Lathrop v. Donohue

PETITIONER:Lathrop
RESPONDENT:Donohue
LOCATION:Eagle Coffee Shoppe

DOCKET NO.: 200
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 367 US 820 (1961)
ARGUED: Jan 18, 1961
DECIDED: Jun 19, 1961

Facts of the case

Question

  • Oral Argument – January 18, 1961 (Part 2)
  • Audio Transcription for Oral Argument – January 18, 1961 (Part 2) in Lathrop v. Donohue

    Audio Transcription for Oral Argument – January 18, 1961 (Part 1) in Lathrop v. Donohue

    Earl Warren:

    Number 200, Trayton L. Lathrop, Appellant, versus Josephine D. Donohue.

    Mr. Lathrop.

    Trayton L. Lathrop:

    Mr. Chief Justice and may it please the Court.

    This is an appeal from the judgment of the Supreme Court of the State of Wisconsin which was entered on April 5, 1960.

    This action involves the validity of rules of the Supreme Court of Wisconsin which requires that persons, who practice law in the State of Wisconsin, join, belong to and support an association of attorneys known as the State Bar of Wisconsin.

    Rules were adopted in the latter part of 1956 for a temporary period of two years.

    At the end of 1958, they were continued in effect, indefinitely.

    This action was commenced in June of 1959 to recover from the treasurer of the association, dues which were paid to him under protest.

    It’s contended that the rules violate the Fourteenth Amendment to the United States Constitution.

    There was a demurrer to the complaint.

    The Circuit Court sustained the demurrer and dismissed the action without leave to plead over.

    The — upon appeal to the Supreme Court, that Court held that the rules do not violate the Fourteenth Amendment and affirmed the judgment of the Circuit Court.

    The jurisdiction of this Court is invoked under Section 1257 (2) of title 28 of the United States Code.

    The appellee asserts that there is no jurisdiction under said section on the ground that the rules of the Wisconsin Supreme Court do not constitute a statute under that section.

    This Court has repeatedly held over a period of more than 75 years that the word statute, as it’s used, touched in the appellate jurisdiction of this — this Court, covers all acts of a legislature — legislative nature to which the — the Court — which the State gives its sanction and enforces.

    For example, it is stated that a city ordinance constitutes a statute, that a rule of Board of Regents of the University governing the conduct of students constitutes a statute, that a constitutional provision constitutes a statute.

    The — the appellee asserts however that we have only a judicial act here.

    It is submitted what the appellee is — is saying that is because of the nature of the body which creates the act that it is judicial rather than the nature of the act itself.

    We submit that it is the nature of the act which controls legislative powers defined as the power to make laws and laws defined as the aggregate of those rules and principles of conduct which the governing body recognizes as those which are enforcing sanctions.

    So it is respectfully submitted that the rules of the Supreme Court of the State of Wisconsin do constitute a statute.

    We further state that Wisconsin Supreme Court itself, states that they are part of the police power, is exercised pursuant to the police power and they’re exercised pursuant to the policy making functions of the Court, and not pursuant to a — an adjudicatory function of the Court.

    He was attended by the — I should say that the argument is going to be divided between Mr. Isaksen and myself.

    Mr. Isaksen, will address himself to the free speech question and I will address myself to the question of freedom of association.

    Hugo L. Black:

    I didn’t understand the divisions.

    Trayton L. Lathrop:

    Mr. Isaksen will address himself to the free — free speech question and I will cover the question of freedom of association, Your Honor.

    It was intended by the Wisconsin Supreme Court that the Integrated Bar Association be a continuation of the previously existing voluntary Wisconsin Bar Association.

    That attention has been accomplished.

    The Integrated Bar started out with the same general officers, the same executive director, the same property, the same files, the same magazine.

    The Court rules provided that the integrated association shall elect their delegates to the American Bar Association previously elected by the voluntary association.

    Court rules provided that the integrated association shall elect the members of the state judicial council which were previously elected by the voluntary association.

    Trayton L. Lathrop:

    The integrated — the rules and bylaws refer to the integrated association as an association over 60 times.

    The integrated association performs substantially the same functions and it’s substantially the same manner as did the voluntary association and as does — does the American Bar Association as it is alleged in the complaint.

    Complaint alleges that more than — they’re — one of the main objects and purposes of the integrated association have been to promote law reform.

    Complaint alleges that the association makes and opposes proposals for changes in laws and constitutional provisions as the court systems, systems of selecting judges, text codes, corporate codes, property laws, criminal codes, laws among nations.

    And that the association has used its funds in opposition to the adoption of legislation favored by the plaintiff, contrary to the plaintiff’s convictions and beliefs.

    The law reform activities of the association extend to the United States Congress.

    It had laws to the state legislature.

    A special subcommittee has been created for — for federal legislation.

    The Wisconsin Supreme Court and in the opinion below, took judicial notice of the activities of the association in the legislative field and stated that in every instance, legislative measures advocated or opposed, have dealt with the administration of justice, court reform and legal practice.

    Since the court below took judicial notice and went beyond the complaint, this Court is entitled to take judicial notice of the same facts.

    A certified copy of the minutes of the Board of Governors and of the Executive Committee of the State Bar of Wisconsin, have been deposited with the clerk of this Court.

    Hugo L. Black:

    May I ask you, where is it, the quotation of the state rules that compel the lawyers to belong to the association? Where is that printed?

    Trayton L. Lathrop:

    It’s printed in the record, Your Honor, on — Rule — Rule 2, Section 2, provides that —

    Hugo L. Black:

    Where is that?

    Trayton L. Lathrop:

    I’m sorry, I’m sorry.

    Well, look down at page 8 of the record.

    Hugo L. Black:

    Of the jurisdictional statement?

    Trayton L. Lathrop:

    No, on page 8 of the transcript of the record.

    Hugo L. Black:

    Oh, page 8?

    Trayton L. Lathrop:

    Yes sir and at the bottom of the page and there is one — there is a section called enrollment, which requires that everyone enroll and it just —

    Hugo L. Black:

    What is the penalty?

    Trayton L. Lathrop:

    I beg you pardon?

    Hugo L. Black:

    What is the penalty for failing to enroll?

    Trayton L. Lathrop:

    Alright, then on — on page 9, in Section 4, states that no individual other than an enrolled active member of the State Bar shall practice law in the State or in anyway, any manner hold themselves out as authorized —

    Hugo L. Black:

    What — what is the law with reference to one who holds himself out or attempts to practice law —

    Trayton L. Lathrop:

    Your Honor, I —

    Hugo L. Black:

    — without permission.

