Bar Admissions and Freedom of Speech

By Erwin ChemerinskyAn issue confronting more bar admissions professionals than ever before is when an individual can be denied admission to the bar on account of speech activities. For example, when may a candidate’s speech on social media be considered as part of evaluating their character and fitness?

There are competing interests. A body governing admissions, in reviewing an applicant, in part, is assessing the likelihood that the individual will meet the standards of the legal profession, which rightly has emphasized civility. But if the basis for doubts on this count is the individual’s speech, there is an obvious First Amendment issue at hand.

To be sure, First Amendment issues in bar admissions are not new. Cases raising the issue stretch back to the early twentieth century. In 1909, the South Dakota Supreme Court declared: “When a man enters upon a campaign of vilification, he takes his fate into his own hands, and must expect to be held to answer for the abuse of the privilege extended to him by the Constitution. An attorney . . . must be presumed to know the difference between respectful, fair, and candid criticism, and scandalous abuse, of the courts which gave him the high privilege, not as a matter of right, to be a priest at the altar of justice.”1 In the 1950s and the 1960s, the US Supreme Court considered when speech perceived as expressing support for communism might be a basis for excluding someone from the bar.2

But there also is no doubt that social media presents new challenges for those assessing applicants’ character and fitness for the bar. There simply is so much more public speech by so many more people, some of which inevitably is offensive and can raise questions about an individual’s professionalism if they apply for a law license.

Clear answers to when speech activities can be considered in the bar admissions process don’t exist, though some conclusions emerge from a review of relevant cases. First, the First Amendment applies to decisions regarding whether to admit a person to the bar. Second, officials making admission decisions may consider speech activities as part of an evaluation of character and fitness. Third, it is striking that decisions to deny bar admission that courts have upheld rarely have been based on speech alone; almost always such determinations are based on other conduct deemed to demonstrate an un­­fitness to practice law.

In this article, I review the US Supreme Court cases that involved consideration of speech in bar admission decisions. I then look at some recent lower court cases on the topic. Finally, I describe emerging rulings on the relationship of social media to bar admission decisions.

Supreme Court Precedents

Konigsberg v. State Bar of California, from 1961, remains the most important ruling about bar admissions and the First Amendment.3 But it also must be remembered that it was decided before the Supreme Court developed a far more speech-protective approach to the First Amendment in sub­sequent decades.

In Konigsberg, the bar applicant argued that the California bar commission violated the First Amendment when it forced him to either answer questions about his affiliation with the Communist Party or face not being certified as possessing the required moral character to sit for the bar. The Supreme Court, in a 5–4 decision, ruled in the state bar’s favor, pointing out that “regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment [forbids] . . . when they have been found justified by subordinating valid governmental interests.”4

The Court thus concluded that a state bar may consider an applicant’s speech in admissions decisions. In the context of a character inquiry, the Court said that “it is difficult, indeed, to imagine a view of the constitutional protections of speech and association which would automatically . . . exclude all reference to prior speech or association on such issues as character, purpose, credibility, or intent.”5

The Court balanced the effect of allowing such questions against the need for the state to do a complete character inquiry. It concluded that questions about membership in the Communist Party would not chill association sufficiently to strike down the screening process considering the state’s interests. The Court held that requiring the applicant to answer such questions did not infringe upon the applicant’s First Amendment rights.

A decade later, the Supreme Court returned to the broader issue in Law Students Research Council v. Wadmond. The case involved a First Amendment challenge to the New York bar’s character and fitness evaluation.6 The plaintiffs argued that the New York bar’s evaluation was facially unconstitutional because of its chilling effect on speech. The Court noted that “no person involved in this case has been refused admission to the New York Bar. Indeed, the appellants point to no case in which they claim any applicant has ever been un­­justifiably denied permission to practice law in New York State under these of earlier statutes, rules, or procedures.”7

The Court rejected the argument that a state bar’s character and fitness evaluations as part of the admissions process are inherently unconstitutional because of their chilling effects on speech. Again, in a 5–4 decision, the Court declared:

The implication of this argument is that no screening would be constitutionally permissible beyond academic examination and extremely minimal checking for serious, concrete character deficiencies. . . . Such an approach might be wise policy, but decisions based on policy alone are not for us to make. We have before us a State whose agents have evidently been scrupulous in the use of the powers that the appellants attack, and who have shown every willingness to keep their investigations within constitutionally permissible limits. We are not persuaded that careful administration of such a system as New York’s need result in chilling effects upon the exercise of constitutional freedoms.8

The Supreme Court, based on these cases, has given very little guidance as to when a state bar may consider applicants’ speech activities in making bar admissions decisions. On the one hand, the Court never has questioned that the First Amendment applies to such determinations. On the other, the Court has been clear that character and fitness evaluations are constitutional and can consider speech activities. What is unclear from these decisions is when a state bar can use an applicant’s speech as a basis for denying admission without running afoul of the First Amendment.

