NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE v. BUTTON, ATTORNEY GENERAL OF VIRGINIA, ET AL.
No. 5
Supreme Court of the United States
January 14, 1963
Argued November 8, 1961.--Restored to the calendar for reargument April 2, 1962.--Reargued October 9, 1962.
371 U.S. 415
Henry T. Wickham reargued the cause for respondents. With him on the brief was David J. Mays.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case originated in companion suits by the National Association for the Advancement of Colored People, Inc. (NAACP), and the NAACP Legal Defense and Educational Fund, Inc. (Defense Fund), brought in 1957 in the United States District Court for the Eastern District of Virginia. The suits sought to restrain the enforcement of Chapters 31, 32, 33, 35 and 36 of the Virginia Acts of Assembly, 1956 Extra Session, on the ground that the
and ordered reargument this Term. 369 U. S. 833. Since no cross-petition was filed to review the Supreme Court of Appeals’ disposition of Chapter 36, the only issue before us is the constitutionality of Chapter 33 as applied to the activities of the NAACP.
There is no substantial dispute as to the facts; the dispute centers about the constitutionality under the Fourteenth Amendment of Chapter 33, as construed and applied by the Virginia Supreme Court of Appeals to include NAACP‘s activities within the statute‘s ban against “the improper solicitation of any legal or professional business.”
The NAACP was formed in 1909 and incorporated under New York law as a nonprofit membership corporation in 1911. It maintains its headquarters in New York and presently has some 1,000 active unincorporated branches throughout the Nation. The corporation is licensed to do business in Virginia, and has 89 branches there. The Virginia branches are organized into the Virginia State Conference of NAACP Branches (the Conference), an unincorporated association, which in 1957 had some 13,500 members. The activities of the Conference are financed jointly by the national organization and the local branches from contributions and membership dues. NAACP policy, binding upon local branches and conferences, is set by the annual national convention.
The basic aims and purposes of NAACP are to secure the elimination of all racial barriers which deprive Negro citizens of the privileges and burdens of equal citizenship rights in the United States. To this end the Association engages in extensive educational and lobbying activities. It also devotes much of its funds and energies to an exten-
The Conference ordinarily will finance only cases in which the assisted litigant retains an NAACP staff lawyer to represent him.4 The Conference maintains a legal staff of 15 attorneys, all of whom are Negroes and members of the NAACP. The staff is elected at the Conference‘s annual convention. Each legal staff member must agree to abide by the policies of the NAACP, which, insofar as they pertain to professional services, limit the kinds of litigation which the NAACP will assist. Thus the NAACP will not underwrite ordinary damages actions, criminal actions in which the defendant raises no question of possible racial discrimination, or suits in which the plaintiff seeks separate but equal rather than fully desegregated public school facilities. The staff decides whether a litigant, who may or may not be an NAACP member, is entitled to NAACP assistance. The Conference defrays all expenses of litigation in an assisted case, and usually, although not always, pays each lawyer on the case a per diem fee not to exceed $60, plus out-of-pocket expenses. The assisted litigant receives no money from the Conference or the staff lawyers. The staff member may not accept, from the litigant or any other source, any other compensation for his services in an NAACP-assisted case. None of the staff receives a salary or retainer from the NAACP; the per diem fee is paid only for professional services in a particular case. This per diem payment is
The members of the legal staff of the Virginia Conference and other NAACP or Defense Fund lawyers called in by the staff to assist are drawn into litigation in various ways. One is for an aggrieved Negro to apply directly to the Conference or the legal staff for assistance. His application is referred to the Chairman of the legal staff. The Chairman, with the concurrence of the President of the Conference, is authorized to agree to give legal assistance in an appropriate case. In litigation involving public school segregation, the procedure tends to be different. Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual, after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund.5 In effect, then, the prospec-
tive litigant retains not so much a particular attorney as the “firm” of NAACP and Defense Fund lawyers, which has a corporate reputation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litigation.
These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to “go all the way” in any possible litigation that may ensue. While the Conference in these ways encourages the bringing of lawsuits, the plaintiffs in particular actions, so far as appears, make their own decisions to become such.6
Statutory regulation of unethical and nonprofessional conduct by attorneys has been in force in Virginia since 1849. These provisions outlaw, inter alia, solicitation of legal business in the form of “running” or “capping.” Prior to 1956, however, no attempt was made to proscribe under such regulations the activities of the NAACP, which had been carried on оpenly for many years in substantially the manner described. In 1956, however, the legislature amended, by the addition of Chapter 33, the provisions of the Virginia Code forbidding solicitation of legal business by a “runner” or “capper” to include, in the definition of “runner” or “capper,” an agent for an individual or organization which retains a lawyer in connection with an action to which it is not a party and in which it has no pecuniary right or liability.7
A jurisdictional question must first be resolved: whether the judgment below was “final” within the meaning of
II.
Petitioner challenges the decision of the Supreme Court of Appeals on many grounds. But we reach only one: that Chapter 33 as construed and applied abridges the freedoms of the First Amendment, protected against state action by the Fourteenth.10 More specifically, petitioner claims that the chapter infringes the right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights. We think petitioner may assert this right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail. Cf. Grosjean v. American Press Co., 297 U. S. 233. We also think petitioner has standing to assert the corresponding rights of its members. See NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 458-460; Bates v. City of Little Rock, 361 U. S. 516, 523, n. 9; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, 296.
