NAACP v. Button

NAACP v. Button, 371 U.S. 415 (1963) is a 6-to-3 ruling by the Supreme Court of the United States which held that the reservation of jurisdiction by a federal district court did not bar the U.S. Supreme Court from reviewing a state court's ruling, and that the state of Virginia's laws on barratry, champerty, and maintenance violated the First and Fourteenth Amendments to the United States Constitution.

Background

As part of its Massive Resistance policy, on September 29, 1956, the Virginia General Assembly enacted five statutes regulating lawyers, forbidding the practices of barratry, champerty, and maintenance.^[1] Barratry is the "stirring up" of litigation by inducing individuals or organizations to sue when they otherwise would not.^[2] Champerty occurs when a third party (not the plaintiff nor their legal counsel) assumes the risks and financial costs of a lawsuit in return for a portion of the monetary award.^[2] Maintenance occurs when a third party supports or promotes a litigant's suit in such a way as to prolong litigation when the parties would otherwise have brought an end to litigation or settled the suit.^[2] The bills were specifically aimed at curbing the National Association for the Advancement of Colored People (NAACP), which group many segregationists believed was "stirring up" integration lawsuits against the Commonwealth.^[3] The bills also collectively required annual filings of financial reports and membership lists any group which promotes or opposes state legislation aimed at (1) any race, (2) any organization attempting to influence public opinion on behalf of any race, or (3) any group raising funds to employ legal counsel in connection with racial litigation.^[3]

The Virginia NAACP filed suit in federal court in 1956 against the Attorney General of Virginia, to have the five barratry, champerty, and maintenance laws thrown out as an unconstitutional infringement of its members' rights under the 1st Amendment to freedom of speech and freedom of assembly.^[4] The district court overturned three of the laws on constitutional grounds, and remanded the remaining two to state courts. The newly elected Attorney General, Albertis S. Harrison, Jr., appealed to the U.S. Supreme Court. In Harrison v. NAACP, 360 U.S. 167 (1959), the U.S. Supreme Court held that the federal district court should have abstained from deciding the constitutionality of the laws until state courts had had a reasonable chance to construe them.

The NAACP then sued Virginia Attorney General Robert Young Button, who had succeeded Harrison (who had resigned to run for and was elected Governor), in the Circuit Court of the City of Richmond to have the two remaining statutes overturned on constitutional grounds, but the state court upheld both laws.^[5] The NAACP appealed to the Virginia Supreme Court of Appeals, which upheld one statute but not the other.^[5]

The NAACP appealed to the U.S. Supreme Court, which granted certiorari.

Ruling

Majority

Associate Justice William J. Brennan, Jr. wrote the decision for the majority, and was joined by Chief Justice Earl Warren and Associate Justices Hugo Black and Arthur Goldberg. Associate Justice William O. Douglas concurred in the decision, but wrote an opinion expressing further views on the subject.

For Brennan, the first issue before the court was a procedural one. In Harrison v. NAACP, the Supreme Court had ordered the district court to remand the case back to the state courts for disposition. However, the district court was to still maintain jurisdiction over the issue. The question before the Supreme Court was whether the NAACP could appeal the Virginia Supreme Court of Appeals' ruling directly to the U.S Supreme Court, or was the NAACP required to go through the federal district court again? Brennan held that although the federal district court had reserved jurisdiction, this did not impinge on the Supreme Court's authority to review a supreme state court's decision.^[6]

Having asserted the Supreme Court's jurisdiction over the matter, Brennan now turned to the constitutional issues. The Commonwealth of Virginia argued that it was not regulating the free speech of individual lawyers and citizens, but rather that of a corporation (the National Association for the Advancement of Colored People), and that the U.S. Constitution did not protect the free speech rights of corporations as strongly as it did that of people. Brennan disagreed: Corporations, he said, not only have rights equal to that of individuals, but a corporation may also assert free speech and free assembly rights on behalf of its members.^[7] The nature of these free speech rights in particular, Brennan said, were not limited to "abstract discussion", but included lawful advocacy against government intrusion on this and other rights.^[8] Litigation, too, he said, was protected. Litigation was not merely a mechanism for resolving differences between two private parties but a constitutionally protected form of political expression.^[9] Furthermore, litigation is constitutionally protected because it is one of the few lawful means by which equal protection of the laws can be enforced.^[9] The state of Virginia had argued that organizational activity (collecting membership dues, hiring attorneys, advocating lawsuits, etc.) of the kind the NAACP engaged in was not literally a speech act, a petition for redress of grievances, or assembly of the kind mentioned in the First Amendment. But Brennan and the majority disagreed, concluding that Court precedent clearly establishes that this kind of lawful activity is protected by the First and Fourteenth Amendments.^[10]

