1. Petitioner sued in a Federal District Court to enjoin
enforcement of a Virginia statute on the ground that, as applied to
it, the statute violated the Fourteenth Amendment. The District
Court abstained from passing on the validity of the statute pending
an authoritative interpretation of it by the state courts, but it
retained jurisdiction. Petitioner then applied to a state court for
a binding adjudication of all of its claims and a permanent
injunction and declaratory relief, and it made no reservation to
the disposition of the entire case by the state courts. A state
trial court held the statute to be both constitutional and
applicable to petitioner, and this decision was affirmed by the
Virginia Supreme Court of Appeals. Petitioner then petitioned this
Court for a writ of certiorari to review the decision of the
Virginia Supreme Court of Appeals, and this Court granted
certiorari.
Held: The District Court's reservation of jurisdiction
was purely formal; it did not impair the jurisdiction of this Court
to review an otherwise final state court judgment; the judgment
below was "final," within the meaning of 28 U.S.C. § 1257, and the
case is properly before this Court. Pp.
371 U. S.
427-428.
2. Chapter 33 of the Virginia Acts of Assembly, Extra Sess.
1956, amended former statutes defining and punishing malpractice by
attorneys so as to broaden the definition of solicitation of legal
business to include acceptance of employment or compensation from
any person or organization not a party to a judicial proceeding and
having no pecuniary right or liability in it. It also made it an
offense for any such person or organization to solicit business for
any attorney. Petitioner, a corporation whose major purpose was the
elimination of racial discrimination, sued in a state court to
enjoin enforcement of this Chapter and for a declaratory
judgment
Page 371 U. S. 416
that, as applied to petitioner, its affiliates, officers,
members, attorneys retained or paid by it, and litigants to whom it
might give assistance in cases involving racial discrimination, the
Chapter violated the Fourteenth Amendment. The Court found that
petitioner, through its State Conference, had formed a legal staff
to direct actions pertaining to racial discrimination; urged the
institution of suits to challenge racial discrimination; offered
the services of attorneys selected and paid by it and its
affiliates; and, with its affiliates, controlled the conduct of
such litigation.
Held: The activities of petitioner, its affiliates and
legal staff shown on this record are modes of expression and
association protected by the First and Fourteenth Amendments which
Virginia may not prohibit, under its power to regulate the legal
profession, as improper solicitation of legal business violative of
Chapter 33 and the Canons of Professional Ethics. Pp.
371 U. S.
417-445.
(a) Although petitioner is a corporation, it may assert its
right and that of its members and lawyers to associate for the
purpose of assisting persons who seek legal redress for
infringement of their constitutionally guaranteed rights. P.
371 U. S.
428.
(b) 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. P.
371 U. S.
429.
(c) In the context of petitioner's objectives, litigation is not
a means of resolving private differences; it is a form of political
expression, and a means for achieving the lawful objectives of
equality of treatment by all governments, federal, state and local,
for the members of the Negro community. Pp.
371 U. S.
429-430.
(d) In order to find constitutional protection for the kind of
cooperative, organizational activity disclosed by this record, it
is not necessary to 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. Pp.
371 U. S.
430-431.
(e) Under Chapter 33, as authoritatively construed by the
Virginia 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 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
Page 371 U. S. 417
litigation on behalf of the rights of Negroes; and, as so
construed, Chapter 33 violates the Fourteenth Amendment by unduly
inhibiting protected freedoms of expression and association. Pp.
371 U. S.
431-438.
(f) It is no answer to the constitutional claims asserted by
petitioner to say, as did the Virginia Supreme Court of Appeals,
that the purpose of this statute was merely to insure high
professional standards, and not to curtail freedom of expression,
for a State may not, under the guise of prohibiting professional
misconduct, ignore constitutional rights. Pp.
371 U. S.
438-439.
(g) However valid may be Virginia's interest in regulating the
traditionally illegal practices of barratry, maintenance and
champerty, that interest does not justify the prohibition of
petitioner's activities disclosed by this record. Pp.
371 U. S.
439-443.
(h) 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. Pp.
371 U. S.
443-444.
(i) Although petitioner has amply shown that its activities fall
within the protection of the First Amendment, 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. P.
371 U. S.
444.
202 Va. 142, 116 S.E.2d 55, reversed.
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
Page 371 U. S. 418
statutes, as applied to the activities of the plaintiffs,
violated the Fourteenth Amendment. A three-judge court convened
pursuant to 28 U.S.C. § 2281, after hearing evidence and making
factfindings, struck down Chapters 31, 32 and 35 but abstained from
passing upon the validity of Chapters 33 and 36 pending an
authoritative interpretation of these statutes by the Virginia
courts. [
Footnote 1] The
complainants thereupon petitioned in the Circuit Court of the City
of Richmond to declare Chapters 33 and 36 inapplicable to their
activities, or, if applicable, unconstitutional. The record in the
Circuit Court was that made before the three-judge court
supplemented by additional evidence. The Circuit Court held the
chapters to be both applicable and constitutional. The holding was
sustained by the Virginia Supreme Court of Appeals as to Chapter
33, but reversed as to Chapter 36, which was held unconstitutional
under both state and federal law. [
Footnote 2] Thereupon, the Defense Fund returned to the
Federal District Court, where its case is presently pending, while
the NAACP filed the instant petition. We granted certiorari. 365
U.S. 842. [
Footnote 3] We heard
argument in the 1961 Term,
Page 371 U. S. 419
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 extensive
Page 371 U. S. 420
program of assisting certain kinds of litigation on behalf of
its declared purposes. For more than 10 years, the Virginia
Conference has concentrated upon financing litigation aimed at
ending racial segregation in the public schools of the
Commonwealth.
The Conference ordinarily will finance only cases in which the
assisted litigant retains an NAACP staff lawyer to represent him.
[
Footnote 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
Page 371 U. S. 421
smaller than the compensation ordinarily received for equivalent
private professional work. The actual conduct of assisted
litigation is under the control of the attorney, although the NAACP
continues to be concerned that the outcome of the lawsuit should be
consistent with NAACP's policies already described. A client is
free at any time to withdraw from an action.
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. [
Footnote 5] In effect, then, the
prospective
Page 371 U. S. 422
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. [
Footnote 6]
Page 371 U. S. 423
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 openly 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.
[
Footnote 7]
Page 371 U. S. 424
The Virginia Supreme Court of Appeals held that the chapter's
purpose "was to strengthen the existing statutes to further control
the evils of solicitation of legal business. . . ." 202 Va. at 154,
116 S.E.2d at 65. The
Page 371 U. S. 425
court held that the activities of NAACP, the Virginia
Conference, the Defense Fund, and the lawyers furnished by them,
fell within, and could constitutionally be proscribed by, the
chapter's expanded definition of improper solicitation of legal
business, and also violated Canons 35 and 47 of the American Bar
Association's Canons of Professional Ethics, which the court
had
Page 371 U. S. 426
adopted in 1938. [
Footnote
8] Specifically, the court held that, under the expanded
definition, such activities on the part of NAACP, the Virginia
Conference, and the Defense Fund constituted
"fomenting and soliciting legal business in which they are not
parties and have no pecuniary right or liability, and which they
channel to the enrichment of certain lawyers employed by them, at
no cost to the litigants and over which the litigants have no
control."