    Trayton L. Lathrop:

    He’s subject to both the criminal penalty and I think he’s also subject to being in contempt of court.

    Hugo L. Black:

    Is a criminal statute included in your record?

    Trayton L. Lathrop:

    No, sir.

    Hugo L. Black:

    What is the penalty, do you know?

    Trayton L. Lathrop:

    I — I do not know.

    I’m sorry, but I do know that — that I would be very effectively stopped from exercising my ability to practice law.

    Felix Frankfurter:

    What —

    Hugo L. Black:

    Can you cite us to that before the argument is over?

    Trayton L. Lathrop:

    Yes, sir.

    Felix Frankfurter:

    Well, is — is that — what do you set forth in your complaint as the — as the greed — as the palm that comes to you that when — I was about to say, you’re happily here so you can best tell, what this means to a particular fellow who doesn’t want to join and doesn’t want to be integrated.

    Trayton L. Lathrop:

    Well, Your Honor —

    Felix Frankfurter:

    What — what have you set forth in your complaint will follow, if this judgment of the Wisconsin Supreme Court stands?

    Trayton L. Lathrop:

    Your Honor, it’s stated in the complaint that that I am required by the orders of the Supreme Court and the — all — all of the truth —

    Felix Frankfurter:

    Where is that which — could you — if you could —

    Trayton L. Lathrop:

    All of the — all of the —

    Felix Frankfurter:

    Could you just return to the exact — to the record.

    Trayton L. Lathrop:

    The entire — the entire rules which we were –

    Felix Frankfurter:

    No, no, not the rules, but what you said is the damage your complaint or hurt, the hindrance upon protected freedom if not proper the interest —

    Trayton L. Lathrop:

    Your Honor —

    Felix Frankfurter:

    Where is it set forth?

    Trayton L. Lathrop:

    Following the —

    Felix Frankfurter:

    Page what in the record?

    Trayton L. Lathrop:

    Following the Court, the — the system of — of pleading into the State of Wisconsin has set forth the ultimate facts in this complaint.

    I have set forth the fact that I’ve been admitted to — to practice law and now I am required to join this — this association.

    And —

    Felix Frankfurter:

    Well, what — what if I read it, not actually read it, right now, why wouldn’t I — what is there in it that you state that makes a difference from an invitation to join a fraternity?

    Trayton L. Lathrop:

    It is the compulsory feature of it, Your Honor.

    I am required to join in this —

    Felix Frankfurter:

    Well, required means that if you — the question is that Justice Black has been pursuing with you, required means that if you don’t do something, it makes a difference.

    Trayton L. Lathrop:

    That’s correct.

    Felix Frankfurter:

    Well, what difference does it make?

    Trayton L. Lathrop:

    It makes the — the difference makes that I will no longer be able to — to pursue the only livelihood for which I have been engaged.

    Felix Frankfurter:

    You mean you — it —

    Trayton L. Lathrop:

    And that’s alleged in the complaint.

    Felix Frankfurter:

    You mean you couldn’t argue a case before the Supreme Court of Wisconsin?

    Trayton L. Lathrop:

    That’s correct, except in my own behalf.

    Felix Frankfurter:

    Do I understand it?

    Trayton L. Lathrop:

    That’s —

    John M. Harlan II:

    And you couldn’t practice law at all?

    Trayton L. Lathrop:

    That’s correct.

    The — there are specific illustrations of the activities of the Wisconsin Bar Association and the State — State Bar of Wisconsin integrated association, which appear in the minutes and among these are comprehension — comprehensive revision of federal law relative to tax liens, family law bill which among other things, forbids those who were divorced and have children from remarrying without permission of a circuit judge and which makes it a felony for attorneys to start actions for breach of commerce, appropriation of funds to a legislative counsel, judicial salaries, constitutional changes permitting increase of judicial salaries during the term of office, a proposal to repeal integration of the Bar, a proposal reducing the time for buying mechanics liens, constitutional revision of the court system —

    Hugo L. Black:

    What did you say that was required with reference to a proposal to repeal the integration laws?

    Trayton L. Lathrop:

    There was a proposal in the — in the — in the Wisconsin legislature which was opposed by this — by the integrated association.

    Felix Frankfurter:

    You’re now giving a list of —

    Trayton L. Lathrop:

    These are some of the —

    Felix Frankfurter:

    — proposals by the Bar to which —

    Trayton L. Lathrop:

    But these are — these are the proposals that the Bar have either supported or opposed.

    Felix Frankfurter:

    And they maybe things to which you may or in fact do with which you in fact — with which — with which you may or in fact do disagree, is that it?

    Trayton L. Lathrop:

    Now, Your Honor.

    I — I would like point out this — this statement, whether I disagree or not, I think is entirely irrelevant.

    I belong for example, to a church and I like the church, but the moment that I’m told that I belong to that, I have to belong to the church is when I don’t want to get out of it because I don’t think that the State has any business to tell me that I’ve got to belong to it or that the State has any business to tell me that I got to belong to an association and when the association accepts that kind of relief from the State then in and of itself, the association becomes something which I am not attracted to and that I don’t want to have anything to do with it.

    Felix Frankfurter:

    What you’re saying is or are you saying this, “If you can’t be coerced to express even your convictions.”

    Trayton L. Lathrop:

    I beg your pardon?

    Felix Frankfurter:

    You — you cannot be coerced by state action —

    Trayton L. Lathrop:

    That’s —

    Felix Frankfurter:

    — that should be —

    Trayton L. Lathrop:

    — it’s even the —

    Felix Frankfurter:

    — keen to express your conviction.

    Trayton L. Lathrop:

    That’s correct, sir.

    Another — and one other — one other proposal that has concerned me, at the present time, the Bar of Governors has — has under serious consideration, a proposal for the — establishing the Missouri plan for selecting judges in the State of Wisconsin.

    These are illustrated — proposals and they’re not at — at all inclusive.

    John M. Harlan II:

    When — when did you first have the Integrated Bar?

    Trayton L. Lathrop:

    The Integrated Bar in Wisconsin was established as of the 1st of January, 1957.

    John M. Harlan II:

    What is the oldest of the Integrated Bars?

    Trayton L. Lathrop:

    North Dakota in 1921.

    The — the integrated association uses its executive director as the lobbyist and he’s registered as a lobbyist pursuant to Wisconsin statutes which require registration and reports for personal contacts that are made of Committee hearings.

    Hugo L. Black:

    Where is that in the record? Is that — all these things is stated in the record?

