NAACP v. Button
Encyclopedia
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
.
enacted five statutes regulating the practices of barratry, champerty, and maintenance. Barratry is the "stirring up" of litigation by inducing individuals or organizations to sue when they otherwise would not. 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. 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. The bills were specifically aimed at curbing the National Association for the Advancement of Colored People
(NAACP) in Virginia, which many racial segregationists believed was responsible for "stirring up" integrationist lawsuits against the state. The bills also collectively required 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 to file a financial report and membership list annually with state..
The Virginia NAACP filed suit in federal court in 1956 against Albertis S. Harrison, Jr., Attorney General of Virginia
, to have the five barratry, champerty, and maintenance laws thrown out as an unconstitutional infringement of the 1st Amendment
rights of freedom of speech and freedom of assembly. The district court overturned three of the laws on constitutional grounds, and remanded the remaining two to state courts. The state 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 resonable chance to construe them.
The NAACP sued Virginia Attorney General Robert Young Button in the Circuit Court of the City of Richmond to have the two remaining statutes overturned on constitutional grounds, but the court upheld both laws. The NAACP appealed to the Virginia Supreme Court of Appeals, which upheld one statute but not the other.
The NAACP appealed to the U.S. Supreme Court, which granted certiorari.
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.
Having asserted the Supreme Court's jurisdiction over the matter, Brennan now turned to the constitutional issues raised by the appellant. The state 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. 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. Litigation, too, he said, was protected. Litigation was not merely a mechanism for resolving differences between two private parites but a constitutionally protected form of political expression. Furthermore, litigation is constitutionally protected because it is one of the few lawful means by which equal protection of the laws can be enforced. 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.
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 is a crime under the five statutes. This creates an unconstitutional chill of First Amendment rights, and burdens an individual's ability to enforce their Fourteenth Amendment rights: "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."
The Virginia Supreme Court of Appeals had asserting 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. The state of 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. But "the exercise ... of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious." Yet First Amendment litigation is exactly the sort of activity the Virginia laws sought to bar. Furthermore, the state of Virginia was unable to demonstrate at trial any substantive evil flowing from the NAACP's activities.
The judgment of the Virginia Supreme Court of Appeals was reversed.
concurred in the judgment of the Court but dissented from its reasoning.
White concurred 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. A more narrowly drawn statute, White felt, may have passed constitutional scrutiny, but the majority's decision appeared unable to admit such an outcome. White would not have discussed the maliciousness of the NAACP's activities, as that issue was not properly before the Court.
dissented, joined 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 organizaton's legal staff, that these lawyers are controlled by NAACP policy and officers, that the NAACP did not merely represent clients who came to it but actively sought out very specific types of clients to advance its policy agenda, and that the "normal" attorney-client relationship was often not present in NAACP relationships with its legal clients. The NAACP, therefore, had righty been held to be in violation of not only the five new legal business laws but similar laws adopted more than 20 years earlier.
But 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 that should be determinative. Harlan, however, denied that litigation enjoyed strong constitutional protection. Litigation was only "associated" with freedom of expression, and the Virginia statutes only incidentally infringed on this speech. Furthermore, he said, litigation is conduct, and conduct does not enjoy the same strong constitutional protection as speech. Harlan took issue with the majority's characterization of the NAACP's activities as free from financial gain, was not a typical (and protected) attorney-client relationship, there is not enough common interest between the NAACP and its clients to avoid maliciousness, and the nature of the litigation (constitutional lawsuits) has never before been held by the Court to do away with the rules of evidence, regulation of the law, legal ethics, or other state interests which the Court has upheld.
Harlan dismissed the majority's claim that the Virginia statutes were vague and overbroad by noting that neither the trial record nor the construction of the statues by the state courts had found the laws vague. Since Harlan would find the statute permissibly restrictive of freedom of speech and assembly as well as not vague, there could be no infringement of the Fourteenth Amendment guarantees of due process of law and equal protection of the law.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
's laws on barratry
Barratry
Barratry is the name of four legal concepts, three in criminal and civil law, and one in admiralty law.* Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass...
, champerty
Champerty and maintenance
Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit...
, and maintenance
Champerty and maintenance
Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit...
violated the First
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and Fourteenth Amendments to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
.
Background
On September 29, 1956, the Virginia General AssemblyVirginia General Assembly
The Virginia General Assembly is the legislative body of the Commonwealth of Virginia, and the oldest legislative body in the Western Hemisphere, established on July 30, 1619. The General Assembly is a bicameral body consisting of a lower house, the Virginia House of Delegates, with 100 members,...
enacted five statutes regulating the practices of barratry, champerty, and maintenance. Barratry is the "stirring up" of litigation by inducing individuals or organizations to sue when they otherwise would not. 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. 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. The bills were specifically aimed at curbing the National Association for the Advancement of Colored People
National Association for the Advancement of Colored People
The National Association for the Advancement of Colored People, usually abbreviated as NAACP, is an African-American civil rights organization in the United States, formed in 1909. Its mission is "to ensure the political, educational, social, and economic equality of rights of all persons and to...