We reverse the judgment of the Virginia Supreme Court of Appeals. We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and
A.
We meet at the outset the contention that “solicitation” is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas v. Collins, 323 U. S. 516, 537; Herndon v. Lowry, 301 U. S. 242, 259-264. Cf. Cantwell v. Connecticut, 310 U. S. 296; Stromberg v. California, 283 U. S. 359, 369; Terminiello v. Chicago, 337 U. S. 1, 4. In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts.12 Just as it was true of the
We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Thus we have affirmed the right “to engage in association for the advancement of beliefs and ideas.” NAACP v. Alabama, supra, at 460. Wе have deemed privileged, under certain circumstances, the efforts of a union official to organize workers. Thomas v. Collins, supra. We have said that the Sherman Act does not apply to certain concerted activities of railroads “at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws” because “such a construction of the Sherman Act would raise important constitutional questions,” specifically, First Amendment questions. Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 138.
“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups....” Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (plurality opinion). Cf. De Jonge v. Oregon, 299 U. S. 353, 364-366.
The NAACP is not a conventional political party; but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association.
B.
Our concern is with the impact of enforcement of Chapter 33 upon First Amendment freedoms. We start, of course, from the decreе of the Supreme Court of Appeals. Although the action before it was one basically for declaratory relief, that court not only expounded the purpose and reach of the chapter but held concretely that certain of petitioner‘s activities had, and certain others had not,
But it does not follow that this Court now has only a clear-cut task to decide whether the activities of the petitioner deemed unlawful by the Supreme Court of Appeals are constitutionally privileged. If the line drawn by the decree between the permitted and prohibited activities of the NAACP, its members and lawyers is an ambiguous one, we will not presume that the statute curtails constitutionally protected activity as little as possible. For standards of permissible statutory vagueness are strict in the area of free expression. See Smith v. California, 361 U. S. 147, 151; Winters v. New York, 333 U. S. 507, 509-510, 517-518; Herndon v. Lowry, 301 U. S. 242; Stromberg v. California, 283 U. S. 359; United States v. C. I. O., 335 U. S. 106, 142 (Rutledge, J., concurring). Furthermore, the instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute‘s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 97-98; Winters v. New York, supra, at 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313. It makes no difference that the instant case was not a criminal prosecution and not based on a refusal to comply with a licensing requirement. The
We read the decree of the Virginia Supreme Court of Appeals in the instant case as proscribing any arrangement by which prospective litigants are advised to seek the assistance of particular attorneys. No narrower reading is plausible. We cannot accept the reading suggested on behalf of the Attorney General of Virginia on the second oral argument that the Supreme Court of Appeals construed Chapter 33 as proscribing control only of the actual litigation by the NAACP after it is instituted. In the first place, upon a record devoid of any evidence of interference by the NAACP in the actual conduct of litigation, or neglect or harassment of clients, the court nevertheless held that petitioner, its members, agents and staff attorneys had practiced criminal solicitation. Thus, simple referral to or recommendation of a lawyer may be solicitation within the meaning of Chapter 33. In the second place, the decree does not seem to rest on the fact
We conclude that under Chapter 33, as authoritatively construed by the Supreme Court of Appeals, a person who advises another that his legal rights have been infringed and refers him to a particular attorney or group of attorneys (for example, to the Virginia Conference‘s legal staff) for assistance has committed a crime, as has the attorney who knowingly renders assistance under such circumstances. 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. Lawyers on the legal staff or even mere NAACP members or sympathizers would understandably hesitate, at an NAACP meeting or on any other occasion, to do what the decree purports to allow, namely, acquaint “persons with what they believe to be their legal rights and ... [advise] them to assert their rights by commencing or further prosecuting a suit....” For if the lawyers, members or sympathizers also appeared in or had any connection with any litigation supported with NAACP funds contributed under the provision of the decree by which the NAACP is not prohibited “from contributing money to persons to assist them in commencing or further prosecuting such
suits,” they plainly would risk (if lawyers) disbarment proceedings and, lawyers and nonlawyers alike, criminal prosecution for the offense of “solicitation,” to which the Virginia court gave so broad and uncertain a meaning. It makes no difference whethеr such prosecutions or proceedings would actually be commenced. It is enough that a vague and broad statute lends itself to selective enforcement against unpopular causes. We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community of Virginia;15 litigation assisted by the NAACP has been bitterly fought.16 In such circumstances, a statute broadly curtailing group activity leading to litigation may easily become a weapon of oppression, however even-handed its terms appear. Its mere existence could well freeze out of existence all such activity on behalf of the civil rights of Negro citizens.It is apparent, therefore, that Chapter 33 as construed limits First Amendment freedoms. As this Court said in Thomas v. Collins, 323 U. S. 516, 537, “‘Free trade in ideas’ means free trade in the opportunity to persuade to action, not merely to describe facts.” Thomas was convicted for delivering a speech in connection with an impending union election under National Labor Relations Board auspices, without having first registered as a “labor organizer.” He urged workers to exercise their rights under the
The second contention is that Virginia has a subordinating interest in the regulation of the legal profession, embodied in Chapter 33, which justifies limiting petitioner‘s First Amendment rights. Specifically, Virginia contends that the NAACP‘s activities in furtherance of litigation, being “improper solicitation” under the state statute, fall within the traditional purview of state regulation of professional conduct. However, the State‘s attempt to equate the activities of the NAACP and its lawyers with common-law barratry, maintenance and champerty,17 and to outlaw them accordingly, cannot obscure the serious encroachment worked by Chapter 33 upon protected freedoms of expression. The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State‘s constitutional power to regulate can justify limiting First Amendment freedoms. Thus it is no answer to the constitutional claims asserted by petitioner to say, as the Virginia Supreme Court of Appeals has said, that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression. For a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. See Schware v. Board of Bar Examiners, 353 U. S. 232; Konigsberg v. State Bar, 353 U. S. 252. Cf. In re Sawyer, 360 U. S. 622. In NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 461, we said, “In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action.” Later, in Bates v. Little Rock, 361 U. S. 516, 524, we said, “[w]here there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.” Most recently, in Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, 297, we reaffirmed this principle: “. . . regulatory measures . . . no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights.”
