Baird v. State Bar of Arizona

Peter D. Baird, Phoenix, Ariz., for petitioner.

Mark Wilmer, Phoenix, Ariz., for respondent.

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 one of two cases now before us from two different States in which applicants have been denied admission to practice law solely because they refused to answer questions about their personal beliefs or their affiliations with organizations that advocate certain ideas about government. ^[1] Sharp conflicts and close divisions have arisen in this Court concerning the power of States to refuse to permit applicants to practice law in cases where bar examiners have been suspicious about applicants’ loyalties and their views on Communism and revolution. This has been an increasingly divisive and bitter issue for some years, especially since Senator Joseph McCarthy from Wisconsin stirred up anti-Communist feelings and fears by his ‘investigations’ in the early 1950’s. One applicant named Raphael Konigsberg was denied admission in California and this Court reversed. Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). The State nevertheless denied him admission a second time, and this Court then affirmed by a 5-to-4 decision. 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961). An applicant named Rudolph Schware was denied admission in New Mexico and this Court reversed, with five Justices agreeing on one opinion, three Justices on another opinion, and one not participating. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). In another case an applicant named George Anastaplo was denied admission in Illinois on grounds similar to those involved in Konigsberg and Schware, and the denial was affirmed by a 5-to-4 margin. In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961). See also In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945). With sharp divisions in this Court, our docket and those of the Courts of Appeals have been filled for years with litigation involving inquisitions about beliefs and associations and refusals to let people practice law and hold public or even private jobs solely because public authorities have been suspicious of their ideas. ^[2] Usually these denials of employment have not been based on any overt acts of misconduct or lawlessness, and the litigation has continued to raise serious questions of alleged violations of the First Amendment and other guarantees of the Bill of Rights. ^[3]

The foregoing cases and others contain thousands of pages of confusing formulas, refined reasonings, and puzzling holdings that touch on the same suspicions and fears about citizenship and loyalty. However we have concluded the best way to handle this case is to narrate its simple facts and then relate them to the 45 words that make up the First Amendment.

These are the facts.

The petitioner, Sara Baird, graduated from law school at Stanford University in California in 1967. So far as the record shows there is not now and never has been a single mark against her moral character. She has taken the examination prescribed by Arizona, and the answer of the State admits that she satisfactorily passed it. Among the questions she answered was No. 25, which called on her to reveal all organizations with which she had been associated since she reached 16 years of age. ^[4] This question she answered to the satisfaction of the Arizona Bar Committee. Consequently there is no charge or intimation that Mrs. Baird has not listed the organizations to which she has belonged since becoming 16. In addition, however, she was asked to state whether she had ever been a member of the Communist Party or any organization ‘that advocates overthrow of the United States Government by force or violence.’ ^[5] When she refused to answer this question, the Committee declined to process her application further or recommend her admission to the bar. ^[6] The Arizona Supreme Court then denied her petition for an order to the Committee to show cause why she should not be admitted to practice law. We granted certiorari. 394 U.S. 957, 89 S.Ct. 1308, 22 L.Ed.2d 559.

In Arizona it is perjury to answer the bar committee’s questions falsely, and perjury is punishable as a felony. Ariz.Rev.Stat.Ann. § 13-561 (1956). In effect this young lady was asked by the State to make a guess as to whether any organization to which she ever belonged ‘advocates overthrow of the United States Government by force or violence.’ There may well be provisions of the Federal Constitution other than the First Amendment that would protect an applicant to a state bar from being subjected to a question potentially so hazardous to her liberty. But whether or not there are other provisions that protect her, we think the First Amendment does so here. That Amendment, made applicable to the States by the Fourteenth, forbids any ‘law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble * * *.’ Mr. Justice Roberts, in referring to the First Amendment’s guarantee of freedom of religion, said;

‘Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.’ Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

See also Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 160-161, 60 S.Ct. 146, 150-151, 84 L.Ed. 155 (1939); West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). And we have made it clear that: ‘This conjunction of liberties is not peculiar to religious activity and institutions alone. The First Amendment gives freedom of mind the same security as freedom of conscience.’ Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945). The protection of the First Amendment also extends to the right of association. As we said in Schneider v. Smith, 390 U.S. 17, 25, 88 S.Ct. 682, 687, 19 L.Ed.2d 799 (1968):

‘The First Amendment’s ban against Congress ‘abridging’ freedom of speech, the right peaceably to assemble and to petition, and the ‘associational freedom’ * * * that goes with those rights creates a preserve where the views of the individual are made inviolate.’

