Hugo Black

“ Why does the Committee of Bar Examiners ask a bar applicant whether he is or has been a member of the Communist Party? The avowed purpose of such questioning is to permit the Committee to deny applicants admission to the Bar if they 'advocate' forcible overthrow of the Government. Indeed, that is precisely the ground upon which the majority is here upholding the Committee's right to ask Konigsberg these questions. ”

“ In my judgment, such a sweeping denial of the existence of any inalienable right to speak undermines the very foundation upon which the First Amendment, the Bill of Rights, and, indeed, our entire structure of government rest. [26] The Founders of this Nation attempted to set up a limited government which left certain rights in the people-rights that could not be taken away without amendment of the basic charter of government. The majority's 'balancing test' tells us that this is not so. ”

“ Indeed, if the State's only real interest was, as the majority maintains, in having good men for its Bar, how could it have rejected Konigsberg, who, undeniably and as this Court has already held, has provided overwhelming evidence of his good character? Our former decision, which I still regard as resting on what is basically just good common sense, was that a man does not have to tell all about his previous beliefs and associations in order to establish his good character and loyalty. ”

“ The 'balancing test,' on the other hand, rests upon the notion that some ideas are so dangerous that Government need not restrict itself to contrary arguments as a means of opposing them even where there is ample time to do so. Thus here, where there is not a semblance of a 'clear and present danger,' and where there is more than ample time in which to combat by discussion any idea which may be involved, the majority permits the State of California to adopt measures calculated to suppress the advocacy of views about governmental affairs. ”

“ If every person who wants to be a lawyer is to be required to account for his associations as a prerequisite to admission into the practice of law, the only safe course for those desiring admission would seem to be scrupulously to avoid association with any organization that advocates anything at all somebody might possibly be against, including groups whose activities are constitutionally protected under even the most restricted notion of the First Amendment. ”

“ Moreover, the fact that Communists practice repression of these freedoms is, in my judgment, the last reason in the world that we should do so. We do not have to imitate the Communists in order to survive. Our Bill of Rights placed our survival upon a firmer ground-that of freedom, not repression. ”

“ It therefore seems to me that the Court's 'absolute' statement that there are no 'absolutes' under the First Amendment must be an exaggeration of its own views.
These examples also serve to illustrate the difference between the sort of 'balancing' that the majority has been doing and the sort of 'balancing' that was intended when that concept was first accepted as a method for insuring the complete protection of First Amendment freedoms even against purely incidental or inadvertent consequences. ”

“ The interest of the Committee in satisfying its curiosity with respect to Konigsberg's 'possible' membership in the Communist Party two decades ago has been inflated out of all proportion to its real value-the vast interest of the public in maintaining unabridged the basic freedoms of speech, press and assembly has been paid little if anything more than lip service-and important constitutional rights have once again been 'balanced' away. ”

“ The recognition that California has subjected 'speech and association to the deterrence of subsequent disclosure' is, under the First Amendment, sufficient in itself to render the action of the State unconstitutional unless one subscribes to the doctrine that permits constitutionally protected rights to be 'balanced' away whenever a majority of this Court thinks that a State might have interest sufficient to justify abridgment of those freedoms. ”

“ But it is neither natural nor unavoidable in this country for the fundamental rights of the people to be dependent upon the different emphasis different judges put upon different values at different times. For those rights, particularly the First Amendment rights involved here, were unequivocally set out by the Founders in our Bill of Rights in the very plainest of language, and they should not be diluted by 'tests' that obliterate them whenever particular judges think values they most highly cherish outweigh the values most highly cherished by the Founders. ”

“ The most commonly offered justification for the liberty-stifling measures that have characterized this latter period is that the Communists do not themselves believe in the freedoms of speech, press and assembly so they should not be allowed to take advantage of the freedoms our Constitution provides. ”

“ And I believe the abridgment of liberty here, as in most of the other cases in that line, is based upon nothing more than a fear that the American people can be alienated from their allegiance to our form of government by the talk of zealots for a form of government that is hostile to everything for which this country now stands or ever has stood. ”

“ This, of course, is an ever-present danger of the 'balancing test' for the application of such a test is necessarily tied to the emphasis particular judges give to competing societal values. Judges, like everyone else, vary tremendously in their choice of values. ”

“ Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which, though supported by revered Americans as essential to democracy, has been adopted by that group for its own purposes.' American Communications Ass'n v. ”

“ Therefore, a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law.' Lord Coke is equally decisive and emphatic. Citing and commenting on the celebrated 29th chap. of Magna Charta, he says, 'no man shall be disseized, &c. ”

“ California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095: 'Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.' (Brandeis, J., concurring.) ↑ See Abrams v. United States, 250 U.S. 616, 630-631, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion) ; Gitlow v. People of State of New York, 268 U.S. 652, 672-673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (dissenting opinion) ; Whitney v. People of State of California, 274 U.S. 357, 378-379, 47 S.Ct. ”