There has been no showing of a serious danger here of professionally reprehensible conflicts of interest which rules against solicitation frequently seek to prevent. This is so partly because no monetary stakes are involved, and so there is no danger that the attorney will desert or subvert the paramount interests of his client to enrich himself or an outside sponsor. And the aims and interests of NAACP have not been shown to conflict with those of its members and nonmember Negro litigants; compare NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459, where we said:
“[the NAACP] and its members are in every practical sense identical. The Association, which provides in its constitution that ‘[a]ny person who is in accordance with [its] principles and policies . . .’ may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views.” See also Harrison v. NAACP, 360 U. S. 167, 177.
Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers;27 the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. There has been neither claim nor
We conclude that although the petitioner has amply shown that its activities fall within the First Amendment‘s protections, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner‘s activities, which can justify the broad prohibitions which it has imposed. Nothing that this record shows as to the nature and purpose of NAACP activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application of Chapter 33 to those activities. A fortiori, nothing in this record justifies the breadth and vagueness of the Virginia Supreme Court of Appeals’ decree.
A final observation is in order. Because our disposition is rested on the First Amendment as absorbed in the Fourteenth, we do not reach the considerations of race or racial discrimination which are the predicate of petitioner‘s challenge to the statute under the Equal Protection Clause. That the petitioner happens to be engaged in activities of expression and association on behalf of the rights of Negro children to equal opportunity is constitutionally irrelevant to the ground of our decision. The cоurse of our decisions in the First Amendment area makes plain that its protections would apply as fully to those who would arouse our society against the objectives of the petitioner. See, e. g., Near v. Minnesota, 283 U. S. 697; Terminiello v. Chicago, 337 U. S. 1; Kunz v. New York, 340 U. S. 290. For the Constitution protects ex-
Reversed.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I add a few words. This Virginia Act is not applied across the board to all groups that use this method of obtaining and managing litigation, but instead reflects a legislative purpose to penalize the N. A. A. C. P. because it promotes desegregation of the races. Our decision in Brown v. Board of Education, 347 U. S. 483, holding that maintenance of public schools segregated by race violated the Equal Protection Clause of the
The bill, here involved, was one of five that Virginia enacted “as parts of the general plan of massive resistance to the integration of schools of the state under the Supreme Court‘s decrees.” Those are the words of Judge Soper, writing for the court in N. A. A. C. P. v. Patty, 159 F. Supp. 503, 515. He did not indulge in guesswork. He
Discrimination also appears on the face of this Act. The line drawn in § 54-78 is between an organization which has “no pecuniary right or liability” in a judicial proceeding and one that does. As we said in N. A. A. C. P. v. Alabama, 357 U. S. 449, 459, the N. A. A. C. P. and its members are “in every practical sense identical. The Association . . . is but the medium through which its individual members seek to make more effective the expression of their own views.” Under the statute those who protect a “pecuniary right or liability” against unconstitutional invasions may indulge in “the solicitation . . . of business for . . . [an] attorney,” while those who protect other civil rights may not. This distinction helps make clear the purpose of the legislation, which, as Judge Soper said, was part of the program of “massive resistance” against Brown v. Board of Education, supra.
I agree that as construed by the Virginia Supreme Court, Chapter 33 does not proscribe only the actual control of litigation after its commencement, that it does forbid, under threat of criminal punishment, advising the employment of particular attorneys, and that as so construed the statute is unconstitutional.
Nor may the statute be saved simply by saying it prohibits only the “control” of litigation by a lay entity, for it seems to me that upon the record before us the finding of “control” by the Virginia Supreme Court must rest to a great extent upon an inference from the exercise of those very rights which this Court or the Virginia Supreme Court, or both, hold to be constitutionally protected: advising Negroes of their constitutional rights, urging them to institute litigation of a particular kind, recommending particular lawyеrs and financing such litigation. Surely it is beyond the power of any State to prevent the exercise of constitutional rights in the name of preventing a lay entity from controlling litigation. Consequently, I concur in the judgment of the Court, but not in all of its opinion.
If we had before us, which we do not, a narrowly drawn statute proscribing only the actual day-to-day management and dictation of the tactics, strategy and conduct of litigation by a lay entity such as the NAACP, the issue would be considerably different, at least for me; for in my opinion neither the practice of law by such an organization nor its management of the litigation of its members or others is constitutionally protected. Both practices are well within the regulatory power of the State. In this regard I agree with my Brother HARLAN.
