Konigsberg v. State Bar of California (366 U.S. 36)

366 U.S. 36
Konigsberg v. State Bar of California
Argued: December 14, 1960
Decided: April 24, 1961


Mr. Edward Mosk, Hollywood, Cal., for petitioner.
Mr. Frank B. Belcher, Los Angeles, Cal., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.

Dissenting Opinion

Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.

When this case was here before, we reversed a judgment of the California Supreme Court barring the petitioner Konigsberg from the practice of law in that State on the ground that he had failed to carry the burden of proving his good moral character and that he did not advocate forcible overthrow of the Government. In doing so, we held that there was ‘no evidence in the record’ which could rationally justify such a conclusion. [1] Upon remand, the Supreme Court of California referred the matter back to the Committee of State Bar Examiners for further hearings, at which time Konigsberg presented even more evidence of his good character. The Committee produced no evidence whatever which tended in the slightest degree to reflect upon the good character and patriotism which we had already held Konigsberg to have established. The case is therefore now before us with the prior adjudication that Konigsberg possesses the requisite good character and patriotism for admission to the Bar unimpaired.

What the Committee did do upon remand was to repeat the identical questions with regard to Konigsberg’s suspected association with Communists twenty years ago that it had asked and he had refused to answer at the first series of hearings. Konigsberg again refused to answer these questions and the Committee again refused to certify him as fit for admission to the Bar, this time on the ground that his refusal to answer had obstructed the required investigation into his qualifications, a ground subsequently adopted by a majority of the Supreme Court of that State. [2]

Thus, California purports to be denying Konigsberg admission to its Bar solely on the ground that he has refused to answer questions put to him by the Committee of Bar Examiners. But when the case was here before, we observed: ‘There is nothing in the California statutes, the California decisions, or even in the Rules of the Bar Committee, which has been called to our attention, that suggests that failure to answer a Bar Examiner’s inquiry is, ipso facto, a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners.’ [3] And we have been pointed to no subsequent California statutes, rules, regulations or court decisions which require or even permit rejection of a lawyer’s application for admission solely because he refuses to answer questions. [4] In this situation, it seems to me that Konigsberg has been rejected on a ground that is not supported by any authoritatively declared rule of law for the State of California. [5] This alone would be enough for me to vote to reverse the judgment. There are other reasons, however.

Konigsberg’s objection to answering questions as to whether he is or was a member of the Communist Party has, from the very beginning, been based upon the contention that the guarantees of free speech and association of the First Amendment as made controlling upon the States by the Fourteenth Amendment preclude California from denying him admission to its Bar for refusing to answer such questions. In this I think Konigsberg has been correct. California has apparently not even attempted to make actual present membership in the Communist Party a bar to the practice of law, and even if it had, I assume it would not be contended that such a law could be applied to conduct that took place before the law was passed. For such an application would, I think, not only be a clear violation of the ex post facto provision of the Federal Constitution, but would also constitute a bill of attainder squarely within this Court’s holdings in Cummings v. State of Missouri [6] and Ex parte Garland. [7] And yet it seems to me that this record shows, beyond any shadow of a doubt, that the reason Konigsberg has been rejected is because the Committee suspects that he was at one time a member of the Communist Party. [8] I agree with the implication of the majority opinion that this is not an adequate ground to reject Konigsberg and that it could not be constitutionally defended. [9]

The majority avoids the otherwise unavoidable necessity of reversing the judgment below on that ground by simply refusing to look beyond the reason given by the Committee to justify Konigsberg’s rejection. In this way, the majority reaches the question as to whether the Committee can constitutionally reject Konigsberg for refusing to answer questions growing out of his conjectured past membership in the Communist Party even though it could not constitutionally reject him if he did answer those questions and his answers happened to be affirmative. The majority then goes on to hold that the Committee, by virtue of its power to reject applicants who advocate the violent overthrow of the Government, can reject applicants who refuse to answer questions in any way related to that fact, even though the applicant has sworn under oath that he does not advocate violent overthrow of the Government and even though, as the majority concedes, questions as to the political associations of an applicant subject ‘speech and association to the deterrence of subsequent disclosure.’ I cannot agree with that holding.

