In re Stolar/Opinion of the Court

by Hugo Black

Mr. Justice BLACK announced the judgment of the Court and delivered an opinion in which Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join.

This is the second of two cases ^[*] involving the refusal of States to admit applicants to practice law because they declined to answer questions relating to their beliefs about government and their affiliations with organizations suspected of advocating the overthrow of government by force. These cases, which concern inquisitions about loyalty and government overthrow, are relics of a turbulent period known as the 'McCarthy era,' which drew its name from Senator Joseph McCarthy from Wisconsin. We have just referred in our opinion in Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639, to the confusion and uncertainty created by past cases in this constitutional field. The central question in all of them has been the same, whether involving lawyers, doctors, marine workers, or State or Federal Government employees, namely: to what extent does the First or Fifth Amendment or other constitutional provision protect persons against governmental intrusion and invasion into private beliefs and views that have not ripened into any punishable conduct? Without attempting in that case to bring about a complete reconciliation of all that this Court has previously said about this particular phase of First Amendment protection, we held that under the circumstances present there, Mrs. Baird could not, consistently with the First Amendment, be denied a state license to practice law because she refused to state whether she had belonged to the Communist Party or any organization that advocated overthrow of the United States Government by force. Here we hold that Stolar's refusal to answer certain questions asked him by the Ohio Bar Committee was also protected by the First Amendment.

The facts are these: Stolar, whose home is in Rochester, New York, has an A.B. degree from the University of Rochester and received an LL. B. degree from New York University Law School in 1968. The dean of that school has certified that Stolar has received instructions in legal ethics, has a good moral character, and has sufficient knowledge and ability to discharge the duties of an attorney at law. He has a license to practice law in New York State. To become a member of the New York Bar, Stolar was asked and answered the following questions, along with many others:

'18. State whether you have participated in activities of a public or patriotic nature or in philanthropic, religious, or social services? If so, state the facts fully.

'I was a Cub Scout and Boy Scout and Explorer Scout during elementary and high school.

'I also participated fully in my Temple's religious education programs until I went to college.

'In addition, my time spent as a VISTA is a service of the above described nature.

'19. Do you believe in the principles underlying the form of government of the United States? Yes.

'20. State whether you have been or are a member of any party or organization engaged in propagating or pledged to effect changes in the form of government provided for by the United States Constitution, or in advancing the interests of a foreign country? If so, state the facts fully. No. (Emphasis supplied in part.)

'21. Can you conscientiously, and do you, affirm, without any mental reservation, that you have been and are loyal to the Government of the United States? Yes.

'24. (a) Have you studied the Canons of Ethics adopted by the American Bar Association? Yes.

'(b) Do you unconditionally subscribe to the same? Yes.

'(c) Will you conscientiously endeavor to conform your professional conduct to them? Yes.'

In 1969 Mr. Stolar applied to the Ohio Bar for admission to practice. He made available to Ohio all the information he had previously given the New York Bar Committee, including his answers to the New York questions stated above. Stolar then answered a long series of questions posed by the Ohio committee. In response to oral interrogation he stated:

'that he is not now and has never been a member of the Communist Party, of any socialist party, or of the Students for a Democratic Society, and * * * that he has signed the standard U.S. Army pre-induction security oath, which has reference to the 'Attorney General's List." However, Stolar declined to answer certain questions on the Ohio application on the grounds they infringed his rights under the First and Fifth Amendments. These questions were:

'12. State whether you have been, or presently are * * * (g) a member of any organization which advocates the overthrow of the government of the United States by force * * *.

'13. List the names and addresses of all clubs, societies or organizations of which you are or have been a member.'

'7. List the names and addresses of all clubs, societies or organizations of which you are or have been a member since registering as a law student.'

Because of his refusal to answer these questions, one member of the committee who investigated Stolar recommended that he be denied admission. The other stated:

'I found Mr. Stolar to be honest and forthright. His statements evidenced also a certain commitment to principle for its own sake, an unusually great amount of social awareness, and a degree of self-interest not reprehensible. On the basis of the interview and the background actually revealed in Mr. Stolar's applications I have no reluctance to recommend Mr. Stolar for admission to the practice of law.'

The full committee then recommended that petitioner's application to take the Ohio Bar examination be denied. The Ohio Supreme Court approved the committee's recommendation without opinion. We granted certiorari. 396 U.S. 816, 90 S.Ct. 53, 24 L.Ed.2d 67.

