Baird v. State Bar of Arizona, 401 U.S. 1 (1971), the companion case to In re Stolar (1971), is one of several Supreme Court rulings that extended greater First Amendment protection to admission to the bar than the Court had demonstrated in its earlier decisions in In re Anastaplo (1961) and Konigsberg v. State Bar (1961).
Bar applicant refused to answer whether she was a Communist
Although Sara Baird, the petitioner, responded to a query on the Arizona State Bar questionnaire about organizations to which she belonged, she refused to answer whether she was a member of the Communist Party or any organization that advocated overthrowing the U.S. government by force.
Court said First Amendment recognizes freedom of association
Consciously distancing himself from McCarthy-era decisions that had upheld such oaths, Justice Hugo L. Black wrote in his majority opinion in Baird, that the question posed to Baird about her past associational activities forced her into a guessing game. Citing Cantwell v. Connecticut (1940), Black observed that the First Amendment embraces “freedom to believe and freedom to act.”
Further citing Thomas v. Collins (1945), he noted that the “First Amendment gives freedom of mind the same security as freedom of conscience.” First Amendment recognition of freedom 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.” Moreover, “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.” Black argued that “the practice of law is not a matter of grace, but of right for one who is qualified by his learning and moral character,” and he found no evidence “that this lady is not morally and professionally fit to serve honorably and well as a member of the legal profession.”
In his concurring opinion, Justice Potter Stewart agreed that “the First and Fourteenth Amendments bar a State from acting against any person merely because of his beliefs.”
Dissenters said state could protect itself by asking bar applicants about Communist activity
Justice Byron R. White’s dissent stressed that a state did not have to admit anyone to the bar “who believes in violence and intends to implement that belief in his practice of law and advice to clients.” Justice Harry A. Blackmun’s dissent cited the precedents In re Anastaplo and Konigsberg, and he did not find the questions Arizona asked to be vague or Baird’s decision not to answer to be inadvertent. He found the state in a better position to assess risk than the Supreme Court and within its right “to protect itself.”
John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.