    Trayton L. Lathrop:

    This — this is — this is — the statement that I make here is referred to in the brief, Your Honor, but it — it appears — it’s some of the matters that the Court of the Supreme Court of Wisconsin took judicial notice.

    It does not appear in the complaint but as I said before, when the court below took judicial notice.

    In all fairness to me, this Court should be able to do so too and I have cited authority to the effect that what this law in fact, below, is also law in fact, in this Court.

    Hugo L. Black:

    In all the — that you are telling us, we can find either in the complaint, in the record or in the judicial find —

    Trayton L. Lathrop:

    Yes.

    Hugo L. Black:

    — knowledge expressed by the Court.

    Trayton L. Lathrop:

    That’s correct, except as to the — what the Board of Governors are doing as to establishing the Missouri plan which appears only in the — in the last minutes of the Board of Governors and that has been deposited with this Court.

    It doesn’t appear in — in either of the — of the printed documents, but you do have it in the certified copy of the — of the proceedings of the State Bar Association.

    Other activities of the association include the study in curricular — study the — of the teaching methods in curricular law schools, the promotion of programs for post-graduate education of lawyers, interpretation of proper practice of law to other professions and work on a minimum fee schedule.

    And the association also outlines procedures for furnishing legal aid to the Court, but this — the association, however itself does very little work in legal aid.

    It does — its — its work is in the form of encouraging or insisting the — the voluntary associations which do that work.

    In connection with the interpretation of the proper scope of the practice of law, the association enters into formal agreements with various other private associations.

    It has it — they have grievance committees and these — the grievance committees supplement the work and activities of the Wisconsin Board of Bar Commissioners, an agency created by the legislature and which had been existed for many years and it has — it has saved that agency only about $400 a year.

    The association is engaged in a public relations program to advance the public acceptance of objects and purposes of the association.

    That is alleged in the complaint.

    However, it does not allege, but does appear form the minutes, that it hires a public relations consultant and that when it felt that publicity should be given to show the good work of the association in securing the voluntary surrender of licenses of attorneys, the Committee — the public relations man was consulted in a meeting of the Executive Committee to determine how press releases should be handled.

    Hugo L. Black:

    Does the state contribute anything to the Bar Association funds?

    Trayton L. Lathrop:

    No, sir.

    Hugo L. Black:

    What are the dues?

    Trayton L. Lathrop:

    $15 a year.

    Felix Frankfurter:

    What is the relation of the — of your Supreme Court to the — to the schemes of this Integrated Bar?

    Trayton L. Lathrop:

    The Supreme Court is the creator of it or is the — is the body that — that caused it come into existence.

    Felix Frankfurter:

    And it — do any reports of the doings of the association at the Bar, go to the Supreme Court or to anybody?

    Trayton L. Lathrop:

    I — I believe there is a report that goes to the Supreme Court at the end of each year.

    Felix Frankfurter:

    You haven’t got those copies of that about, have you?

    Trayton L. Lathrop:

    I have a — I have a copy of the — attached to the jurisdictional statement of the budget of the —

    Felix Frankfurter:

    No, no.

    Trayton L. Lathrop:

    — of — of the — of the expenditures which were — I believe were reported to the Supreme Court.

    It’ll appear at the last page of the jurisdictional statement.

    Felix Frankfurter:

    But — but you — as I inferred that there’s a separate document called an annual report by the officers of the Bar that go to the Supreme Court?

    Trayton L. Lathrop:

    I do — I — I believe that’s so but I — I cannot say it.

    Felix Frankfurter:

    And what’s the theory or the — does the statute make this a requirement of the budgets that go to the Supreme Court?

    Trayton L. Lathrop:

    No.

    Felix Frankfurter:

    Is it just of —

    Trayton L. Lathrop:

    It’s a matter —

    Felix Frankfurter:

    — relation – tenure relation.

    Trayton L. Lathrop:

    It’s a matter of a — of the association making that report and maybe that the rules require, but I — I do not think that’s so.

    Integration in Wisconsin is part of a national law reform movement.

    It has been fostered and guided by the American Judicature Society.

    This, we believe, clearly appears from the — the amicus curiae brief filed by this society and I should like to read from pages 3 to 4, a paragraph on — from their brief.

    Hugo L. Black:

    Whose brief, American —

    Trayton L. Lathrop:

    American — American Judicature Society brief.

    Pages 3 to 4 states at the bottom of page 3, “From the outset, it was a main line of policy that the society would work chiefly in and through the organized Bar for the achievement of specific judicial reform projects.

    This was for the sound and sensible reason that people everywhere tend to be suspicious of outsiders coming in and telling them what to do.

    The burden of lobbying and campaigning must always be carried on by local residents of the state or community” and then skipping a sentence, “This meant that the correction of the weakness and deficiencies of the Bar would necessarily be a prerequisite to any substantial accomplishment and judicial selection, court organization procedure or other reform areas.”

    John M. Harlan II:

    Tell me as a matter of interest do you have voluntary Bar associations as well?

    Trayton L. Lathrop:

    We have county Bar associations.

    John M. Harlan II:

    Do they take the position before the legislature?

    Trayton L. Lathrop:

    Yes, they do.

    John M. Harlan II:

    Do they take the position contrary to that of integrate laws, state laws?

    Trayton L. Lathrop:

    Yes.

    That is not in the record, Your Honor, and it may or may not be.

    I — I couldn’t say it.

    John M. Harlan II:

    This is just on general —

    Trayton L. Lathrop:

    Yes.

    Hugo L. Black:

    I would presume that being lawyers, they sometimes disagree?

    Trayton L. Lathrop:

    Well, I can say this that there is an undertaking by this — by the state association to get the — the county associations to channel all of their proposals into the state association and they work from there, so as to present one — one front.

    William J. Brennan, Jr.:

    (Inaudible)

    Trayton L. Lathrop:

    I beg your pardon?

    — I’m not saying there’s anything wrong with it except that I don’t feel that I should be compelled to support it, that’s — that’s the question.

    And some other things if they do — do like, I do not agree with, but that’s — the main question is whether or not, a person should be compelled to support an association.

    In 1946, the Wisconsin court held that integration could not be established for the purpose of conducting propaganda in defense of a legal profession or maintaining a legislative agent.

    In 1958, the Court specifically overruled the 1946 opinion.

    And Wisconsin court in the opinion below adopted the view of the Florida court, that the public welfare will be promoted by securing and publicizing the composite judgment of attorneys on matters affecting the administration of justice in the practice of law.

    The — Florida court had held that discipline is not the reason for creating the integrated Bar associations.

