Konigsberg v. State Bar of California (366 U.S. 36)/Dissent Brennan

by William J. Brennan, Jr.

United States Supreme Court

366 U.S. 36

Konigsberg  v.  State Bar of California

 Argued: Dec. 14, 1960. ---

Mr. Justice BRENNAN, with whom The CHIEF JUSTICE joins, dissenting.

This judgment must be reversed even if we assume with Mr. Justice Traynor in his dissent in the California Supreme Court, 52 Cal.2d 769, 774, at page 776, 344 P.2d 777, 780, at pages 781-782, that 'a question as to present or past membership in (the Communist Party) is relevant to the issue of possible criminal advocacy and hence to (Konigsberg's) qualifications.' The Committee did not come forward, in the proceeding we passed upon in 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, nor in the subsequent proceeding, with evidence to show that Konigsberg unlawfully advocated the otherthrow of the Government. Under our decision in Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, the Fourteenth Amendment therefore protects Konigsberg from being denied admission to the Bar for his refusal to answer the questions. In Speiser we held that '* * * when the constitutional right to speak is sought to be deterred by a State's general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition.' 357 U.S. at pages 528-529, 78 S.Ct. at page 1343. 'There may be differences of degree,' Mr. Justice Traynor said, 'in the public interest in the fitness of the applicants for tax exemptions and for admission to the Bar'; yet, as to the latter also, 'Such a procedure is logically dictated by Speiser * * *.' 52 Cal.2d at page 776, 344 P.2d at page 782. And unless mere whimsey governs this Court's decisions in situations impossible rationally to distinguish, such a procedure is indeed constitutionally required here. The same reasons apply. For Mr. Justice Traynor was entirely right in saying: 'Whatever its relevancy (the question as to past or present Party membership) in a particular context, * * * it is an extraordinary variant of the usual inquiry into crime, for the attendant burden of proof upon any one under question poses the immediate threat of prior restraint upon the free speech of all applicants. The possibility of inquiry into their speech, the heavy burden upon them to establish its innocence, and the evil repercussions of inquiry despite innocence, would constrain them to speak their minds so noncommittally that no one could ever mistake their innocuous words for advocacy. This grave danger to freedom of speech could be averted without loss to legitimate investigation by shifting the burden to the examiners. Confronted with a prima facie case, an applicant would then be obliged to rebut it.' Id., 52 Cal.2d at page 776, 344 P.2d at page 782.

The Court admits the complete absence of any such predicate by the Committee for its questions. The Court attempts to distinguish the situations in order to escape the controlling authority of Speiser. The speciousness of its reasoning is exposed in Mr. Justice BLACK'S dissent. I would reverse.

Notes