(NAACP) in Virginia, which many racial segregationists believed was responsible for "stirring up" integrationist lawsuits against the state. The bills also collectively required 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 to file a financial report and membership list annually with state..
The Virginia NAACP filed suit in federal court in 1956 against Albertis S. Harrison, Jr., Attorney General of Virginia
Attorney General of Virginia
The Attorney General of Virginia is an executive office in the Government of Virginia. Attorneys General are elected for a four-year term in the year following a presidential election . There are no term limits restricting the number of terms someone can serve as Attorney General...
, to have the five barratry, champerty, and maintenance laws thrown out as an unconstitutional infringement of the 1st Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rights of freedom of speech and freedom of assembly. The district court overturned three of the laws on constitutional grounds, and remanded the remaining two to state courts. The state appealed to the U.S. Supreme Court. In Harrison v. NAACP
Harrison v. NAACP
Harrison v. NAACP, , is a 6-to-3 ruling by the Supreme Court of the United States which held that the United States District Court for the Eastern District of Virginia should have abstained from deciding the constitutionality of three barratry, champerty, and maintenance laws in the state of...
, 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 resonable chance to construe them.
The NAACP sued Virginia Attorney General Robert Young Button in the Circuit Court of the City of Richmond to have the two remaining statutes overturned on constitutional grounds, but the court upheld both laws. The NAACP appealed to the Virginia Supreme Court of Appeals, which upheld one statute but not the other.
The NAACP appealed to the U.S. Supreme Court, which granted certiorari.
Majority
Associate Justice William J. Brennan, Jr.William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
wrote the decision for the majority, and was joined by Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
and Associate Justices Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
and Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
. Associate Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
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.
Having asserted the Supreme Court's jurisdiction over the matter, Brennan now turned to the constitutional issues raised by the appellant. The state 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. 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. Litigation, too, he said, was protected. Litigation was not merely a mechanism for resolving differences between two private parites but a constitutionally protected form of political expression. Furthermore, litigation is constitutionally protected because it is one of the few lawful means by which equal protection of the laws can be enforced. 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.
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 is a crime under the five statutes. This creates an unconstitutional chill of First Amendment rights, and burdens an individual's ability to enforce their Fourteenth Amendment rights: "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."
The Virginia Supreme Court of Appeals had asserting 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. The state of 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. But "the exercise ... of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious." Yet First Amendment litigation is exactly the sort of activity the Virginia laws sought to bar. Furthermore, the state of Virginia was unable to demonstrate at trial any substantive evil flowing from the NAACP's activities.
The judgment of the Virginia Supreme Court of Appeals was reversed.
Douglas' concurrence
Associate Justice Douglas concurred in the Court's ruling. However, he added that not only the legislative history of the laws but the interpretation given to them by the district court and the Virginia Supreme Court of Appeals clearly indicated that the purpose of the legal business laws was to discriminate against the NAACP and to circumvent rulings of the U.S. Supreme Court. "[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."White's concurrence and dissent
Associate Justice Byron WhiteByron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
concurred in the judgment of the Court but dissented from its reasoning.
White concurred 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. A more narrowly drawn statute, White felt, may have passed constitutional scrutiny, but the majority's decision appeared unable to admit such an outcome. White would not have discussed the maliciousness of the NAACP's activities, as that issue was not properly before the Court.
Harlan's dissent
Associate Justice John Marshall Harlan IIJohn Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
dissented, joined by Associate Justices Tom C. Clark
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
and Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
.
Harlan argued that the record before the Court clearly showed that the lawyers working for the NAACP were members of the organizaton's legal staff, that these lawyers are controlled by NAACP policy and officers, that the NAACP did not merely represent clients who came to it but actively sought out very specific types of clients to advance its policy agenda, and that the "normal" attorney-client relationship was often not present in NAACP relationships with its legal clients. The NAACP, therefore, had righty been held to be in violation of not only the five new legal business laws but similar laws adopted more than 20 years earlier.
But 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 that should be determinative. Harlan, however, denied that litigation enjoyed strong constitutional protection. Litigation was only "associated" with freedom of expression, and the Virginia statutes only incidentally infringed on this speech. Furthermore, he said, litigation is conduct, and conduct does not enjoy the same strong constitutional protection as speech. Harlan took issue with the majority's characterization of the NAACP's activities as free from financial gain, was not a typical (and protected) attorney-client relationship, there is not enough common interest between the NAACP and its clients to avoid maliciousness, and the nature of the litigation (constitutional lawsuits) has never before been held by the Court to do away with the rules of evidence, regulation of the law, legal ethics, or other state interests which the Court has upheld.
Harlan dismissed the majority's claim that the Virginia statutes were vague and overbroad by noting that neither the trial record nor the construction of the statues by the state courts had found the laws vague. Since Harlan would find the statute permissibly restrictive of freedom of speech and assembly as well as not vague, there could be no infringement of the Fourteenth Amendment guarantees of due process of law and equal protection of the law.