First Amendment:

Congress shall make no 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, and to petition the Government for a redress of grievance.

Under Supreme Court precedent, states can require applicants for professional licenses to meet qualifications that are rationally related to the profession, including demonstrating “good moral character.” 1 However, as discussed in a previous section, a state generally cannot deny an individual a professional license solely on the basis of his or her past or present, lawful affiliations.2 In a similar vein, inquiries into an applicant’s associations must be sufficiently tailored in light of their potential chilling effect on association.3

Character and fitness cases once produced “[s]harp conflicts and close divisions” in the Court, particularly following the federal and state investigations into Communist activity in the 1950s.4 In general, the Court’s decisions show a concern for character inquiries based on membership in Communist organizations, but more suspicion about inquiries based on other kinds of association. Thus, in Konigsberg v. State Bar of California, the Court allowed a state bar association to question an applicant, in private, about his prior membership in the Communist Party, citing California’s “interest in having lawyers who are devoted to the law in its broadest sense,” including “its procedures for orderly change.” 5 And a decade later, the Court reaffirmed that “Bar examiners may ask about Communist affiliations as a preliminary to further inquiry into the nature of the association and may exclude an applicant for refusal to answer.” 6 On the same day, however, a plurality of the Court concluded that the State Bar of Arizona could not deny admission to a candidate based on her refusal to divulge 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.” 7 The difference between these two cases, in the plurality’s view, appeared to be the Arizona bar’s interest in organizations other than the Communist Party, which the plurality characterized as “[b]road and sweeping.” 8

The breadth of the state’s inquiry was also at issue in Shelton v. Tucker.9 There, the Court ruled that, though a state had a broad interest in ensuring the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all organizations to which they had belonged within the previous five years.10 The Court explained that the “unlimited and indiscriminate sweep of the statute” defeated its connection to a “legitimate inquiry into the fitness and competency” of public school teachers.11

Disclosure of a person’s associations may be permissible during a sentencing hearing following a criminal conviction. The Supreme Court has explained that the “Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.” 12 However, those associations must be relevant to proving aggravating or mitigating circumstances, not just the defendant’s “abstract beliefs.” 13

Footnotes

1

Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 239 (1957); see also Adler v. Bd. of Educ., 342 U.S. 485, 493 (1952) (reasoning that a public school a prospective teacher’s “associates, past and present” in “determining fitness and loyalty” ).

2

See, e.g., Schware, 353 U.S. at 245–46 (holding that a state bar association could not refuse to admit a prospective lawyer on the assumption that “his past membership in the Communist Party” indicated present “bad moral character” ). See Amdt1.8.2.3 Denial of Employment or Public Benefits.

3

Shelton v. Tucker, 364 U.S. 479, 488 (1960).

4

Baird v. State Bar of Ariz., 401 U.S. 1, 2–3 (1971) (plurality opinion).

5

366 U.S. 36, 49–54 (1961).

6

L. Students C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154, 165–66 (1971) (rejecting a facial challenge to the New York Bar Association’s screening process).

7

Baird, 401 U.S. at 4–5 (plurality opinion) (internal quotation marks and citation omitted); see also In re Stolar, 401 U.S. 23, 30 (1971) (plurality opinion) (reaching the same conclusion with respect to an applicant for admission to the Ohio Bar who refused to answer a similar question).

8

Baird, 401 U.S. at 6 (plurality opinion); see also In re Stolar, 401 U.S. at 27–28 (plurality opinion) (holding that Ohio could not require an applicant to the state bar association to “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” ).

9

364 U.S. 479 (1960).

10

Id. Cf. Beilan v. Bd. of Pub. Educ., 357 U.S. 399, 404 (1958) (holding that a public school district could fire a teacher for “statutory ‘incompetency’ based on his refusal to answer the Superintendent’s questions” about his affiliation with a Communist political association).

11

Shelton, 364 U.S. at 490; Schneider v. Smith, 390 U.S. 17, 23, 26–27 (1968) (holding that a federal statute authorizing the executive branch to “safeguard” U.S. merchant ships against “sabotage or other subversive acts,” 50 U.S.C. § 191(b), did not authorize regulations establishing a screening program for personnel on such vessels that delved into their past associations, ideas, and beliefs).

12

Dawson v. Delaware, 503 U.S. 159, 165 (1992).

13

Id. at 165–67 (holding that the sentencing court improperly admitted evidence of the defendant’s membership in the Aryan Brotherhood that focused only on the organization’s “racist beliefs” ).