

ship, could rationally support any substantive adverse

iferences as to petitioner's character qualifications, 353

U.S. 266-274. That was not te sdy. however, that these

factors, singly or together, could not be regarded as leav-

ing thé investigatory record in sufficient uncertainty as

cons@tutionally te 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 te respond to the

Committee's questions, Cf. 353 Us. at 261.

5 .

: * The transenpt of the orginal he ring before the ( ommuttee has

been made part of the record before us in the: present case

o ”

th KONGSBERG + STATE BAR. CALIFORNIA

ad . " .

alt is no answer to say that petitioner has made out a

prima facie case of qualifieations.for this is precisely the

posture of a proceeding in which the Committee's right to

eXatnine and eross-exgmine heeomes siwanifieant, Assume. °

ing -as we de for the moment. that there is no privilege

here lo refuse te answer. petitioner could no more Insist

that hes prima facie case makes improper further ques-

“

honing gf him than he eould insist that such c¢ireum-

stanee made Improper the.introduetion of other forms of:

. : - ¢

rebutting evidence

We hkewise regard as untenable petitioner's conten’

Hens that the questions as to Communist Party mem-

bership were made irrelevant either by the faet that

bare. innocent membership js not a ground of disqualifi-

calion oF by petitronmer's willingness to ahswer such ulti-

‘nate questions as whether he himself beheved in violent

overthrow or knowingly helonged to an organization |

advocating Violent overthrow The Committee Chair- _

‘o

mans answer te the former contention was entirely

: a .

correct: j

“M you answered the question. for example, that

vou had been a member of the Communist Party dur-

ng some pertod since 1951 or that vou were preventiy

a member of the’Communist Party, the Committee

would then be in a position to ask vou what acts

vou engaged in to earry out the funetions and pur-

poses of that party, what the aims and purposes of

the party were. to your knowledge. and, questions of

that type. You see by failing to answer the Wiitial

question there certainly is nocbasis and no oppartu-

tity fer us to Investigate with respeet tor the otlier

matters to which the initial question might very well

bie considered preliminary.”

\nd the explanation given te petitioner's counsel by

anether-Comnuttee member as to why Konigsberg’s testi-

® ‘ -

KONIGSBERG STATE BAR CALIFORNIA. - 1

irony about ultimate facts was not dispositive-was also

Sr es 4s : eae :

“Mr, Mosk. voy realize that if Mr. Konigsberg

ar had answered the question that he refused to answer.

caf entirely new area of investigation might. be

opeped up, and this Committee might be able to -

ascertain from Mr. Konigsberg that perhaps he is

now and. for many vears past has been an active

member of the C ‘ommunist Paryf. and from finding

out who his associates were in’ that enterprise we

gnight discover that he does advocate the overthrow :

of this government. by foree and viclence. Tam-not—

saving that he wo. i do that’ but it is a possibility.

sand we don't have to take any witness’ testimony as

precluding us from tryi: iz to discover if he is telling

the truth. That is the point. ‘ .

6 :

Petitinaes’s further miscellaneous conte Huns that

the State's exclusion of him, was capricious are all alsa

insubstantial.” v. ‘

‘There & no basis for any intimation that the California Supreme

Court’ fashioned a special procedural rule far the purposes of thie

particular case The Californa Bar Commitee. has in the hast

dechned to certify appheant= who refused to answer pertinent

questions See Farley. (Seeretary, Committee of Bar Examiners)

Character Inyestigation of Appheant- for Asdimissjop, 20 Cab. State

Bar Journal, 454, 457, 466 (1954). No more does the State's derron?

bear any of the hallmarks of a bill of attainder or cf an ex post

facto regulation, see Cummings v, Missouri 4 Wall 277: ef United

States ¥. Lovett, 328 US HU, especially an light of the foot thot

PeTINOnEr Was expheitly warned in advance of the consequencres ot

his refiisal to answer. See po mira Likewise, there hone rednny

for agtributing ¢o the € OMumIttee “IPTeptiNious purpose to ene lriede

Konig-t« Tg‘hy the device ot putting to him questions which it wos

knows in advancehe would not answer, and then pietitving exelusie

on the prethise of his refusal to respond. Sp far as this record show-

”

12° KONIGSBERG v. STATE BAR. CALIFORNLY¥

There remains the question as to whether Konigsberg

was adequately wartied of the consequences of his-refusal

to answer. At the outset of the renewed heangs the

Chairman of the- Committee stated: . :

"As a result of our two-fold purpose, | to investigate

aid reach determinations], particularly our fsuction °

of investigation, we believe it will be necessary

you, Mr. Konigsberg, ‘to answer our material ques=« wr

tions 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 failire 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: .

“T would like to niake this Statepent.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

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 Com-

thittee, not a frustration if thateword has been used.

1 think it would be an obstruction. There are

phases of his moral yharacter that we haven't been -

Komgsberg was exeluded only because his refusdl to answer had

impeded the investigation of the Committee, » ground of Becton

which it is still within his power to remove, ,

“a

KONIGSBERG vy. STATE BARS CALIFORNIA. | 13,

able to investigate’ simply because we pom been

stopped at this point. and I for one.could not certify

to the Supreme Court that he was a proper per-

son to be admitted to practice law in this State

until he answers the question about his. (Cor ‘munist

affiliation.”

The vecord thus leaves no room for d§ubt on the-score

of “warning,”” and petitioner does not indeed contend to

the contrary. wins ; :

Finally, petitioner argues that, in any event, he, was -

privileged not to respond to questions dealing with

Communist Party membership: because they unconsti-

tutionally ‘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 (.V. A. A.C. P. y. Alabama, 357 U.S. 449,

460), as protected by the First and Fourteenth Amend-

ments, are “absolutes,” not only in thie undoubted sense

that where the constitutional protection exists it must

prevail, but also in the sense that the scope of that protec-

tion must be. gathered solely from ~— reading of the

First Amendment.’ Throughout it history this Court ~

. 7 . }

That view, which of course cannot be reconelled with the low

relating to hbel, slander, misrepresentation, obscemity, perjury, false

advertising, solicitation of crime, complicity by éneouragement

: ° 4 ,

conspiracy, and the like, is said to be compelled: by “the faet that

the tommands of the First Amendment ‘ure stated in unqualidied

terms: “Congress shall make no law . . . abridging the freedoyy ot

‘speech, or of the press:*or- ‘the mght of the people peaceably te

assemble...” But as Mr. Justice Holmes onee said: . The -pro-

visions of the Constitution are ngt mathematical formulas having

their essence in their form: they are orgame living institutions trans

planted from Enghsh sou. Their sigritieance i vital not formal at

ix to be gathered not simply by taking the words and a ‘cdhetionary

)

If KONIGSBERG v. STATIC BAR. CALIFORNIA.

has consistently recognized at least. two ways in which

constitutionally protected freedom of speech is narrower

than an unlimited Hcense to talk. On the one hand cer:

tain forms of speech, or speech in certain contexts, have

_- been considered outside the scope of constitutional pro-

, tection." See, e. g., Schenck ~. 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. 8. 208:

_ ‘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 daw the

First or Fourteenth Amendments forbade Congress or

the States to-pass, when they have been found justi-

_ fied by subordinating valid governmental interests, a

eprerequisite. to constitutionality whieh has’ necessarily

involved a weighing of the "governmental interest in= .

but by considering their origin and the line of their growth”

Crom pers Y. United States. 233 U.S. 604. b10. din this connection

also compare the equally unqualified command $f the Second Amend:

ment: “the nght of the people to keep and bear arms shall not be

infringed... (Emphasis supplied.) And see United States v

Miler, 307 US. 174. ; . 7%

'' That ethe First Amendment immunity for speech, press ane

asserbly has to be reconeiled with valid but confheting governmental

interests Was clear to Holmes, J. (I do not doubt for « moment

thet Bw the same reasoning that would justify punishing perstiasion

to murder, the United States constitutionally may puhish speech

that produces or is intended to produce a clear and imminent danger

That at will bring about forthwith substantive evils that the United

States constitutionally may ek to prevent.” Abrams vo United

Stabe s, 230. US. 616, 627: to Brandeis, J ¢ But, althougly the right-

\ of free speech and wsembly are fundamental, they are not in their

Ngature, absolute,” Whitney v. Calforma, 274 Us 357, S73): and te

Ihughes, CJ. ("| The protection [of free speech] even as to previon-

resMuint is not absolutely unlimited.” Nya? y. Minnesota, 283 US

u7, ‘ 6 ;

\ ® .

