366 U.S. 36, 56 (1961)
In 1953 Raphael Konigsberg passed the California bar examinations and applied for certification for admission to the state bar.1 Under California law the Committee of Bar Examiners was required to certify only applicants who met statutory standards of good moral character and who did not advocate overthrow of the government by force or violence.2 After interrogating Konigsberg and receiving evidence concerning his qualifications the Committee declined to certify him on the ground that he had failed to meet his burden of proving eligibility under both requirements.3
The Committee's determination centered largely on Konigsberg's repeated refusals to answer questions about his present or past membership in the Communist Party.4 The California Supreme Court denied review without opinion.5 On certiorari the United States Supreme Court in 1957 reversed the state determination holding that it lacked rational support in the evidence and remanded the case for further proceedings.6
On remand Konigsberg introduced additional unrebutted evidence of his good moral character, reiterated his disbelief in violent overthrow, and stated that he had never knowingly belonged to any organization advocating such action.7 He again refused to answer questions relating to Communist Party membership.8 The Committee declined to certify him this time on the ground that his refusals had obstructed a full investigation into his qualifications.9
The California Supreme Court by a divided vote refused review and also denied Konigsberg's motion for direct admission to practice.10 The United States Supreme Court granted certiorari to review the matter a second time.11
Whether the State's action in denying certification was inconsistent with the Supreme Court's prior decision in the first Konigsberg case?12
The prior decision reversed the denial because the record lacked rational support for finding that Konigsberg failed to prove good moral character and nonadvocacy of violent overthrow.13 It expressly reserved the question whether refusal to answer could be an independent ground for exclusion.14 The case was remanded for further proceedings not inconsistent with the opinion.15
No. In the first Konigsberg case the Court held that the evidence could not support substantive adverse inferences from the refusal to answer.16 It left open the procedural ground of obstruction of investigation.17 On remand the Committee gave due warning and denied certification on the ground that the refusals obstructed a full investigation.18 This was a new ground not foreclosed by the prior decision and consistent with the mandate for further proceedings.19
The State's action was not inconsistent with the prior decision.20
Whether it was unconstitutionally arbitrary for the State to deny admission to the bar because of the applicant's refusals to answer questions about Communist Party membership?21
A state may deny bar admission to an applicant who refuses to answer questions having substantial relevance to qualifications.22 The rule must be applied in a nonarbitrary manner.23 The applicant must be warned of the consequences.24 This is analogous to civil discovery sanctions and serves the valid interest in thorough investigation of character.25
No. The questions concerning Communist Party membership were relevant because answers could lead to further inquiry into whether the applicant advocated violent overthrow, a statutory disqualification.26 The refusals left material gaps that the Committee could not fill despite additional evidence of good character.27 Konigsberg received explicit warnings that failure to answer would result in non-certification.28 The rule was applied even-handedly and not for the purpose of evading the prior decision.29
It was not unconstitutionally arbitrary for the State to deny admission on that ground.30
Whether the applicant was constitutionally justified in refusing to answer questions relating to his membership in the Communist Party?31
Although the First and Fourteenth Amendments protect freedom of speech and association, these protections are not absolute.32 General regulatory statutes that incidentally limit their exercise are valid when justified by subordinating valid governmental interests.33 This requires weighing the deterrence to association against the state's interest in ensuring that bar members are fit and do not advocate violent overthrow.34
No. The state's interest in having lawyers devoted to the law and its procedures for orderly change is sufficient to outweigh the minimal effect on free association from private interrogations subject to judicial review.35 There is no showing that the procedure was intended to penalize beliefs as in Speiser v. Randall.36 The Committee bore the burden of proving advocacy but was prevented from doing so by the refusal to answer relevant questions.37
The applicant was not constitutionally justified in refusing to answer.38
Related opinions on this issue
Joined by The Chief Justice And Mr. Justice Douglas
Justice Black dissented on the ground that the First Amendment's command is absolute and the balancing test improperly allows protected speech to be abridged whenever the Court finds a sufficient governmental interest.39 He argued that the rejection was really based on suspected past membership, which could not constitutionally support denial.40 The balancing approach undermines the very foundation of the Bill of Rights by making rights conditional on judicial weighing of values.41
Black further contended that the record shows the Committee suspected Konigsberg of past Communist Party membership around 1941 and that no authoritative California rule permitted rejection solely for refusal to answer.42
Joined by The Chief Justice
Justice Brennan, joined by the Chief Justice, dissented on the ground that under Speiser v. Randall the state must come forward with evidence of unlawful advocacy before it can deny admission for refusal to answer.43 The burden of proof cannot be placed on the applicant in a way that deters speech.44 He agreed with the California dissent that shifting the burden poses an immediate threat of prior restraint on the free speech of all applicants.
Brennan emphasized that the Committee produced no evidence of advocacy and that the procedure logically dictated by Speiser requires the examiners to confront the applicant with a prima facie case.45