202 Va. at 155; 116 S.E.2d at 66. Finally, the court restated
the decree of the Richmond Circuit Court. We have excerpted the
pertinent portion of the court's holding in the margin. [
Footnote 9]
Page 371 U. S. 427
I
A jurisdictional question must first be resolved: whether the
judgment below was "final" within the meaning of 28 U.S.C. § 1257.
The three-judge Federal District Court retained jurisdiction of
this case while an authoritative construction of Chapters 33 and 36
was being sought in the Virginia courts.
Cf. Chicago v.
Fieldcrest Dairies, Inc., 316 U. S. 168,
316 U. S. 173.
The question of our jurisdiction arises because, when the case was
last here, we observed that such abstention to secure state court
interpretation "does not, of course, involve the abdication [by the
District Court] of federal jurisdiction, but only the postponement
of its exercise. . . ."
Harrison v. NAACP, 360 U.
S. 167,
360 U. S. 177.
We meant simply that the District Court had properly retained
jurisdiction, since a party has the right to return to the District
Court, after obtaining the authoritative state court construction
for which the court abstained, for a final determination of his
claim. Where, however, the party remitted to the state courts
elects to seek a complete and final adjudication of his rights in
the state courts, the District Court's reservation of jurisdiction
is purely formal, and does not impair our jurisdiction to review
directly an otherwise final state court judgment.
Lassiter v.
Northampton County Bd. of Elections, 360 U. S.
45. We think it clear that petitioner made such an
Page 371 U. S. 428
election in the instant case, by seeking from the Richmond
Circuit Court "a binding adjudication" of all its claims and a
permanent injunction as well as declaratory relief, by making no
reservation to the disposition of the entire case by the state
courts, and by coming here directly on certiorari. Therefore, the
judgment of the Virginia Supreme Court of Appeals was final, and
the case is properly before us.
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.
[
Footnote 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,
357 U. S.
458-460;
Bates v. City of Little Rock,
361 U. S. 516,
361 U. S. 523,
n. 9;
Louisiana ex rel. Gremillion v. NAACP, 366 U.
S. 293,
366 U. S.
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
Page 371 U. S. 429
Fourteenth Amendments which Virginia may not prohibit, under its
power to regulate the legal profession, as improper solicitation of
legal business violative of Chapter 33 and the Canons of
Professional Ethics. [
Footnote
11]
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,
323 U. S. 537;
Herndon v. Lowry, 301 U. S. 242,
301 U. S.
259-264.
Cf. Cantwell v. Connecticut,
310 U. S. 296;
Stromberg v. California, 283 U. S. 359,
283 U. S. 369;
Terminiello v. Chicago, 337 U. S. 1,
337 U. S. 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. [
Footnote 12] Just as it was true of the
Page 371 U. S. 430
opponents of New Deal legislation during the 1930's, [
Footnote 13] for example, no less is
it true of the Negro minority today. And under the conditions of
modern government, litigation may well be the sole practicable
avenue open to a minority to petition for redress of
grievances.
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
357 U. S. 460.
We 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.
Page 371 U. S. 431
127, 138. And we have refused to countenance compelled
disclosure of a person's political associations in language closely
applicable to the instant case:
"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,
354 U. S.
250-251 (plurality opinion).
Cf. De Jonge v.
Oregon, 299 U. S. 353,
299 U. S.
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 decree 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,
Page 371 U. S. 432
violated the chapter. These activities had been explored in
detail at the trial, and were spread out plainly on the record. We
have no doubt that the opinion of the Supreme Court of Appeals in
the instant case was intended as a full and authoritative
construction of Chapter 33 as applied in a detailed factual
context. That construction binds us. For us, the words of
Virginia's highest court are the words of the statute.
Hebert
v. Louisiana, 272 U. S. 312,
272 U. S. 317. We
are not left to speculate at large upon the possible implications
of bare statutory language.
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,
361 U. S. 151;
Winters v. New York, 333 U. S. 507,
333 U. S.
509-510,
333 U. S.
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,
335 U. S. 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,
310 U. S. 97-98;
Winters v. New York, supra, at
333 U. S.
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
Page 371 U. S. 433
objectionable quality of vagueness and overbreadth does not
depend upon absence of fair notice to a criminally accused or upon
unchanneled delegation of legislative powers, but upon the danger
of tolerating, in the area of First Amendment freedoms, the
existence of a penal statute susceptible of sweeping and improper
application. [
Footnote 14]
Cf. Marcus v. Search Warrant, 367 U.
S. 717,
367 U. S. 733.
These freedoms are delicate and vulnerable, as well as supremely
precious in our society. The threat of sanctions may deter their
exercise almost as potently as the actual application of sanctions.
Cf. Smith v. California, supra, at
361 U. S.
151-154;
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 526.
Because First Amendment freedoms need breathing space to survive,
government may regulate in the area only with narrow specificity.
Cantwell v. Connecticut, 310 U. S. 296,3
310 U. S. 11.
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
Page 371 U. S. 434
that the attorneys were organized as a staff and paid by
petitioner. The decree expressly forbids solicitation on behalf of
"any particular attorneys" in addition to attorneys retained or
compensated by the NAACP. In the third place, although Chapter 33
purports to prohibit only solicitation by attorneys or their
"agents," it defines agent broadly as anyone who "represents"
another in his dealings with a third person. Since the statute
appears to depart from the common law concept of the agency
relationship, and since the Virginia court did not clarify the
statutory definition, we cannot say that it will not be applied
with the broad sweep which the statutory language imports.
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
Page 371 U. S. 435
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 whether
such prosecutions or proceedings would actually be commenceed. 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; [
Footnote 15] litigation assisted by the NAACP has been
bitterly fought. [
Footnote
16] In such circumstances, a statute
Page 371 U. S. 436
broadly curtailing group activity leading to litigation may
easily become a weapon of oppression, however evenhanded its terms
appear. Its mere existence could well freeze out of existence all
such activity on behalf of the civil rights of Negro citizens.
Page 371 U. S. 437
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,
323 U. S. 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 National Labor Relations
Act and join the union he represented. This Court held that the
registration requirement as applied to his activities was
constitutionally invalid. In the instant case, members of the NAACP
urged Negroes aggrieved by the allegedly unconstitutional
segregation of public schools in Virginia to exercise their legal
rights and to retain members of the Association's legal staff. Like
Thomas, the Association and its members were advocating lawful
means of vindicating legal rights.
We hold that Chapter 33, as construed, violates the Fourteenth
Amendment by unduly inhibiting protected freedoms of expression and
association. In so holding, we reject two further contentions of
respondents. The first is that the Virginia Supreme Court of
Appeals has guaranteed free expression by expressly confirming
petitioner's right to continue its advocacy of civil rights
litigation. But in light of the whole decree of the court, the
guarantee is of purely speculative value. As construed by the
Court, Chapter 33, at least potentially, prohibits every
Page 371 U. S. 438
cooperative activity that would make advocacy of litigation
meaningful. If there is an internal tension between proscription
and protection in the statute, we cannot assume that, in its
subsequent enforcement, ambiguities will be resolved in favor of
adequate protection of First Amendment rights. Broad prophylactic
rules in the area of free expression are suspect.