The recognition that California has subjected ‘speech and association to the deterrence of subsequent disclosure’ is, under the First Amendment, sufficient in itself to render the action of the State unconstitutional unless one subscribes to the doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a majority of this Court thinks that a State might have interest sufficient to justify abridgment of those freedoms. As I have indicated many times before, [10] I do not subscribe to that doctrine for I believe that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field. The history of the First Amendment is too well known to require repeating here except to say that it certainly cannot be denied that the very object of adopting the First Amendment, as well as the other provisions of the Bill of Rights, was to put the freedoms protected there completely out of the area of any congressional control that may be attempted through the exercise of precisely those powers that are now being used to ‘balance’ the Bill of Rights out of existence. [11] Of course, the First Amendment originally applied only to the Federal Government and did not apply to the States. But what was originally true only of Congress is now no less true with respect to the governments of the States, unless a majority of this Court wants to overrule a large number of cases in which it has been held unequivocally that the Fourteenth Amendment made the First Amendment’s provisions controlling upon the States. [12]

The Court attempts to justify its refusal to apply the plain mandate of the First Amendment in part by reference to the so-called ‘clear and present danger test’ forcefully used by Mr. Justice Holmes and Mr. Justice Brandeis, not to narrow but to broaden the then prevailing interpretation of First Amendment freedoms. [13] I think very little can be found in anything they ever said that would provide support for the ‘balancing test’ presently in use. Indeed, the idea of ‘balancing’ away First Amendment freedoms appears to me to be wholly inconsistent with the view, strongly espoused by Justices Holmes and Brandeis, that the best test of truth is the power of the thought to get itself accepted in the competition of the market. [14] The ‘clear and present danger test’ was urged as consistent with this view in that it protected speech in all cases except those in which danger was so imminent that there was no time for rational discussion. [15] The ‘balancing test,’ on the other hand, rests upon the notion that some ideas are so dangerous that Government need not restrict itself to contrary arguments as a means of opposing them even where there is ample time to do so. Thus here, where there is not a semblance of a ‘clear and present danger,’ and where there is more than ample time in which to combat by discussion any idea which may be involved, the majority permits the State of California to adopt measures calculated to suppress the advocacy of views about governmental affairs.

I recognize, of course, that the ‘clear and present danger test,’ though itself a great advance toward individual liberty over some previous notions of the protections afforded by the First Amendment, [16] does not go as far as my own views as to the protection that should be accorded these freedoms. I agree with Justices Holmes and Brandeis, however, that a primary purpose of the First Amendment was to insure that all ideas would be allowed to enter the ‘competition of the market.’ But I fear that the creation of ‘tests’ by which speech is left unprotected under certain circumstances is a standing invitation to abridge it. This is nowhere more clearly indicated than by the sudden transformation of the ‘clear and present danger test’ in Dennis v. United States. In that case, this Court accepted Judge Learned Hand’s ‘restatement’ of the ‘clear and present danger test’: ‘In each case (courts) must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ [17] After the ‘clear and present danger test’ was diluted and weakened by being recast in terms of this ‘balancing’ formula, there seems to me to be much room to doubt that Justices Holmes and Brandeis would even have recognized their test. And the reliance upon that weakened ‘test’ by the majority here, without even so much as an attempt to find either a ‘clear’ or a ‘present’ danger, is only another persuasive reason for rejecting all such ‘tests’ and enforcing the First Amendment according to its terms.

The Court suggests that a ‘literal reading of the First Amendment’ would be totally unreasonable because it would invalidate many widely accepted laws. I do not know to what extent this is true. I do not believe, for example, that it would invalidate laws resting upon the premise that where speech is an integral part of unlawful conduct that is going on at the time, the speech can be used to illustrate, emphasize and establish the unlawful conduct. [18] On the other hand, it certainly would invalidate all laws that abridge the right of the people to discuss matters of religious or public interest, in the broadest meaning of those terms, for it is clear that a desire to protect this right was the primary purpose of the First Amendment. Some people have argued, with much force, that the freedoms guaranteed by the First Amendment are limited to somewhat broad areas like those. [19] But I believe this Nation’s security and tranquility can best be served by giving the First Amendment the same broad construction that all Bill of Rights guarantees deserve. [20]

The danger of failing to construe the First Amendment in this manner is, I think, dramatically illustrated by the decision of this Court in Beauharnais v. People of State of Illinois, [21] one of the cases relied upon for this holding today. In that case, a majority of this Court upheld the conviction of a man whose only ‘crime’ was the circulation of a petition to be presented to the City Council of Chicago urging that body to follow a policy of racial segregation in language that the State of Illinois chose to regard as ‘libelous’ against Negroes. Holding that ‘libelous utterances’ were not included in the ‘speech’ protected against state invasion by the Due Process Clause of the Fourteenth Amendment, [22] this Court there concluded that the petition which had been circulated fell within that exception and therefore outside the area of constitutionally protected speech because it made charges against the entire Negro population of this country. Thus, Beauharnais was held to have simultaneously ‘libelled’ some fifteen million people. And by this tremendous expansion of the concept of ‘libel,’ what some people might regard as a relatively minor exception to the full protection of freedom of speech had suddenly become a vehicle which could be used to justify a return to the vicious era of the laws of seditious libel, in which the political party in power, both in England and in this country, used such laws to put its opponents in jail. [23]