Under well-established First Amendment principles, the government cannot impose sanctions or deny benefits based on a person’s expressed views. The Supreme Court has been emphatic that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”9 If speech, regardless of venue, is to be considered in bar admission decisions, care must be taken that adverse decisions never are made just because the speech is deemed offensive.

Speech Has Not Been the Sole Basis for an Adverse Determination

In reviewing lower court cases involving the First Amendment and bar admissions, it is striking that speech alone has not been the basis for denying an applicant admission to the bar. Courts have considered speech, but they always have stressed that other, distinct applicant conduct demonstrated a lack of sufficient moral character to warrant admission.

The recent Idaho Supreme Court decision in Idaho State Bar v. Doe is illustrative.10 Doe had been denied admission to both the Delaware and Idaho bars after character and fitness evaluations. Doe argued that his exclusion violated the First Amendment and was based on his expressed views.

The Idaho Supreme Court rejected this argument and pointed to other conduct warranting denial of admission, including:

• Doe’s failure to disclose to the Idaho State Bar that the Delaware Board of Bar Examiners denied his bar application on character and fitness grounds.
• Doe used, while employed by Delaware Animal Care and Control in 2011, the agency’s access to a criminal justice database to perform unauthorized searches of individuals. This conduct resulted in his termination.
• Doe was terminated from another job with a security company in 2012 after misusing company equipment and challenging a coworker to a fight. Doe failed to disclose this termination.
• In 2015, Doe was terminated from his employment with the Delaware Office of Animal Welfare after an inappropriate interaction with a female coworker.
• Doe illegally collected unemployment benefits in Delaware while employed in 2015.
• Doe failed to disclose a 2014 incident in Delaware where he was disciplined at Wilmington University and placed on probation.
• Doe failed to disclose several informal investigations into his conduct by Concordia Law School between 2016 and 2019, including an incident of vandalism to his study carrel.

Regarding Doe’s First Amendment argument, the Court noted that “courts have consistently held that bar commissions may screen applicants and conduct disciplinary investigations for speech and conduct within constitutionally permissible limits.” But it is clear the Court felt there was sufficient conduct to justify exclusion apart from any speech activity.

Similarly, in In re Kaufman, the Supreme Court of Oregon upheld the Oregon State Board of Bar Examiners’s denial of an applicant to the bar following a character and fitness investigation, but it was not primarily for speech activity. The denial of admission was “based on a number of considerations, most notably certain omissions from his applications; ensuing developments relating to both those omissions and the board’s further requests for information; and applicant’s responses during an interview with a small panel of board members.”11

The applicant had previously been arrested for stalking and telephonic harassment. He refused to provide requested information to the state bar as part of his application process. The applicant invoked the First Amendment, and the Court rejected that argument as irrelevant to the admission decision.

In Dean v. Mississippi Board of Bar Admissions (In re Dean), the Mississippi Supreme Court rejected a First Amendment argument, again pointing to grounds for denying the applicant admission unrelated to his speech:12 “Dean exhibited conduct evidencing: (1) dishonesty; (2) irresponsibility in business and professional matters; (3) engagement in the unauthorized practice of law; (4) violation of the reasonable rules of conduct governing many of his activities; (5) failure to exercise substantial self-­control; and (6) mental and emotional instability.”13

These, of course, are just some of the recent lower court cases where those denied admission to the bar base their arguments on the First Amendment. These cases are typical in that the state supreme courts emphasize that the denial of admission was not primarily based on speech, and there are not cases where speech was paramount. This reflects the care state supreme courts have taken in admission decisions to comply with the First Amendment and not deny admission solely on the basis of speech, even offensive speech.14

Speech on Social Media

There are not yet many cases where individuals were denied admission to the bar based on their speech over social media. But the few extant rulings are instructive and quite similar to the pattern described above: speech alone was not the basis for denial of admission.       