See, e.g.,
Near v. Minnesota, 283 U. S. 697;
Shelton v. Tucker, 364 U. S. 479;
Louisiana ex rel. Gremillion v. NAACP, 366 U.
S. 293.
Cf. Schneider v. Irvington,
308 U. S. 147,
308 U. S. 162.
Precision of regulation must be the touchstone in an area so
closely touching our most precious freedoms.
C
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, [
Footnote 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
Page 371 U. S. 439
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,
357 U. S. 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,
361 U. S. 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,
366 U. S. 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."
However valid may be Virginia's interest in regulating the
traditionally illegal practices of barratry, maintenance and
champerty, that interest does not justify the prohibition of the
NAACP activities disclosed by this record. Malicious intent was of
the essence of the common law offenses of fomenting or stirring up
litigation. [
Footnote 18]
And whatever may be or may have been true of suits against
Page 371 U. S. 440
government in other countries, the exercise in our own, as in
this case, of First Amendment rights to enforce constitutional
rights through litigation, as a matter of law, cannot be deemed
malicious. Even more modern, subtler regulations of unprofessional
conduct or interference with professional relations, not involving
malice, would not touch the activities at bar; regulations which
reflect hostility to stirring up litigation have been aimed chiefly
at those who urge recourse to the courts for private gain, serving
no public interest. [
Footnote
19] Hostility still exists to stirring
Page 371 U. S. 441
up private litigation where it promotes the use of legal
machinery to oppress: as, for example, to so discord in a family;
[
Footnote 20] to expose
infirmities in land titles, as by hunting up claims of adverse
possession; [
Footnote 21] to
harass large companies through a multiplicity of small claims;
[
Footnote 22] or to oppress
debtors as by seeking out unsatisfied judgments. [
Footnote 23] For a member of the bar to
participate, directly or through intermediaries, in such misuses of
the legal process is conduct traditionally condemned as injurious
to the public. And beyond this, for a lawyer to attempt to reap
gain by urging another to engage in private litigation has also
been condemned: that seems to be the import of Canon 28, which the
Virginia Supreme Court of Appeals has adopted as one of its Rules.
[
Footnote 24]
Objection to the intervention of a lay intermediary, who may
control litigation or otherwise interfere with the rendering of
legal services in a confidential relationship also derives from the
element of pecuniary gain. Fearful of dangers thought to arise from
that element, the courts of several States have sustained
regulations aimed
Page 371 U. S. 442
at these activities. [
Footnote 25] We intimate no view one way or the other as
to the merits of those decisions with respect to the particular
arrangements against which they are directed. It is enough that the
superficial resemblance in form between those arrangements and that
at bar cannot obscure the vital fact that here the entire
arrangement employs constitutionally privileged means of expression
to secure constitutionally guaranteed civil rights. [
Footnote 26] There
Page 371 U. S. 443
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,
357 U. S. 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,
360 U. S.
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; [
Footnote 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
Page 371 U. S. 444
proof that any assisted Negro litigants have desired, but have
been prevented from retaining, the services of other counsel. We
realize that an NAACP lawyer must derive personal satisfaction from
participation in litigation on behalf of Negro rights, else he
would hardly be inclined to participate at the risk of financial
sacrifice. But this would not seem to be the kind of interest or
motive which induces criminal conduct.
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
course 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 expression
Page 371 U. S. 445
and association without regard to the race, creed, or political
or religious affiliation of the members of the group which invokes
its shield, or to the truth, popularity, or social utility of the
ideas and beliefs which are offered.
Reversed .
[
Footnote 1]
NAACP v. Patty, 159 F.
Supp. 503 (D.C.E.D.Va.1958). On direct appeal under 28 U.S.C. §
1253, from the judgment striking down Chapters 31, 32 and 35, this
Court reversed, remanding with instructions to permit the
complainants to seek an authoritative interpretation of the
statutes in the Virginia courts.
Harrison v. NAACP,
360 U. S. 167. In
ensuing litigation, the Circuit Court of the City of Richmond held
most of the provisions of the three chapters unconstitutional.
NAACP v. Harrison, Chancery causes No. B-2879 and No.
B-2880, Aug. 31, 1962.
[
Footnote 2]
NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960).
Chapter 36, which is codified in § 18.1-394
et seq., Code
of Virginia (1960 Repl. Vol.), prohibits the advocacy of suits
against the Commonwealth and the giving of any assistance,
financial or otherwise, to such suits.
[
Footnote 3]
Certiorari was first granted
sub nom. NAACP v. Gray.
The litigation began
sub nom. NAACP v. Patty, Attorney General
of Virginia. During the course of the litigation, the names of
successive holders of that office have been substituted as party
respondent.
See Supreme Court Rule 4, par. 3, as amended.
366 U.S. 979.
[
Footnote 4]
However, the record contains two instances where Negro litigants
had retained attorneys, not on the legal staff, prior to seeking
financial assistance from the Conference. The Conference rendered
substantial financial assistance in both cases. In one case, the
Conference paid the attorney's fee.
[
Footnote 5]
The Defense Fund, which is not involved in the present phase of
the litigation, is a companion body to the NAACP. It is also a
nonprofit New York corporation licensed to do business in Virginia,
and has the same general purposes and policies as the NAACP. The
Fund maintains a legal staff in New York City and retains regional
counsel elsewhere, one of whom is in Virginia. Social scientists,
law professors and law students throughout the country donate their
services to the Fund without compensation. When requested by the
NAACP, the Defense Fund provides assistance in the form of legal
research and counsel.
[
Footnote 6]
Seven persons who were or had been plaintiffs in Virginia public
school suits did testify that they were unaware of their status as
plaintiffs and ignorant of the nature and purpose of the suits to
which they were parties. It does not appear, however, that the
NAACP had been responsible for their involvement in litigation.
These plaintiffs testified that they had attended meetings of
parents without grasping the meaning of the discussions, had signed
authorizations either without reading or without understanding
them, and thereafter had paid no heed to the frequent meetings of
parents called to keep them abreast of legal developments. They
also testified that they were not accustomed to read newspapers or
listen to the radio. Thus, they seem to have had little grasp of
what was going on in the communities. Two of these seven plaintiffs
had been persuaded to sign authorizations by their own children,
who had picked up forms at NAACP meetings. Five were plaintiffs in
the Prince Edward County school litigation, in which 186 persons
were joined as plaintiffs.
See NAACP v.
Patty, 159 F.
Supp. 503, 517 (D.C.E.D.Va.1958).
[
Footnote 7]
Code of Virginia, 1950, §§ 54-74, 54-78, and 54-79, as amended
by Acts of 1956, Ex.Sess., c. 33 (Repl. Vol.1958), read in
pertinent part as follows (amendments in italics):
"§ 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
professional 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 54-8.1], 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."
"
* * * *"
"§ 578. . . .(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 compensated."
"
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 far 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."