    It is submitted that the Integrated Bar Association in Wisconsin is a political party.

    A political party is an association of men who are desirous of carrying out a certain line of public policy, to have that policy enacted in the law.

    Many times, a political party accomplishes this end by advancing and supporting candidates, but the objects of the party can be obtained just as well by influencing those persons who are already in office.

    Also, the ends of the party can be achieved simply by creating a climate of public opinion in favor of the party’s principles.

    This Court has held on many occasions that freedom of association is guaranteed by the First and Fourteenth Amendments.

    It has held that the right of freedom association is a right of freedom of movement.

    It has held that the State cannot select its lawyers in such a way as to impinge upon freedom of political expression or association.

    However, the court below refused to recognize that there is a freedom not to join an association.

    It said that it is merely cliche to say that the freedom to associate includes the freedom not to associate.

    We submit that there cannot be a right to join an association, unless there is a right not to join an association.

    Otherwise, we are translating our rights into requirements.

    The framers of the United Nations Declaration of Human Rights did not regard freedom not to associate as mere cliche.

    They specifically provided that no one may be compelled to belong to an association.

    This declaration which was made at the end of World War II is highly significant and should not be lightly disregarded.

    In Italy, for example, in order for a man to go into business or to engage in farming or obtain employment or engage in his profession, he was required to either pay dues to or belong to his own syndicate and the syndicates were both political and economic.

    This was the corporate statement.

    We submit that the history of our Constitution and of our country, shows that the freedom not to join an association is a basic liberty guaranteed by the due process clauses and as well as the First Amendment.

    Just before the American Declaration of Independence in 1776, a French liberal minister Turgut, prevailed upon Louis XVI to free the French from the compulsory Guild System.

    We believe that Madison had in mind, the European compulsory associations, when he wrote that a free government is not a just government for arbitrary restrictions, exemptions and monopolies denied to part of its citizens, the free use of their faculties of which violates the property that individuals have in their opinions or which invades the conscience of individuals.

    Felix Frankfurter:

    May I ask you this question?

    Is it — do you imply by your argument or do you make the argument because of the implications that it carries, it would carry, if this statute were found not to be unconstitutional regarding the coercive power of a state to make people join all sorts of organizations.

    Felix Frankfurter:

    Is that the fear the considers —

    Trayton L. Lathrop:

    Yes, I do.

    Felix Frankfurter:

    And does that mean that you would think that if this Court sustained this statute that the Milwaukee legislature could pass a statute of every able-bodied man between 18 and 45 must join the (Inaudible) Milwaukee?

    Trayton L. Lathrop:

    I — I suspect, Your Honor that that’s — that’s what we’re going to be led to.

    It will be — first will be the — first, it will be the accountants’ association and then it would be the — the doctors and the dentists and then of the beekeepers and those to hold taxi cab licenses and all the way up and down the line.

    I think that’s what we’re — what we’re headed for.

    Felix Frankfurter:

    But if you take one step, you must take six others.

    And he’s one other — he’s one other, is that right?

    Trayton L. Lathrop:

    Yes.

    I — I think when we’ve taken this step here, we’ve already done it.

    Now, for example, we already have an integrated dental association in Oklahoma.

    Not only that, but other states have used other types of coercion perhaps in to cause people to join associations instead of an outright statements you have to join, they give governmental powers to the association and the — and that members of the profession who do not belong or do not want to belong are in fact coerced to belong for their own protection.

    In South Dakota, the State Nurses Examining Board is appointed from list of names submitted by the State — by South Dakota State Nurses Association.

    Also in South Dakota, the Board of Funeral Directors is required to be selected from a list of candidates nominated by the Embalmers and Funeral Home Directors Association.

    The appointment of Board of Dental Examiners is from the North Carolina dental society.

    Also, in North Carolina, four of the nine members of the Board of Health are elected by the medical society.

    Also in Alabama, the medical association has constituted the State Board of Health.

    We’re already a long way.

    Potter Stewart:

    Are those associations all compulsory associations?

    Trayton L. Lathrop:

    Your Honor, I think that they were made compulsory by the mere fact that the — that the governmental power is given to these associations, but those are on the outside in effect, have to come in for their own protection.

    Potter Stewart:

    I don’t quite understand that.

    That’s not this case, in any event?

    Trayton L. Lathrop:

    Alright.

    I understand — I understand it isn’t, but if you give — if you give a — a board, disciplinary powers and you say that that board is to be elected by an association, the natural result is that the — the association has a tendency to — to protect their own members, but those who are on the outside are not so likely to receive the protection.

    If with this — let’s basically refer to the —

    Hugo L. Black:

    Well, that’s not — that’s not your case here, isn’t it?

    Trayton L. Lathrop:

    I understand that, but I — we were talking about how this is leading to where we’re — where we’re going.

    Hugo L. Black:

    We have many other integrated —

    Trayton L. Lathrop:

    Yes.

    Hugo L. Black:

    — things as I understand it, the hairdressers and — and the beauticians —

    Trayton L. Lathrop:

    No, Your Honor.

    I don’t believe —

    Hugo L. Black:

    Farmers?

    Trayton L. Lathrop:

    No.

    Hugo L. Black:

    They’re not anywhere?

    Trayton L. Lathrop:

    They’re not integrated, I’m —

    Hugo L. Black:

    Is anywhere — any State?

    Trayton L. Lathrop:

    Well, I can’t make that broad statement, Your Honor.

    Hugo L. Black:

    I thought they were.

    Trayton L. Lathrop:

    [Attempt to Laughter]

    Hugo L. Black:

    I don’t think it affects your case.

    Trayton L. Lathrop:

    Alright.

    And again, emphasizing the — the freedom of association which was existing in this country, refer again to Tocqueville and his work on observation of democracy in America.

    In the first part of the 19th Century, he stated that freedom of association is one of the most fundamental rights and that no legislature can attack it, but on impairing the foundations of society.

    And in America, he said that no one abjures the exercise of his reason and his free will.

    Now, in view of these things that I’ve just stated, I think that one can now wonder whether or not, that isn’t what we’re coming to.

    The — the compulsory association idea has been referred to as a matter of — of group self-government by the appellee.

    Perhaps, the word group could better be left out of it and as a matter — I meant the word, itself, could be left out so it’s just a matter of group government, because for example, in — in Missouri, the group government ideas brought about a constitutional revision giving the Bar Association equal rights with the Governor in the appointment of judges.

    And it’s also shown in the national scene where the American Bar Association is seeking to obtain as a matter of regular course of procedure that the executive refer all proposals for the appointment of judiciary to the American Bar Association.