Whatever may be the wisdom, however, of an approach that would reject exceptions to the plain language of the First Amendment based upon such things as ‘libel,’ ‘obscenity’ [24] or ‘fighting words,’ [25] such is not the issue in this case. For the majority does not, and surely would not, contend that the kind of speech involved in this case-wholly related as it is to conflicting ideas about governmental affairs and policies-falls outside the protection of the First Amendment, however narrowly that Amendment may be interpreted. So the only issue presently before us is whether speech that must be well within the protection of the Amendment should be given complete protection or whether it is entitled only to such protection as is consistent in the minds of a majority of this Court with whatever interest the Government may be asserting to justify its abridgment. The Court, by stating unequivocally that there are no ‘absolutes’ under the First Amendment, necessarily takes the position that even speech that is admittedly protected by the First Amendment is subject to the ‘balancing test’ and that therefore no kind of speech is to be protected if the Government can assert an interest of sufficient weight to induce this Court to uphold its abridgment. In my judgment, such a sweeping denial of the existence of any inalienable right to speak undermines the very foundation upon which the First Amendment, the Bill of Rights, and, indeed, our entire structure of government rest. [26] The Founders of this Nation attempted to set up a limited government which left certain rights in the people-rights that could not be taken away without amendment of the basic charter of government. The majority’s ‘balancing test’ tells us that this is not so. It tells us that no right to think, speak or publish exists in the people that cannot be taken away if the Government finds it sufficiently imperative or expedient to do so. Thus, the ‘balancing test’ turns our ‘Government of the people, by the people and for the people’ into a government over the people.

I cannot believe that this Court would adhere to the ‘balancing test’ to the limit of its logic. Since that ‘test’ denies that any speech, publication or petition has an ‘absolute’ right to protection under the First Amendment, strict adherence to it would necessarily mean that there would be only a conditional right, not a complete right, for any American to express his views to his neighbors-or for his neighbors to hear those views. In other words, not even a candidate for public office, high or low, would have an ‘absolute’ right to speak in behalf of his candidacy, no newspaper would have an ‘absolute’ right to print its opinion on public governmental affairs, and the American people would have no ‘absolute’ right to hear such discussions. All of these rights would be dependent upon the accuracy of the scales upon which this Court weighs the respective interests of the Government and the people. It therefore seems to me that the Court’s ‘absolute’ statement that there are no ‘absolutes’ under the First Amendment must be an exaggeration of its own views.

These examples also serve to illustrate the difference between the sort of ‘balancing’ that the majority has been doing and the sort of ‘balancing’ that was intended when that concept was first accepted as a method for insuring the complete protection of First Amendment freedoms even against purely incidental or inadvertent consequences. The term came into use chiefly as a result of cases in which the power of municipalities to keep their streets open for normal traffic was attacked by groups wishing to use those streets for religious or political purposes. [27] When those cases came before this Court, we did not treat the issue posed by them as one primarily involving First Amendment rights. Recognizing instead that public streets are avenues of travel which must be kept open for that purpose, we upheld various city ordinances designed to prevent unnecessary noises and congestions that disrupt the normal and necessary flow of traffic. In doing so, however, we recognized that the enforcement of even these ordinances, which attempted no regulation at all of the content of speech and which were neither openly nor surreptitiously aimed at speech, could bring about an ‘incidental’ abridgment of speech. So we went on to point out that even ordinances directed at and regulating only conduct might be invalidated if, after ‘weighing’ the reasons for regulating the particular conduct, we found them insufficient to justify diminishing ‘the exercise of rights so vital to the maintenance of democratic institutions’ as those of the First Amendment. [28]

But those cases never intimated that we would uphold as constitutional an ordinance which purported to rest upon the power of a city to regulate traffic but which was aimed at speech or attempted to regulate the content of speech. None of them held, nor could they constitutionally have held, that a person rightfully walking or riding along the streets and talking in a normal way could have his views controlled, licensed or penalized in any way by the city-for that would be a direct abridgment of speech itself. Those cases have only begun to take on that meaning by being relied upon, again and again as they are here, to justify the application of the ‘balancing test’ to governmental action that is aimed at speech and depends for its application upon the content of speech. Thus, those cases have been used to support decisions upholding such obviously antispeech actions on the part of government as those involved in American Communications Ass’n v. Douds [29] and Dennis v. United States. [30] And the use being made of those cases here must be considered as falling squarely within that class. [31]