"§ 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 for 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."
[
Footnote 8]
171 Va. pp. xxxii-xxxiii, xxxv (1938). Canon 35 reads in part as
follows:
"
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."
[
Footnote 9]
"[T]he solicitation of legal business by the appellants, their
officers, members, affiliates, voluntary workers and attorneys, as
shown by the evidence, violates chapter 33 and the canons of legal
ethics;"
"
* * * *"
". . . 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 of
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.
[
Footnote 10]
Petitioner also claims that Chapter 33, as construed, denies
equal protection of the laws, and is so arbitrary and irrational as
to deprive petitioner of property without due process of law.
[
Footnote 11]
It is unclear -- and immaterial -- whether the Virginia court's
opinion is to be read as holding that NAACP's activities violated
the Canons because they violated Chapter 33, or as reinforcing its
holding that Chapter 33 was violated by finding an independent
violation of the Canons. Our holding that petitioner's activities
are constitutionally protected applies equally whatever the source
of Virginia's attempted prohibition.
[
Footnote 12]
Murphy, The South Counterattacks: The Anti-NAACP Laws, 12
W.Pol.Q. 371 (1959).
See Bentley, The Process of
Government: A Study of Social Pressures (1908); Rosenblum, Law as a
Political Instrument (1955); Peltason, Federal Courts in the
Political Process (1955); Truman, The Governmental Process:
Political Interests and Public Opinion (1955); Vose, The National
Consumers' League and the Brandeis Brief, 1 Midw.J. of Pol.Sci. 267
(1957); Comment, Private Attorneys-General: Group Action in the
Fight for Civil Liberties, 58 Yale L.J. 574 (1949).
[
Footnote 13]
Cf. Opinion 148, Committee on Professional Ethics and
Grievances, American Bar Association (1935), ruling that the
Liberty League's program of assisting litigation challenging New
Deal legislation did not constitute unprofessional conduct.
[
Footnote 14]
Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme
Court, 109 U. of Pa.L.Rev. 67, 75-76, 80-81, 96-104 (1960).
[
Footnote 15]
See NAACP v. Patty, 159 F.
Supp. 503, 516-517 (D.C.E.D.Va.1958);
Davis v. County
School Board, 149 F.
Supp. 431, 438-439 (D.C.E.D.Va.1957),
rev'd on other
grounds sub nom. Allen v. County School Board, 249 F.2d 462
(C.A.4th Cir.); Muse, Virginia's Massive Resistance (1961),
passim.
[
Footnote 16]
See, e.g., County School Bd. v. Thompson, 240 F.2d 59,
64 (C.A.4th Cir.1956) (conduct of defendant termed a "clear
manifestation of an attitude of intransigence . . .");
James v.
Duckworth, 170 F.
Supp. 342, 350 (D.C.E.D.Va.1959),
aff'd, 267 F.2d 224
(C.A.4th Cir.);
Allen v. County School Bd., 266 F.2d 507
(C.A.4th Cir.1959);
Allen v. County School
Bd., 198 F.
Supp. 497, 502 (D.C.E.D.Va.1961). Most NAACP-assisted
litigation in Virginia in recent years has been litigation
challenging public school segregation. The sheer mass of such (and
related) litigation is an indication of the intensity of the
struggle: ALEXANDRIA:
Jones v. School Bd., 179 F.
Supp. 280 (D.C.E.D.Va.1959);
Jones v. School Bd., 278
F.2d 72 (C.A.4th Cir.1960). ARLINGTON:
County School Bd. v.
Thompson, 240 F.2d 159 (C.A.4th Cir.1956);
Thompson v.
County School Bd., 144 F.
Supp. 239 (D.C.E.D.Va.1956);
159 F.
Supp. 567 (D.C.E.D.Va.1957);
166 F.
Supp. 529 (D.C.E.D. Va 1958); 252 F.2d 929 (C.A.4th Cir.1958);
2 Race Rel. 810 (D.C.E.D.Va.1957); 4 Race Rel. 609
(D.C.E.D.Va.1959); 4 Race Rel. 880 (D.C.E.D.Va.1959);
Hamm v.
School Bd. of Arlington Co., 263 F.2d 226 (C.A.4th Cir.1959);
264 F.2d 945 (C.A.4th Cir.1959). CHARLOTTESVILLE:
School Bd. v.
Allen, 240 F.2d 59 (C.A.4th Cir.1956);
Allen v. School
Bd., 1 Race Rel. 886 (D.C.W.D.Va.1956); 2 Race Rel. 986
(D.C.W.D.Va.1957); 3 Race Rel. 937 (D.C.W.D.Va.1958); 4 Race Rel.
881 (D.C.W.D.Va.1959); 263 F.2d 295 (C.A.4th Cir.1959); 203 F.
Supp. 225 (D.C.W.D.Va.1961);
Dodson v. School Bd., 289
F.2d 439 (C.A.4th Cir.1961);
Dillard v. School Bd., 308
F.2d 920 (C.A.4th Cir.1962). FAIRFAX COUNTY:
Blackwell v.
Fairfax Co. School Bd., 5 Race Rel. 1056 (D.C.E.D.Va.1960).
FLOYD COUNTY:
Walker v. Floyd Co. School Bd., 5 Race Rel.
1060 (D.C.W.D.Va.1960); 5 Race Rel. 714 (D.C.W.D.Va.1960). GRAYSON
COUNTY:
Goins v. County School Bd., 186 F. Supp. 753
(D.C.W.D.Va.1960); 282 F.2d 343 (C.A.4th Cir.1960). NORFOLK:
Beckett v. School Bd., 2 Race Rel. 337 (D.C.E.D.Va.1957);
148 F.
Supp. 430 (D.C.E.D.Va.1957); 3 Race Rel. 942-964
(D.C.E.D.Va.1958); 260 F.2d 18 (C.A.4th Cir. 1958); 246 F.2d 325
(C.A.4th Cir.1957);
181 F.
Supp. 870 (D.C.E.D.Va.1959);
185 F.
Supp. 459 (D.C.E.D.Va.1959);
Farley v. Turner, 281
F.2d 131 (C.A.4th Cir.1960);
Hill v. School Bd., 282 F.2d
47:3 (C.A.4th Cir.1960);
James v.
Duckworth, 170 F.
Supp. 342 (D.C.E.D.Va.1959); 267 F.2d 224 (C.A.4th Cir.1959);
Adkinson v. School Bd. of Newport News, 3 Race Rel. 938
(D.C.E.D.Va.1958);
Adkins v. School Bd. of Newport
News, 148 F.
Supp. 430 (D.C.E.D.Va.1957); 2 Race Rel. 334 (D.C.E.D.Va.1957);
246 F.2d 325 (C.A.4th Cir.1957);
Harrison v. Day, 200 Va.
439, 106 S.E.2d 636 (1959);
James v.
Almond, 170 F.
Supp. 331 (D.C.E.D.Va.1959). PRINCE EDWARD COUNTY:
Davis v.
School Bd. of Prince Edward Co., 347 U.