    And in view of these precedents in the case of lawyers, I say it’s a small wonder that the group self-government proposals and — and enactments which were involved in the Schechter Poultry case and in the Carter Coal case were enacted.

    So — so small wonder that we have the compulsory features that appear in the Railway Labor Act.

    And in the Carter case, the majority of the Court held without disagreement of the minority on this point with the — also with the concurrence of Chief Justice Hughes that, “To permit a group, to make rules according to their own views of expediency so as to bind or disagree minority, violates the guarantees of liberty of the Fifth Amendment.

    Felix Frankfurter:

    This leads me to ask whether you could expand on the question I put to you earlier.

    What is the connection and what is more particularly the authority that the Supreme Court has over the doings of the Integrated Bar?

    Trayton L. Lathrop:

    The Supreme Court of Wisconsin, when it decided to integrate the Bar, adopted a group of bylaws and rules and then it said in a later opinion that if you — if the Bar Association stays within these rules and bylaws, you’re — you’re free and independent, you can do what you want.

    Now, that’s the connection.

    They created it.

    They said, “You got to belong, but when you’re within these rules, you’re — the — the association is free and independent.”

    Charles E. Whittaker:

    Could I ask you, your view was the establishment of the Integrated Bar in the rules under which it operates by your Supreme Court state action?

    Trayton L. Lathrop:

    Yes, sir.

    Charles E. Whittaker:

    And promulgated under the Supreme Court’s inherent power to regulate its officers?

    Trayton L. Lathrop:

    It — it stated that that was the way that it was — it was promulgating that, that’s correct, under its inherent power.

    Charles E. Whittaker:

    Now, then, would the State of Wisconsin have a right to impose an annual license upon you as a member of its Bar for the privilege of practicing law in Wisconsin?

    Trayton L. Lathrop:

    Yes, sir.

    Charles E. Whittaker:

    Is that different than what is done?

    Trayton L. Lathrop:

    Yes, sir.

    Charles E. Whittaker:

    In what way?

    Trayton L. Lathrop:

    Because the annual license of the — such as the medical of — medical man’s license is paid to the State Treasury and it is used to pay representatives of the whole people appointed by the governor or the legislature, whatever it is, to regulate the profession.

    In our case, the dues are — are paid to an association which is — has not appointed as so-called by the — by the governor, but it’s this — the association itself that decides what laws it’s going to propose to — to — or — or oppose and it’s the association itself that has the grievance committees and so on.

    This is — in other words, the difference is, in the one case and I think this is a very vital difference, in the one case, you’ve got government by representatives of the people as a whole, in the other case, you’ve got group or class government.

    There’s a very real distinction and the question is whether or not, we’re going to have that kind of government in this country.

    Charles E. Whittaker:

    What uses but not that he gives them to dissolve the Integrated Bar and not to stop then from practicing that might be unlawful or (Inaudible), is that what it is?

    Trayton L. Lathrop:

    My view is that the Integrated Bar under the First Amendment — that the Bar Association under the First Amendment, should be able to — to take any position it wants with respect to legislation or — or candidates or whatever.

    The association under the First Amendment should be able to do any of those things.

    The Court should not be able to come in and tell it that it can’t do any of those things.

    My view is however, from the other end, that the state or the Court cannot tell me to support the association.

    The association itself can do what it wants, but it cannot support — cannot compel me to support the association.

    Charles E. Whittaker:

    I’m going to tell I want you to read and then compel you to pay an annual license fee for the privilege of practicing?

    Trayton L. Lathrop:

    Not to the association, Your Honor and pay it to the State to be administered by the representatives of the whole people.

    I think that’s a very vital distinction.

    Charles E. Whittaker:

    Under the State and they (Inaudible) and the same amount of money the legislature to the State (Inaudible)

    Trayton L. Lathrop:

    No, sir.

    I do not believe it could.

    My time is about up, I want to comment on — on the Hanson case before I leave that is relied on continuously throughout the brief of the — of the appellee.

    One construction of the Hanson case maybe that the Court believed that freedom of association would be infringed in that case, when the Government coerces an individual to support an association, but that the Court was of the opinion that it was required to waive the government interest in keeping open the channels in the arteries of interstate commerce as against the individual interest of freedom.

    And that in that case, the Court struck the balance in favor of the governmental interest.

    If that is the case, the Hanson case cannot be a precedent in a different kind of case where we are weighing different interest as against different facts or cannot even be a precedent even under the same statute where you have — weigh different facts.

    So we submit that the Hanson case cannot be considered as a precedent in this case.

    However, if the Court does deem the Hanson case to be a precedent, we submit that there was an error in that case, a very serious error in that the Court did not determine whether or not, the interest of the Government in keeping open the — the arteries of commerce was so great and so compelling as to be what this Court has called the compelling subordinating interest which required the invasion of the right of freedom of association.

    John M. Harlan II:

    Who do you think will decide that?

    Trayton L. Lathrop:

    Well, Your Honor, you may have decided it, but it — it does not appear from the opinion and it’s — it’s a matter of a state — it appears that it was left largely up to Congress to make that determination as to — as to how the interest should be weighed.

    The Court itself did not appear to do it.

    It says, “Congress has so determined,” and this is within the — the function of Congress and the Court did not make the determination.

    Felix Frankfurter:

    Well, but here — here, the State made this determination in matters that are concerned of the state.

    Trayton L. Lathrop:

    You Honor, I think it is —

    Felix Frankfurter:

    Here, wherein — wherein is the power of the state to make a determination accommodating conflicting interest as to state matters, any different from the power of Congress as to matters confined to its competent.

    Trayton L. Lathrop:

    Well — well, Your Honor, the — the Wisconsin court was familiar with the decisions of this Court requiring that there’d be a determination of compelling interest.

    And the Wisconsin court did not make such a determination and I am — I am lead to believe that the Wisconsin court did not feel that it could say that there was such a compelling interest on the part of the state which would require attorneys to belong to this association.

    Felix Frankfurter:

    And on what basis did it sustain this?

    Trayton L. Lathrop:

    It merely attempted to weigh it as it appears that it was done in the Hanson case, merely saying, “Well, this is a — this is a valid government interest and we’re just going to — to sustain it.”

    It did not attempt to see whether there was such a compelling interest as this Court has required.

    Earl Warren:

    Mr. Isaksen.

    Leon E. Isaksen:

    Mr. Chief Justice, may it please the Court.

    A compulsory bar was not justified in Wisconsin and it is not existing as a means of disciplining the members of the Bar or educating the members of the Bar.

