konigsberg state bar argued december decided april california law state may admit practice law applicant whose qualifications certified california committee bar examiners hearings committee application admission bar petitioner refused answer questions pertaining membership communist party ground possible ground inquiries beyond purview committee authority infringed rights free thought association expression assured state federal constitutions committee declined certify qualified admission bar ground refusals answer obstructed full investigation qualifications state denied admission practice held denial petitioner application admission bar ground violate rights fourteenth amendment pp state refusal admit petitioner practice ground refusal answer committee questions thwarted full investigation qualifications inconsistent decision konigsberg state bar pp fourteenth amendment protection arbitrary state action forbid state denying admission bar applicant long refuses answer questions substantial relevance qualifications california application rule instance said arbitrary discriminatory pp petitioner privileged refuse answer questions concerning membership communist party ground impinged upon rights free speech association protected fourteenth amendment speiser randall distinguished pp edward mosk argued cause petitioner brief sam rosenwein frank belcher argued cause respondents brief ralph lewis briefs amici curiae urging reversal filed david scribner leonard boudin ben margolis william murrish charles stewart national lawyers guild wirin fred okrand hugh manes american civil liberties union southern california robert brock pauline epstein robert kenny hugh manes ben margolis daniel marshall william murrish john mcternan maynard omerberg alexander schullman david sokol behalf certain members california bar justice harlan delivered opinion case involving california second rejection petitioner application admission state bar sequel konigsberg state bar reversed state initial refusal application california law state may admit practice law applicant whose qualifications certified california committee bar examiners cal bus code qualify certification applicant must among things good moral character person may certified advocates overthrow government state force violence unconstitutional means committee empowered required ascertain qualifications candidates rules prescribed board governors state bar applicant committee burden proving possessed good moral character removing reasonable suspicion moral unfitness entitled high regard confidence public div rule applicant denied certification may committee action reviewed state petitioner successfully passed california bar examinations applied certification bar membership committee interrogating konigsberg receiving considerable evidence qualifications declined certify ground failed meet burden proving eligibility two statutory requirements relating good moral character nonadvocacy violent overthrow determination centered largely around konigsberg repeated refusals answer committee questions present past membership communist party california denied review without opinion see cal certiorari reviewing record held state determination without rational support evidence therefore offensive due process clause fourteenth amendment konigsberg state bar supra time declined decide whether konigsberg refusals answer constitutionally afford independent ground exclusion bar considering issue case remanded state proceedings inconsistent opinion remand petitioner moved california immediate admission bar vacated previous order denying review referred matter bar committee consideration ensuing committee hearings konigsberg introduced evidence good moral character none rebutted reiterated unequivocally disbelief violent overthrow stated never knowingly member organization advocated action persisted however refusals answer questions relating membership communist party committee declined certify time ground refusals answer obstructed full investigation qualifications california divided vote refused review also denied konigsberg motion direct admission practice cal brought case petitioner contentions support reversal california order reducible three propositions state action inconsistent decision earlier konigsberg case assuming committee inquiries konigsberg possible communist party membership permissible unconstitutionally arbitrary state deny admission refusals answer event konigsberg constitutionally justified refusing answer questions consideration petitioner contentions effect decision former konigsberg case requires kept clearly mind entailed california rule comparable many applicant admission bar bears burden proof good moral character requirement whose validity well drawn question rule applicant must initially furnish enough evidence good character make prima facie case examining committee opportunity rebut showing evidence bad character evidence may result committee independent investigation applicant responses questions application form committee interrogation applicant interrogation may well decisive importance familiar bar admission proceedings know exclusion unworthy candidates frequently depends upon thoroughness committee questioning revealing may infirmities otherwise satisfactory showing part especially bar committee infrequently case means conducting independent investigation applicant qualifications conclusion proceedings evidence good character bad character found even balance state may refuse admission applicant ordinary suit plaintiff may fail case met burden proof first konigsberg case concerned solely question whether balance favorable unfavorable evidence konigsberg qualifications struck accordance requirements due process held first konigsberg made prima facie case good character nonadvocacy violent overthrow second evidence record even aid reasonable inferences flowing therefrom cast doubts upon petitioner prima facie case justify finding two california qualification requirements satisfied assessing significance konigsberg refusal answer questions communist party membership dealt fact refusal provide reasonable indication character meeting two standards admission consider reserved later decision questions permissibility state treating konigsberg refusal answer ground exclusion evidence substantive conclusions might drawn refusal thwarted full investigation qualifications see state asserts ground exclusion issue foreclosed anything earlier opinion decided quite different question equally clear state ordering rehearing led petitioner exclusion manifested disrespect effect mandate case expressly left matter open state proceedings inconsistent opinion basis suggestion state proceeding adopted unusual discriminatory procedures avoid normal