It is not at all clear to me, however, that the opinion of the majority would not also strike down such a narrowly
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE STEWART join, dissenting.
No member of this Court would disagree that the validity of state action claimed to infringe rights assured by the
I.
At thе outset the factual premises on which the Virginia Supreme Court of Appeals upheld the application of Chapter 33 to the activities of the NAACP in the area of litigation, as well as the scope of that court‘s holding, should be delineated.
First, the lawyers who participate in litigation sponsored by petitioner are, almost without exception, members of the legal staff of the NAACP Virginia State Conference. (It is, in fact, against Conference policy to
Second, it is equally clear that the NAACP‘s directions, or those of its officers and divisions, to staff lawyers cover many subjects relating to the form and substance of litigation. Thus, in 1950, it was resolved at a Board of Directors meeting that:
“Pleadings in all educational cases—the prayer in the pleading and proof be aimed at obtaining education on a non-segregated basis and that no relief other than that will be acceptable as such.
“Further, that all lawyers operating under such rule will urge their client and the branches of the Association involved to insist on this final relief.”
The minutes of the meeting went on to state:
“Mr. Weber inquired if this meant that the branches would be prohibited from starting equal facility cases and the Special Counsel said it did.”
In 1955, a Southwide NAACP Conference issued directions to all NAACP branches outlining the procedure for obtaining desegregation of schools and indicating the point in the procedure at which litigation should be brought and the matter turned over to the “Legal Department.” At approximately the same time, the Executive Secretary of the Virginia State Conference issued a directive urging that in view of the possibility of an extended court fight, “discretion and care shоuld be exercised to secure petitioners who will—if need be—go all the way.”
A report issued several years later, purporting to give an “up to date picture” of action taken in Virginia by
In short, as these and other materials in the record show, the form of pleading, the type of relief to be requested, and the proper timing of suits have to a considerable extent, if not entirely, been determined by the Conference in coordination with the national office.
Third, contrary to the conclusion of the Federal District Court in the original federal proceeding, NAACP v. Patty, 159 F. Supp. 503, 508-509, the present record establishes that the petitioner does a great deal more than to advocate litigation and to wait for prospective litigants to come forward. In several instances, especially in litigation touching racial discrimination in public schools, specific directions were given as to the types of prospective plaintiffs to be sought, and staff lawyers brought blank forms to meetings for the purpose of obtaining signatures authorizing the prosecution of litigation in the name of the signer.
Fourth, there is substantial evidence indicating that the normal incidents of the attorney-client relationship were often absent in litigation handled by staff lawyers and financed by petitioner. Forms signed by prospective litigants have on occasion not contained the name of the attorney authorized to act. In many cases, whether or not the form contained specific authorization to that effect, additional counsel have been brought into the action by staff counsel. There were several litigants who testified that at no time did they have any personal dealings with the lawyers handling their cases nor were they aware until long after the event that suits had been filed in their names. This is not to suggest that the petitioner
On these factual premises, amply supported by the evidence, the Virginia Supreme Court of Appeals held that petitioner and those associated with it
“solicit prospective litigants to authorize the filing of suits by NAACP and Fund [Educational Defense Fund] lawyers, who are paid by the Conference and controlled by NAACP policies . . . .” (202 Va., at 159; 116 S. E. 2d, at 68-69),
and concluded that this conduct violated Chapter 33 as well as Canons 35 and 47 of the Canons of Professional Ethics of the American Bar Association, which had been adopted by the Virginia courts more than 20 years ago.
At the same time the Virginia court demonstrated a responsible awareness of two important limitations on the State‘s power to regulate such conduct. The first of these is the long-standing recognition, incorporated in the Canons, of the different treatment to be accorded to those aiding the indigent in prosecuting or defending against legal proceedings. The second, which coupled with the first led the court to strike down Chapter 36 (ante, p. 418), is the constitutional right of any person to express his views, to disseminate those views to others, and to advocate action designed to achieve lawful objectives, which in the present case are also constitutionally due. Mindful of these limitations, the state court construed Chapter 33 not to prohibit petitioner and those associated with it from acquainting colored persons with what it believes to be their rights, or from advising them to assert those rights in legal proceedings, but only from “solicit[ing] legal business for their attorneys or any
In my opinion the litigation program of the NAACP, as shown by this record, falls within an area of activity which a State may constitutionally regulate. (Whether it was wise for Virginia to exercise that power in this instance is not, of course, for us to say.) The Court‘s contrary conclusion rests upon three basic lines of reasoning: (1) that in the context of the racial problem the NAACP‘s litigating activities are a form of political expression within the protection of the First Amendment, as extended to the States by the Fourteenth; (2) that no sufficiently compelling subordinating state interest has been shown to justify Virginia‘s particular regulation of these activities; and (3) that in any event Chapter 33 must fall because of vagueness, in that as construed by the state court the line between the permissible and impermissible under the statute is so uncertain as potentially to work a stifling of constitutionally protected rights. Each of these propositions will be considered in turn.
II.