The Court seeks to bring this case under the authority of the street-regulation cases and to defend its use of the ‘balancing test’ on the ground that California is attempting only to exercise its permissible power to regulate its Bar and that any effect its action may have upon speech is purely ‘incidental.’ But I cannot agree that the questions asked Konigsberg with regard to his suspected membership in the Communist Party had nothing more than an ‘incidental’ effect upon his freedom of speech and association. Why does the Committee of Bar Examiners ask a bar applicant whether he is or has been a member of the Communist Party? The avowed purpose of such questioning is to permit the Committee to deny applicants admission to the Bar if they ‘advocate’ forcible overthrow of the Government. Indeed, that is precisely the ground upon which the majority is here upholding the Committee’s right to ask Konigsberg these questions. I realize that there has been considerable talk, even in the opinions of this Court, to the effect that ‘advocacy’ is not ‘speech.’ But with the highest respect for those who believe that there is such a distinction, I cannot agree with it. For this reason, I think the conclusion is inescapable that this case presents the question of the constitutionality of action by the State of California designed to control the content of speech. As such, it is a ‘direct,’ and not an ‘incidental’ abridgment of speech. Indeed, if the characterization ‘incidental’ were appropriate here, it would be difficult to imagine what would constitute a ‘direct’ abridgment of speech. The use of the ‘balancing test’ under these circumstances thus permits California directly to abridge speech in explicit contradiction to the plain mandate of the First Amendment.

But even if I thought the majority was correct in its view that ‘balancing’ is proper in this case, I could not agree with its decision. In the first place, I think that the decision here is unduly restrictive upon individual liberty even under the penurious ‘balancing test.’ The majority describes the State’s interest which is here to be ‘balanced’ against the interest in protecting the freedoms of speech and association as an interest in ‘having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change.’ But is that an accurate statement of the interest of the State that is really at stake here? Konigsberg has stated unequivocally that he never has, does not now, and never will advocate the overthrow of the Government of this country by unconstitutional means, and we held when the case was here before that his evidence was sufficient to establish that fact. Since the Committee has introduced no evidence at any subsequent hearing that would lead to a contrary conclusion, the fact remains established. [32] So the issue in this case is not, as the majority’s statement of the State’s interest would seem to indicate, whether a person who advocates the overthrow of existing government by force must be admitted to the practice of law. All we really have on the State’s side of the scales is its desire to know whether Konigsberg was ever a member of the Communist Party.

The real lack of value of that information to the State is, to my mind, clearly shown by the fact that the State has not even attempted to make membership in the Communist Party a ground for disqualification from the Bar. Indeed, if the State’s only real interest was, as the majority maintains, in having good men for its Bar, how could it have rejected Konigsberg, who, undeniably and as this Court has already held, has provided overwhelming evidence of his good character? Our former decision, which I still regard as resting on what is basically just good common sense, was that a man does not have to tell all about his previous beliefs and associations in order to establish his good character and loyalty.

When the majority turns to the interest on the other side of the scale, it admits that its decision is likely to have adverse effects upon free association caused by compulsory disclosures, but then goes on to say that those adverse effects will be ‘minimal’ here, first, because Bar admission interrogations are private and, secondly, because the decisions of Bar admission committees are subject to judicial review. As to the first ground, the Court simply ignores the fact that California law does not require its Committee to treat information given it as confidential. [33] And besides, it taxes credulity to suppose that questions asked an applicant and answers given by him in the highly emotional area of communism would not rapidly leak out to the great injury of an applicant-regardless of what the facts of his particular case may happen to be. As to the second ground given, the Court fails to take into account the fact that judicial review widens the publicity of the questions and answers and thus tends further to undercut its first ground. At the same time, such review, as is demonstrated by this and the companion case decided today, [34] provides small hope that an applicant will be afforded relief against stubborn efforts to destroy him arbitrarily by innuendoes that will subject him to lasting suspicions. But even if I thought the Court was correct in its beliefs that the interrogation of a Bar applicant would be kept confidential and that judicial review is adequate to prevent arbitrary exclusions from the Bar, I could not accept its conclusion that the First Amendment rights involved in this case are ‘minimal.’