Relying on the authoritative construction of the acts by the Virginia Supreme Court of Appeals, Brennan noted that merely telling another individual that their rights have been violated and referring that person to an attorney or group of attorneys became a crime under the five statutes.^[11] This chilled the lawyers' and individual's First Amendment rights, and made the individual's ability to enforce its Fourteenth Amendment rights difficult, both of which were unconstitutional:^[12] "There thus inheres in the statute the gravest danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of members of an unpopular minority."^[11]

The Virginia Supreme Court of Appeals had asserted that government had an interest in ensuring high professional standards in the legal community, and that it was not the state's intent to restrict freedom of expression. Brennan said this was no defense, for only the most compelling of governmental interests justifies an imposition on freedom of speech—and Court precedent had long established that a state's interest in prohibiting professional misconduct did not constitute a compelling interest.^[13] Virginia does have a governmental interest in regulating the practice of law, Brennan said, because litigation can be malicious: It can abuse the legal system for personal gain, it can be used to oppress others, and lay people can urge the use of the legal system for their own personal financial gain.^[14] But "the exercise ... of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious."^[15] Yet First Amendment litigation is exactly the sort of activity the Virginia laws sought to bar.^[16] Furthermore, Virginia could not show at trial any substantive evil flowing from the NAACP's activities.^[17]

The judgment of the Virginia Supreme Court of Appeals was reversed.^[18]

Douglas' concurrence

Associate Justice Douglas concurred in the Court's ruling. He addressed the dissent by pointing out that not only the laws' legislative history, but both the district court and the Virginia Supreme Court of Appeals clearly found that the legislature passed them to discriminate against the NAACP and to circumvent the U.S. Supreme Court's rulings.^[19] "[T]hey make clear the purpose of the present law — ... to evade our prior decisions... The fact that the contrivance used is subtle and indirect is not material to the question."^[20]

White's concurrence and dissent

Associate Justice Byron White concurred in the Court's judgment, but dissented from its reasoning.

White thought that the five Virginia legal business laws unconstitutionally infringed on freedom of speech and the constitutionally protected lawful exercise of the court system to ensure the full exercise of those rights.^[21] A more narrowly drawn statute, White felt, may have passed constitutional scrutiny, but the majority's decision appeared unable to admit such an outcome.^[22] White would not have discussed the maliciousness of the NAACP's activities, as that issue was not properly before the Court.^[23]

Harlan's dissent

Associate Justice John Marshall Harlan II, who had written the majority opinion in Harrison v. NAACP, now wrote the dissent, joined only by Associate Justices Tom C. Clark and Potter Stewart.

Harlan argued that the record before the Court clearly showed that the lawyers working for the NAACP were members of the organization's legal staff, that NAACP policy and officers controlled the lawyers' actions, and that the NAACP did not merely represent clients who came to it but instead actively sought out very specific types of clients to advance its policy agenda. Thus the dissenters thought that the "normal" attorney-client relationship was often not present in the NAACP's relationships with its legal clients.^[24]

The dissenters thought the NAACP had violated not only the five new legal business laws, but also similar laws adopted more than 20 years earlier.^[25] Harlan noted that the Virginia Supreme Court of Appeals construed the five new legal business laws as not prohibiting the constitutional exercise of freedom of speech and freedom of assembly, and thought that should be determinative.^[26] The dissenters denied that litigation enjoyed strong constitutional protection, because it was only "associated" with freedom of expression, and the Virginia statutes only incidentally infringed on this speech.^[27] Furthermore, Harlan considered litigation conduct, which does not enjoy the same strong constitutional protection as speech.^[28] Harlan also disagreed with the majority's characterization of the NAACP's activities as free from financial gain, calling it not a typical (and protected) attorney-client relationship because the NAACP and its clients lacked enough common interests to avoid maliciousness.^[29] The dissenters argued that the Court had never allowed before allowed constitutional lawsuits avoid the rules of evidence, regulation of the law, legal ethics, or other state interests.^[30]

Harlan chided the majority for labeling the Virginia statutes vague and overbroad, arguing that neither the trial record nor the state courts' construction of the statutes had found the laws vague.^[31] Since Harlan would have upheld the statutes despite the First Amendment challenges, he thought the Fourteenth Amendment guarantees of due process of law and equal protection of the law not infringed.^[32]

References

Bibliography

• Dickson, Del. The Supreme Court in Conference, 1940-1985: The Private Discussions Behind Nearly 300 Supreme Court Decisions. New York: Oxford University Press, 2001.

External links

• Full text of the decision courtesy of Findlaw.com
• Full text of the decision courtesy of Justia.com