. a

KONIGSBERG uv. STATE BAR, CALIFOR NIA. 15

volved. See, e. g.. Schneider vy. State, .308 U.S. 147.

lil; Cor v. New Hampshire,-312 U. x. 560; Prince vy.

Massachusetts, 321 U. 3. 158; Kovdes v..Cooper, 336

U.S. 77: American Cominunications Assn. v. Douds, 330

U.S. 382; Breard y. Alexandria, 341 U.S. 622. “It is in

the latter. class of eases that this Court has always placed

rules conipelling disclosure of prior association as an inci-

dent 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 protec-

tions are asserted against the exercise of valid govern-

mental powers a reconciliation must bé effected, and that

perforce requires an appropriate weighing of the respec-

tive interests involved.) Watkins v. United States, 354

U.S. 178, 198; N. ASA: C. P. v. Alabama, supra; Baren-

blatt v. United States, 360 U.S. 109, 126-127; Bates v.

Little Rock, supra; Wilkinson v. United States, 365 U. =

399; Braden vy. United States, “365 U.S. 431. With more

particular reference to the present context of a’state deci-

sion 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 speecti~

and association and of the importance of the state fune-

tion, exclude all reference to prior speech or association on

such issues as character, purpose, credibility, or intent,

Ov the basis of these considerations we now judge pe ‘tie

tioner’s contentions in the present eases

Petitioner does not challénge. the constitutionality of

$ 6064.1 of the Califoryia Business’and Professiots.Code

forbidding certification for admission to practice of, those

advocating the violent overthrow of governinent, It

would indeed be diffieult to argue’ that a belief. firm

enough to be earried over mto advocacy, in the use of

legal means to change the form of the state or Federal,’

Goyernment is an unimportant consideration in deter- +

inining the fitness of applicants for mentbership in a pro-

» . : . i

\ foe NX Y

"16 KONIGSBERG v. STATE. BAR. CALIFORNIA

e* 2% & 3 .

fession in whose hands so largely lies the safekeeping of

| iyris country’s le al and political institurions. Cf. Garnet

- y. Los-Angeles Boa

interest in this respert_inst:bstantially related to the right *.

. Which California claims to inquiré_about Communist

' Party membership. This Coyrt has long since recognized

. the legitimacy of a statutory finding that membership in

‘the Communist Party is not. unrelated to the danger of ,

rd, 341 U. S. 716. Nor. is the state

use for such illegal ends of powers givei Yer limited pur-

poses. - See American Communicati ns Assn>~, Douds,

339-U. S. 382: see also Barenblatt v. United States,-360

US. 169, 128-129;-ef. Wilkinson v. United States, 3635

~ . US. 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 associ-

ation to the deterrence of subsequent disclosure is out-

. weighed by the State’s interest in ascertaitiing the fitness

of the employee for the post he holds, and hence that such

questioning does not-infringe constitutional protections.

- Beilan y: 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 mem-

bership, we regard ‘he State’s interest in having lawyers

wlio are devoted to the law in its broadest sense, including

not. only its substantive provisions, but also its procedures

for orderly qyange, as clearly, sufficient. to outweigh the

' minimal effect upon_free association occasioned by com-

_. pulsyry/disclosure in the circumstances here préented.

‘There is here no likelihood ‘that deterrence of associa-

tion’ may. result from: foreseeable private action, see

NV, A. A.C. P.tv. Alabama, supra, at 462, for bar com-

mittee interrogations such as €Q™& are conducted in

private. See Rule 58, Section X, Rules of Practice and

Procedure of the Supreme Court of Illinois; ef. Cal. Bus.

& Prof. Code, Rules of Procedure of the State Bar of

. .

-KONIGSBERG v. STATE BARS CALTFORN LAS — 17

— >

California, Rule 8; Anonymous v. Baker, 360°. 8. 2ST

(291-202. Nor is there the possibility that the State m:

be afforded the opportunity for imposing “undeteetsh ie

arbitrary a ae upon proteéted association, seo!

Shelton v. Tucker, 364 U.S. 479, 486, for-a bar appli

eant’s exthision by reason of © ommunist’ Party rhember-

- ship 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 (i

not comport with the Federal Constitution. See Konigsa

berg v. State Bar, 353°U. 8..252: Sehware +. Board of

Examiners-of New Mevico, 353 U.S. 282; ef. Wieman vy.

("pdegraff, 344°U. 8. 183. In these ecireumstances it <

diffieult 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

_privile re to refuse to answer, We would regard the Bevlan

case.as controlling. There is, however, a further Pec

of the matter. In Speiser v. Randell 397 WLS. 513,

heid unvonstitutional a state procedural rile “th: at in none

to obtain an exemption a taxpayer must bear the burdes,

of proof, including both the burdens of estabtis! hing

priniactpeie ease and of nitimate pe rshasivn: that die di b

- not advocate se violent ove throw of govern ent, We

said (p. 526):

“The vice of the present procedure is that. where

isctinutice speeeh falls close to the tiie separating thie

lawful-atid the unlaw ful, the possibiligy of mistake:

fact-finding—inherent in all htigation—-will create

the danger that ‘the .legitimate utte rance will be

~ penalized” The man who knows that he must bring’

forth proof and persuade another of the lawfulness

“of his concuet necessarily must steer far w ider of the

unlawful zone than-if.the State must bear these

burdens. Tiiis is éspecially to be feared when th:

ae ; 2

. »

IS) KONIGSBERG v. STATE BAR. CALIFORNIA,

complexity of the proots and the generality of the

standards applied, ef. Dennis y. United States, supra,

provide but shifting sands on which .the litigant must

maintain his position. How can a claimant whose

- declaration is reiected. possibly sustain the burden ef

proving the negative of these complex factual ele-

ments’ In practical operation, therefore, this pro- |

‘cedural device must necessarily produce a result.

which the State could not command directly. It can ~

only result, jn a deterrence of: speech which the

Constitution makes free.”

-~lt would be

sufficient answer to Pny suggestion of the

applheability gf that holaing to the present proceeding to

observe that! Speiser was expu¢itly limited so as nt to

reach cases wnere,’as here: there is no shoving of an intent

to penalize political beliefs. Distinguishing Garner v.

* Board of Public Works, 341 U. S. 716: Gerende v: Board

of Supervisors, 3414U. 8! 56, and American COnmunica-

tions Assn. v. Douds, 339. U. S. 382. the Court said

(p. 027): er "

“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 aspiriig.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 ngt

7 40 Hosen ie beliefs but to deny positions* typ

persons suppoed to be dangerous because the posi

_ tion might be misused to.the detrimentof the publi.’

But there are also additional factors making the

Fationale of Speiser inapplicable to the case before us.

There is ‘no unequivocal indication that. ( ‘alifornia in

this proceeding has placed upon petitioner the burden-

ill ~ - A .

a , ; oe

‘ = . a

* , e .

KONIGSBERG v: STATE BAR. CALIFORNIA. .19

of proof of nonadvoeacy of vidlent overthrow, as dis-

tinguished from its other requirement of “good moral

character.” 2 All it has presently required is an appli-

eant’s cooperation with the Committee's search for-evi-

-dence of forbidden advocacy. Petitioner has been denied

admission to the California bar for obstructing the Com-

a mittee“tn the preformance of its necessary functions of

examination and cross-examination; a ruling whieh indeed

* presupposes that the burden of producing substantial evi-

dence onthe issue of advocacy was not upon petitioner y

but upon the Committee. Requiring a defendant ® a

civil proceeding to testify or to submit to discovery has -

never been thought to shift the burder of proof to him.