Freedom of expression embraces more than the right of an individual to speak his mind. It includes also his right to advocate and his right to join with his fellows in an effort to make that advocacy effective. Thomas v. Collins, 323 U. S. 516; NAACP v. Alabama, 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516. And just as it includes the right jointly to petition the legislature for redress of grievances, see Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 137-138, so it must include the right to join together for purposes of obtaining judicial redress. We have passed the point where litigation is regarded as an evil that must be avoided if some accommodation short of a lawsuit can possibly be worked out. Litigation is often the desirable and orderly way of resolving disputes of broad public significance, and of obtaining vindication of fundamental rights. This is particularly so in the sensitive area of racial relationships.
But to declare that litigation is a form of conduct that may be associated with political expression does not resolve this case. Neither the First Amendment nor the Fourteenth constitutes an absolute bar to government regulation in the fields of free expression and association. This Court has repeatedly held that certain forms of speech are outside the scope of the protection of those Amendments, and that, in addition, “general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise,” are permissible “when they have been found justified by subordinating valid governmental interests.”1 The problem in each such case is to weigh the legitimate interest of the State against the effect of the regulation on individual rights.
An analogy may be drawn between the present case and the rights of workingmen in labor disputes. At the heart of these rights are those of a laborer or a labor representative to speak: to inform the public of his disputes and to urge his fellow workers to join together for mutual aid and protection. So important are these particular rights that absent a clear and present danger of the gravest evil,
But as we move away from speech alone and into the sphere of conduct—even conduct associated with speech or resulting from it—the area of legitimate governmental interest expands. A regulation not directly suppressing speech or peaceable assembly, but having some impact on the form or manner of their exercise will be sustained if the regulation has a reasonable relationship to a proper governmental objective and does not unduly interfere with such individual rights. Thus, although the State may not prohibit all informational picketing, it may prevent mass picketing, Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740, and picketing for an unlawful objective, Giboney v. Empire Storage & Ice Co., 336 U. S. 490. Although it may not prevent advocacy of union membership, it can to some degree inquire into and define the qualifications of those who solicit funds from prospective members or who hold other positions of responsibility.2 A legislature may not wholly eliminate the right of collective action by workingmen,3 but it may to a significant extent dictate the form their organization shall take4 and may limit the demands that the organization may make on employers and others, see, e. g., International Brotherhood of Electrical Workers v. Labor Board, 341 U. S. 694, 705.
Turning to the present case, I think it evident that the basic rights in issue are those of the petitioner‘s members
So here, the question is whether the particular regulation of conduct concerning litigation has a reasonable relation to the furtherance of a proper state interest, and whether that interest outweighs any foreseeable harm to the furtherance of protected freedoms.
III.
The interest which Virginia has here asserted is that of maintaining high professional standards among those who practice law within its borders. This Court has consistently recognized the broad range of judgments that a State may properly make in regulating any profession.
The regulation before us has its origins in the longstanding common-law prohibitions of champerty, barratry, and maintenance, the closely related prohibitions in the Canons of Ethics against solicitation and intervention by a lay intermediary, and statutory provisions forbidding the unauthorized practice of law.5 The Court
First, with regard to the clаimed absence of the pecuniary element, it cannot well be suggested that the attorneys here are donating their services, since they are in fact compensated for their work. Nor can it tenably be argued that petitioner‘s litigating activities fall into the accepted category of aid to indigent litigants.6 The reference is presumably to the fact that petitioner itself is a nonprofit organization not motivated by desire for financial gain but by public interest and to the fact that no monetary stakes are involved in the litigation.
But a State‘s felt need for regulation of professional conduct may reasonably extend beyond mere “ambulance chasing.” In People ex rel. Courtney v. Association of Real Estate Tax-payers, 354 Ill. 102, 187 N. E. 823, a nonprofit corporation was held in contempt for engaging in the unauthorized practice of law. The Association was formed by citizens desiring to mount an attack on the constitutionality of certain tax rolls. Membership was solicited by the circulation of blank forms authorizing employment of counsel on the applicant‘s behalf and asking that property be listed for litigation. The attorneys were selected, paid, and controlled by the corporation, which made their services available to the taxpayer members at no cost.7
Similarly, several decisions have condemned the provision of counsel for their members by nonprofit automobile clubs, even in instances involving challenges to the validity of a statute or ordinance. In re Maclub of America, Inc., 295 Mass. 45, 3 N. E. 2d 272;8 People ex rel. Chicago Bar Assn. v. Chicago Motor Club, 362 Ill. 50, 199 N. E. 1; see Opinion 8, Opinions of the Committee on Professional Ethics and Grievances, American Bar Assn.
Of particular relevance here is a series of nationwide adjudications culminating in 1958 in In re Brotherhood of Railroad Trainmen, 13 Ill. 2d 391, 150 N. E. 2d 163. That was a proceeding, remarkably similar to the present one, for a declaratory judgment that the activities of the Brotherhood in assisting with the prosecution of its members’ personal injury claims under the
The Union argued that it was not motivated by any desire for profit; that it had an interest commensurate with that of its members in enforcement of the federal statute; and that the advantage taken of injured parties by unscrupulous claims adjustors made it essential to furnish economical recourse to dependable legal assistance. The court ruled against the Union on each of these points. It permitted the organization to maintain an investigative staff, to advise its members regarding their legal rights and to recommend particular attorneys, but it required the Union to stop fixing fees, to sever all financial connections with counsel, and to cease the distribution of contract forms.