The interest in free association at stake here is not merely the personal interest of petitioner in being free from burdens that may be imposed upon him for his past beliefs and associations. It is the interest of all the people in having a society in which no one is intimidated with respect to his beliefs or associations. It seems plain to me that the inevitable effect of the majority’s decision is to condone a practice that will have a substantial deterrent effect upon the associations entered into by anyone who may want to become a lawyer in California. If every person who wants to be a lawyer is to be required to account for his associations as a prerequisite to admission into the practice of law, the only safe course for those desiring admission would seem to be scrupulously to avoid association with any organization that advocates anything at all somebody might possibly be against, including groups whose activities are constitutionally protected under even the most restricted notion of the First Amendment. [35] And, in the currently prevailing atmosphere in this country, I can think of few organizations active in favor of civil liberties that are not highly controversial. [36] In addition, it seems equally clear that anyone who had already associated himself with an organization active in favor of civil liberties before he developed an interest in the law, would, after this case, be discouraged from spending the large amounts of time and money necessary to obtain a legal education in the hope that he could practice law in California.

Thus, in my view, the majority has reached its decision here against the freedoms of the First Amendment by a fundamental misapplication of its own currently, but I hope only temporarily, prevailing ‘balancing’ test. The interest of the Committee in satisfying its curiosity with respect to Konigsberg’s ‘possible’ membership in the Communist Party two decades ago has been inflated out of all proportion to its real value-the vast interest of the public in maintaining unabridged the basic freedoms of speech, press and assembly has been paid little if anything more than lip service-and important constitutional rights have once again been ‘balanced’ away. This, of course, is an ever-present danger of the ‘balancing test’ for the application of such a test is necessarily tied to the emphasis particular judges give to competing societal values. Judges, like everyone else, vary tremendously in their choice of values. This is perfectly natural and, indeed, unavoidable. But it is neither natural nor unavoidable in this country for the fundamental rights of the people to be dependent upon the different emphasis different judges put upon different values at different times. For those rights, particularly the First Amendment rights involved here, were unequivocally set out by the Founders in our Bill of Rights in the very plainest of language, and they should not be diluted by ‘tests’ that obliterate them whenever particular judges think values they most highly cherish outweigh the values most highly cherished by the Founders.

Moreover, it seems to me that the ‘balancing test’ is here being applied to cut the heart out of one of the very few liberty-protecting decisions that this Court has rendered in the last decade. Speiser v. Randall [37] struck down, as a violation of the Federal Constitution, a state law which denied tax exemptions to veterans who refused to sign an oath that they did not advocate ‘the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means * * *.’ [38] The case arose when certain veterans insisted upon their right to the exemptions without signing the oath. The California Supreme Court rejected the veterans’ constitutional contention that the state law violated due process by placing the burden of proof upon the taxpayer to prove that he did not advocate violent overthrow of the Government. This Court reversed, with only one Justice dissenting, on the ground that the necessary effect of such an imposition of the burden of proof ‘can only result in a deterrence of speech which the Constitution makes free.’ [39] Indeed, the majority opinion in the Speiser case distinguished the very cases upon which the majority here is relying on the ground that ‘the oaths required in those cases performed a very different function from the declaration in issue here. In the earlier cases it appears that the loyalty oath, once signed, became conclusive evidence of the facts attested so far as the right of office was concerned. If the person took the oath he retained his position. The oath was not part of a device to shift to the officeholder the burden of proving his right to retain his position.’ [40] But that is precisely what is happening here. For, even though Konigsberg has taken an oath that he does not advocate the violent overthrow of the Government, the Committee has persisted in the view that he has not as yet demonstrated his right to admission to the Bar. If that does not amount to the sort of shifting of the burden of proof that is proscribed by Speiser, I do not know what would.

The situation in the present case is closely analogous to that condemned in the Speiser case and, indeed, the major factual difference between the two cases tends to make this case an even stronger one. Here, as in Speiser, the State requires an oath that the person involved does not advocate violent overthrow of the Government. Here, as there, the taking of the oath is not conclusive of the rights of the person involved. And here, as there, contrary to the implications in the majority opinion, I think it clear that the State places upon each applicant for admission to the Bar the burden of proving that he does not advocate the violent overthrow of the Government. There is one difference between the two cases, for here Konigsberg agreed to take the oath required and he refused to answer only when the State insisted upon more. Surely he cannot be penalized for his greater willingness to cooperate with the State.