Moreover, when this Court has‘allowed a State to com-

“ment upon a criminal defendant's failugé to testify it has

beeri 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. wan

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 persuasfon on the issue of advocacy of violent’ —~—"---~

overthrow. But it is for the Supreme Court of Cali-

fornia 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

the Speiser’ case between penalizing statutes and those

inerely denving access to positions where unfitness may:

lead to the abase of state-given powers cr privileges. The*

Issue is not noy before us. , .

—_—_

'* Indeed, we eannot tell whether California did <o even in the

earher. proceeding, since Ahe California Supreme Court's demal of

teview of the. Committee's original “rejection of Kongsberg w:

without opinion, and for all we know may have rested) alone on

petitioner's failure to meet his state burden of proot as to “qued

nioral character.” :

20 KONIGSBERG +. STATE BAR. CALIFORNIA.

Thus as.matters now stand.’ there Is nothing involved

here whieh is contrary tg the reasoning of Speiser. for

despite campelled’ testimony the prospective bar appli-

cant need not ‘steer far clear of the unlawful. zone” (357 —

U.S. 526) for fear of mistaken judgnrent or fact finding

declaring unlawful speech which is in fact protected by.

the Constitution. This is so fs ‘to the ultimate burden

of persuasion for, notwithstanding his duty to testify, the

less resultt\g 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 indi-

cation in the procedling on rehearing of petitioner's

application that the Bar Committee expected petitioner.

te “sustain the burden proving the negative” (357 U.S.

°926) of those complex a. elements which amount to

forbidden advocacy of violent dverthrow. To the’ con-'

trary 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 barden

by petitioner's refus:.] to.answer relevant questions.

The judgment of the Suprenie Court of California is

‘ . : .

. Affirmed.

SUPREME COURT OF THE UNITED STATES

_. No. 28.-—-OcToBER TEN, 1960.

hael Konigsberg, Petitioner, |, . :

_ 2 aie rater On Writ of Certiorari

to the Supreme Court”

of the State of Cali-

fornia.

State Bar of California and the

Committee of Bar Examiners

of the State of California.

{April 24. 1961.|

_ Mr. Justice Biack. with whom THE Cuier Justice

and Mr. Justice DovGtas concur, dissenting.

When this case was here before. we reversed a judg.

ment of the California Supreme Court barring the peti-

- tioner Konigsherg frow: the practice of law in that State

on the ground that he had failed %o carry the burden of

proviny-his good moral character and that he did not.

advocate forcible overthrow of the goverment. © In’ do-

‘ing so, we held that there was “iio evidence in the record” -

Which could rationally justify such a conetusion. T pon

remand, - the ‘Supreme Court ‘of California referred the

matter back to the Committee of Siate Bar Examiners

_for further hearings, at-which time Konigsberg presented

even more evidence: of his good character. The Com-

mittee produced ng evidence whatever which tended. in

‘the slightest degree ‘to reflect pon the good character

and patriotism which we had already held Konigsberg to

have established. . The case is therefore now befare us

with the prior adjudication that Konigsberg possesses the ”

requisite good character and patriotism for admission to.

the Bar unimpairad.

2 ° .

= Kongsberg ¢. State Bar 6f Californin, 353 U.S. 252, 273 * Thar

decision was reached on the basis of a record containing a large

quanuty..of evidence favorable to hb onigsberg and. some scanty

‘evidence arguably adverse to him 5 °

‘ . a .

\ . r °

, Suggests that failure to answer 4 Bar. Examiner's inquiry:

is, ipso facto, a basis’ for. excluding an applicant from the,

”

2 KONIGSBERG vp! STATE BAR, CALIFORNIA

What the Committee did do upon remand was to repeat

the idepitical questions with regfird to Konigsherg’S sus.

pected Association with Communists twenty Years agu

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 Conimittee again refused to

certify him as. fit for adniissioki 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

refuséd 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 ¢ ‘aliforiria statutes

the California decisions, or even in the Rules of the Bar

Committee, which has been called to our attention, that

Bar, irrespective of how overwhelming is his showing of

good character or lovalty or how fimsy 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 appligation for admission solely because he re-

fuses te answer questions. In this situation. it seems to *

¢ . .

* Komigsherg v. State Bar of Cabtorma, 52 Cal. 2d 760 Mr -

Justice Traynor and Mr’ Justice Peters dissented! in seplrate apintons

'353 U.S, at 260-26]

‘The total absence of any authoritative source for this rile is, in

my judgment, merely accentuated by the refetence in the’ majonty

oplmon to the article written for the California’ State Bar Journal

by the Secretayy of the Committee of Bar Examiners Se far as the

eases telied upon in that article are even availible’ for study, thes

so not in Any way sipport the action of the Bar Comnutter here

KONIGSBERG >. STATE BAR, « ALIFORNTY 2

ine that Konigsberg has been rejec me Oia ground that

is hot supported by any ‘authoritative lv deelared. rule ot

law for the state off Calitormia. This alone would be

enough for mie to vote to rever » the judgment. There

are other reasons, however. ety foe sens .

Konigsberg’s objec tion to apswe ring que stion IS as to

whether he is or was-2 member of the © ongalinist Party

has, froin the very ‘beginning, been based. 4 pon the con-

tention that the guaranters of free speech and associatior

of the First Amendment as made controlling upoiw the

States by the Fourteenth Aine ndfment preci ide Cali-

fornia from denying him admission to its Bar for refusi ing

to answer’ such qnestions. In this I think Kon igsherg

has been correct. California has apparently not even:

‘attempted to make actual present, tembersh Hp in thie

Communist’ Party a bar to the: practice of law. and ever,

if it had. T assume it would not ‘he contended that set) a

: Thus, it seems to me that California - reyeetion ot Konig:

is not supported by anv- law af the tuned.” as required ba the dn

Process and Equal Proteectioned ' ties-of the Fourteenth Ametidnses

See Cohen Vo Hurley Heented todas post }) "at: \-

Daniel Webster argued in the Dartmouth Colleos int Are the

these acts of the Jegislature. whieh affect ory party aking permons

their particulier privileges, laws of the laf? — Let phi thes tio;

an-wered by the text of BlocKstone ‘Amd firstoat Ge lav be

hot, a transent sudden onder, fram Posiperior, to, or coneerr

articular person but something permanent, uiferm ed univer

Therefore, a parteulag act of thé legislature to cont savate: Thee gen

of Tins, or to attamt him of -high tre isdn, dors net onter 4

idea of + municipal law ‘for the operation of this aet as <pent ipMor

Titus only, and has nd relation to the commiunst von general

rather a sentenes than a law’ Gord Cok: is engiedly deerive

emphane. -Citing and cortmentyng on the celebrited 2ork ef ipo

Magna Charta’ he says, no man shall be Hisseqzed, We unless at

by the lawful jucwiment, that is, verdiet ot equals, or by the

the land, that is, ito «peak Jt enee for all.) Ay the das course avis

process of law’ ": {Emph: Asis aI Souter | Dartmoutir ¢ islege ¥

‘Woodward. 4 Wheat SIS, SSO-5S} '

=~ .

