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[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
Return to pages 36-48 (Majority opinion).
Return to page 49 (Majority opinion, cont.).
Currently at pages 50-77 (Majority opinion, cont.).
Proceed to pages 56-81 (Black, dissent; Brennan, dissent).]

[paragraph continued from previous page] has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection.[50.11] See, e.g., Schenck v. 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.S. 298; 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 law the First or Fourteenth Amendment forbade Congress or (p.51)the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. See, e.g., Schneider v. State, 308 U.S. 147, 161; Cox v. New Hampshire, 312 U.S. 569; Prince v. Massachusetts, 321 U.S. 158; Kovacs v. Cooper, 336 U.S. 77; American Communications Assn. v. Douds, 339 U.S. 382; Breard v. Alexandria, 341 U.S. 622. It is in the latter class of cases that this Court has always placed rules compelling disclosure of prior association as an incident 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 protections are asserted against the exercise of valid governmental powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved. Watkins v. United States, 354 U.S. 178, 198; N.A.A.C.P. v. Alabama, supra; Barenblatt v. United States, 360 U.S. 109, 126-127; Bates v. Little Rock, supra; Wilkinson v. United States, 365 U.S. 399; Braden v. United States, 365 U.S. 431. With more particular reference to the present context of a state decision 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 speech and association and of the importance of the state function, exclude all reference to prior speech or association on such issues as character, purpose, credibility, or intent. On the basis of these considerations we now judge petitioner's contentions in the present case.

Petitioner does not challenge the constitutionality of § 6064.1 of the California Business and Professions Code forbidding certification for admission to practice of those advocating the violent overthrow of government. It (p.52)would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country's legal and political institutions. Cf. Garner v. Board of Public Works, 341 U.S. 716. Nor is the state interest in this respect insubstantially related to the right which California claims to inquire about Communist Party membership. This Court has long since recognized the legitimacy of a statutory finding that membership in the Communist Party is not unrelated to the danger of use for such illegal ends of powers given for limited purposes. See American Communications Assn. v. Douds, 339 U.S. 382; see also Barenblatt v. United States, 360 U.S. 109, 128-129; cf. Wilkinson v. United States, 365 U.S. 399; Braden v. United States, 365 U.S. 431.

As regards the questioning of public employees relative to Communist Party membership it has already been held that the interest in not subjecting speech and association to the deterrence of subsequent disclosure is outweighed by the State's interest in ascertaining the fitness of the employee for the post he holds, and hence that such questioning does not infringe constitutional protections. Beilan v. 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 membership, we regard the State's 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, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented.

There is here no likelihood that deterrence of association may result from foreseeable private action, see (p.53)N.A.A.C.P. v. Alabama, supra, at 462, for bar committee interrogations such as this are conducted in private. See Rule 58, Section X, Rules of Practice and Procedure of the Supreme Court of Illinois; cf. Cal. Bus. & Prof. Code, Rules of Procedure of the State Bar of California, Rule 8; Anonymous v. Baker, 360 U.S. 287, 291-292. Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association, see Shelton v. Tucker, 364 U.S. 479, 486, for a bar applicant's exclusion by reason of Communist Party membership 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 do not comport with the Federal Constitution. See Konigsberg v. State Bar, 353 U.S. 252; Schware v. Board of Examiners of New Mexico, 353 U.S. 232; cf. Wieman v. Updegraff, 344 U.S. 183. In these circumstances it is difficult indeed to perceive any solid basis for a claim of unconstitutional intrusion into rights assured by the Fourteenth Amendment.

If this were all there was to petitioner's claim of a privilege to refuse to answer, we would regard the Beilan case as controlling. There is, however, a further aspect of the matter. In Speiser v. Randall, 357 U.S. 513, we held unconstitutional a state procedural rule that in order to obtain an exemption a taxpayer must bear the burden of proof, including both the burdens of establishing a prima facie case and of ultimate persuasion, that he did not advocate the violent overthrow of government. We said (p. 526):

"The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding--inherent in all litigation--will create the danger that the legitimate utterance will be (p.54)penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free."

It would be a sufficient answer to any suggestion of the applicability of that holding to the present proceeding to observe that Speiser was explicitly limited so as not to reach cases where, as here, there is no showing of an intent to penalize political beliefs. Distinguishing Garner v. Board of Public Works, 341 U.S. 716; Gerende v. Board of Supervisors, 341 U.S. 56, and American Communications Assn. v. Douds, 339 U.S. 382, the Court said (p. 527):

"In these cases ... there was no attempt directly to control speech but rather to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern.... Each case concerned a limited class of persons in or aspiring to public positions by virtue of which they could, if evilly motivated, create serious danger to the public safety. The principal aim of those statutes was not to penalize political beliefs but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public."(p.55)

But there are also additional factors making the rationale of Speiser inapplicable to the case before us. There is no unequivocal indication that California in this proceeding has placed upon petitioner the burden of proof of nonadvocacy of violent overthrow, as distinguished from its other requirement of "good moral character."[55.12] All it has presently required is an applicant's cooperation with the Committee's search for evidence of forbidden advocacy. Petitioner has been denied admission to the California bar for obstructing the Committee in the performance of its necessary functions of examination and cross-examination, a ruling which indeed presupposes that the burden of producing substantial evidence on the issue of advocacy was not upon petitioner but upon the Committee. Requiring a defendant in a civil proceeding to testify or to submit to discovery has never been thought to shift the burden of proof to him. Moreover, when this Court has allowed a State to comment upon a criminal defendant's failure to testify it has been careful to note that this does not result in placing upon him the burden of proving his innocence. Adamson v. California, 332 U.S. 46, 58.

In contrast to our knowledge with respect to the burden of establishing a prima facie case, we do not now know where, under California law, would rest the ultimate burden of persuasion on the issue of advocacy of violent overthrow. But it is for the Supreme Court of California first to decide this question. Only if and when that burden is placed by the State upon a bar applicant can there be drawn in question the distinction made in [paragraph continues next page]

[Return to pages 36-48 (Majority opinion).
Return to page 49 (Majority opinion, cont.).
Currently at pages 50-77 (Majority opinion, cont.).
Proceed to pages 56-81 (Black, dissent; Brennan, dissent).]

[50.11] That the First Amendment immunity for speech, press and assembly has to be reconciled with valid but conflicting governmental interests was clear to Holmes, J. ("I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent." Abrams v. United States, 250 U.S. 616, 627); to Brandeis, J. ("But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute." Whitney v. California, 274 U.S. 357, 373); and to Hughes, C. J. ("[T]he protection [of free speech] even as to previous restraint is not absolutely unlimited." Near v. Minnesota, 283 U.S. 697, 716.)

[55.12] Indeed, we cannot tell whether California did so even in the earlier proceeding, since the California Supreme Court's denial of review of the Committee's original rejection of Konigsberg was without opinion, and for all we know may have rested alone on petitioner's failure to meet his state burden of proof as to "good moral character."