The majority also suggests that the Speiser case may be distinguishable because it involved merely the power of the State to impose a penalty, by way of a heavier tax burden, upon a person who refused to take an oath, while this case involves the power of the State to determine the qualifications a person must have to be admitted to the Bar-a position of importance to the public. This distinction seems to me to be little more than a play on words. Speiser had the burden of proving that he did not advocate the overthrow of the Government and, upon his refusal to satisfy this burden, he was forced to pay additional taxes as a penalty. Konigsberg has the burden of proving that he does not advocate the violent overthrow of the Government and, upon his supposed failure to meet this burden, he is being denied an opportunity to practice the profession for which he has expended much time and money to prepare himself. So far as I am concerned the consequences to Konigsberg, whether considered from a financial standpoint, a social standpoint, or any other standpoint I can think of, constitute a more serious ‘penalty’ than that imposed upon Speiser.

In my judgment this case must take its place in the ever-lengthening line of cases in which individual liberty to think, speak, write, associate and petition is being abridged in a manner precisely contrary to the explicit commands of the First Amendment. [41] And I believe the abridgment of liberty here, as in most of the other cases in that line, is based upon nothing more than a fear that the American people can be alienated from their allegiance to our form of government by the talk of zealots for a form of government that is hostile to everything for which this country now stands or ever has stood. I think this fear is groundless for I believe that the loyalty and patriotism of the American people toward our own free way of life are too deeply rooted to be shaken by mere talk or argument from people who are wedded to totalitarian forms of government. It was this kind of faith in the American people that brought about the adoption of the First Amendment, which was expressly designed to let people say what they wanted to about government-even against government if they were so inclined. The idea underlying this then revolutionary idea of freedom was that the Constitution had set up a government so favorable to individual liberty that arguments against that government would fall harmless at the feet of a satisfied and happy citizenship. Thomas Jefferson voiced this idea with simple eloquence on the occasion of his first inauguration as President of the United States: ‘If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.’ [42]

In the main, this is the philosophy under which this county has lived and prospered since its creation. There have, however, been two notable exceptions, the first being the period of the short-lived and unlamented alien and sedition laws of the late 1700’s, and the other being the period since the beginning of the ‘cold war’ shortly after the close of World War II, in which there has been a widespread fear of an imagined overwhelming persuasiveness in Communist arguments. The most commonly offered justification for the liberty-stifling measures that have characterized this latter period is that the Communists do not themselves believe in the freedoms of speech, press and assembly so they should not be allowed to take advantage of the freedoms our Constitution provides. But, as illustrated by this and many other cases, the effect of repressive laws and inquisitions of this kind cannot be and is not limited to Communists. [43] Moreover, the fact that Communists practice repression of these freedoms is, in my judgment, the last reason in the world that we should do so. We do not have to imitate the Communists in order to survive. Our Bill of Rights placed our survival upon a firmer ground-that of freedom, not repression.

Nothing in this record shows that Konigsberg has ever been guilty of any conduct that threatens our safety. Quite the contrary, the record indicates that we are fortunate to have men like him in this country for it shows that Konigsberg is a man of firm convictions who has stood up and supported this country’s freedom in peace and in war. The writings that the record shows he has published constitute vehement protests against the idea of overthrowing this Government by force. No witness could be found throughout the long years of this inquisition who could say, or even who would say, that Konigsberg has ever raised his voice or his hand against his country. He is, therefore, but another victim of the prevailing fashion of destroying men for the views it is suspected they might entertain.


^1  Konigsberg v. State Bar of California, 353 U.S. 252, 273, 77 S.Ct. 722, 733, 1 L.Ed.2d 810. That decision was reached on the basis of a record containing a large quantity of evidence favorable to Konigsberg and some scanty evidence arguably adverse to him.

^2  Konigsberg v. State Bar of California, 52 Cal.2d 769, 344 P.2d 777. Mr. Justice Traynor and Mr. Justice Peters dissented in separate opinions.

^3  353 U.S. at pages 260-261, 77 S.Ct. at page 727.

^4  The total absence of any authoritative source for this rule is, in my judgment, merely accentuated by the reference in the majority opinion to the article written for the California State Bar Journal by the Secretary of the Committee of Bar Examiners. So far as the cases relied upon in that article are even available for study, they do not in any way support the action of the Bar Committee here.