We deal first with Ohio's demands that petitioner Martin Stolar list all the organizations to which he has belonged since registering as a law student and those of which he has ever been a member. In our view requiring a Bar applicant to answer these questions is impermissible in light of the First Amendment, as was made clear in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). At issue in Shelton was an Arkansas statute that required every state teacher, as a condition of employment, to file an affidavit listing every organization to which he had belonged within the preceding five years. The Court noted that this requirement impinged upon the teacher's right to freedom of association because it placed 'pressure upon a teacher to avoid any ties which might displease those who control his professional destiny * * *.' Id., at 486, 81 S.Ct. at 251. Similarly here, the listing of an organization considered by committee members to be controversial or 'subversive' is likely to cause delay and extensive interrogation or simply denial of admission to the Bar. Respondent committee frankly suggests that the listing of an organization which it felt 'espoused illegal aims' would cause it to 'investigate further.' Law students who know they must survive this screening process before practicing their profession are encouraged to protect their future by shunning unpopular or controversial organizations. Cf. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

The committee suggests its 'listing' question serves a legitimate interest because it needs to know whether an applicant has belonged to an organization which has 'espoused illegal aims' and whether the applicant himself has espoused such aims. But the First Amendment prohibits Ohio from penalizing an applicant by denying him admission to the Bar solely because of his membership in an organization. Baird v. State Bar of Arizona, supra; cf. United States v. Robel, 389 U.S. 258, 266, 88 S.Ct. 419, 424-425, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 607, 87 S.Ct. 675, 685-686, 17 L.Ed.2d 629 (1967). Nor may the State penalize petitioner solely because he personally, as the committee suggests, 'espouses illegal aims.' See Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940); Baird v. State Bar of Arizona, supra.

The committee also argues it needs answers to Questions 7 and 13 because responses might direct its attention to persons who have known an applicant and who could supply information relevant to his qualifications. Undoubtedly Ohio has a legitimate interest in determining whether an applicant has 'the qualities of character and the professional competence requisite to the practice of law.' Baird v. State Bar of Arizona, supra. But petitioner Stolar, already a member in good standing of the New York Bar, supplied the Ohio committee with extensive personal and professional information as well as numerous character references to enable it to make the necessary investigation and determination. Moreover, even though irrelevant to his fitness to practice law, Stolar's answers to questions on the New York application provided Ohio with substantially the information it was seeking by Questions 7, 12(g), and 13. The information contained in the two applications included petitioner's law school; every address at which he had ever lived; the names, addresses, and occupations of his parents; the names and addresses of his elementary school, his high school and high school principal; the names of nine former employers (which included three different law firms for which he had done summer work); his 'criminal record' (which consisted of two speeding convictions); nine different people as character references (two of whom had known Stolar for more than 20 years); and extensive information about his previous activities (e.g., law school moot court, graduate advisor at N.Y.U., Club Scout, Boy Scout, Explorer Scout, and his temple's religious education programs).

We conclude also that Ohio may not require an applicant for admission to the Bar to state whether he has been or is a 'member of any organization which advocates the overthrow of the government of the United States by force.' As we noted above, the First Amendment prohibits Ohio from penalizing a man solely because he is a member of a particular organization. See also Baird v. State Bar of Arizona, supra. Since this is true, we can see no legitimate state interest which is served by a question which sweeps so broadly into areas of belief and association protected against government invasion. Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940); United States v. Robel, 389 U.S. 258, 266, 88 S.Ct. 419, 424-425, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 607, 87 S.Ct. 675, 685-686, 17 L.Ed.2d 929 (1967); Baird v. State Bar of Arizona, supra; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).

There is not one word in this entire record that reflects adversely on Mr. Stolar's moral character or his professional competence. Although there were three questions that he did not answer with a simple 'yes' or 'no,' he did answer all of the Committee's questions relevant to his fitness and competence to practice law. It is difficult if not impossible to see how the State of Ohio could have been obstructed or frustrated to any extent in determining Mr. Stolar's fitness to practice law by his failure to answer the questions more fully. The record shows a young man who, from his boyhood up, had no adverse marks except for two speeding convictions. He answered numerous prying questions about peronal affairs that could hardly have been necessary for a State interested only in whether he would make an honest lawyer faithful to his clients. The questions he did not answer related only to his beliefs and associations, both protected by the First Amendment. The State points to not one overt act on Stolar's part that even suggests a possible reason for denying his application. Here, as in Baird v. State Bar of Arizona, it was a denial of a Bar applicant's First Amendment rights to refuse him admission simply because he declined to answer questions about his beliefs and associations.

The judgment of the Ohio Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Reversed and remanded.

Notes