The practices of the Brotherhood, similar in so many respects to those engaged in by the petitioner here, have
Underlying this impressive array of relevant precedent is the widely shared conviction that avoidance of improper pecuniary gain is not the only relevant factor in determining standards of professional conduct. Running perhaps even deeper is the desire of the profession, of courts, and of legislatures to prevent any interference with the uniquely personal relationship between lawyer and client and to maintain untrammeled by outside influences the responsibility which the lawyer owes to the courts he serves.
When an attorney is employed by an association or corporation to represent individual litigants, two problems arise, whether or not the association is organized for profit and no matter how unimpeachable its motives. The lawyer becomes subject to the control of a body that is not itself a litigant and that, unlike the lawyers it employs, is not subject to strict professional discipline as an officer of the court. In addition, the lawyer necessarily finds himself with a divided allegiance—to his employer and to his client—which may prevent full compliance with his basic professional obligations. The matter was well stated, in a different but related context, by the New
“The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation and not to the directions of the client.”
There has, to be sure, been professional criticism of certain applications of these policies.10 But the continued vitality of the principles involved is beyond dispute,11 and at this writing it is hazardous at best to predict the direction of the future. For us, however, any such debate is without relevance, since it raises questions of social policy which have not been delegated to this Court for decision. Our responsibility is simply to determine the extent of the State‘s legitimate interest and to decide whether the course adopted bears a sufficient relation to that interest to fall within the bounds set by the Constitution.
Second, it is claimed that the interests of petitioner and its members are sufficiently identical to eliminate any “serious danger” of “professionally reprehensible conflicts of interest.” Ante, p. 443. Support for this claim is sought in our procedural holding in NAACP v. Alabama, 357 U. S. 449, 458-459. But from recognizing, as in that case, that the NAACP has standing to assert the rights of its members when it is a real party in interest, it is plainly too large a jump to conclude that whenever individuals are engaged in litigation involving claims that the organization promotes, there cannot be any significant difference between the interests of the individual and those of the group.
The NAACP may be no more than the sum of the efforts and views infused in it by its members; but the totality of the separate interests of the members and others whose causes the petitioner champions, even in the field of race relations, may far exceed in scope and variety that body‘s views of policy, as embodied in litigating strategy and tactics. Thus it may be in the interest of the Association in every case to make a frontal attack on segregation, to press for an immediate breaking down of racial barriers, and to sacrifice minor points that may win a given case for the major points that may win other cases too. But in a particular litigation, it is not impossible that after authorizing action in his behalf, a Negro parent, concerned that a continued frontal attack could result in schools closed for years, might prefer to wait with his fellows a longer time for good-faith efforts by the local school board than is permitted by the centrally determined policy of the NAACP. Or he might see a greater prospect of success through discussions with local school authorities than through the litigation deemed necessary by the Association. The parent, of course, is free to withdraw his authorization, but is his lawyer, retained and paid by petitioner and subject to its directions on matters of policy, able to advise the parеnt with that undivided allegiance that is the hallmark of the attorney-client relation? I am afraid not.
Indeed, the potential conflict in the present situation is perhaps greater than those in the union, automobile club, and some of the other cases discussed above, pp. 457-460.
Third, it is said that the practices involved here must stand on a different footing because the litigation that petitioner supports concerns the vindication of constitutionally guaranteed rights.12 But surely state law is still the source of basic regulation of the legal profession, whether an attorney is pressing a federal or a state claim within its borders. See In re Brotherhood of Railroad Trainmen, supra. The true question is whether the State has taken action which unreasonably obstructs the assertion of federal rights. Here, it cannot be said that the underlying state policy is inevitably inconsistent with federal interests. The State has sought to prohibit the solicitation and sponsoring of litigation by those who have no standing to initiate that litigation themselves and who are not simply coming to the
There remains to be considered on this branch of the argument the question whether this particular exercise of state regulatory power bears a sufficient relation to the established and substantial interest of the State to overcome whatever indirect impact this statute may have on rights of free expression and association.
Chapter 33 as construed does no more than prohibit petitioner and those associated with it from soliciting legal business for its staff attorneys or, under a fair reading of the state court‘s opinion and amounting to the same thing, for “outside” attorneys who are subject to the Association‘s control in the handling of litigation which it refers to them. See pp. 466-468, infra. Such prohibitions bear a strong and direct relation to the area of legitimate state concern. In matters of policy, involving the form, timing, and substance of litigation, such attorneys are subject to the directions of petitioner and not of those nominally their clients. Further, the methods used to obtain litigants are not conducive to encouraging the kind of attor-
The impact of such a prohibition on the rights of petitioner and its members to free expression and association cannot well be deemed so great as to require that it be struck down in the face of this substantial state interest. The important function of organizations like petitioner in vindicating constitutional rights is not of course to be minimized, but that function is not, in my opinion, substantially impaired by this statute. Of cardinal importance, this regulatory enactment as construed does not in any way suppress assembly, or advocacy of litigation in general or in particular. Moreover, contrary to the majority‘s suggestion, it does not, in my view, prevent petitioner from recommending the services of attorneys who are not subject to its directions and control. See pp. 460-468, infra. And since petitioner may contribute to those who need assistance, the prohibition should not significantly discourage anyone with sufficient interest from pressing his claims in litigation or from joining with others similarly situated to press those claims. It prevents only the solicitation of business for attorneys subject to petitioner‘s control, and as so limited, should be sustained.
