[Cite as Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961). NOTE: This decision concerns an applicant to the California Bar who refused to answer questions about Communist affiliations. The Court ruled against him. Justice Black's dissent argued for absolute first amendment rights. Justice Harlan's majority opinion argued that all rights are subject to "balancing". Pointing to libel laws as laws not infringing the First Amendment, he likewise referred to to the Supreme Court's ruling in United States v. Miller as an example of a legitimate restriction of an "unqualified right." (P. 49 n.10).]
[Konigsberg v. California continued
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[paragraph continued from previous page] of Mr. Konigsberg to answer the question as to whether or not he is now a member of the Communist Party is an obstruction of the function of this Committee, not a frustration if that word has been used. I think it would be an obstruction. There are phases of his moral character that we haven't been able to investigate simply because we have been stopped at this point, and I for one could not certify to the Supreme Court that he was a proper person to be admitted to practice law in this State until he answers the question about his Communist affiliation."
The record thus leaves no room for doubt on the score of "warning," and petitioner does not indeed contend to the contrary.
Finally, petitioner argues that, in any event, he was privileged not to respond to questions dealing with Communist Party membership because they unconstitutionally impinged upon rights of free speech and association protected by the Fourteenth Amendment.
At the outset we reject the view that freedom of speech and association (N.A.A.C.P. v. Alabama, 357 U.S. 449, 460), as protected by the First and Fourteenth Amendments, are "absolutes," not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.[49.10] Throughout its history this Court [paragraph continues next page]
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[49.10] That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble ...." But as Mr. Justice Holmes once said: "[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, 233 U.S. 604, 610. In this connection also compare the equally unqualified command of the Second Amendment: "the right of the people to keep and bear arms shall not be infringed." And see United States v. Miller, 307 U.S. 174.