MR. JUSTICE BLACK, dissenting.
…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….
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 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….
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, 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
[legislative] 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….
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. 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.
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. 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, 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. " 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. 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. 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….
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
" or "fighting words, " 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. 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. 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.
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….
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. 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. 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, 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. 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. 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….
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. 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….
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.