- . er

- %

eo «

x °

“ p ; zy

4” KONIGSBE RG or STATE BAR. CALIFORNIA

lam could be applied to conduet that took place before the

law was passed For such an appleation woul. I think.

a only be a clear violation: of the ex post facto provibton

ot thy Federal Constitution, but wonled also constitute a

ii! of attainder squarely within: this Court s holdings m

Cummings vo Missouri’ and Fx parte Garland’ And

vet it seems to me that this reeord shows, bevond afiy

shadow of a doubt. that the reason Konigsberg has Been

reyected is because the Comurnttee suspects 4hat he was

tone time a member of the Communist Party.” [ agree

.with the implieation of the majority opinion that this is

net an adeqnate ground to reject: Konigsherg and that it

vould not be constitutionally defended’. ‘

The majority avoids the otherwise unavoidable neces-*

sity of reversing the judgment below an that ground by

stiply. refusing to look beyond the r reason given by the

Conmmittee to justify Konigsherg’s rejection. -In this

wav. the majority reaches the question as to whether the

“Committee ean constitutionally rejeet Konigshe rg for

refusing to answer questions growing out af his conjecs

“$ Wali 2770 . rs gooees

$ Wall 383 . ’

Phe suspiewin=s Of the Commuttie doulles. rehite te the periord

. - ; > S ? . . ; A

roid TOS) for the Commtee had heard testimony from an ex-

vette imi-t that Komg-ber bad attend d Thee tings ot Comanunist

mt during that perns! The uprehability of that cestimont

is cheeussed in the Court's a imen when the ease was ie betore

~« 353 US. at 286-268 ee a

Ponder the erte tETh: a ees OF this « hase “Ht seems clear to mie that the

Thom of the State of Cabfornm im rey jer —_ Konig: befr is also con

“Farv fae deelsien on seh ware "% Bos i Bu * Fram: mers of Neu

Vince ot. S ote in thet « ase every meniber of thu c ourt

part teeter? an Shegiers SOR eNpressedd serio. doubts wit h regard

"he probative value of ¢ Videneg a~ toa Bar ipplicant _niembe Ts hips

the Con rrritinrst Party 15, vears PreViIOm= fo or cotsike fution ot

comes more orobative when. as here, af would, if obfamed. have

- . - . °

eon five vears older. -

: 7 . \

me Id at 246 251) - T eannyt believe tha: sueh evidence

KONIGSBERG 9». STATE BAR. CALIFORNIA. 5

tured past membership in the Communist: Party ever

though it could not constitutionally reject him if he did

answer these questions and his dnawers 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

- ean reject applicants who refuse to auswer questions in

any. way related to that fact. even thonga the applicant

has sword urder oath that he does not advocate viglent

overthrow of *the government and even though, as the

- majority econeedes, questions ‘as ta the political associa-

tions of an applicant subject “speech and association. to.

the deterrence of subsequent disclosure.” T cannot agree

vo with that holding.

The recognition that & ‘alifornia has

and association to the deterrence

closure” is, under the First. Amendmedt, sufficient in itself

to’ render the action of the State-unconstitutionalk unless

‘one subseribes to the deetrine that ormits constitution-

ally protected rights to be “balanced” away whenever a

majority of this Court thinks that ‘a State might have

interest -suthie lent to justify abridgment of those free-

doms. As Th ave indie ated Inany times before!’ [do hot

subseribe to that doetrine for-] believe that the, First

Amendment's unequivocal command that there shat he:

subjected “speech

f subsequen. dis-

Psd

no abridgment of the rights of tree speech aud assembly

shows that the men who drafted off Bill o§ Rights did all

the “balancing” that was to oye im this field. The

histery of the First Ames

require repeating here

nent Is too wellaknown to

Awept to say that it Certauis

“Me, e gomy dy<enting opmions in Braden vol onited States, SBS

S. 451, 44i-4

25. 1 phaus vo Wyman. 3048 US 38°. BUR -3t0. Barewhlatt vb nited

States, 300 US LO, iste 144: Ame vean Communications Assn \

* £ Douds, 339 U- 8. 382, 1445-453

i UKiMSON v i nited © tates BHO i = ofl 422,

t} KONIGSBERG v. STATE BAR, C ALIFORNIA.

cannot be, denied that the very object of adopting the

first Amendment, as well as the other provjsiois of tiie

Bill of Rights, was to put the freedoms protected there

completely out of the area of any congressional control

that may be attempted shrough the exercise of, precisely

those powers that are now bing used ‘to “balance” the:

Bill of Rights out of existence."' Of course, the First

Amendment originally applied only: to the Federal Gov-

ernment and did not apply to the States. But what was

ori iginally 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 overrile a large: number of cases

i which it has been held unequivocally that the Four-

teenth Amendment, made the First. Amendment’ s provi-,

sions controlling upon the States."2 R

‘The Court attempts to justify it its refusal tonnes the

pisin mandate of the First Amendment in part by refer-

ence to the so-called “clear a resent danger test”

forcefully used by Mr. Justice Mfyimes and Mr. Justice

Brandeis, not to narrow but to broaden the then prevail-

ing interpretation of First Amendment freedoms."* «|

'! James Madison, for example, indic: ated cle arly that he did not

understand the Bill of Rights to permit any encMachments upon the

freedoms it was designed to protect. “If they [the first ten Amoefid-

ments] are incorporated into-the constitution, inde ‘pemie n tripying ls

of justice will consider themselves ina peculiar manner the gugrdian

of those rights: they will be an impenetrable bulwark against every

assumption of power f, the 1&islative or exe cutive, they will be natu-

“tally led to resist every encroachment upon nights expre pssly stipulated .

for un the constitution by the declaration of rights.” /1 Annals of

Congress 439 (1789). (Emphasi¥ supplied.) ~~

‘2 See, ¢ Minersville rey v. Gobitis, 310/U. S. "586, 593 :

ahak v | hein 319 U.S. 105, 108; Board of Education v.

Barnette, 319 U.S, 624, 639: Stoub Vv. City of Bazley, 355 U.S. 313.

32]

See Schenck v. United States, 249 U_ 8. 47, 52, where Mr. Justice

Holmes, waiting for the Curt, said: “The question in every case is :

a KONIGS SBERG +. STATE BAR: CALIFORNTA, 7

‘think very little can be foynil in anything they ever

said that’ would provide support for the -“balaneing

test” presently in use. Indeed, the idea of “balatie-

ing’ away First Amendment freedoms appears to me’

to be wholly: inconsistent with the view. strongly

espoused by Justices Holmes and Braydeis, that the best

test of truth is the power of the thought to get itseli

accepted in the,competition of the market.’ The “clear

and present danger test” was urged as consistent with thts

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’* The a st.” on the

other hand, rests uporthe notion that syineideds are so

dangerous that the government need yt: restrict itself

to contrary arguments as a means of opposing ‘them even

where there is afnple time-to do so. Thus here, where

thefe 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 stay be involved.

the majority permits the State of California to adopt

whether the words ysed are used in such cireumstaneés 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.” a Ite

1 Abrams v. United States, 250 U.S. 616, 630 (Holmes, J, dissent-

_Ingt. See ng Pada v. New. York. 268 U.S. 652, 673;-“If in the

long run the kNiet= expressed in proletarian dic came. are destined

to be accepte “d by the dominant’ forces of the community, the only

meshing of free speech is that they should be given their chance and

have their way.” . (Holmes, J., dissenting.) And see W hitney ¢

Califorma, 274 U. 8. 357, 378: “Among free men, the deterrents ordi-

nanly to be apphed to prevent crime are edueatton and punishment

for violations of the law, not, —— ‘ne of the rights of free Speech

and sembly.” (Brandeis, J., coneurring.t

1 See Abrams v. United States, 250 U.S. 616, 630-631 (di-certing

opinion); Gitlow ¥. United States, 268 U.S. 652. 172-673 (dissenr-

-ing opinion); Wertney v. California, 274.U. 8 357, 378-379 (con-

cursing opinion). oe ‘

e . ‘ si

8 .KONIGSBERG v. STATE BAR. CALIFORNIA.

