In its 5-4 decision in Konigsberg v. State Bar, 366 U.S. 36 (1961), the Supreme Court ruled that it was not unconstitutionally arbitrary for California to deny an applicant admission to the state bar because the applicant refused to answer questions about his Communist Party affiliation. The Konigsberg decision is one of several addressing a bar applicant’s First Amendment rights in the bar application process. Later cases all but expressly overruled this decision.

Court rejected claims that denial of bar admission violated First Amendment rights

Writing for the majority, Justice John Marshall Harlan II rejected the applicant’s claims that California’s denial of his application for bar admission violated both his First and Fourteenth Amendment rights. Harlan reasoned that the requirement did not violate the applicant’s Fourteenth Amendment due process right against arbitrary state action because the questions were relevant to qualifications for the practice of law. Harlan explained that by refusing to answer the questions, the applicant prevented the bar admissions committee from reaching an informed decision about his character and fitness. The Court held that the initial burden of establishing good character was on the applicant, and his failure to cooperate justified the admissions committee’s denial of his application.

Court rejected claim that Communist affiliation questioning impinged on free speech rights

The majority also rejected the applicant’s claim that the questions about membership in the Communist Party impinged upon his rights to free speech and association guaranteed by the First Amendment. The Court reasoned that the rights to free speech and association were not “absolutes,” and that in this case the government’s interest in regulating the practice of law outweighed the applicant’s interest in withholding information about his political beliefs and association. The Court concluded that the questions were designed to deny positions of public trust to persons supposed to be dangerous and not to penalize the political beliefs of the applicant.

Dissenter thought denial of bar admission was unconstitutional

Writing in dissent, Justice Hugo L. Black argued that denial of bar admission for refusing to answer questions about political affiliations violated the First Amendment. Rather than using the balancing test applied by the majority, he would require a clear and present danger test before justifying the infringement on the First Amendment rights of a bar applicant.

Court later limited the holding in Konigsberg

In three later bar admission cases — Baird v. State Bar of Arizona (1971), In re Stolar (1971), and Law Students Research Council v. Wadmond (1971) — the Court severely limited the holding in Konigsberg. In these three cases, the Court established that the government could ask a bar applicant narrowly tailored questions and deny admission to the bar only if an applicant’s advocacy of overthrowing the government, or membership in a group advocating overthrow, was coupled with the specific intent to achieve that end.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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