IV.
The Court‘s remaining line of reasoning is that Chapter 33 as construed (hereafter sometimes simply “the statute“) must be struck down on the score of vagueness and ambiguity. I think that this “vagueness” concept has no proper place in this case and only serves to obscure rather than illuminate the true questions presented.
The Court‘s finding of ambiguity rests on the premise that the statute may prohibit mere recommendation of “any particular attorney,” whether or not a member of
The cardinal difficulty with this argument is that there simply is no real uncertainty in the statute, as the state court found, 202 Va., at 154, 116 S. E. 2d, at 65, or in that court‘s construction of it. It is true that the concept of vagueness has been used to give “breathing space” to “First Amendment freedoms,” see Amsterdam, Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. of Pa. L. Rev. 67, but it is also true, as that same commentator has well stated, that “[v]agueness is not an extraneous ploy or a judicial deus ex machina.” Id., at 88. There is, in other words, “an actual vаgueness component in the vagueness decisions.” Ibid. And the test is whether the law in question has established standards of guilt sufficiently ascertainable that men of common intelligence need not guess at its meaning. Connally v. General Constr. Co., 269 U. S. 385; Winters v. New York, 333 U. S. 507. Laws that have failed to meet this standard are, almost without exception, those which turn on language calling for the exercise of subjective judgment, unaided by objective norms. E. g., United States v. L. Cohen Grocery Co., 255 U. S. 81 (“unreasonable” charges); Winters v. New York, supra (“so massed as to become vehicles for inciting“); Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495 (“sacrilegious“). No such language is to be found here.
Ambiguity in the present statute can be made to appear only at the price of strained reading of the state court‘s opinion. As construed, the statute contains two types of prohibition relating to solicitation. The first prohibits such groups as the NAACP and the Educational Defense Fund, “their officers, members, affiliates, voluntary work-
The second prohibition in the statute is the solicitation by petitioner of legal business for “any particular attorneys” or the channeling of litigation which it supports to “any other attorneys,” whether or not they are petitioner‘s staff attorneys. This language of the state court, coupled primarily with this Court‘s own notion that Chapter 33 in defining “agents” has departed from common-law principles, leads the majority to conclude that the statute may have been interpreted as precluding organizations such as petitioner from simply advising prospеctive litigants to engage for themselves particular attorneys, whether members of the organization‘s legal staff or not.
Surely such an idea cannot be entertained with respect to the state court‘s discussion of the NAACP and its staff attorneys. The record is barren of all evidence that any litigant, in the type of litigation with which this case is concerned, ever attempted to retain for his own account
Nor do I think it may reasonably be concluded that the state court meant to preclude the NAACP from recommending “outside” attorneys to prospective litigants, so long as it retained no power of direction over such lawyers. Both in their immediate context and in light of the entire opinion and record below, it seems to me very clear that the phrases “or any particular attorneys” and “or any other attorneys” both have reference only to those “outside” attorneys with respect to whom the NAACP or the Defense Fund bore a relationship equivalent to that existing between them and “their attorneys.”14 It savors almost of disrespect to the Virginia Supreme Court of Appeals, whose opinion manifests full awareness of the considerations that have traditionally marked the line between professional and unprofessional conduct, to read this part of its opinion otherwise. Indeed the ambiguity which this Court now finds quite evidently escaped the notice of both petitioner and its counsel for they did not so much as suggest such an argument in their briefs. Moreover, the kind of approach that the majority takes to the statute is quite inconsistent with the precept that our duty is to construe legislation, if possible, “to save and not to destroy.” Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30, and cases cited; United States v. Rumely, 345 U. S. 41, 47.
But even if the statute justly lent itself to thе now attributed ambiguity, the Court should excise only the ambiguous part of it, not strike down the enactment in
V.
Since the majority has found it unnecessary to consider them, only a few words need be said with respect to petitioner‘s contentions that Chapter 33 deprives it of property without due process of law and denies it equal protection.
The due process claim is disposed of once it appears that this statute falls within the range of permissible state regulation in pursuance of a legitimate goal. Pp. 455-465, supra.
As to equal protection, this position is premised on the claim that the law was directed solely at petitioner‘s activities on behalf of Negro litigants. But Chapter 33 as it comes to us, with a narrowing construction by the state court that anchors the statute firmly to the common law and to the court‘s own independently existing supervisory
I would affirm.
Notes
Ҥ 54-74. ... If the Supreme Court of Appeals, or any court of record of this State, observes, or if complaint, verified by affidavit, be made by any person to such court of any malpractice or of any unlawful or dishonest or unworthy or corrupt or unprofessional conduct on the part of any attorney, or that any person practicing law is not duly licensed to practice in this State, such court shall, if it deems the case a proper one for such action, issue a rule against such attorney or other person to show cause why his license to practice law shall not be revoked or suspended.
“Upon the hearing, if the defendant be found guilty by the court, his license to practice law in this State shall be revoked, or suspended for such time as the court may prescribe; provided, that the court, in lieu of revocation or suspension, may, in its discretion, reprimand such attorney.