    It was not justified by the Supreme Court and it’s not existing for the purpose of protecting the public from any incapacity on the part of the members of the Bar or any fraud or any deception or anything of that kind.

    What the Supreme Court did say in regard for the justification for this compulsory bar was this, and I’m substantially quoting, “The public welfare will be promoted by securing and publicizing the composite judgment of the members of the Bar on matters directly affecting the administration of justice in the practice of law.”

    It said further, “The general public and the legislature are entitled to know the opinions of the majority of the members of the Bar.”

    It said, “The Court has determined that the public interest, that it is in the public interest, to have public expression of the views of a majority of the members of the Bar on these subjects.”

    And it concluded that, “The compulsory bar could do this job much more effectively than could a voluntary bar.”

    In other words, if the Court please, this compulsory bar is existing and justified for the express purpose by the Supreme Court which created it, of securing and publicizing the opinions of men on the number of the subjects that relate to the administration of justice or the practice of law or court reforms.

    Earl Warren:

    Does it have any disciplinary powers at all –?

    Leon E. Isaksen:

    It does.

    Earl Warren:

    It does.

    Leon E. Isaksen:

    It does.

    Yes, but subject to the discipline of the Supreme Court.

    Earl Warren:

    Yes, but the Court merely said that wasn’t the — the burden of that?

    Leon E. Isaksen:

    Never mentioned it.

    These are the reasons for the — justifying the compulsory feature — compulsory bar.

    Felix Frankfurter:

    Has it anymore disciplinary power in the full meaning of that term than the voluntary bar association had in Wisconsin?

    In other words, if the mechanism by which matters are brought to the attention of what ultimately is the determination of the Supreme Court, isn’t that right?

    Leon E. Isaksen:

    It was the same under the voluntary party, it had the same discipline —

    Felix Frankfurter:

    Oh — go on.

    Leon E. Isaksen:

    — under the voluntary party.

    Now, we submit, if the Court please, respectfully submit that our Supreme Court erred first in this respect, that it found that there was invasion in fact of First Amendment freedoms in this case.

    The Court said, “He is as free as before to express his opinions on any subject in any manner he wishes.”

    And when it came to the balancing of interest in that part of its opinion, it said, “When we attempt to balance the competing interest, we find no interference with the right of freedom of speech.”

    Now, in determining whether there is an — an interference in fact in this case, we must remember that the justified purpose and function of this Bar is to make public expression of the views of the majority of the Bar to be voiced through its Board of Governors.

    Now, what is the effect, if the Court please, on a member of the Bar who wishes not to speak or to remain silent or not take a stand on a bill before the legislature relating to divorce or to retirement of judges?

    It’s impossible for him not to take a stand.

    The Supreme Court recognized in its opinion, that part of the dues and I’m quoting, “are used to advocated causes to which he is opposed.”

    So the mere fact of compulsory membership, compulsory payment of dues, one has taken a stand whether he wishes to or not.

    True, he has a choice of remaining silent and not taking a stand by resigning from the practice of law.

    It was held in one of the Jehovah Witness cases that a tax or a license fee cannot be exacted for exercising a freedom that’s guaranteed or freely given under the Constitution.

    Here, the price of remailing — remaining silent — remaining silence is far more than a mere license fee.

    William O. Douglas:

    In what way is the — the petitioner come in conflict with the Integrated Bar?

    Leon E. Isaksen:

    In what way has he come in conflict?

    No way except that he is —

    William O. Douglas:

    Well, then we don’t have a case of controversy here.

    Leon E. Isaksen:

    I beg your pardon?

    William O. Douglas:

    Then we don’t have a case of controversy.

    Leon E. Isaksen:

    He is sued for his dues.

    He paid his dues under protest, protesting that on the very grounds we’re setting forth.

    William O. Douglas:

    Yes, but in what way has his — you’re talking about his ideology and the Bar’s ideology, but you haven’t shown so far unless I’ve missed something, what the conflict was.

    Leon E. Isaksen:

    You mean a particular issue?

    William O. Douglas:

    Yes, is there any — has there been any conflict or is this just a —

    Leon E. Isaksen:

    On any particular measure?

    William O. Douglas:

    — a made up case there —

    Leon E. Isaksen:

    No, no, it’s not a made up case.

    It’s — it’s a payment of dues under protest alleging that we have to take a stand —

    William O. Douglas:

    I know but is he — has — has the Bar taken — been taking a position on issues that he disagrees with?

    Leon E. Isaksen:

    Oh, yes.

    William O. Douglas:

    What are those issues?

    They don’t — I don’t find them.

    Leon E. Isaksen:

    There — there — there’s a general allegation in the complaint that they have done so and that’s all we have to allege under our pleadings and that’s admitted under the demurrer that they have done so and the Supreme Court has said so, that part of the dues are used for that purpose.

    William O. Douglas:

    But we don’t know what those issues are.

    Leon E. Isaksen:

    No, no, that’s correct.

    Now, so that in order for this man not to take —

    Felix Frankfurter:

    (Voice Overlap) state or if the Bar Association will ever represent whoever is the respondent, is it claimed that in fact, they did not express views?

    Leon E. Isaksen:

    No, I don’t think it’s claimed —

    Felix Frankfurter:

    Is it claimed that they did not express views in all sorts of subjects?

    Leon E. Isaksen:

    It’s admitted that they took positions contrary to his and to which he objected, that’s admitted in the case.

    Felix Frankfurter:

    On — on matters that come within the confines of — of their functioning scope, is that it?

    Leon E. Isaksen:

    That’s correct.

    Felix Frankfurter:

    And their functioning scope is just the kind of questions that the Chief Justice would earlier, salaries of justice that of judges at tenure, etcetera, etcetera?

    Leon E. Isaksen:

    Right, any number of questions that relate to the administration of justice.

    Now, so that a man does have a choice of remaining silent or not taking a stand by resigning from the profession, that’s the only way he can refrain from taking a stand on legislation.

    The price is too high.

    It means his profession.

    And as a matter of fact, the overwhelming majority of the Bar cannot afford not to take a stand.

    So they have two other choices, one is to say nothing and as do violence to the conscience or to — to speak out himself, in order to disassociate himself from the majority view.

    And in order to do that, he also has to speak in a louder voice so to speak, in order to offset the majority voice which has been amplified with the dues that he’s had to pay to help amplify the majority voice.

    Now, what if the person who wishes to speak on a particular measure?

    His rights are impaired because his voice is still.