‘measures calculated to suppress the advocacy. of views

abeut governinental affairs. ° ;

1 recognize, of course. that the “clear and presend

_ danger test.” though itself a great advance toward indi-

vidual liberty-oyer sdme previous notions of the protec-\-

tions afforded by the First Amendment,"* does not go as

far‘as my own views as to the protection that should be

accorded these freedéms. I agree with Justices Holmes

and Brandeis, however, that the primary purpose of the

First Amendment was. to insure that all ideas would be

allowed to enter the “competition of the markef But I

fear that the creation of “‘tests” by which speech is left

unprotected under certain ciretimstanices js a standing in-

Vitation to abridge it.” This is nowhere more clearly indi-"

seated 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 “restate-

ment” 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 ifnecessary to avoid the danger.”"" After +

the “clear arid present danger test’: was diluted and weak-

ened by being recast in terms of this “balancing” for-

mula, there seems to me to be much room to doubt that

Justieés Holmes. and Brandeis would even have recog-

‘nized their test. And the reliance upon that weakened

“test” by the majority here, without even so much gs

_ ah attempt to find either a “clear” or-a “present” danger,

is only another persuasive reason for rejecting all such .

_g tests” and enforcing.the First Amendment according to — -

_ its terms, * | : : peers a ase

The Court suggests that a ‘literal reading of the First

_Amenditent™ would. be totally unreasonable because it

—_—_——

* See Bridges v. California, 314 U. 8. 252. 260-2637

183 F. 2d 201, 212: 341 U.S. 494. 310 °

KONIGSBERG vu STATE BAR, C ALIFORNIA. 4

; would invalidate: many wide ly accepted laws. ‘| % not

know to what extent this is true. I'do not believe, for

example, that it would invalidate 1 laws resting upon the

premise that where speech 1 is an’integral part of unlawful

conduct that is going on at the time, the speech can He

used to illustrate, emphasize and establish the unlawful

conduct.’> “On the other hand. it certainly would invali-

date all laws that abridge the right of the people to discuss

-tmatters of religious or publie interest, in the broadest

meaning of ‘thos terms, for ltds clear that a desire -to

profect this right was thé primary purpose of the First

Amendment. Some people have argued. with much

force, that the freedoms guarafiteed by the First Amend-

ment are limited to somewhat broad’ areas like those.’ :

Sut I belieye this Nation's security and tranquility ean

hest be served-by giving the First Amendment the same

broad “construction that all Bill of Rights. guarantees

deserve.” ‘ ~

The aoe of failing to construe the First Arnendment

in this manner is, _J think, dramatically illustrated by the

decision of this Court in Beauharnais vy. Tlinois2' one of

the cases relied .ujson for this holding today. In that

‘case, a majority of this Court upheld the eonviction of a

man whose only. “crime” was the circulation of a petition ?

i= Roth v. United states. 354 U.S. 476. S14 (dissenting opinion)

» alsa Labor Board y. Virqima Electric & Power Co 314 US 460°

pretcte v. r-Empire Storage Co. 336 US. 400

** See, e.g... Mekleyohn, W hat Does the First Amendment Mean’.

20U. of Chi. L. Rey. 461, 464. 7

Cf. Boyd v. United States. 116 U.S. 616, 655: °C lonstitrtional

provisions fer the security of person and property “Should be liberally

eonstrued. A close and lveral eon-truction depmves them of half

their effeaey, and leads to gradyal depreeiation of the mght, as af at

consisted more im sound than in substance. bt is the duty of the

courte to be w atehful for ‘the constitutions) right-of the exigen. and

igaimst any stealthy ene roac hments thereyn ’ ; %

21 343 UL S. 250. eth:

were

KONIG! SBERG: STATE’ BAR, CALIFORNIA.

to be presented to the c itv ( ‘ouncil of ( ‘hicago urging

that body to follow a ‘poliey of racial segregation in lan-

guage that the State of [linvis 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 Clausé of the

- Fourteenth Amendment,” this Court there concluded that

. the petition which had been cireulated fell within that

éxception and therefore ouitside the area of constitution-

ally“protected speech because-it made charges against the.

- entire Negro population of this country. . Thus, Beau-

. culd be used to justify

-harnais 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

‘gs a relatively minor exception -to the full protection of

freedom of speech had. H period becotne a vehicle which

return to the vicious era of the

law of seditious libel, in which the” political ‘party in power,

both in’ England and in- this. country, used such laws to

‘put their opponents in jail.2* '

~ ’

*? The Court opinion here apparently Ateats the Beauharnais

- case as having decided that thé Federal Government has power,

despite the First Amendment, to pass so-cNled “group libel” laws.

This, I think, ix wholly unjustified.- The, Beauharnais opinion Was .

written on the: assumption ‘that the protection afforde ‘d the fteedomes

of speech and petition against state action’ by the Fourteenth Amend-

ment amounted tu something ‘less than the protection afforded these

‘fieciioms against congressional ‘action. by the First Amendment.

Thus, as potted out im my dissent in.that case, the majority in -

Beauharnais never even mentioned the First Amendinent .but upheld

“the state ‘ ‘group dibel” law on the ground that it did not — ate

“eivaized ‘canons of decency: reasonableness, ete.” See 343 U.

at 268-; 269. See alsothe «dissent of Mr,/Justice Jackson, at 287-205. ;

‘The story of the use by-the Féederalists of the Alien and Sedi-

tion Acts of @795 as 2 weapon to suppress the political opposition

of th Jeffersonians, has been graphic: lly told in Bowers,” Jefferson

acta at 362-411. ‘

KONIGSBERG v. STATE BAR, CALIFORNIA. 1k.

Whatever may be the, wisdom, however, of an approach

that- would reject: exceptions to the plain language of the

First sesteeepeegie™ based ‘upon such things as “libel,”

8 -

“obscenity” “* or “fighting words,” ** such is not the issue

in this case. For tiie majority does not, and surely would

‘not, contend that the kind of speech involyed in this

case-—wholly” related as it is to conflicting ideas about

governn.ental affairs and policies—falls outside the pro-

tection of the First Amendment, however narrowly that

Amendment may be interpreted. So, the only issue-pres-

‘ently before us is whether speech that must be well within

the protection of the Amendment should be given com-

plete protection or whether it is entitled only, to such pro-

tection as 1s cohisistent i in the minds of a majoricy. of thts

Court with whatever interest the Government ¢nay be-

asserting to justify its abridgment. The (trert, by stat-

ing ynequivocally that there are no “absolutes” under the

First Amendment, necessarily takes the position that

even speech th®t is admittedly protected by the First

Amendment is subject to the “balancing test’-and that

thegefore 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 judg- ’

ment, such a sweeping denial of the existence, of ary

_- inalienable right to speak undermines the very foundation

upon which the First Amendment, the Bili of Rights, and,

indeed, cur entire stru.ture of government rests.”* The e

24 See,’ e. q.. Ro hv. United States 354 Py S476. 5

o 7 See, €. 9. Chaplinsky v. New Hampshire, B15 ToS. Sts

26 “THe founders, of our federal government were too close to

oppressions and persecutions of the unorthodoy, the unpopular, and

the less influential to ¢rust’ even elected re presentatives with unlim-

ited powers of ¢ontrol over the individual. From, their distrust wage.

derived the first ten amendments, designed a2 gt whole to ‘limit and

qualify the powers of Government,’ to define ‘cases in which the G 10V-

ernme nt ought not to act, or to act only m4 particulag mods,’ and

to protect —e s from oppressive majorities. 1 Annals

19 -KONIGABERG >. STATE BAR. CALIFORNIA

Founders of this Nation attempted ta set up a linated

government which left certain rigkts in the people-—rights

that could not be taken away withbut amendment of the

‘baric charter ef government. The majority's “balanemeg

test” tells us that this is not so. It tells*us that'no right

to think, speak or publish exists in the people that cannot |

be taken away if the Government finds it sufficieytly im- «

perative or expedient todoso. Thus the “balaneing test” °

turns our “Ggvernment of the people, by the people and

for. the people” into a government over the people.