“Any malpractice, or any unlawful or dishonest or unworthy or corrupt or unprofessional conduct,’ as used in this section, shall be construed to include the improper solicitation of any legal or profes-
sional business or employment, either directly or indirectly, or the acceptance of employment, retainer, compensation or costs from any person, partnership, corporation, organization or association with knowledge that such person, partnership, corporation, organization or association has violated any provision of article 7 of this chapter [§§ 54-78 to 54-83.1], or the failure, without sufficient cause, within a reasonable time after demand, of any attorney at law, to pay over and deliver to the person entitled thereto, any money, security or other property, which has come into his hands as such attorney; provided, however, that nothing contained in this article shall be construed to in any way prohibit any attorney from accepting employment to defend any person, partnership, corporation, organization or association accused of violating the provisions of article 7 of this chapter. “§ 54-78. ... (1) A ‘runner’ or ‘capper’ is any person, corporation, partnership or association acting in any manner or in any capacity as an agent for an attorney at law within this State or for any person, partnership, corporation, organization or association which employs, retains or compensates any attorney at law in connection with any judicial proceeding in which such person, partnership, corporation, organization or association is not a party and in which it has no pecuniary right or liability, in the solicitation or procurement of business for such attorney at law * or for such person, partnership, corporation, organization or association in connection with any judicial proceedings for which such attorney or such person, partnership, corporation, organization or association is employed, retained or compensatеd.
“The fact that any person, partnership, corporation, organization or association is a party to any judicial proceeding shall not authorize any runner or capper to solicit or procure business for such person, partnership, corporation, organization or association or any attorney at law employed, retained or compensated by such person, partnership, corporation, organization or association.
“(2) An ‘agent’ is one who represents another in dealing with a third person or persons. [Footnote 7 continued on p. 425]”
The Court, p. 442, n. 25, ante, deals with the Real Estate Tax-payers case simply by referring to it as one in which the “parties and Association attorneys had large sums of money at stake.” It is true that the attorneys there (as here) were paid for their services by the Association although we are not told the amount of the payment to any attorney. It is also true that the constitutional rights which the members were there seeking to assert through the nonprofit Association were property rights, having monetary value. But I fail to see how these factors can be deemed to create an “element of pecuniary gain” which distinguishes the Real Estate Tax-payers case from the present one in any significant respect.“§ 54-79. ... It shall be unlawful for any person, corporation, partnership or association to act as a runner or capper * as defined in § 54-78 to solicit any business for * an attorney at law or such person, partnership, corporation, organization or association, in and about the State prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, police courts, * county courts, municipal courts, * courts of record, or in any public institution or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institution or upon private property of any character whatsoever.”
Code of Virginia, 1950, §§ 54-82, 54-83.1 , as amended (Repl. Vol. 1958), provide:“§ 54.82. Penalty for violation.--Any person, corporation, partnership or association violating any of the provisions of this article shall be guilty of a misdemeanor, and shall be punishable by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment for not less than one month nor more than six months, or by both such fine and imprisonment....
“§ 54-83.1. Injunction against running, capping, soliciting and maintenance.--The Commonwealth‘s attorney, or any person, firm or corporation against whom any claim for damage to property or damages for personal injuries or fоr death resulting therefrom, is or has been asserted, may maintain a suit in equity against any person who has solicited employment for himself or has induced another to solicit or encourage his employment, or against any person, firm, partnership or association which has acted for another in the capacity of a runner or capper or which has been stirring up litigation in such a way as to constitute maintenance whether such solicitation was successful or not, to enjoin and permanently restrain such person, his agents, representatives and principals from soliciting any such claims against any person, firm or corporation subsequent to the date of the injunction.”
The activities of the Association in this Maclub case were more limited than those of the Association in the Real Estate Tax-payers case. The attorneys in Maclub were selected and retained directly by the members and bills were then submitted to and paid by the Association.“Intermediaries.--The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer. A lawyer‘s responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer‘s relation to his client should be personal, and the responsibility should be direct to the client. Charitable societies rendering aid to the indigent are not deemed such intermediaries.” Canon 47 reads as follows:
“Aiding the Unauthorized Practice of Law. ----No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate.”
35 Stat. 65 (1908), as amended,“... attorneys who accept employment by appellants to represent litigants in suits solicited by the appellants, or those associated with them, are violating chapter 33 and the canons оf legal ethics;
“... appellants and those associated with them may not be prohibited from acquainting persons with what they believe to be their legal rights and advising them to assert their rights by commencing or further prosecuting a suit against the Commonwealth of Virginia, any department, agency or political subdivision thereof, or any person
acting as an officer or employee of such, but in so advising persons to commence or further prosecute such suits the appellants, or those associated with them, shall not solicit legal business for their attorneys or any particular attorneys; and “(b) the appellants and those associated with them may not be prohibited from contributing money to persons to assist them in commencing or further prosecuting such suits, which have not been solicited by the appellants or those associated with them, and channeled by them to their attorneys or any other attorneys.” 202 Va., at 164-165, 116 S. E. 2d, at 72.
Despite this volume of litigation, only 1/2 of 1% of Virginia‘s Negro public school pupils attend school with whites. Southern School News, Sept. 1962, p. 3.
Cf. Stromberg v. California, 283 U. S. 359, in which the state law condemned the displaying of a red flag for any of three purposes and this Court sustained the validity of the law as to two of these purposes but struck it down for vagueness as to the third.