S. 483;
349 U. S. 294; 1
Race Rel. 82 (D.C.E.D.Va.1955);
142 F.
Supp. 616 (D.C.E.D.Va.1956);
149 F.
Supp. 431 (D.C.E.D.Va.1957); Allen v. School Bd.,
164 F.
Supp. 786 (D.C.E.D.Va.1958); 249 F.2d 462 (C.A.4th Cir.1957);
266 F.2d 507 (C.A.4th Cir.1959); 6 Race Rel. 432 (D.C.E.D.Va.1961);
198 F.
Supp. 497 (D.C.E.D.Va.1961);
Southern School News,
Aug.1962, p. 1. PULASKI COUNTY:
Crisp v. Pulaski Co. School
Bd., 5 Race Rel. 721 (D.C.W.D.Va.1960). RICHMOND:
Calloway
v. Farley, 2 Race Rel. 1121 (D.C.E.D.Va.1957);
Warden v.
Richmond School Bd., 3 Race Rel. 971 (D.C.E.D.Va.1958). WARREN
COUNTY:
Kilby v. County School Bd., 3 Race Rel. 97-973
(D.C.W.D.Va.1958);
County School Bd. v. Kilby, 259 F.2d
497 (C .4th Cir.1958).
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.
[
Footnote 17]
See 4 Blackstone, Commentaries, 134-136.
See
generally Radin, Maintenance by Champerty, 24 Cal.L.Rev. 48
(1935).
[
Footnote 18]
See, e.g., Commonwealth v. McCulloch, 15 Mass. 227
(1818):
Brown v. Beauchamp, 5 T.B.Mon. 413 (Ky. 1827);
Perkins, Criminal Law, 449 454 (1957); Note, 3 Race Rel. 1257-1259
(1958).
The earliest regulation of solicitation of legal business in
England was aimed at the practice whereby holders of claims to land
conveyed them to great feudal lords, who used their power or
influence to harass the titleholders.
See Winfield, The
History of Conspiracy and Abuse of Legal Procedure, 152 (1921).
[
Footnote 19]
See Comment: A Critical Analysis of Rules Against
Solicitation by Lawyers, 25 U. of Chi.L.Rev. 674 (1958). But truly
nonpecuniary arrangements involving the solicitation of legal
business have been frequently upheld.
See In re
Ades, 6 F. Supp.
467 (D.C.D. Md.1934) (lawyer's volunteering his services to a
litigant, without being asked, held not unprofessional where
"important issues" were at stake);
Gunnels v. Atlanta Bar
Assn., 191 Ga. 366, 12 S.E.2d 602 (1940) (arrangement whereby
a local bar association publicly offered to represent, free of
charge, persons victimized by usurers, upheld). Of particular
pertinence to the instant case is Opinion 148,
supra. note
13. In the 1930's, a National Lawyers Committee was formed under
the auspices of the Liberty League. The Committee proposed (1) to
prepare and disseminate through the public media of communications
opinions on the constitutionality of state and federal legislation
(it appears, particularly New Deal legislation); (2) to offer
counsel, without fee or charge, to anyone financially unable to
retain counsel who felt that such legislation was violating his
constitutional rights. The ABA's Committee on Professional Ethics
and Grievances upheld the arrangement. Opinion 148, Opinions of the
Committee on Professional Ethics and Grievances, American Bar
Association, 308-312 (1957);
see Comment, 36 Col.L.Rev.
993.
Also, for example, the American Civil Liberties Union has for
many years furnished counsel in many cases in many different parts
of the country, without governmental interference. Although this
intervention is mostly in the form of
amicus curiae
briefs, occasionally counsel employed by the Union appears directly
on behalf of the litigant.
See Comment, Private
Attorneys-General: Group Action in the Fight for Civil Liberties,
58 Yale L.J. 574, 576 (1949); ACLU Report on Civil Liberties
1951-1953, pp. 9-10.
[
Footnote 20]
See Encouraging Divorce Litigation as Ground for
Disbarment or Suspension, 9 A.L.R. 1500 (1920); "Heir-hunting" as
Ground for Disciplinary Action Against Attorney, 171 A.L.R. 351,
352-355 (1947).
[
Footnote 21]
See Backus v. Byron, 4 Mich. 535, 551-552 (1857).
[
Footnote 22]
See Matter of Clark, 184 N.Y. 222, 77 N.E. 1 (1906);
Gammons v. Johnson, 76 Minn. 76, 78 N.W. 1035 (1899).
[
Footnote 23]
See Petition of Hubbard, 267
S.W.2d 743 (Ky.Ct.App. 1954).
[
Footnote 24]
See 171 Va. p. xxix, following the American Bar
Association's Canons of Professional Ethics, No. 28:
"It is unprofessional for a lawyer to volunteer advice to bring
a lawsuit, except in rare cases where ties of blood, relationship
or trust make it his duty to do so. . . . It is disreputable . . .
to breed litigation by seeking out those with claims for personal
injuries or those having any other grounds of action in order to
secure them as clients, or to employ agents or runners for like
purposes. . . ."
[
Footnote 25]
See People ex rel. Courtney v. Association of Real Estate
Taxpayers, 354 Ill. 102, 187 N.E. 823 (1933) (Association to
contest constitutionality of tax statutes in which parties and
Association attorneys had large sums of money at stake);
In the
Matter of Maclub of America, Inc., 295 Mass. 5, 3 N.E.2d 272
(1936) (motorists' association recommended and paid the fees of
lawyers to prosecute or defend claims on behalf of motorist
members);
see also People ex rel. Chicago Bar Assn. v. Chicago
Motor Club, 362 Ill. 50, 199 N.E. 1 (1935). One aspect of the
lay intermediary problem which involved the absence of evidence of
palpable control or interference was an arrangement adopted by the
Brotherhood of Railroad Trainmen in 1930 under which union members
having claims under the Federal Employers' Liability Act were
induced to retain lawyers selected by the Brotherhood and to make
25% contingent fee agreements with such lawyers. The arrangement
was struck down by several state courts. To the courts which
condemned the arrangement, it appeared in practical effect to
confer a monopoly of FELA legal business upon lawyers chosen by the
Brotherhood. These courts also saw it as tending to empower the
Brotherhood to exclude lawyers from participation in a lucrative
practice, and to cause the loyalties of the union-recommended
lawyers to be divided between the union and their clients.
E.g., Hildebrand v. State Bar, 36 Cal. 2d
504, 225 P. & 508 (1950);
Doughty v. Grills, 37
Tenn.App. 63,
260
S.W.2d 379 (1952);
In re Brotherhood of Railroad
Trainmen, 13 Ill.
2d 391,
150
N.E.2d 163 (1958);
see Student Symposium, 107 U. of
Pa.L.Rev. 387 (1959); 11 Stan.L.Rev. 394 (1959). These decisions
have been vigorously criticized.
See Traynor, J.,
dissenting in
Hildebrand, supra; Drinker, Legal Ethics,
161-167 (1953).
[
Footnote 26]
Compare Opinion 148,
supra, n 13, 19, at 312 (1957):
"The question presented, with its implications, involves
problems of political, social and economic character that have long
since assumed the proportions of national issues, on one side or
the other which multitudes of patriotic citizens have aligned
themselves. These issues transcend the range of professional
ethics."