I cannot believe that thig Court would adhere to the

“balancing test” to the Viait of its legie. Since tar.

“test denies that any speech, pv‘ lication or petiteon has

an “absolute” right to protection under. the First Amend-.

ment, strict adherence to it would necessarily mean that

there would be only a conditional right, not-a.complete

right, for any American te express his views to his neigh-

bors—or for his neighbors to hear those views. | In other

words, not evén a candidate for puMlic office, high or low.

-would have an “absolute” right to speak in behalf of his

candidacy, no newspaper would have an “absolute” right.

to priyt its.opinion on public governmental affairs, and -

tae American people would have no “absolute” right to.

hear such discussions. All of these rights would. be de-

pendent 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

* roe . |

137. The firs: of the ter amendments ereeted a Constitutional shelter

for the people's liberties of religion, speech, press, @nd assembly,

This amendment reflects the faith that a good hoewzy is not static

but agvancing, andethat the fullest possible interchange of ideas aud

hwhefs is essential to attainment of this goal. Tae proponents of the

Ficst Amendment, eammitted to this faith, were determined tha:

every “Ameticaa should possé@s an Threstrained freedom to express

his views, however odious thes might be to vested interest: whose

power they might chailenge.” Feldman v. Cnted State 322 U8,

87, SOL telissenting opimion ) . :

: /

ene

KONIGSBERG ¢° STATE. BAR, CALIFORNIA. 13.

“abschute” statement that there are no “absolutes” ultder

the First Amendment must be an exaggeration of its own

views. a

These examplis 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 aecepted as a method for insur-

ing the complete protectinn of First Amendment free-_

doms even against, purely incidental. or inadvertent con-

sequenges. The term came intd use chiefly as a result

of ‘the 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 polit-

ical purposes.” When these cases came before this

Court. we-did not treat ‘the issue posed by them as one

primarily involving First Amendment rights. Recogniz

ing instead that public streets are avenues of travel which

must be kept open for that purpose, we upheld various

* eity ordinances designed to prevent unnécessary noises -.

‘and congestions that dikrupt the normal ayd necessary

flow of traffic. In doing 3 . however, we recognized Mat

‘the enforcement “of tven 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 abcvrt am “incidental” abridgment

of spe h. So we Went on to -point cut that even

ordinatices directed at anf regulating only eonduct

‘ 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 m aintenance of democratic jnstitutions—

as ansat the First Amendment. °

° Tv ‘dal of such’ecases are those referred to by the am qermts in

its opinion here: Schneider v. Stote, SOS US Lat Cors Veu “How. -

shire. 31; ol Ss Ae Pp. cince vo Maasachusetts hed | tS las. Ko Ri

{ ‘nope r, 386 U Ss 77 /

of Schnewler v. State, 308 US 147, 16f

14 KONIGSBERG +. STATE BAR. CALIFORNIA.

Kut those eases never intimated that we would uphold

as constitutional an ordinance which purported to rest

upon the. power of a city to regulate traffie but which was

aimed at speech or attempted to regulate the content of

speech. None of them held, nor cauld they constitution-

ally have held, that a person rightfu lly walking or riding

along the streets and talking in a normal w ay could have

his views controlled, licegised or pénalized in any way by

the city—for that would be @ direct abridgment of speech

itself. Those cases have only begun to take on that

meaning by being relied upon, again’and again as they

are here. to justify the application of the “balancing test”

te governmental -action that is aimed at speech and de-

‘pends for its application’ upon the content of speech.

Thus, those cases have been used to support decisions

upholding subh obviously antispeech actions on the part.

of government as-those involyed in . American C ommunica-

tions Assn.-v/ Douds * and) 1 Meunis*~. Unitcd States.”

And thie use a made of those cass here must be con-

sidered as falling squarely within that class." :

The Court seeks to bring this case under the authorit?

of the street-regulation cases and defend its use of the

“balaricing test” on the ground that California is aitempt-_

_ ing only to exercise its, permissible power, to regulate its

Bar and that any effect its action may have upon speech

is purely “imeidental.” But’ c 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-Exam-

iners ask a bar applicant whether he is-or has been a

-_—— - ---— ——.-

at S, S82, especialy at 308400.

SLU S404, especialy at 508-300

Sef also the discussion of these street-regulation aces jin mis

lissenttng OPINION Im Barenblatt v. United Stateg, 360 U 5. 1,

‘1-142 ae

”

KONIGSBERG ». STATE BAR, CALIFORNIA 15

_member-of the Communist hate The.avowed purpose

of such questioning Is totpe Pit the Comumnittee to dens

‘applicants adiussaon to the Bar it they “advocate” forcible

overthrow.pt the government. Indeed, that is precisely

the ground upon which the majority is here upholding

the Comnnittee’s right to ask Konigsberg these questions.

I realize that there ha: been considerable talk, even in

the opinions of this Court, to the effect. that’ ‘advocacy is:

not Zspeech.” But with the highest respegg for ‘those

who believe that there is such a distinction, I annot agree

with it. For this reason, I think the conclusion is ines

capable that this case presents the question of the consti-

‘tutiunality of action by -he State of California designed to

control the content of speech. As such, it is a “dire a

and not io “incidental” abridgment of speech. Indeed.

if the characterization “incidental” were appropriate here,

it would be-diffieult to imagine what would consti itute a

“direct” abridgment of speech. The use of the “balaie-

ng test” under. these, cirenmstancés thus permits Cali-

‘fornia directly to abridge speech in explicit contradiction |

ty the plain mandate of the First Amendment. * P

But even uv I thonght the majority was correef in its”

view that “balaneing”’ is proper ur this case, | could not.

agree with its decision. In the first place. ‘| think that the”

decision here issunduly restrictive upon i. dividual liberty

even under the penurious “balancing test” Lhe majority |

describes the State's interest which is ere to be “halt

anced” against the interest in prot ‘ting the freedoin- ot

speech: and association as an interest ii “having lawyers

who are devoted te the law,in its broadest sense, inelud-

ing not only its substantive proyisions but also its pro-

cedures tor orderly change. But x .tha tal accurate

statement of the Mieerest of the state that is really at

stake here’ ‘Kotigsberg has stated unequivocally that

he never has/does not now, and never will advoeate the

overthros, pt the goverpinent ol this country by uncou-

6) KONIGSBERG +. STATE BAR. CALIFORNLA: ¢

stitutional means, ‘and we held when the case was heré

before that his evidence was suffierent to gstablish that

fact. Since the Committee has mtroduced no evidence

at any sunsequent heafing that would lead to a contrary

this case is not: as the majofity'’s statement of the State's

interest word seem to indicate. whether a person who:

advocates the overthrow of existing government by force

must be admitted fo the practice of law. All we really

- have on the State's side of the seales is its. desire to

”

- Side of the seale. it admits that ifs decision is hkely te |

know whether Konigsherg was ever a “nember of the

C ommunist Party. — :

The real lack of value of that information ta the State

is, to my mind. clearly shown by the fact that the state

has not even attempted to make membership in the Conr-

munist Party a ground for disqualification from the Bar

Indeed. if the State’s only real interest was. as the

. majority maintains, in having good nien for its Bar, how

could it have rejected Konigsberg. who. undeniably and

as this Court has already held. has provided overwheln:-

ing evidence of his good character? Our former decision. .

~ which: | still regird as resting on what is basically just

g od common sense, was that a man does not have to,tell

* all Pout his previous beliefs and asso@iations in order to .

establish his zood character and loyalty.