consequences earlier determination earlier proceeding california bar committee may found investigation questioning petitioner unnecessary view applicant prima facie case qualifications sufficiently rebutted evidence already record former opinion held state constitutionally conclude undertake preclude state agency asking questions conducting investigation might thought necessary known basis decision overturned recalling konigsberg testimony committee consistently held federal administrative tribunals may remand reviewing set aside agency orders unsupported requisite findings fact federal communications pottsville broadcasting fly heitmeyer absence slightest indication purpose part state evade prior decision principles finality protecting parties state litigation within broad limits fundamental fairness solely concern california law limits broad even criminal case see bryan hoag new jersey cf palko connecticut instance certainly transgressed state merely taking action essentially administrative type proceeding ii think clear fourteenth amendment protection arbitrary state action forbid state denying admission bar applicant long refuses provide unprivileged answers questions substantial relevance qualifications investigation character like civil suit requires procedural well substantive rules surely doubtful state validly adopt administrative rule analogous rule federal rules civil procedure provides refusal due warning answer relevant questions may result matters regarding questions asked considered purposes proceeding answered way unfavorable refusing party even refusal may result dismissing action proceeding party asking affirmative relief state procedural rule involved less broad one california effect said cases matters material applicant qualifications gaps evidence presented agency charged certification considers filled appropriate exercise responsibilities applicant admitted practice unless cooperates agency efforts fill gaps fact rule finds source supervisory powers california admissions bar rather legislation constitutionally significant nashville browning absence showing arbitrary discriminatory application particular case matter federal concern whether rule requires rejection applicants refusing answer material questions instances examining committee deems refusal materially obstructed investigation compare beilan board education nelson county los angeles context entire record proceedings application california rule instance said arbitrary discriminatory first konigsberg case held neither somewhat weak uncontradicted testimony petitioner communist party member refusal answer questions relating party membership rationally support substantive adverse inferences petitioner character qualifications say however factors singly together regarded leaving investigatory record sufficient uncertainty constitutionally permit application procedural rule state invoked provided konigsberg first given due warning consequences continuing refusal respond committee questions cf answer say petitioner made prima facie case qualifications precisely posture proceeding committee right examine becomes significant assuming moment privilege refuse answer petitioner insist prima facie case makes improper questioning insist circumstance made improper introduction forms rebutting evidence likewise regard untenable petitioner contentions questions communist party membership made irrelevant either fact bare innocent membership ground disqualification petitioner willingness answer ultimate questions whether believed violent overthrow knowingly belonged organization advocating violent overthrow committee chairman answer former contention entirely correct answered question example member communist party period since presently member communist party committee position ask acts engaged carry functions purposes party aims purposes party knowledge questions type see failing answer initial question certainly basis opportunity us investigate respect matters initial question might well considered preliminary mosk realize konigsberg answered question refused answer entirely new area investigation might opened committee might able ascertain konigsberg perhaps many years past active member communist party finding associates enterprise might discover advocate overthrow government force violence saying possibility take witness testimony precluding us trying discover telling truth point remains question whether konigsberg adequately warned consequences refusal answer outset renewed hearings chairman committee stated result purpose investigate reach determinations particularly function investigation believe necessary konigsberg answer material questions investigation obstructed result able certify admission konigsberg think recall initially advised failure answer material questions obstruct investigation result failure certify mind wish answer questions heretofore refused answer like make statement misunderstanding part may review record future feel member committee failure konigsberg answer question whether member communist party obstruction function committee frustration word used think obstruction phases moral character able investigate simply stopped point one certify proper person admitted practice law state answers question communist affiliation iii finally petitioner argues event privileged respond questions dealing communist party membership unconstitutionally impinged upon rights free speech association protected fourteenth amendment outset reject view freedom speech association alabama protected first fourteenth amendments absolutes undoubted sense constitutional protection exists must prevail also sense scope protection must gathered solely literal reading first amendment throughout history consistently recognized least two ways constitutionally protected freedom speech narrower unlimited license talk one hand certain forms speech speech certain contexts considered outside scope constitutional protection see schenck chaplinsky new hampshire dennis beauharnais illinois yates roth hand general regulatory statutes intended control content speech incidentally limiting unfettered exercise regarded type law first fourteenth amendment forbade congress pass found justified subordinating valid governmental interests prerequisite constitutionality necessarily involved weighing governmental interest involved see schneider state cox new hampshire prince massachusetts kovacs cooper american communications assn douds breard alexandria latter class cases always placed rules compelling disclosure prior association incident informed exercise valid governmental function bates little rock whenever context constitutional protections asserted exercise valid governmental powers reconciliation must effected perforce requires appropriate