# Petitioners Reply Brief — Konigsberg v. State Bar of Cal. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0351%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1961 - **Citation:** 366 U.S. 36 ## Text «* @ 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 - .- . *. --- e s . o” ea ~~. 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 2 . . ° : 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 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 ~ -*@ - aS ; 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. a 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 ‘ 8 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 s : 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- o . 7) 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 4 ‘ 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 « . a 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. . : rr 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. a 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, a 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. ; . . ' - . - . . . ' . e . . . . ~ . 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 © r 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- ; + 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- t 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 : . LL | 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 o o 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- i / 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; * te « © *. 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 | Po 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 Vv 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 om ba - “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= . a 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. or 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 oy e . . -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 . 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 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: ce 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 “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 ? ae 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 a . 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- 4 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 conelusjon, the fact remains established. © so the issue in 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, ra “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 —- ¢ % IX KONIGSBERG © STATE BAR) CALIFORNIA 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 sw ° » J 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 down, as a violation of the Federal © onstitution, a state 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 e* 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 . 9 ** 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 o > 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 s + og ros or _ ue 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-. tion provides. © But. as illustrated by this and many other 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 Dowds, 330°U. gs. - 2, 45-449 (dissentIhg opine ay. , ie? 2 e . . : . . © ° i 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 x > 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, ° . *. © --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0351%3A11. Public record. Not legal advice.