[
Footnote 27]
Improper competition among lawyers is one of the important
considerations relied upon to justify regulations against
solicitation.
See Note, Advertising, Solicitation and
Legal Ethics, 7 Vand.L.Rev. 677, 684 (1954).
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 NAACP 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 Fourteenth Amendment,
was announced May 17, 1954. The amendments to Virginia's code, here
in issue, were enacted in 1956. Arkansas, Florida, Georgia,
Mississippi, South Carolina, and Tennessee
* also passed laws
following our 1954 decision which brought within their barratry
statutes attorneys paid by an organization such as the NAACP and
representing litigants without charge.
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
NAACP v. Patty, 159 F.
Supp. 503, 515. He did not indulge in guesswork. He
Page 371 U. S. 446
reviewed the various steps taken by Virginia to resist our
Brown decision, starting with the Report of the Gray
Commission on November 11, 1955.
Id. at 512. He mentioned
the "interposition resolution" passed by the General Assembly on
February 1, 1956, the constitutional amendment made to carry out
the recommendation of the Report of the Gray Commission, and the
address of the Governor before the General Assembly that enacted
the five laws, including the present one.
Id. at 513-515.
These are too lengthy to repeat here. But they make clear the
purpose of the present law -- as clear a purpose to evade our prior
decisions as was the legislation in
Lane v. Wilson,
307 U. S. 268,
another instance of a discriminatory state law. The fact that the
contrivance used is subtle and indirect is not material to the
question. "The Amendment nullifies sophisticated, as well as
simple-minded, modes of discrimination."
Id. at
307 U. S. 275.
There we looked to the origins of the state law and the setting in
which it operated to find its discriminatory nature. It is proper
to do the same here.
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
NAACP v. Alabama, 357 U.
S. 449,
357 U. S. 459,
the NAACP 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.
Page 371 U. S. 447
* Ark.Stat.Ann., 1947 (Cum.Supp. 1961), §§ 41-703 to 41-713;
Fla.Stat.Ann., 1944 (Cum.Supp. 1962), §§ 877.01 to 877.02, Ga.Code
Ann., 1953 (Cum.Supp. 1961), §§ 26-4701, 26-4703; Miss.Code Ann.,
1956, §§ 2049-01 to 2049-08; S.C.Code, 1952 (Cum.Supp. 1960), §§
56-147 to 56-147.6; Tenn.Code Ann., 1956 (Cum. Supp 1962), §§
39-3405 to 39-3410.
MR. JUSTICE WHITE, concurring in part and dissenting in
part.
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 lawyers 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
Page 371 U. S. 448
drawn statute. To the extent that it would, I am in
disagreement. Certainly the NAACP, as I understand its position
before this Court, denied that it had managed or controlled the
litigation which it had urged its members or others to bring,
disclaimed any desire to do so, and denied any adverse effects upon
its operations if lawyers representing clients in school
desegregation or other litigation financed by the NAACP represented
only those clients and were under no obligation to follow the
dictates of the NAACP in the conduct of that litigation. I would
avoid deciding a case not before the Court.
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 Fourteenth
Amendment is to be judged by the same basic constitutional
standards whether or not racial problems are involved. No worse
setback could befall the great principles established by
Brown
v. Board of Education, 347 U. S. 483,
than to give fair-minded persons reason to think otherwise. With
all respect, I believe that the striking down of this Virginia
statute cannot be squared with accepted constitutional doctrine in
the domain of state regulatory power over the legal profession.
I
At the 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
Page 371 U. S. 449
give financial support to litigation not handled by a staff
lawyer.) As such, they are selected by petitioner, are compensated
by it for work in litigation (whether or not petitioner is a party
thereto), and, so long as they remain on the staff, are necessarily
subject to its directions. As the Court recognizes, it is incumbent
on staff members to agree to abide by NAACP policies.
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 South-wide 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 should 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
Page 371 U. S. 450
petitioner stated: "Selection of suit sites reserved for legal
staff"; "State legal staff ready for action in selected areas",
and
"The majority of our branches are willing to support legal
action or any other program leading to early desegregation of
schools that may be suggested by the National and State Conference
officers."
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
Page 371 U. S. 451
has been shown to have sought plaintiffs under false pretenses
or by inaccurate statements. But there is no basis for concluding
that these were isolated incidents, or that petitioner's methods of
operation have been such as to render these happenings out of the
ordinary.
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 longstanding
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.
371 U. S.
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
Page 371 U. S. 452
particular attorneys." Further, the court determined that
Chapter 33 did not preclude petitioner from contributing money to
persons to assist them in prosecuting suits, if the suits
"have not been solicited by the appellants [the NAACP and
Defense Fund] or those associated with them, and channeled by them
to their attorneys or any other attorneys."
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,
365 U. S.
137-138,
Page 371 U. S. 453
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." [
Footnote
2/1] 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 working men 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,
Page 371 U. S. 454
the State not only is without power to impose a blanket
prohibition on their exercise,
Thornhill v. Alabama,
310 U. S. 88, but
also may not place any significant obstacle in their path,
Thomas v. Collins, 323 U. S. 516.
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. [
Footnote 2/2] A legislature may not wholly
eliminate the right of collective action by workingmen, [
Footnote 2/3] but it may to a significant
extent dictate the form their organization shall take, [
Footnote 2/4] 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,
341 U. S.
705.
Turning to the present case, I think it evident that the basic
rights in issue are those of the petitioner's members
Page 371 U. S. 455
to associate, to discuss, and to advocate. Absent the gravest
danger to the community, these rights must remain free from frontal
attack or suppression, and the state court has recognized this in
striking down Chapter 36 and in carefully limiting the impact of
Chapter 33. But litigation, whether or not associated with the
attempt to vindicate constitutional rights, is conduct; it is
speech plus. Although the State surely may not broadly prohibit
individuals with a common interest from joining together to
petition a court for redress of their grievances, it is equally
certain that the State may impose reasonable regulations limiting
the permissible form of litigation and the manner of legal
representation within its borders. Thus, the State may, without
violating protected rights, restrict those undertaking to represent
others in legal proceedings to properly qualified practitioners.
And it may determine that a corporation or association does not
itself have standing to litigate the interests of its shareholders
or members -- that only individuals with a direct interest of their
own may join to press their claims in its courts. Both kinds of
regulation are undeniably matters of legitimate concern to the
State, and their possible impact on the rights of expression and
association is far too remote to cause any doubt as to their
validity.
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.
Page 371 U. S. 456
See, e.g., Dent v. West Virginia, 129 U.
S. 114;
Semler v. Oregon State Board of Dental
Examiners, 294 U. S. 608;
Williamson v. Lee Optical Co., 348 U.
S. 483. But the regulation of professional standards for
members of the bar comes to us with even deeper roots in history
and policy, since courts for centuries have possessed disciplinary
powers incident to the administration of justice.
See Cohen v.
Hurley, 366 U. S. 117,
366 U. S.
123-124;
Konigsberg v. State Bar, 366 U. S.
36;
Martin v. Walton, 368 U. S.