    It’s stilled at least to the extent that his — the effect of his voice is minimized by the amplification of the majority voice, but it’s still by a much more subtle force, we submit.

    This is — a compulsory bar was created by our highest court.

    It has supervision of this bar.

    It retains supervision of this compulsory bar.

    It has — they say as regard with mission of lawyers in regard to the discipline of lawyers, we practice before that Supreme Court.

    Now, his Court has said that there shall be public expression of the views of the majority of the Bar through the Board of Governors.

    Inevitably, the view of the Board of Governors tends to become the official — the official, the orthodox view.

    Leon E. Isaksen:

    And inevitably, the tendency would be to avoid a view that is unorthodox that isn’t in accordance with the official body that’s created by the Supreme Court.

    If for no other reason, then that one would take the attitude where there’s no use.

    Money, they’ve got all the money.

    They’re doing the work on this particular view, my voice is minimized and there are other reasons why it would be discouraged.

    Earl Warren:

    Does the State Bar conduct the examinations for lawyers?

    Leon E. Isaksen:

    The State Bar commissioners, state court of (Inaudible)

    Earl Warren:

    Yes, but are —

    Leon E. Isaksen:

    — separate arguments.

    Earl Warren:

    — are they a part of the — of — of this organization?

    Leon E. Isaksen:

    They are not.

    Earl Warren:

    They are not.

    Leon E. Isaksen:

    It seems that is this discouraging of exercising one’s First Amendment freedom that is possibly the greatest evil.

    This Court has said many times and once through, Mr. Chief Justice Hughes in the DeJonge case, free discussing of ideas — it is the free discussing of ideas that results in change by lawful means.

    And in the Watkins case, the Court said, “The absence of the unorthodox voice would be symptom of grave illness in the society.”

    This compulsory bar tends to stipple the unorthodox, the unpopular view.

    And the result of the stultifying conformity which in one opinion of this Court said could be more dangerous in the long run than a foreign agent.

    Now, it isn’t only the voice of the one who wishes to speak or doesn’t wish to speak that is still or impaired, but the public’s rights are impaired.

    Charles E. Whittaker:

    May I ask you please, Mr. Isaksen?

    Is all action of the Board of Governors subject to approval by or rejection upon vote of the members on the floor at your annual meeting?

    Leon E. Isaksen:

    No, they — no, they are representatives and they have their own powers.

    They’re elected by the members.

    Charles E. Whittaker:

    In other words, the members have no voice to override the recommendations of the Board of Governors?

    Leon E. Isaksen:

    There’s a referendum, my partner tells me that, it could by referendum.

    Charles E. Whittaker:

    Just like in Missouri Act, do you know?

    Leon E. Isaksen:

    I’m not familiar with that.

    Tom C. Clark:

    Has he bounds all that within the bounds of the job speak out?

    Leon E. Isaksen:

    No —

    Tom C. Clark:

    One that speaks —

    Leon E. Isaksen:

    — one may speak out and speak out on the meetings, certainly.

    Tom C. Clark:

    (Inaudible) suppose they can have their own —

    Leon E. Isaksen:

    Yes, certainly — certainly.

    One may speak, Your Honor.

    Yes.

    Tom C. Clark:

    Well, they could do that under (Inaudible) for these claimants?

    Leon E. Isaksen:

    That is right.

    They couldn’t do with that.

    We also feel that the public is entitled to be free from this majority voice, this amplified voice bombarded on the public and I think that’s the spirit of only mentioning in the Public Utilities case versus Pollak where they had the programs, I believe was on the transit system.

    Here, we have a situation if the Court please, where the Government, the judiciary, forces opinions, publicizes them with the expressed purpose of influencing legislation in the legislative branch of the Government.

    This Court has said time and again, it’s not the function of Government to keep the citizen from falling into error.

    Authority here, it is said, is to be controlled by public opinion, not public opinion by authority.

    And in the Watkins case, the very purpose of the First Amendment is to foreclose public authority from assuring a guardianship of the public mind.

    So we feel that the public is entitled to be protected against this government authority getting opinions and securing and publicizing them.

    Now, we feel that the Wisconsin court also erred in another important aspect as a matter law, when it said that the public and the legislature are entitled to know the opinions of a majority of the members of a bar.

    Under the decisions as we see them, except under the most extraordinary circumstances and compelling circumstances for Government isn’t least concerned with the opinions of man.

    This Court has quoted on more than one occasion the opinions of men are not the object of civil government.

    This has been stated many ways, what a man thinks is of no concern to Government.

    I think we must let his mind alone.

    Here, we have a vehicle created for the express purpose of obtaining and publicize private opinions.

    And as a condition precedent to practicing law, to earning a living, I have to agree to voice that opinion on matters of great public concern, before I even know the subject is or how it’s going to affect me.

    It seems that it has some of the characteristics of the old (Inaudible).

    It reminds one of the remonstrances of Madison against taxing those who do not believe for the support of those who do believe.

    It seems to have some kinship with the licensing of the press, the same logic.

    This is a privilege.

    We’ll do a better the job for the profession itself.

    We’ll do a better job for the public and so on, the same — the same logic.

    In the Konigsberg case, this Court said, that is the Bar case to California, admission to bar case, “If the license for admission to the bar was refused unless he answered questions relating to his political philosophy, then we would be compelled to decide far-reaching and complex questions relating to freedom of speech.”

    We think we’ve reached the question in this case.

    This is a different type of free speech case than usually comes before the Court, its forced affirmation as distinguished from merely a — a suppression of expression.

    There are relatively few cases of this type.

    We have the flag salute case, where the Court said, it’s a compulsion to state of belief.

    Leon E. Isaksen:

    The Senate — it requires affirmation of a state of mind.

    We have the California tax exemption case, Speiser v. Randall.

    We have the Konigsberg case.

    That was reversed.

    We have similar cases such as the — the Sweezy and the Rumely, where it wasn’t a belief, but stating some facts, those were all reversed.

    William O. Douglas:

    When — when the union — labor union case was under argument a little while ago, one of the lawyers for the protesting member, I think stated that — conceded that use of the funds for purposes of collective bargaining was legitimate as the use of the funds for other purposes what — whatever he called, political purposes in that complaint, they were objected to.

    Can you think in this case of any legitimate use of the Integrated Bar’s funds for any project?

    Leon E. Isaksen:

    Your Honor, we have no objection, nobody objects to paying a fee and certainly, this fee is reasonable and submitting to the discipline and paying for the discipline and the Court doing the usual things that it can with regard to the officers of the Court, but I can think of no case where we have to — where we are forced to belong to an association.