weighing respective interests involved watkins alabama supra barenblatt bates little rock supra wilkinson braden particular reference present context state decision character qualifications difficult indeed imagine view constitutional protections speech association automatically without consideration extent deterrence speech association importance state function exclude reference prior speech association issues character purpose credibility intent basis considerations judge petitioner contentions present case petitioner challenge constitutionality california business professions code forbidding certification admission practice advocating violent overthrow government indeed difficult argue belief firm enough carried advocacy use illegal means change form state federal government unimportant consideration determining fitness applicants membership profession whose hands largely lies safekeeping country legal political institutions cf garner board public works state interest respect insubstantially related right california claims inquire communist party membership long since recognized legitimacy statutory finding membership communist party unrelated danger use illegal ends powers given limited purposes see american communications assn douds see also barenblatt cf wilkinson braden regards questioning public employees relative communist party membership already held interest subjecting speech association deterrence subsequent disclosure outweighed state interest ascertaining fitness employee post holds hence questioning infringe constitutional protections beilan board public education garner board public works respect question communist party membership regard state interest lawyers devoted law broadest sense including substantive provisions also procedures orderly change clearly sufficient outweigh minimal effect upon free association occasioned compulsory disclosure circumstances presented likelihood deterrence association may result foreseeable private action see alabama supra bar committee interrogations conducted private see rule section rules practice procedure illinois cf cal bus code rules procedure state bar california rule anonymous baker possibility state may afforded opportunity imposing undetectable arbitrary consequences upon protected association see shelton tucker bar applicant exclusion reason communist party membership subject judicial review including ultimate review appear exclusion rested substantive procedural factors comport federal constitution see konigsberg state bar schware board examiners new mexico cf wieman updegraff circumstances difficult indeed perceive solid basis claim unconstitutional intrusion rights assured fourteenth amendment petitioner claim privilege refuse answer regard beilan case controlling however aspect matter speiser randall held unconstitutional state procedural rule order obtain exemption taxpayer must bear burden proof including burdens establishing prima facie case ultimate persuasion advocate violent overthrow government said vice present procedure particular speech falls close line separating lawful unlawful possibility mistaken factfinding inherent litigation create danger legitimate utterance penalized man knows must bring forth proof persuade another lawfulness conduct necessarily must steer far wider unlawful zone state must bear burdens especially feared complexity proofs generality standards applied cf dennis supra provide shifting sands litigant must maintain position claimant whose declaration rejected possibly sustain burden proving negative complex factual elements practical operation therefore procedural device must necessarily produce result state command directly result deterrence speech constitution makes free cases attempt directly control speech rather protect evil shown grave interest clearly within sphere governmental concern case concerned limited class persons aspiring public positions virtue evilly motivated create serious danger public safety principal aim statutes penalize political beliefs deny positions persons supposed dangerous position might misused detriment public contrast knowledge respect burden establishing prima facie case know california law rest ultimate burden persuasion issue advocacy violent overthrow california first decide question burden placed state upon bar applicant drawn question distinction made speiser case penalizing statutes merely denying access positions unfitness may lead abuse powers privileges issue us thus matters stand nothing involved contrary reasoning speiser despite compelled testimony prospective bar applicant need steer far wider unlawful zone fear mistaken judgment fact finding declaring unlawful speech fact protected constitution ultimate burden persuasion notwithstanding duty testify loss resulting failure proof may know still fall upon state likewise initial burden production indication proceeding rehearing petitioner application bar committee expected petitioner sustain burden proving negative complex factual elements amount forbidden advocacy violent overthrow contrary clear committee assumed burden proving affirmative elements prevented attempting discharge burden petitioner refusal answer relevant questions judgment california affirmed footnotes committee made following findings relevant issues us questions put applicant committee concerning past present membership affiliation communist party material proper complete investigation qualifications admission practice law state california refusal applicant answer said questions obstructed proper complete investigation applicant qualifications admission practice law state california essence state decision appears following extracts opinion committee action us contains findings conclusion petitioner failed establish either good moral character abstention advocacy overthrow government refusal answer material questions basis denial certification admit applicants refuse answer committee questions upon subjects nullify concededly valid legislative direction committee rule effectively stifle committee inquiry upon issues legislatively declared relevant issue well puerto rico district columbia prescribe qualifications moral character preconditions admission practice law see west publishing rules admission bar ed survey legal profession bar examinations requirements admission bar jackson character requirements admission bar fordham rev burden demonstrating good moral character regularly placed upon bar applicant ex parte montgomery stephenson application courtney ark stat spears state bar cal petition durant del sup rule coleman watts burden proof applicant prima facie showing shifts burden going forward examiners gordon clinkscales latimer semble rosencranz tidrington ind meredith meyerson md semble matter keenan mass