See also Shelton v. Tucker, 364 U.S. 479, 485-487, 81 S.Ct. 247, 250-252, 5 L.Ed.2d 231 (1960); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

The First Amendment’s protection of association prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs. United States v. Robel, 389 U.S. 258, 266, 88 S.Ct. 419, 425, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 607, 87 S.Ct. 675, 686, 17 L.Ed.2d 629 (1967). Similarly, when a State attempts to make inquiries about a person’s beliefs or associations, its power is limited by the First Amendment. Broad and sweeping state inquiries into these protected areas, as Arizona has engaged in here, discourage citizens from exercising rights protected by the Constitution. Shelton v. Tucker, supra; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Cf. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

When a State seeks to inquire about an individual’s beliefs and associations a heavy burden lies upon it to show that the inquiry is necessary to protect a legitimate state interest. Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S. at 546, 83 S.Ct. at 893. Of course Arizona has a legitimate interest in determining whether petitioner has the qualities of character and the professional competence requisite to the practice of law. But here petitioner has already supplied the Committee with extensive personal and professional information to assist its determination. By her answers to questions other than No. 25, and her listing of former employers, law school professors, and other references, she has made available to the Committee the information relevant to her fitness to practice law. ^[7] And whatever justification may be offered, a State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.

Much has been written about the application of the First Amendment to cases where penalties have been imposed on people because of their beliefs. Some of what has been written is reconcilable with what we have said here and some of it is not. Without detailed reference to all prior cases, it is sufficient to say we hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law. Clearly Arizona has engaged in such questioning here. ^[8]

The practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character. See Schware v. Board of Bar Examiners, Supra, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867). This record is wholly barren of one word, sentence, or paragraph that tends to show this lady is not morally and professionally fit to serve honorably and well as a member of the legal profession. It was error not to process her application and not to admit her to the Arizona Bar. The judgment of the Arizona Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Reversed and Remanded.

Notes

^1  The other is No. 18, In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657. See also No. 49, Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749.

^2  See, e.g., Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967).

^3  See the cases cited in n. 2, supra. See also Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); American Communications Assn. v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925 (1950) (Black, J., dissenting); cf. Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633 (1961); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

^4  App. 18.

^5  Question No. 27, App. 18.

^6  Response of the Committee on Examinations and Admissions to Order to Show Cause. App. 4.

^7  Respondent has argued that even when an applicant has answered Question 25, listing the organizations to which she has belonged since the age of 16, Question 27 still serves a useful and legitimate function. Respondent urges:

‘Assume an answer including an organization by name such as ‘The Sons and Daughters of I Will Arise.’ This could truly be a Christian group with religious objectives. But also it could be an organization devoted to the objectives of Lenin, Stalin or any other deceased person whose teachings and objectives were not conducive to the continued security and welfare of our government and way of life.’ Brief for Respondent 8.

The organizations petitioner listed in response to question 25 were: Church Choir; Girl Scouts; Girls Athletic Association; Young Republicans; Young Democrats; Stanford Law Association; Law School Civil Rights Research Council. Respondent does not state which of these organizations may threaten the security of the Republic.

^8  The committee urges that it is entitled to demand an answer to Question 27 because:

‘Unless we are to conclude that one who truly and sincerely believes in the overthrow of the United States Government by force and violence is also qualified to practice law in our Arizona courts, then an answer to this question is indeed appropriate. The Committee again emphasizes that a mere answer of ‘yes’ would not lead to an automatic rejection of the application. It would lead to an investigation and interrogation as to whether or not the applicant presently entertains the view that a violent overthrow of the United States Government is something to be sought after. If the answer to this inquiry was ‘yes’ then indeed we would reject the application and recommend against admission.’ (Emphasis added.) Memorandum in Support of Response to Petition for Order to Show Cause, App. 5-6.