^5  Thus, it seems to me that California’s rejection of Konigsberg is not supported by any ‘law of the land,’ as required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See Cohen v. Hurley, 366 U.S. 117, at pages 135-150, 81 S.Ct. 954, at pages 965-972, 6 L.Ed.2d 156 (dissenting opinion). As Daniel Webster argued in the Dartmouth College cases: ‘Are then these acts of the legislature, which affect only particular persons and their particular privileges, laws of the land? Let this question be answered by the text of Blackstone: ‘And first, it (i.e. law) is a rule: not a transient sudden order from a superior, to, or concerning, a particular person; but something permanent, uniform, and universal. Therefore, a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law.’ Lord Coke is equally decisive and emphatic. Citing and commenting on the celebrated 29th chap. of Magna Charta, he says, ‘no man shall be disseized, &c. unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, that is, (to speak it once for all,) by the due course and process of law.” (Emphasis as in source.) Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 580-581, 4 L.Ed. 629.

^6  4 Wall. 277, 18 L.Ed. 356.

^7  4 Wall. 333, 18 L.Ed. 366.

^8  The suspicions of the Committee doubtless relate to the period around 1941 for the Committee had heard testimony from an ex-Communist that Konigsberg had attended meetings of a Communist Party unit during that period. The unreliability of that testimony was discussed in the Court’s opinion when the case was here before. See 353 U.S. at pages 266-268, 77 S.Ct. at pages 729-731.

^9  Under the circumstances of this case, it seems clear to me that the action of the State of California in rejecting Konigsberg is also contrary to our decision in Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796. In that case, every member of this Court who participated in the decision expressed serious doubts with regard to the probative value of evidence as to a Bar applicant’s membership in the Communist Party 15 years previous to our consideration of the case. Id., 353 U.S. at pages 246, (concurring opinion) 251, 77 S.Ct. at pages 760, 762. I cannot believe that such evidence becomes more probative when, as here, it would, if obtained, have been five years older.

^10  See, e.g., my dissenting opinions in Braden v. United States, 365 U.S. 431, 441-446, 81 S.Ct. 584, 590-593, 5 L.Ed.2d 653; Wilkinson v. United States, 365 U.S. 399, 422-423, 81 S.Ct. 567, 580, 5 L.Ed.2d 633; Uphaus v. Wyman, 364 U.S. 388, 392-393, 81 S.Ct. 153, 159, 160, 5 L.Ed.2d 148; Barenblatt v. United States, 360 U.S. 109, 140-144, 79 S.Ct. 1081, 1100-1102, 3 L.Ed.2d 1115; American Communications Ass’n v. Douds, 339 U.S. 382, 445 453, 70 S.Ct. 674, 707-711, 94 L.Ed. 925.

^11  James Madison, for example, indicated clearly that he did not understand the Bill of Rights to permit any encroachments upon the freedoms it was designed to protect. ‘If they (the first ten Amendments) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.’ 1 Annals of Congress 439 (1789). (Emphasis supplied.)

^12  See, e.g., Minersville School District v. Gobitis, 310 U.S. 586, 593, 60 S.Ct. 1010, 1012, 84 L.Ed. 1375; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302.

^13  See Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, where Mr. Justice Holmes, writing for the Court, said: ‘The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’

^14  Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., dissenting). See also Gitlow v. People of State of New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138: ‘If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.’ (Holmes, J., dissenting.) And see Whitney v. California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095: ‘Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.’ (Brandeis, J., concurring.)

^15  See Abrams v. United States, 250 U.S. 616, 630-631, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion); Gitlow v. People of State of New York, 268 U.S. 652, 672-673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (dissenting opinion); Whitney v. People of State of California, 274 U.S. 357, 378-379, 47 S.Ct. 641, 649-650, 71 L.Ed. 1095 (concurring opinion).

^16  See Bridges v. State of California, 314 U.S. 252, 260 263, 62 S.Ct. 190, 192-194, 86 L.Ed. 192.

^17  2 Cir., 183 F.2d 201, 212; 341 U.S. 494, 510, 71 S.Ct. 857, 867, 95 L.Ed. 1137.

^18  Roth v. United States, 354 U.S. 476, 514, 77 S.Ct. 1304, 1324, 1 L.Ed.2d 1498 (dissenting opinion). See also National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.

^19  See, e.g., Meiklejohn, What Does the First Amendment Mean? 20 U. of Chi. L.Rev. 461, 464.

^20  Cf. Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746: ‘(C)onstitutional Provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.’

^21  343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.

^22  The Court opinion here apparently treats the Beauharnais case as having decided that the Federal Government has power, despite the First Amendment, to pass so-called ‘group libel’ laws. This, I think, is wholly unjustified. The Beauharnais opinion was written on the assumption that the protection afforded the freedoms of speech and petition against state action by the Fourteenth Amendment amounted to something less than the protection afforded these freedoms against congressional action by the First Amendment. Thus, as pointed out in my dissent in that case, the majority in Beauharnais never even mentioned the First Amendment but upheld the state ‘group libel’ law on the ground that it did not violate ‘civilized ‘conons of decency,’ reasonableness, etc.’ See 343 U.S. at pages 268-269, 72 S.Ct. at pages 736-737. See also the dissent of Mr. Justice Jackson, 343 U.S. at pages 287-305, 72 S.Ct. at pages 746-755.