application smith semble application attorney license application cassidy app div aff application farmer weinstein state ex rel board poyntz burden proof applicant prima facie showing shifts burden going forward examiners matter eary semble reasons given later pp infra need decide whether california rule constitutionally applied committee first konigsberg proceedings requirement nonadvocacy violent overthrow assumed discuss constitutionality california rule applied requirement requirement california statute moreover even debate whether prior decision prevented new hearings matters already transpired time first state hearings doubt decision prevent california investigating petitioner actions period subsequent first hearing therefore case presented question constitutionality state refusing admit petitioner practice law declining answer whether member communist party since termination first set hearings transcript original hearings committee made part record us present case basis intimation california fashioned special procedural rule purposes particular case california bar committee past declined certify applicants refused answer pertinent questions see farley secretary committee bar examiners character investigation applicants admission cal state bar journal state action bear hallmarks bill attainder ex post facto regulation see cummings missouri wall cf lovett especially light fact petitioner explicitly warned advance consequences refusal answer likewise room attributing committee surreptitious purpose exclude konigsberg device putting questions known advance answer justifying exclusion premise refusal respond far record shows konigsberg excluded refusal answer impeded investigation committee ground rejection still within power remove view course reconciled law relating libel slander misrepresentation obscenity perjury false advertising solicitation crime complicity encouragement conspiracy like said compelled fact commands first amendment stated unqualified terms congress shall make law abridging freedom speech press right people peaceably assemble justice holmes said provisions constitution mathematical formulas essence form organic living institutions transplanted english soil significance vital formal gathered simply taking words dictionary considering origin line growth gompers connection also compare equally unqualified command second amendment right people keep bear arms shall infringed see miller first amendment immunity speech press assembly reconciled valid conflicting governmental interests clear holmes doubt moment reasoning justify punishing persuasion murder constitutionally may punish speech produces intended produce clear imminent danger bring forthwith certain substantive evils constitutionally may seek prevent abrams brandeis although rights free speech assembly fundamental nature absolute whitney california hughes protection free speech even previous restraint absolutely unlimited near minnesota indeed tell whether california even earlier proceeding since california denial review committee original rejection konigsberg without opinion know may rested alone petitioner failure meet state burden proof good moral character justice black chief justice justice douglas concur dissenting case reversed judgment california barring petitioner konigsberg practice law state ground failed carry burden proving good moral character advocate forcible overthrow government held evidence record rationally justify conclusion upon remand california referred matter back committee state bar examiners hearings time konigsberg presented even evidence good character committee produced evidence whatever tended slightest degree reflect upon good character patriotism already held konigsberg established case therefore us prior adjudication konigsberg possesses requisite good character patriotism admission bar unimpaired committee upon remand repeat identical questions regard konigsberg suspected association communists twenty years ago asked refused answer first series hearings konigsberg refused answer questions committee refused certify fit admission bar time ground refusal answer obstructed required investigation qualifications ground subsequently adopted majority state thus california purports denying konigsberg admission bar solely ground refused answer questions put committee bar examiners case observed nothing california statutes california decisions even rules bar committee called attention suggests failure answer bar examiner inquiry ipso facto basis excluding applicant bar irrespective overwhelming showing good character loyalty flimsy suspicions bar examiners pointed subsequent california statutes rules regulations decisions require even permit rejection lawyer application admission solely refuses answer questions situation seems konigsberg rejected ground supported authoritatively declared rule law state california alone enough vote reverse judgment reasons however konigsberg objection answering questions whether member communist party beginning based upon contention guarantees free speech association first amendment made controlling upon fourteenth amendment preclude california denying admission bar refusing answer questions think konigsberg correct california apparently even attempted make actual present membership communist party bar practice law even assume contended law applied conduct took place law passed application think clear violation ex post facto provision federal constitution also constitute bill attainder squarely within holdings cummings missouri ex parte garland yet seems record shows beyond shadow doubt reason konigsberg rejected committee suspects one time member communist party agree implication majority opinion adequate ground reject konigsberg constitutionally defended majority avoids otherwise unavoidable necessity reversing judgment ground simply refusing look beyond reason given committee justify konigsberg rejection way majority reaches question whether committee constitutionally reject konigsberg refusing answer questions growing conjectured past membership communist party even though constitutionally reject answer questions answers happened affirmative majority goes hold committee virtue power reject applicants advocate violent overthrow government reject applicants refuse answer questions way related fact even though applicant sworn oath advocate violent overthrow government even though majority concedes questions political associations applicant subject speech association deterrence subsequent disclosure agree holding recognition california subjected speech association deterrence subsequent disclosure first amendment sufficient render action state unconstitutional unless one subscribes doctrine permits constitutionally protected rights balanced away