61. Is the applicant likely to prevail?

A state adopted a rule denying admission to its bar to anyone who was currently or had previously been a member of a subversive group. The state's bar application form was modified to ask applicants whether they were or had previously been members of any subversive organization. An applicant refused to answer the question and was denied bar admission on that basis. The applicant challenged the decision, arguing that the question infringed upon his freedom of association.

No, because membership in a subversive group constitutes endorsement of the group's illegal activities
No, because the Constitution does not apply to the bar
Yes, because denying bar admission based on any association with a subversive organization violates the First Amendment
Yes, because denying bar admission based solely on past membership in a subversive organization violates the First Amendment

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Forcing disclosure of First Amendment activities as a condition of bar membership may have a chilling effect. Thus, the state may not force every prospective employee to disclose every membership because such a broad disclosure has insufficient relation to loyalty and professional competence, and the state has less drastic means available to achieve its purpose. See Shelton v. Tucker, 364 U.S. 479 (1960). The state may inquire only into those activities that are relevant to the position, and if the candidate refuses to answer relevant questions, employment or bar admission may be denied. Konigsberg v. State Bar of California, 366 U.S. 36 (1961).

Furthermore, the U.S. Supreme Court has held that states may deny bar admission to individuals who are members of subversive organizations if, but only if, they have a specific intention to further the illegal activities of the organization. See Scales v. United States, 367 U.S. 203 (1961).

D is correct. The Supreme Court has held that the freedom of association protected by the First Amendment prohibits a state from inquiring about an individual's associations in order to withhold a right or benefit because of the individual's beliefs. Although the state has a legitimate interest in determining the character and professional competence of bar applicants, the Court has held that the state has other means of making these determinations that are less restrictive of First Amendment freedoms. See Shelton v. Tucker, 364 U.S. 479 (1960).

A is incorrect. Simply because an applicant may have been a member of a «subversive» organization in the past does not mean the applicant was endorsing or partaking in illegal activities. The Court has held that an individual's membership in an association may not be deemed an endorsement of the illegal activities of the association unless the individual has a specific intention to further those illegal activities.

B is incorrect. The rule at issue was adopted by the state, and thus it constitutes state action and must comply with the First Amendment. As stated above, the Court has held that the freedom of association protected by the First Amendment prohibits a state from inquiring about an individual's associations in order to withhold a right or benefit because of the individual's beliefs.

C is incorrect. The Court has held that states may deny bar admission to individuals who are members of subversive organizations if, but only if, they have a specific intention to further the illegal activities of the organization. See Scales v. United States, 367 U.S. 203 (1961). The applicant is still likely to prevail, however, because the Court also has held that the freedom of association protected by the First Amendment prohibits a state from inquiring about an individual's associations in order to withhold a right or benefit because of the individual's beliefs.

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61. Is the applicant likely to prevail?

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