When the majority turns to the ltérest on the other

have “edverse effects upon free association caused by

coripulsory disclosures.” but then goes on to say that

—

*The maconty place some stress upon the facet that the Com:

muttee didenot have if lepencent im otigatory rese@urces with which

to seek further nigrey In wew of the complete rehance upon this /

decision so pustity the ¢ etn wdentier! procedure in dm re A astaple

deegded today, pest. p->—, where the Bar vdinitssjoy committee net

oni. had mvestigatory resources but also utihyod them te the fullest

-this faet Just ‘be of jitti weght m tae constitutional “bal inee

}

ote cee Ree coe

- , .

em,

“KONIGSBERG ». STATE: BAR, CALLFORNIA, 1

those advesse effeets will be “mainunat” here. first. because

Bar admussion imterrogations are: private and, secondly.

wecause the decisions of Bar adinission committees are

subject to judicial review. As to the first ground, the’

Court “mply ignores the tt that California law does:

not require its ommuttee to treat infgrmation give ty it

‘as confidential,” | And besides, it taxes credulity to sup-

pose that questions asked an applicant and answers given

by hima in the highly emotional area of communism would

not rapidly leak out to, the great injury of an applic ant-

regardless of what the faefs of his partic ‘ular case may

‘happe mtobe. As to the second ground given, the ourt

fails to take into account the tact 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 hy this and

the companion ease decided today.’ ‘ Provid +s small hope

that an applheant will be afforded ietief. against stubborn

efforts te destroy him arbitrarily by innueidees that will

subject him to lasting suspicions. But evereif T thougnt

the Court was correct in 'ts-beliefs that the interrogation

of a Bar appheant would we kept confidential and that

judicial review is adequate te prevent: arbitrary exelu-

sions from the Bar, I could not. qcetpt its conclusion that

‘the First Amenchuent rights involved in this case are

“erm:

The intereste:n free association at stake hérée is not

inerely the personal interest of petitioner in being free

from burdens that may be imposed. upon han for his past

_-_—-——

In this regard, the situation i identical te that invalidated a>

nneonstitutional bw our deerton in Shelton 5 Tucker, 304 Uo os.479

Dristeend, the absence of sneha require ment Was there stressed as an

mportant part of the tround uy wn wooch that deciston rested /d

4? 4>*) . :

‘in re Anastaplo supra. See particularly the discussion in rity

dixe nting Tpitton in that case, at po —-

heliefs and associations. Tt is the interest of all the poe

plein having a sodiety. in whieh no one is intimidated with’

respect to Lis behetssor assoeiations. ‘Tt Seems plain ty,

ine that the-dnevitable effect of them; pority’s: devision Is

to condone a prac iee that will have a substantial deter-

rent effeet upon thle associations entered into by anvone

Who nay Want to decome a nl in California. If

every person who wants to be a lax ver is to be required te

aceount for his associations as a prerequisite to adinission |

inte the praetice, of faw. the only sate course for those

. desiring admission would seem to be se ripulously te avoid

assuclation with any organization ‘that advocates anv-

thing at all somebody might possibly be against, jncluding

erolips whose activities are constitutionally’ protected

under even the most restricted votion.of the First Amend-

ment. And. in the currently prevailing atmosphere in

thus counfyy. T gan think of few organizations active in

‘favor of civil liberties that are not hig ly controversial, :

It addition, it seems equally clear Mat anyone who had

ilready assomated himself with an orgahization aetive in

favor of civil liberties before he Hevelopedean interest in

the law. would. after this ease! be discouraged trom

spending the large amoufits of time and money wwecessary

to obtain ar sig education inthe hope that he eonld

practice law in California.’ .

Thus, in my view, the majority has reached its decision,

here against the freedoms of the First Amoydment dy a

te ————

The tiation Here is thus ientie:l to thot in Speiser v. Randal!

where the Goi irt expre ssly’ recognized the danger to protec teed assOCht-

ton=, Seegs7 US 513, 526 AY

dh Shaler \ Pushes SU UATE ut 4N6. m7, Where we took note

of tesimony ThAt efforts Were being made‘to remove from a sehet.

syste all tearher- gho sup parte ad such orgamizasions a+ the Ametienh

Civil Liberthe mon, the Urban League, the Ameriewn, Associtiorts

# University Professors, a rhe. Wanmeal's bane reenes Conpmitt bie

{ " wey Whew =e hools

KONIGSBERG 9. STATE. BAR. CALIFORNEA. 19

furdamental Misapplication of its.own currently, but I

hope only temporarily, prevaihing “balancing test The

interest of the Committee in satisfying its curiosity with

respect to Konigsberg’s “possible” membership in the

Communist Part® two decades ago has been indated out

. of all proportion to its real value—the vast interest of the

public in mygintainimng unabridged the basic freedoms of

speech. press and assetubly has been paid litthe £ any-

ething more than lip service— and important constitue

tional rights have onee again been “balanced”. away.

This. of course, is al ever-present dange rof the * thal ale

ing’ test” for the anpheationtof sueh a test is Ncessarily

‘tied to the emphasis particular judges give to competing

societal values. Judges. like everyone else, vary -tre-

mendously in their choice of Salues. This is perfectly

natural and? indeed. unavoidable, | But it is neither nat-

ural nor wnavoidable in this country for the fundamental

rights of the people to be dependent upon the ditferent

emphasis ditferént juilges put upon difpent values vat

different times, For those rights, particuldtly the First

Amendjnent rights involved-here, were unequivocally set

oat by the Foutiders in our Bill of Rights in the very

plainest of language, atid they should not hbe.diluted by

“tests” that obliterate them whenever particular judges

think vilues they mest highly cherish outweigh | the

values most highly cherished by the Founders.

Moreover, it seers. to that the “balancing test” is ;

here. beang applied to eat the heart out of ove of the very

few lberty-protecting decisions that this Court ‘has ten-

dered in the last deeade. Speiser v. Randall” str ck

law which demed tax exe mptions/ta veterans who refused

to sign an oath that they did no¥advoeate “the overthros

of-the Government of the United States or of the State of

es . s

2%) KONIGSBERG v. STATE BAR, CALIFORNIA.

California by foree or violence or other unlawful

means .... ' he ease arose when certain veterans

insisted upon their right to the exemptions without sign-

ing the oath. The California Supreme Court rejected the

veterans’ constitutional contention that the state ‘law vio-. .

lated due process by placing the burden of proof upon the

taxpayer to prove that he did not advocate violent over- .

throw of the gov ernment. This Court reversed, with,only

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 Constitu- °

- tion tnakes free.” °** 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-thase cases performed a very different function

from the declaration in igsue here. In the earlier cases it

appears that the loyalty oath, ence signe’, became conelu-

sive evidence of the facts attested so far as the right to

office was concerned. “If the person took the oath he

rotained his position. The oath was not part of a device

to shift td the officeholder the burden of proving his right

to retain his position,” *° But that is precisgly what is _

happening here. For, even though Konigsberg has taken

an, oath that he does rot advoégate 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

** Section 32 of the C: tlifornia Revenue and Taxation Cc we This.

section was .set‘out ‘in full in the majonty opinion in Speier. 357

U. ‘.. at 516-517, n. 2.

19357 Uo, at 526.

“71, at 308, The Casts so distinguished were Garner vy yar of

Agena orks, 341 U.S. 716; Gerende v. Board of Supervisors, 341

U. S.56, and pantie Communications ". v. Douds. 339. U. 5.

poi oe

KONIGSBERG vu. STATE BAR, CALIFORNIA, 21

sort of shifting of the burden. of proof, that is prose ‘ribed

vy Speiser, 1 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 betwee: the two cases tends to

make this case an even stronger one. Here, .as-in Spevser,

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, eon-

trary 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

not advocate the violent overthrow of the. government.

There is one difference between the two cases, for here

Konigsberg agrecd to take the oath required and he re-

fused to answgrAnly. 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 Saibiser case may

be distinguishable because it involved merely the- power

of the State to im pose a penalty, by way of a heavier tax

burden, upon a person who refused to take an oath, while

this case invoives the power of the State to determine the

qualifications a person must have: te be admitted to the

Bar—a position of impértance to the public. ‘This dis-

tinetion 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 -

additionai taxes as a penalty. Konigsberg has the burden.

of proving that he does not advocate the ‘violent over-

throw of the government and, upen his supposed failure

to meet this burden, he is being denied an opportunity

to practice the profession for which he has expended much

> eg 3 a . ; | :

22 KONIGSBERG. >. STATE BAR CALIFORNIA:

i . . . “tet

tine and money'to prepare himself. so far as Tam con-

cerned the consequences to Konigsberg, whether Cotisid-

‘ered from a financial standpoint: a socia} standpoint. or -

any other standpoint I car. think of, constitute a more

serious “penalty” than phat im pone upon Speiser. .