whenever majority thinks state might interest sufficient justify abridgment freedoms indicated many times subscribe doctrine believe first amendment unequivocal command shall abridgment rights free speech assembly shows men drafted bill rights balancing done field history first amendment well known require repeating except say certainly denied object adopting first amendment well provisions bill rights put freedoms protected completely area congressional control may attempted exercise precisely powers used balance bill rights existence course first amendment originally applied federal government apply originally true congress less true respect governments unless majority wants overrule large number cases held unequivocally fourteenth amendment made first amendment provisions controlling upon attempts justify refusal apply plain mandate first amendment part reference clear present danger test forcefully used justice holmes justice brandeis narrow broaden prevailing interpretation first amendment freedoms think little found anything ever said provide support balancing test presently use indeed idea balancing away first amendment freedoms appears wholly inconsistent view strongly espoused justices holmes brandeis best test truth power thought get accepted competition market clear present danger test urged consistent view protected speech cases except danger imminent time rational discussion balancing test hand rests upon notion ideas dangerous government need restrict contrary arguments means opposing even ample time thus semblance clear present danger ample time combat discussion idea may involved majority permits state california adopt measures calculated suppress advocacy views governmental affairs recognize course clear present danger test though great advance toward individual liberty previous notions protections afforded first amendment go far views protection accorded freedoms agree justice holmes brandeis however primary purpose first amendment insure ideas allowed enter competition market fear creation tests speech left unprotected certain circumstances standing invitation abridge nowhere clearly indicated sudden transformation clear present danger test dennis case accepted judge learned hand restatement clear present danger test case courts must ask whether gravity evil discounted improbability justifies invasion free speech necessary avoid danger clear present danger test diluted weakened recast terms balancing formula seems much room doubt justices holmes brandeis even recognized test reliance upon weakened test majority without even much attempt find either clear present danger another persuasive reason rejecting tests enforcing first amendment according terms suggests literal reading first amendment totally unreasonable invalidate many widely accepted laws know extent true believe example invalidate laws resting upon premise speech integral part unlawful conduct going time speech used illustrate emphasize establish unlawful conduct hand certainly invalidate laws abridge right people discuss matters religious public interest broadest meaning terms clear desire protect right primary purpose first amendment people argued much force freedoms guaranteed first amendment limited somewhat broad areas like believe nation security tranquility best served giving first amendment broad construction bill rights guarantees deserve danger failing construe first amendment manner think dramatically illustrated decision beauharnais illinois one cases relied upon holding today case majority upheld conviction man whose crime circulation petition presented city council chicago urging body follow policy racial segregation language state illinois chose regard libelous negroes holding libelous utterances included speech protected state invasion due process clause fourteenth amendment concluded petition circulated fell within exception therefore outside area constitutionally protected speech made charges entire negro population country thus beauharnais held simultaneously libelled fifteen million people tremendous expansion concept libel people might regard relatively minor exception full protection freedom speech suddenly become vehicle used justify return vicious era laws seditious libel political party power england country used laws put opponents jail whatever may wisdom however approach reject exceptions plain language first amendment based upon things libel obscenity fighting words issue case majority surely contend kind speech involved case wholly related conflicting ideas governmental affairs policies falls outside protection first amendment however narrowly amendment may interpreted issue presently us whether speech must well within protection amendment given complete protection whether entitled protection consistent minds majority whatever interest government may asserting justify abridgment stating unequivocally absolutes first amendment necessarily takes position even speech admittedly protected first amendment subject balancing test therefore kind speech protected government assert interest sufficient weight induce uphold abridgment judgment sweeping denial existence inalienable right speak undermines foundation upon first amendment bill rights indeed entire structure government rest founders nation attempted set limited government left certain rights people rights taken away without amendment basic charter government majority balancing test tells us tells us right think speak publish exists people taken away government finds sufficiently imperative expedient thus balancing test turns government people people people government people believe adhere balancing test limit logic since test denies speech publication petition absolute right protection first amendment strict adherence necessarily mean conditional right complete right american express views neighbors neighbors hear views words even candidate public office high low absolute right speak behalf candidacy newspaper absolute right print opinion public governmental affairs american people absolute right hear discussions rights dependent upon accuracy scales upon weighs respective interests government people therefore seems absolute statement absolutes first amendment must exaggeration views examples also serve illustrate difference sort balancing majority sort balancing intended concept first accepted method insuring complete protection first amendment freedoms even purely incidental inadvertent consequences term came use chiefly result cases power municipalities keep streets open normal traffic attacked groups wishing use streets religious political purposes cases came treat issue posed one primarily involving first amendment rights recognizing instead public streets avenues travel must kept open purpose upheld various city ordinances