In In re Anonymous Applicant for Admission to the South Carolina Bar, the Supreme Court of South Carolina granted an anonymous individual’s admission to the bar after a one-year delay.15 Most of the opinion focused on the individual’s partial or complete failure to disclose various interactions with law enforcement when he was a teenager.

The Court also addressed how the individual misrepresented his job title on LinkedIn, stating that he was working as an associate attorney after he had passed the bar examination but before completion of the character and fitness process.16 Although the applicant issued a sincere apology for this error, the Court still noted that the “[a]pplicant’s actions in holding himself out as an attorney without having been admitted to practice law raises serious questions about whether Applicant possesses the requisite honesty, trustworthiness, and fitness to practice law.”17 False statements, especially false representations of having been admitted to the bar to practice law, certainly can be a basis for admissions decisions—and do not raise First Amendment issues.

In Attorney Grievance Commission v. Vasiliades, the Maryland Court of Appeals approved a disbarment in part because of the individual’s very offensive social media posts that “appeared were linked to the Respondent’s law firm website and were accessible by the public without privacy restrictions.”18 The court, however, focused more on his failure to disclose previous criminal conduct, including substance abuse and “a second-degree assault and multiple protective order violations.”19

Although Vasiliades argued that his social media posts were issued outside his professional capacity, the court emphasized that his “social media accounts contained profile biographies that advertised his law firm’s website and contact information.”20 The court affirmed a ruling from the hearing judge that concluded Vasiliades “violated Rule 8.4(e) for authoring and sharing biased and prejudicial language on his public social media accounts which he also used to advertise his legal practice.”21 However, the court noted that Vasiliades “made good-faith efforts to rectify the consequences of his misconduct regarding his social media content.”22

The court closed with some broader warnings to attorneys to be mindful of their social media usage: “Additionally, social media has increased in prevalence such that it now affects nearly every aspect of modern life, including the practice of law . . . it is imperative that bar applicants and attorneys alike remain keenly aware of their ethical obligations relating to social media content, particularly as it relates to ensuring no information or communication is false, fraudulent, or misleading in any way.”23 Crucially, however, the disbarment was based in substantial part on conduct other than the speech.

Finally, the 2023 case Attorney Grievance Commission of Maryland v. Pierre involved disbarment of an attorney in part because of “alleged misconduct associated with three statements Ms. Pierre made about sitting judges during the [2020 election] campaign.”24

Pierre made two objectionable Twitter (now X) posts and sent a text message to prospective voters criticizing sitting judges. The hearing judge found that each of these statements was false and that Pierre acted knowingly, intentionally, or with reckless disregard about these factual matters.25 This knowing falsity would mean the speech was not protected by the First Amendment.

The first post read: “Also there are some sitting judges[,] who are only English speakers[, who] send people to jail because they could not speak English and discriminate against people based on skin color, country of origins, religious backgrounds or sexual orientations. Moco is cosmopolitan & need more!”26 The second post read: “The Sitting Judges are somewhat diverse in that they are black, Asian, gay, and straight, and men and women. But they are not really diverse. They are an in-group. Most of them have worked at the same law firm, go to the same church, and are related by marriage.”27

Pierre’s campaign also sent a text message blast to prospective voters, misrepresenting a quote from Judge Bibi Berry at a campaign forum. The hearing judge found she “had knowingly and intentionally misrepresented the substance of the quote.”28

The Court of Appeals found that this false speech was a sufficient basis for disbarment. It is thus a rare case in which speech alone was the basis for a bar action. It is notable that the court focused not on the speech being offensive, but its being false. The Supreme Court, in New York Times Company v. Sullivan, was clear that false speech that defames a public official or a candidate for public office can be the basis for liability if it is uttered with actual malice—the speaker knows the statement is false or speaks with reckless disregard for the truth.29

Conclusion

There are no extant cases where an applicant was denied admission to the bar solely on the basis for speech protected by the First Amendment. If a body governing bar admissions were to deny admission on that basis, there surely would be a constitutional challenge.

Instead, when there have been speech issues raised in bar admissions and disciplinary decisions, courts have stressed conduct unrelated to speech that warrants the adverse bar action. Where the bar has been able to identify such conduct, courts consistently have ruled against the applicant.

Courts, of course, accept that character and fitness evaluations are necessary. And applicants’ speech, including on social media, might be very relevant to the evaluations. But, based on the case law, licensure determinations are best focused on matters other than applicants’ speech as the basis for their ­decisions.

This article originally appeared in The Bar Examiner print edition, Summer 2025 (Vol. 94, No. 2), pp. 14–18.

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