25. 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. [
Footnote 2/5] The Court
Page 371 U. S. 457
recognizes this formidable history, but puts it aside in the
present case on the grounds that there is here no element of malice
or of pecuniary gain, that the interests of the NAACP are not to be
regarded as substantially different from those of its members, and
that we are said to be dealing here with a matter that transcends
mere legal ethics -- the securing of federally guaranteed rights.
But these distinctions are too facile. They do not account for the
full scope of the State's legitimate interest in regulating
professional conduct. For although these professional standards may
have been born in a desire to curb malice and self-aggrandizement
by those who would use clients and the courts for their own
pecuniary ends, they have acquired a far broader significance
during their long development.
First, with regard to the claimed 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. [
Footnote
2/6] 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
Page 371 U. S. 458
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. [
Footnote 2/7]
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; [
Footnote 2/8]
People ex rel. Chicago Bar Assn. v. Chicago Motor Club,
362 Ill. 50, 199 N.E. l;
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
Page 371 U. S. 459
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 Federal Employers' Liability Act
[
Footnote 2/9] were not
inconsistent with a state law forbidding lay solicitation of legal
business. The court found that each lodge of the Brotherhood
appointed a member to file accident reports with the central
office, and these reports were sent by the central office to a
regional investigator, who, equipped with a contract form for the
purpose, would urge the injured member to consult and employ one of
the 16 regional attorneys retained by the Brotherhood. The regional
counsel offered his services to the injured person on the basis of
a contingent fee, the amount of which was fixed by the Brotherhood.
The counsel themselves bore the costs of investigation and suit and
of operating the Union's legal aid department.
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
Page 371 U. S. 460
been condemned by every state court which has considered them.
Petition of Committee on Rule 28 of the Cleveland Bar
Assn., 15 Ohio L.Abs. 106;
In re
O'Neill, 5 F. Supp.
465 (D.C.E.D.N.Y.);
Hildebrand v. State
Bar, 36 Cal. 2d
504, 225 P.2d 508;
Doughty v. Grills, 37 Tenn.App. 63,
260
S.W.2d 379,
and see Atchison, T. & S.F. R. Co. v.
Jackson, 235 F.2d 390, 393 (C.A. 10th Cir.). And for similar
opinions on related questions by bar association committees,
see Opinion A, Opinions of the Committee on Unauthorized
Practice of the Law, American Bar Assn., 36 A.B.A.J. 677; Opinion
773, Committee on Professional Ethics, Assn. of the Bar of the City
of New York.
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
Page 371 U. S. 461
York Court of Appeals in
In re Co-operative Law Co.,
198 N.Y. 479, 483-484, 92 N.E. 15, 16:
"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. [
Footnote 2/10] But the continued vitality of the
principles involved is beyond dispute, [
Footnote 2/11] 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.
371 U. S. 443.
Support for this claim is sought in our procedural holding in
NAACP v.
Alabama, 357 U.S.
Page 371 U. S. 462
449,
357 U. S.
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 parent 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.
371 U. S.
457-460.
Page 371 U. S. 463
For here, the interests of the NAACP go well beyond the
providing of competent counsel for the prosecution or defense of
individual claims; they embrace broadly fixed substantive policies
that may well often deviate from the immediate, or even long-range,
desires of those who choose to accept its offers of legal
representations. This serves to underscore the close
interdependence between the State's condemnation of solicitation
and its prohibition of the unauthorized practice of law by a lay
organization.
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. [
Footnote 2/12]
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
Page 371 U. S. 464
assistance of indigent litigants. Thus, the state policy is not
unrelated to the federal rules of standing -- the insistence that
federal court litigants be confined to those who can demonstrate a
pressing personal need for relief.
See McCabe v. Atchison, T.
& S.F. R. Co., 235 U. S. 151,
235 U. S. 162;
Massachusetts v. Mellon, 262 U. S. 447,
262 U. S. 488;
cf. Stark v. Wickard, 321 U. S. 288,
321 U. S.
304-305, and cases cited therein. This is a requirement
of substance, as well as form. It recognizes that, although
litigation is not something to be avoided at all costs, it should
not be resorted to in undue haste, without any effort at
extrajudicial resolution, and that those lacking immediate private
need may make unnecessary broad attacks based on inadequate
records. Nor is the federal interest in impeding precipitate resort
to litigation diminished when that litigation concerns
constitutional issues; if anything, it is intensified.
United
Public Workers v. Mitchell, 330 U. S. 75,
330 U. S.
86-91.
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.
371 U. S.
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 attorney-client
Page 371 U. S. 465
relationships which the State reasonably may demand. There
inheres in these arrangements, then, the potentialities of divided
allegiance and diluted responsibility which the State may properly
undertake to prevent.
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.
371 U. S.
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
Page 371 U. S. 466
the NAACP's legal staff or otherwise subject to the
Association's direction and control. Proceeding from this premise,
the Court ends by invalidating the entire statute on the basis that
this alleged vagueness too readily lends itself to the stifling of
protected activity.
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 vagueness 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 workers
Page 371 U. S. 467
and attorneys" from soliciting legal business for "their
attorneys." [
Footnote 2/13] And
the state court made it clear that "their attorneys" referred to
"attorneys whom they [the NAACP and the Fund] pay, and who are
subject to their directions." 202 Va. at 164, 116 S.E.2d at 72.
This is the practice with which the state court's opinion is
predominantly concerned, and which gave rise to the intensive
consideration by that court of the relations between petitioner and
its legal staff. Surely there is no element of uncertainty involved
in this prohibition. The state court has made it plain that the
solicitation involved is not the advocacy of litigation in general
or in particular, but only that involved in the handling of
litigation by petitioner's own paid and controlled staff attorneys.
Compare Thomas v. Collins, 323 U.
S. 516.
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 prospective
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
Page 371 U. S. 468
one of those attorneys, and indeed strongly indicates that such
an arrangement would not have been acceptable to the NAACP so long
as such a lawyer remained on its legal staff. And the state court's
opinion makes it clear that that court was not directing itself to
any such situation.
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." [
Footnote 2/14] 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,
301 U. S. 30, and
cases cited;
United States v. Rumely, 345 U. S.
41,
345 U. S.
47.
But even if the statute justly lent itself to the now attributed
ambiguity, the Court should excise only the ambiguous part of it,
not strike down the enactment in
Page 371 U. S. 469
its entirety. Our duty to respect state legislation, and to go
no further than we must in declining to sustain its validity, has
led to a doctrine of separability in constitutional adjudication,
always followed except in instances when its effect would be to
leave standing a statute that was still uncertain in its potential
application. [
Footnote 2/15]
See Smith v. California, 361 U. S. 147,
361 U. S. 151.
Given the "ambiguity" view of the Court, the separability doctrine
should at least have been applied here, since what would then
remain of Chapter 33 could not conceivably be deemed ambiguous.
[
Footnote 2/16] In my view,
however, the statute as construed below is not ambiguous at
all.
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.