^23  The story of the use by the Federalists of the Alien and Sedition Acts of 1798 as a weapon to suppress the political opposition of the Jeffersonians has been graphically told in Bowers, Jefferson and Hamilton, at 362-411.

^24  See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

^25  See, e.g., Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.

^26  ‘The founders of our federal government were too close to oppressions and persecutions of the unorthodox, the unpopular, and the less influential to trust even elected representatives with unlimited powers of control over the individual. From their distrust were derived the first ten amendments, designed as a whole to ‘limit and qualify the powers of Government’, to define ‘cases in which the Government ought not to act, or to act only in a particular mode’, and to protect unpopular minorities from oppressive majorities. 1 Annals 437. The first of the ten amendments erected a Constitutional shelter for the people’s liberties of religion, speech, press, and assembly. This amendment reflects the faith that a good society is not static but advancing, and that the fullest possible interchange of ideas and beliefs is essential to attainment of this goal. The proponents of the First Amendment, committed to this faith, were determined that every American should possess an unrestrained freedom to express his views, however odious they might be to vested interests whose power they might challenge.’ Feldman v. United States, 322 U.S. 487, 501, 64 S.Ct. 1082, 1088, 88 L.Ed. 1408 (dissenting opinion).

^27  Typical of such cases are those referred to by the majority in its opinion here: Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.

^28  Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155.

^29  339 U.S. 382, especially at pages 398-400, 70 S.Ct. 674, at pages 683-685.

^30  341 U.S. 494, especially at pages 508-509, 71 S.Ct. 857, at pages 866, 867.

^31  See also the discussion of these street-regulation cases in my dissenting opinion in Barenblatt v. United States, 360 U.S. 109, 141-142, 79 S.Ct. 1081, 1100-1101, 3 L.Ed.2d 1115.

^32  The majority places some stress upon the fact that the Committee did not have independent investigatory resources with which to seek further evidence. In view of the complete reliance upon this decision to justify the use of an identical procedure in In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135, where the bar admission committee not only had investigatory resources but also utilized them to the fullest, this fact must be of little ‘weight’ in the constitutional ‘balance.’

^33  In this regard, the situation is identical to that invalidated as unconstitutional by our decision in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231. Indeed, the absence of such a requirement was there stressed as an important part of the ground upon which that decision rested. Id., 364 U.S. at page 486, 81 S.Ct. at page 251.

^34  In re Anastaplo, supra. See also the discussion in my dissenting opinion in that case, especially 366 U.S. at pages 108 112, 81 S.Ct. at pages 992-995.

^35  The situation here is thus identical to that in Speiser v. Randall, where the Court expressly recognized the danger to protected associations. See 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460.

^36  Cf. Shelton v. Tucker, supra, 364 U.S. at page 486, note 7, 81 S.Ct. at page 251, where we took note of testimony that efforts were being made to remove from a school system all teachers who supported such organizations as the American Civil Liberties Union, the Urban League, the American Association of University Professors, and the Women’s Emergency Committee to Open Our Schools.

^37  357 U.S. 513, 78 S.Ct. 1332, 1336, 2 L.Ed.2d 1460.

^38  Section 32 of the California Revenue and Taxation Code. This section was set out in full in the majority opinion in Speiser. 357 U.S. at pages 516-517, note 2, 78 S.Ct. at page 1337.

^39  357 U.S. at page 526, 78 S.Ct. at page 1342.

^40  Id., 357 U.S. at page 528, 78 S.Ct. at page 1343. The cases so distinguished were Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Gerende v. Board of Supervisors of Elections of Baltimore City, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745, and American Communications Ass’n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.

^41  This line has already been considerably lengthened during this very Term of Court. See, e.g., Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653.

^42  Thomas Jefferson, First Inaugural Address, March 4, 1801. This address is reprinted in Jones, Primer of Intellectual Freedom 142, 143 (Harvard University Press, 1949).

^43  ‘Centuries of experience testify that laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which, though supported by revered Americans as essential to democracy, has been adopted by that group for its own purposes.’ American Communications Ass’n v. Douds, 339 U.S. 382, 448-449, 70 S.Ct. 674, 709, 94 L.Ed. 925 (dissenting opinion).

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