designed prevent unnecessary noises congestions disrupt normal necessary flow traffic however recognized enforcement even ordinances attempted regulation content speech neither openly surreptitiously aimed speech bring incidental abridgment speech went point even ordinances directed regulating conduct might invalidated weighing reasons regulating particular conduct found insufficient justify diminishing exercise rights vital maintenance democratic institutions first amendment cases never intimated uphold constitutional ordinance purported rest upon power city regulate traffic aimed speech attempted regulate content speech none held constitutionally held person rightfully walking riding along streets talking normal way views controlled licensed penalized way city direct abridgment speech cases begun take meaning relied upon justify application balancing test governmental action aimed speech depends application upon content speech thus cases used support decisions upholding obviously antispeech actions part government involved american communications assn douds dennis use made cases must considered falling squarely within class seeks bring case authority cases defend use balancing test ground california attempting exercise permissible power regulate bar effect action may upon speech purely incidental agree questions asked konigsberg regard suspected membership communist party nothing incidental effect upon freedom speech association committee bar examiners ask bar applicant whether member communist party avowed purpose questioning permit committee deny applicants admission bar advocate forcible overthrow government indeed precisely ground upon majority upholding committee right ask konigsberg questions realize considerable talk even opinions effect advocacy speech highest respect believe distinction agree reason think conclusion inescapable case presents question constitutionality action state california designed control content speech direct incidental abridgment speech indeed characterization incidental appropriate difficult imagine constitute direct abridgment speech use balancing test circumstances thus permits california directly abridge speech explicit contradiction plain mandate first amendment even thought majority correct view balancing proper case agree decision first place think decision unduly restrictive upon individual liberty even penurious balancing test majority describes state interest balanced interest protecting freedoms speech association interest lawyers devoted law broadest sense including substantive provisions also procedures orderly change accurate statement interest state really stake konigsberg stated unequivocally never never advocate overthrow government country unconstitutional means held case evidence sufficient establish fact since committee introduced evidence subsequent hearing lead contrary conclusion fact remains established issue case majority statement state interest seem indicate whether person advocates overthrow existing government force must admitted practice law really state side scales desire know whether konigsberg ever member communist party real lack value information state mind clearly shown fact state even attempted make membership communist party ground disqualification bar indeed state real interest majority maintains good men bar rejected konigsberg undeniably already held provided overwhelming evidence good character former decision still regard resting basically good common sense man tell previous beliefs associations order establish good character loyalty majority turns interest side scale admits decision likely adverse effects upon free association caused compulsory disclosures goes say adverse effects minimal first bar admission interrogations private secondly decisions bar admission committees subject judicial review first ground simply ignores fact california law require committee treat information given confidential besides taxes credulity suppose questions asked applicant answers given highly emotional area communism rapidly leak great injury applicant regardless facts particular case may happen second ground given fails take account fact judicial review widens publicity questions answers thus tends undercut first ground time review demonstrated companion case decided today provides small hope applicant afforded relief stubborn efforts destroy arbitrarily innuendoes subject lasting suspicions even thought correct beliefs interrogation bar applicant kept confidential judicial review adequate prevent arbitrary exclusions bar accept conclusion first amendment rights involved case minimal interest free association stake merely personal interest petitioner free burdens may imposed upon past beliefs associations interest people society one intimidated respect beliefs associations seems plain inevitable effect majority decision condone practice substantial deterrent effect upon associations entered anyone may want become lawyer california every person wants lawyer required account associations prerequisite admission practice law safe course desiring admission seem scrupulously avoid association organization advocates anything somebody might possibly including groups whose activities constitutionally protected even restricted notion first amendment currently prevailing atmosphere country think organizations active favor civil liberties highly controversial addition seems equally clear anyone already associated organization active favor civil liberties developed interest law case discouraged spending large amounts time money necessary obtain legal education hope practice law california thus view majority reached decision freedoms first amendment fundamental misapplication currently hope temporarily prevailing balancing test interest committee satisfying curiosity respect konigsberg possible membership communist party two decades ago inflated proportion real value vast interest public maintaining unabridged basic freedoms speech press assembly paid little anything lip service important constitutional rights balanced away course danger balancing test application test necessarily tied emphasis particular judges give competing societal values judges like everyone else vary tremendously choice values perfectly natural indeed unavoidable neither natural unavoidable country fundamental rights people dependent upon different emphasis different judges put upon different values different times rights particularly first amendment rights involved unequivocally set founders bill rights plainest language diluted tests obliterate whenever particular judges think values highly cherish outweigh values highly cherished founders moreover seems balancing test applied cut heart one decisions rendered last decade speiser randall struck violation