    William O. Douglas:

    — well that — that that’s belonging.

    I’m not talking about that.

    I’m talking about your point of freedom of speech.

    Leon E. Isaksen:

    Yes.

    Is there anything for which it could be used, the money could be used?

    Now if it’s forced?

    Unless there is a countervailing public interest that would justify such a thing, but we don’t have that and I’m coming to that in just a moment.

    William O. Douglas:

    Well, of course we don’t know under this complaint what these — what the controversies are between the Bar and —

    Leon E. Isaksen:

    We know what — we know what the Court said in — in —

    William O. Douglas:

    We don’t know, are they, for example, the — whether Wisconsin should — should adopt the Federal Rules of Civil Procedure?

    Whether Wisconsin should adopt the Federal Rules of Criminal Procedure?

    Leon E. Isaksen:

    The Court —

    William O. Douglas:

    Whether Wisconsin should adopt a public defender system?

    Leon E. Isaksen:

    The Court —

    William O. Douglas:

    Are those all illegitimate activities?

    Leon E. Isaksen:

    If it’s a forced organization, yes.

    No one has — can compel me to pay to support the view on any of those unless —

    William O. Douglas:

    There — there is no — not in this case, there’s no even small circle of —

    Leon E. Isaksen:

    That’s right.

    William O. Douglas:

    — activities that —

    Leon E. Isaksen:

    The only — the only activity and it is the big activity and the Court says, it’s the securing and publicizing of opinions to put them before the legislature and the public.

    That’s —

    Felix Frankfurter:

    — in your state, does every lawyer agree that a public defender system is desirable?

    Leon E. Isaksen:

    That a public what?

    Felix Frankfurter:

    That the public defender system is the desirable way —

    Leon E. Isaksen:

    I don’t — I wouldn’t — I wouldn’t —

    Felix Frankfurter:

    — taking — taking — of remedying a real evil.

    Has every lawyer in Wisconsin agreed on that?

    Leon E. Isaksen:

    I would — wouldn’t suppose that they —

    Felix Frankfurter:

    I should think the great division of opinion on that subject — might have penetrated even Wisconsin.

    Leon E. Isaksen:

    That’s right.

    Charles E. Whittaker:

    You probably couldn’t get every lawyer in Wisconsin to agree on any subject.

    Leon E. Isaksen:

    That is correct.

    Felix Frankfurter:

    That’s every lawyer.

    Leon E. Isaksen:

    That is correct.

    That’s right.

    We have had the employment cases.

    The only cases that I know of were — we’ve gone into — the Court has sustained getting opinion and they’re apparently on the basis that it has some relation to competency and so on.

    Now, what is the — the compelling interest on the part of the State here to justify this invasion into private opinion, this publicizing and securing a private opinion?

    There isn’t in this case, any claim of any public evil or any great public danger or of any — anything of that kind.

    There’s no interference here with the operation of the Government or the functions of the Government or anything of that kind.

    The only thing the Supreme Court says is, it’s for the public good that we have these opinions of the lawyers and they be — and — and you pay and the Board of Governors voice those opinions.

    That’s all we have.

    Felix Frankfurter:

    But you — your argument suggests — your argument suggests that some better reasons could be found for the conclusion of the Wisconsin Supreme Court than it gave, but if better reasons can be found and they must be attributed to that Court.

    Leon E. Isaksen:

    I don’t think they can be attributed to the Court, but there’s —

    Felix Frankfurter:

    Well, then — then you must say as I suggest that you do say, but if they spelled all these out, it still would’ve been a coercion that involved and in fact you may go right to be free from having a coerced opinion expressly.

    Leon E. Isaksen:

    I should say, Mr. Justice Frankfurter that they’re possibly are situations where the invasions of ones opinion are just that.

    Felix Frankfurter:

    No, I’m talking about this case.

    I’m talking about if an Integrated Bar can be justified by considerations that saved it — that saved this scheme from unconstitutionality, that saves the — the rule — the ruling of your Supreme Court from unconstitutionality, then the mere fact that the Wisconsin Supreme Court has written as good as opinion as could be written, would be immaterial, wouldn’t it?

    Leon E. Isaksen:

    I don’t think so, because this is the —

    Felix Frankfurter:

    You mean to say, we’re bound by the insight and the literary skill and the economy of time at the disposal of the state courts in deciding whether a statute is constitutional or not.

    Leon E. Isaksen:

    I have no —

    Felix Frankfurter:

    Because for anyone of those reasons, if they didn’t write the opinion satisfactorily or some other member of that court thought as could’ve written a better opinion, it’s concealed on — under the anonymity of per curiam.

    Leon E. Isaksen:

    Your — Your Honor, I don’t think that the Court could do it under the — this circumstance of this case because —

    Felix Frankfurter:

    Well, then that’s all — if you say that, then you say — then there’s no complaint about they didn’t give this reason or that reason.

    Then your position is that no reasons could vindicate this.

    Leon E. Isaksen:

    I say that — I say that the Court has decided what this organization is for.

    It created the organization.

    This is what is to do.

    We have to take the Court’s word as to what it is and that’s what it is and we say that is not a compelling reason, it’s not a justifiable invasion.

    Felix Frankfurter:

    You can’t read — at least I can read the opinion as saying, “Only this and nothing more.”

    It gives — it makes a long speech about the — the help that expressions of opinion give also stating right along side of it, the complete freedom to the individual to have his say, doesn’t it, this opinion?

    This opinion says, despite the mobilization of professional opinion through this mechanism —

    Leon E. Isaksen:

    Right.

    Felix Frankfurter:

    — any member and every member of the Bar can have his say.

    Leon E. Isaksen:

    That is correct.

    The Supreme Court says so and we say that that is error because it cannot be true because we have had to pay our funds which are used for the purpose of this organization, which is to get the opinions of the majority of the Bar.

    Hugo L. Black:

    Well, that’s your — that’s your real issue in it, whether you can be compelled to pay money —

    Leon E. Isaksen:

    That is —

    Hugo L. Black:

    — enter a fund which will be used in part, to propagate views that you’re against, whether the State can compel you to pay the money for that purpose.

    Leon E. Isaksen:

    Or — or to the law, both of them.

    Charles E. Whittaker:

    Do you think that’s (Inaudible) directly (Inaudible) this Bar —

    Leon E. Isaksen:

    Right.

    Charles E. Whittaker:

    — purchasing for.

    Leon E. Isaksen:

    To the treasurer of the bar, the association.

    Earl Warren:

    We’ll recess now, Mr. Isaksen.