; In my judgment this case. must take its place in the

ever-lengthening line of case in Which indiyidual liberty

to think, speak, write, assoviate and petition is being — ,

abridged ‘ig # manner precisaly contrary td the explicit”

commands of the First Amendmeént.""" And\I believe the

- abridgment of liberty here. as jin inost of the other cases -.

- in that line; is based upon soln more than a fear that

the American people ear be alienated froin their allegi-—

ance to our form of government by ‘the talk of zealots for.

a form of government that is hostile -to everything for *

which this cOLutty 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 * f

mere talk or argument from people who are wedded to . /

totalitarian forms of government, It was this kind of

faith in- the Am-rieah people that brought about the

~ adoption of the .First Amendment, which was. expressly:

desittned to let people say what,they wanted to about gov- -

. émment—even against: government if. they were. so in-

- clined.. The: idea underlying .this then revolutionary

idea of freedom was that the Constitution had set up a

governmént so favorable to individual liberty that argu-

* ments against. that: government would fall harmléss at

the feet of a satisfied and happy citizenship. Thomas . ‘

: Jefferson voiced this idea with simple eloquence Og) ‘the

occasion of his first’ inauguration as President ‘of the .

‘4 This line has already been considerably lengthened during this ¢

very Term of Court. See, e.g. phaus v. Wyman. 34 US BRN.

Times Film, ( ‘orp. vy. City of Chicago, 365 U. 8. 43: Wikinson t

‘Tnited States. 365 U.S. 399: Braden y. United States. 305 TS 4310

+ og ros or _

KONTGSBERG* >). STATE BAR. CALIFORNIA. 2:

gl ited States: “Ef-there’be any among us who would wish

to dissolve this Union or. to change Ite-tepitbheas form

let them stand undisturbed as Monuments of the safety

with which error of opinion tiay be tolerated where

reasol is left free to. combat it.

In’ the main. this is the obikeecphy under which: this

country has lived” and progpered strice its creation.

There’ have. however, been psi notable exceptions, the

first being thesperiod of the short-lived’ and unlantented

alien afd seditiop-laws of the late 1700's. and the ober .

being the period since the beginngng of .the “egld war”

shortly after the close of World WarJ1, in which there has’

beeu a Wigepread fear of ati imagined‘overw helming per-

suasivenes® in Communist arguments. The most com-

monly Offered justification for the liberty-stifling meas-

ures that have characterizéd this latter period is that the

Communists dé not themselves believe in the freedoms

of speech; press and assembly sd they should. pot. be

allowed to take adv antage of the freeioms our C onstitu-.

cases, the effect of repressive taws aiid i inquisitions of this

kind cannot be and is not limited to Communists." More-

over, the fact that,Communists practice repression ‘oft

"Thomas Jefferson, Fey Inaugural Address Murch 4.2 [S01

This address is reprinted in Jones, Primer of Intelleernal Freeglon®

~~ or ard University Press, 1949). a

“Centufies of expetience testiiy that laws aimed at one polities, .

or rekgions group, however rational these laws may7be in their be-

innings, generate hatreds amd prejudice? “which rapidly spread

vevond eontrol. Too often i fs fer ur whieh per + stich passions

and yofhing is more reckless or contaliots the resulting hysteria,

popular indignation tars with the saine ee h all these who have

ever been associated with yny member vf the group under attaek or

who-hold a view which, thongh supported by ne veawed ‘Ame Fiestas ts

essential to democracy, has been adopted by that group for it. own

<7 peg "* American C ommuncations Asch. > Dowds, 330°U. gs. -

2, 45-449 (dissentIhg opine ay. ,

ie? 2

e .

. : .

. © °

24 KONIGSBERG v. STATE BAR. CALIFORNIA. ~

+ .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. Mur Bill of ‘Rights

* placed our survival upoh a. firmer ground—that of

freedom, not repression: & —

Nothing in this recdrd 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 inghis country for it shows

‘ that Konigsberg is a man of firm convictions who has

stood up and supported this country’s freedoin in peace

and in war. The writings that the record shows he has

published constitute vehemént protests agairist the idea

of ‘overthrowing this government by force. No witness

_ could be found throughout the long years of this inquisi-

tion who could say, or even who would say, that Konigs-

: berg has eyer raised his voice or his hand against his

‘country. He is, therefore. but another victim of the pre-

' -vailing fashion of destroying men for the views it is |

suspected they might, entertain.

SUPREME COURT OF THE UNITED STATES

_ No. B—Berow Tens. 1900. + ; ;

. . . Rar ee ate ———

Raphael Konigsberg. Petitioner.

sees .

On Writ of Certiorari .

to the Supreme Court

of the State of Cali- -

fornia.

State Bar of California and the}

Committée of Bar Examiners

of the’ State of California. |

* April 24, 1961.|

Mr. Justice Brennan, with whom THe Cuser Jts-

. TICE 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, that “a ques-

ie as to present or past theimbership in [the Communist

arty] is relevant to the issue of possible criminal advo-

, cacy 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 pro-.

ceeding, with evidence to. show that Konigsberg unlaw-

fully advocated the overthrow of the-government. Under

our decision in Speiser.v. Randall, 357 U.S. 513. the

Pourteenth Amendment therefore protécts Konigsberg

‘from being denied admission to the Bar for his refusal to

answer the questions. In Speiser we helé that “| .

when the constitutional right to speak is sought to be -

_ deterred By a’State’s general taxing program duc process .

demands that the speech be unencumbered until the State

comes forward with sufficient.proef to justify its inhibi-

_ Non.” , 357 U.S. pp. 528-529. “Taere.may be differ-

encesef degree,” Mr. Justice-Traynor said. in the public

interest in the fitness of.the applicants for tax exemption

and far admission te the Bar’; vet, as to the latter also,

sia, procedure is logically dictated by Speiser

ny - 8 ; . : pits

X me | : : ' s

2 KONTGSBERG > STATE BAR. CALIFORNIA

a Cal. De. DB. Tet. Wied anless -Inere whitney governs

this Court’s decisions in; situations in pessibh—rationslly

to distinguish: such a procedure is indeed constitutionalls

s . a, or ~. ae .

‘ required here. .The same reasons apply. For Mr. Jius-

tice Travnor was entirely right it saymg: “Whatever its

Be relevancy | th® question as to past or present Party mem-

— ) ,. -hership} ih a particular context... . it is an extraordi-

a nary Warlabtcet the usual inquiry into crime, for the

ant burden of proof upon any one under question

- . \ add .

“poses the immediate threat Of prior restraint upon the

- tree speech of all applicants. The possibility of inquiry

into their speech, the heavy burden upon them to estab-'

lish its innocence, dnd the ev repercussions of inquiry

despite innocence, would constrain them to speak their

minds so noncommittally that no one could ever mistake

eS! “Ge innocuous words for advocacy. - This grave danger

‘to freedom of speech could be averted without loss to -

legitimate irvestigation by shifting the -urden to the

_ examiners. Confronted with a prima facie case, an

applicant would then be obliged to rebut a.” Fd.

p. 776. eo ere

: The Court admits: the’ complete absence of any suéh

) predicate by thaCommittee for its questions. The Court

, Attempts te distinguish the situations in omler te escape

the controlling authority of Speiser.. The speciousness

of its reasoning is exposed in’ Mr. Justice -Brack’s

dissent. IT would reverse, ° .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.