federal constitution state law denied tax exemptions veterans refused sign oath advocate overthrow government state california force violence unlawful means case arose certain veterans insisted upon right exemptions without signing oath california rejected veterans constitutional contention state law violated due process placing burden proof upon taxpayer prove advocate violent overthrow government reversed one justice dissenting ground necessary effect imposition burden proof result deterrence speech constitution makes free indeed majority opinion speiser case distinguished cases upon majority relying ground oaths required cases performed different function declaration issue earlier cases appears loyalty oath signed became conclusive evidence facts attested far right office concerned person took oath retained position oath part device shift officeholder burden proving right retain position precisely happening even though konigsberg taken oath advocate violent overthrow government committee persisted view yet demonstrated right admission bar amount sort shifting burden proof proscribed speiser know situation present case closely analogous condemned speiser case indeed major factual difference two cases tends make case even stronger one speiser state requires oath person involved advocate violent overthrow government taking oath conclusive rights person involved contrary implications majority opinion think clear state places upon applicant admission bar burden proving advocate violent overthrow government one difference two cases konigsberg agreed take oath required refused answer state insisted upon surely penalized greater willingness cooperate state majority also suggests speiser case may distinguishable involved merely power state impose penalty way heavier tax burden upon person refused take oath case involves power state determine qualifications person must admitted bar position importance public distinction seems little play words speiser burden proving advocate overthrow government upon refusal satisfy burden forced pay additional taxes penalty konigsberg burden proving advocate violent overthrow government upon supposed failure meet burden denied opportunity practice profession expended much time money prepare far concerned consequences konigsberg whether considered financial standpoint social standpoint standpoint think constitute serious penalty imposed upon speiser judgment case must take place line cases individual liberty think speak write associate petition abridged manner precisely contrary explicit commands first amendment believe abridgment liberty cases line based upon nothing fear american people alienated allegiance form government talk zealots form government hostile everything country stands ever stood think fear groundless believe loyalty patriotism american people toward free way life deeply rooted shaken mere talk argument people wedded totalitarian forms government kind faith american people brought adoption first amendment expressly designed let people say wanted government even government inclined idea underlying revolutionary idea freedom constitution set government favorable individual liberty arguments government fall harmless feet satisfied happy citizenship thomas jefferson voiced idea simple eloquence occasion first inauguration president among us wish dissolve union change republican form let stand undisturbed monuments safety error opinion may tolerated reason left free combat main philosophy country lived prospered since creation however two notable exceptions first period unlamented alien sedition laws late period since beginning cold war shortly close world war ii widespread fear imagined overwhelming persuasiveness communist arguments commonly offered justification measures characterized latter period communists believe freedoms speech press assembly allowed take advantage freedoms constitution provides illustrated many cases effect repressive laws inquisitions kind limited communists moreover fact communists practice repression freedoms judgment last reason world imitate communists order survive bill rights placed survival upon firmer ground freedom repression nothing record shows konigsberg ever guilty conduct threatens safety quite contrary record indicates fortunate men like country shows konigsberg man firm convictions stood supported country freedom peace war writings record shows published constitute vehement protests idea overthrowing government force witness found throughout long years inquisition say even say konigsberg ever raised voice hand country therefore another victim prevailing fashion destroying men views suspected might entertain konigsberg state bar california decision reached basis record containing large quantity evidence favorable konigsberg scanty evidence arguably adverse konigsberg state bar california cal justice traynor justice peters dissented separate opinions total absence authoritative source rule judgment merely accentuated reference majority opinion article written california state bar journal secretary committee bar examiners far cases relied upon article even available study way support action bar committee thus seems california rejection konigsberg supported law land required due process equal protection clauses fourteenth amendment see cohen hurley decided today post dissenting opinion daniel webster argued dartmouth college case acts legislature affect particular persons particular privileges laws land let question answered text blackstone first law rule transient sudden order superior concerning particular person something permanent uniform universal therefore particular act legislature confiscate goods titius attaint high treason enter idea municipal law operation act spent upon titius relation community general rather sentence law lord coke equally decisive emphatic citing commenting celebrated chap magna charta says man shall disseized unless lawful judgment verdict equals law land speak due course process law emphasis source dartmouth college woodward wheat wall wall suspicions committee doubtless relate period around committee heard testimony konigsberg attended meetings communist party unit period unreliability testimony discussed opinion case see circumstances case seems clear action state california rejecting konigsberg also contrary decision schware board bar examiners new mexico case every member participated decision expressed serious doubts regard probative value evidence bar applicant membership communist party years previous consideration case concurring opinion believe evidence becomes probative obtained five years older see dissenting opinions braden wilkinson uphaus wyman barenblatt american communications assn douds james madison example indicated clearly understand bill rights