Hugo Black

“ A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. It is also important both to society and the bar itself that lawyers be unintimidated-free to think, speak, and act as members of an Independent Bar. [36] In this case we are compelled to conclude that there is no evidence in the record which rationally justifies a finding that Konigsberg failed to establish his good moral character or failed to show that he did not advocate forceful overthrow of the Government. ”

“ In view of the grounds relied on in Konigsberg's petition for review, his repeated assertions throughout the hearings of various federal constitutional rights, and the practices of the California Supreme Court, we cannot conclude that that court, with three of its seven justices dissenting, intended to uphold petitioner's exclusion from the practice of law because his lawyer failed to elaborate in his brief the constitutional claims set forth in his petition for review and in the record of the hearings. Our conclusion is that the constitutional issues are before us and we must consider them. ”

“ As we said before, the mere fact of Konigsberg's past membership in the Communist Party, if true, without anything more, is not an adequate basis for concluding that he is disloyal or a person of bad character. A lifetime of good citizenship is worth very little if it is so frail that it cannot withstand the suspicions which apparently were the basis for the Committee's action. ”

“ When read in the light of the ordinary give-and-take of political controversy the editorials Konigsberg wrote are not unusually extreme and fairly interpreted only say that certain officials were performing their duties in a manner that, in the opinion of the writer, was injurious to the public. We do not believe that an inference of bad moral character can rationally be drawn from these editorials. [28] Because of the very nature of our democracy such expressions of political views must be permitted. ”

“ There is nothing in the California statutes, the California decisions, or even in the Rules of the Bar Committee, which has been called to our attention, that suggests that failure to answer a Bar Examiner's inquiry is, ipso facto, a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners. ”

“ Assuming for purposes of this case that counsel's broad definition of 'good moral character' is the one adopted in California, the question is whether or the whole record a reasonable man could fairly find that there were substantial doubts about Konigsberg's 'honesty, fairness and respect for the rights of others and for the laws of the state and nation.'
A person called on to prove his character is compelled to turn to the people who know him. ”

“ And certainly there is nothing in the newspaper editorials that Konigsberg wrote that tends to support a finding that he champions violent overthrow. Instead, the editorials expressed hostility to such a doctrine. For example, Konigsberg wrote:
'It is vehemently asserted that advocacy of force and violence is a danger to the American government and that its proponents should be punished. With this I agree. Such advocacy is un-American and does undermine our democratic processes. ”

“ Courts are not, and should not be, immune to such criticism. [29] Government censorship can no more be reconciled with our national constitutional standard of freedom of speech and press when done in the guise of determinign 'moral character,' than if it should be attempted directly.
(3) Refusal to Answer Questions.-During the prolonged hearings before the Committee of Bar Examiners, Konigsberg was not asked directly about his honesty, trustworthiness, or other traits which are generally thought of as related to good character. ”

“ As counsel states, the reasons for relaxing this standard in criminal cases are obvious-such cases may involve forfeiture of the accused's property, liberty, or life. While this is not a criminal case, its consequences for Konigsberg take it out of the ordinary run of civil cases. The Committee's action prevents him from earning a living by practicing law. This deprivation has grave consequences for a man who has spent years of study and a great deal of money in preparing to be a lawyer. ”

“ These cases instead appear to define 'good moral character' in terms of an absence of proven conduct or acts which have been historically considered as manifestations of 'moral turpitude.' To illustrate, California has held that an applicant did not have good character who had been convicted of forgery and had practiced law without a license, [19] or who had obtained money by false representations and had committed fraud upon a court, [20] or who had submitted false affidavits to the Committee along with his application for admission. ”

“ It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. [18] Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law. ”

“ While the court said that this was an insufficient presentation of the issue it nevertheless went ahead to consider and reject Johnson's argument and to hold the Act constitutional.
Counsel for California concedes that the state courts in criminal cases often pass on issues ineptly argued in a defendant's brief or sometimes not raised there at all. ”