permit encroachments upon freedoms designed protect first ten amendments incorporated constitution independent tribunals justice consider peculiar manner guardians rights impenetrable bulwark every assumption power legislative executive naturally led resist every encroachment upon rights expressly stipulated constitution declaration rights annals congress emphasis supplied see minersville district gobitis murdock pennsylvania board education barnette staub city baxley see schenck justice holmes writing said question every case whether words used used circumstances nature create clear present danger bring substantive evils congress right prevent abrams holmes dissenting see also gitlow new york long run beliefs expressed proletarian dictatorship destined accepted dominant forces community meaning free speech given chance way holmes dissenting see whitney california among free men deterrents ordinarily applied prevent crime education punishment violations law abridgment rights free speech assembly brandeis concurring see abrams dissenting opinion gitlow new york dissenting opinion whitney california concurring opinion see bridges california roth dissenting opinion see also labor board virginia electric power giboney empire storage see meiklejohn first amendment mean chi rev cf boyd onstitutional provisions security person property liberally construed close literal construction deprives half efficacy leads gradual depreciation right consisted sound substance duty courts watchful constitutional rights citizen stealthy encroachments thereon opinion apparently treats beauharnais case decided federal government power despite first amendment pass group libel laws think wholly unjustified beauharnais opinion written assumption protection afforded freedoms speech petition state action fourteenth amendment amounted something less protection afforded freedoms congressional action first amendment thus pointed dissent case majority beauharnais never even mentioned first amendment upheld state group libel law ground violate civilized canons decency reasonableness etc see see also dissent justice jackson story use federalists alien sedition acts weapon suppress political opposition jeffersonians graphically told bowers jefferson hamilton see roth see chaplinsky new hampshire founders federal government close oppressions persecutions unorthodox unpopular less influential trust even elected representatives unlimited powers control individual distrust derived first ten amendments designed whole limit qualify powers government define cases government act act particular mode protect unpopular minorities oppressive majorities annals first ten amendments erected constitutional shelter people liberties religion speech press assembly amendment reflects faith good society static advancing fullest possible interchange ideas beliefs essential attainment goal proponents first amendment committed faith determined every american possess unrestrained freedom express views however odious might vested interests whose power might challenge feldman dissenting opinion typical cases referred majority opinion schneider state cox new hampshire prince massachusetts kovacs cooper schneider state especially especially see also discussion cases dissenting opinion barenblatt majority places stress upon fact committee independent investigatory resources seek evidence view complete reliance upon decision justify use identical procedure anastaplo decided today post bar admission committee investigatory resources also utilized fullest fact must little weight constitutional balance regard situation identical invalidated unconstitutional decision shelton tucker indeed absence requirement stressed important part ground upon decision rested anastaplo supra see also discussion dissenting opinion case especially pp situation thus identical speiser randall expressly recognized danger protected associations see cf shelton tucker supra took note testimony efforts made remove school system teachers supported organizations american civil liberties union urban league american association university professors women emergency committee open schools section california revenue taxation code section set full majority opinion speiser cases distinguished garner board public works gerende board supervisors american communications assn douds line already considerably lengthened term see uphaus wyman times film city chicago wilkinson braden thomas jefferson first inaugural address march address reprinted jones primer intellectual freedom harvard university press centuries experience testify laws aimed one political religious group however rational laws may beginnings generate hatreds prejudices rapidly spread beyond control often fear inspires passions nothing reckless contagious resulting hysteria popular indignation tars brush ever associated member group attack hold view though supported revered americans essential democracy adopted group purposes american communications assn douds dissenting opinion justice brennan chief justice joins dissenting judgment must reversed even assume justice traynor dissent california cal question present past membership communist party relevant issue possible criminal advocacy hence konigsberg qualifications committee come forward proceeding passed upon subsequent proceeding evidence show konigsberg unlawfully advocated overthrow government decision speiser randall fourteenth amendment therefore protects konigsberg denied admission bar refusal answer questions speiser held constitutional right speak sought deterred state general taxing program due process demands speech unencumbered state comes forward sufficient proof justify inhibition pp may differences degree justice traynor said public interest fitness applicants tax exemption admission bar yet latter also procedure logically dictated speiser cal unless mere whimsy governs decisions situation impossible rationally distinguish procedure indeed constitutionally required reasons apply justice traynor entirely right saying whatever relevancy question past present party membership particular context extraordinary variant usual inquiry crime attendant burden proof upon one question poses immediate threat prior restraint upon free speech applicants possibility inquiry speech heavy burden upon establish innocence evil repercussions inquiry despite innocence constrain speak minds noncommittally one ever mistake innocuous words advocacy grave danger freedom speech averted without loss legitimate investigation shifting burden examiners confronted prima facie case applicant obliged rebut admits complete absence predicate committee questions attempts distinguish situations order escape controlling authority speiser speciousness reasoning exposed justice black dissent reverse