371 U. S.
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
Page 371 U. S. 470
powers over the Virginia legal profession, leaves no room for
any finding of discriminatory purpose. Petitioner is merely one of
a variety of organizations that may come within the scope of the
longstanding prohibitions against solicitation and unauthorized
practice. It would, of course, be open to the petitioner, if the
facts should warrant, to claim that Chapter 33 was being enforced
discriminatorily as to it and not against others similarly
circumstanced.
See Yick Wo v. Hopkins, 118 U.
S. 356,
118 U. S.
373-374. But the present record is barren of any
evidence suggesting such unequal application, and we may not
presume that it will occur.
Leberman v. Van de Carr,
199 U. S. 552,
199 U. S.
562-563;
Douglas v. Noble, 261 U.
S. 165,
261 U. S. 170.
[
Footnote 2/17]
I would affirm.
[
Footnote 2/1]
Konigsberg v. State Bar, 366 U. S.
36,
366 U. S. 551,
and see cases cited therein, including
Cox v. New
Hampshire, 312 U. S. 569;
Chaplinsky v. New Hampshire, 315 U.
S. 568;
Breard v. Alexandria, 341 U.
S. 622;
Roth v. United States, 354 U.
S. 476;
Bates v. Little Rock, 361 U.
S. 516,
361 U. S. 524;
Wilkinson v. United States, 365 U.
S. 399.
[
Footnote 2/2]
See Thomas v. Collins, 323 U.
S. 516,
323 U. S.
544-545 (concurring opinion);
American
Communications Assn. v. Douds, 339 U.
S. 382;
De Veau v. Braisted, 363 U.
S. 144.
[
Footnote 2/3]
See the discussion in
Hague v. C.I.O.,
307 U. S. 496,
307 U. S. 518,
307 U. S.
523-525 (opinion of Mr. Justice Stone).
[
Footnote 2/4]
See, e.g., the Labor-Management Reporting and
Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. (Supp. III) §§ 401
et seq.
[
Footnote 2/5]
See 4 Blackstone, Commentaries, 134-136. Even apart
from any state statutory provisions, state judiciaries normally
consider themselves free, in the exercise of their supervisory
authority over the bar, to enforce these prohibitions derived from
the common law.
See, e.g., In re Co-operative Law Co., 198
N.Y. 479, 92 N.E. 15;
People ex rel. Courtney v. Association of
Real Estate Taxpayers, 354 111. 102, 187 N.E. 823;
In re
Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, and cases
cited therein. Many States, however, also have statutes dealing
with these matters. Some merely incorporate the common law
proscriptions of barratry and maintenance.
E.g., Del.Code
Ann., 1953, Tit. 11, § 371; Mo.Stat.Ann., § 557.470 (Vernon, 1953).
Several specifically prohibit the solicitation of legal business
for a lawyer by an agent or "runner."
E.g.,
Conn.Gen.Stat., 1958, § 51-87; N.C.Gen.Stat., § 84-38 (1958 Repl.
Vol.); Wis.Stat.Ann., § 256.295(1). About 25 States prohibit the
unauthorized practice of law by corporations. American Bar
Foundation, Unauthorized Practice Statute Book (1961), 78-90.
Virginia's concern with these problems dates back to the
beginning of the Commonwealth. Act of December 8, 1792, 1 Va.Stat.
110 (Shepherd, 1835). Sections 54-74 and 54-78, which, as amended,
are before us today, were originally enacted in 1932, Va. Acts
1932, cc. 129, 284, and the Virginia Supreme Court of Appeals
adopted the American Bar Association Canons of Ethics
in haec
verba in 1938. Virginia Canons of Professional Ethics, 171 Va.
xviii-xxxv. As in many other States, the judiciary of Virginia has
declared its inherent authority to assure proper ethical
deportment.
See, e.g., Richmond Assn. of Credit Men, Inc., v.
Bar Assn., 167 Va. 327, 335-336, 189 S.E. 153, 157.
[
Footnote 2/6]
Virginia's policy of promoting aid to indigent suitors is of
long standing,
see 2 The Papers of Thomas Jefferson (Boyd
ed.1950), 628, and the decision of the state court in this case
fully implements that policy.
[
Footnote 2/7]
The Court, p.
371 U. S. 442,
n. 25,
ante, deals with the Real Estate Taxpayers 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.
[
Footnote 2/8]
The activities of the Association in this
Maclub case
were more limited than those of the Association in the
Real
Estate Taxpayers case. The attorneys in
Maclub were
selected and retained directly by the members, and bills were then
submitted to and paid by the Association.
[
Footnote 2/9]
35 Stat. 65 (1908), as amended, 45 U.S.C. §§ 51-60.
[
Footnote 2/10]
See, e.g., Weihofen, "Practice of Law by Non-Pecuniary
Corporations: A Social Utility," 2 U. of Chi.L.Rev. 119; Drinker,
Legal Ethics, 161-167; Traynor, J., dissenting in
Hildebrand v.
State Bar, supra.
[
Footnote 2/11]
In addition to the decisions discussed in the text, further
evidence of the attitude of the bench and bar is found in a survey
described in McCracken, Report on Observance by the Bar of Stated
Professional Standards, 37 Va.L.Rev. 399, 400-401 (1951).
[
Footnote 2/12]
It is interesting to note the Court's reliance on Opinion 148,
Opinions of the Committee on Professional Ethics and Grievances,
American Bar Assn. This opinion, issued in 1935 at the height of
the resentment in certain quarters against the New Deal, approved
the practice of the National Lawyers Committee of the Liberty
League in publicly offering free legal services (without
compensation from any source) to anyone who was
unable to
afford to challenge the constitutionality of legislation which
he believed was violating his rights. The opinion may well be
debatable as a matter of interpretation of the Canons. But, in any
event, I think it wholly untenable to suggest (as the Court does in
its holding today) that a contrary opinion regarding
paid
legal services to
nonindigent litigants would be
unconstitutional.
[
Footnote 2/13]
As a corollary, attorneys are prohibited, by the law as
construed, from accepting employment by petitioner in suits
solicited by petitioner.
[
Footnote 2/14]
The full text of those portions of the state court opinion in
which these phrases appear is quoted in
footnote 9 of the majority opinion ante, p.
371 U. S.
426.
[
Footnote 2/15]
Of course, if we refuse to sustain one part of a state statute,
the state court, on remand, may decide that the remainder of the
statute can no longer stand, but insofar as that conclusion is
reached as a matter of state law, it is of no concern to us.
[
Footnote 2/16]
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.
[
Footnote 2/17]
It has been suggested that the state law may contain an
invidious discrimination because it treats those organizations that
have a pecuniary interest in litigation (for example, an insurance
company) differently from those that do not. But surely it cannot
be said that this distinction, which is so closely related to
traditional concepts of privity, lacks any rational basis. The
importance of the existence of a pecuniary interest in determining
the propriety of sponsoring litigation has long been recognized at
common law, both in England,
see Findon v. Parker, 11 M.
& W. 675, 152 Eng.Rep. 976 (Exch. 1843), and in the United
States,
see, e.g., Dorwin v. Smith, 35 Vt. 69;
Vaughan
v. Marable, 64 Ala. 60, 66 67;
Smith v. Hartsell, 150
N.C. 71, 63 S.E. 172. The distinction drawn by the Virginia law is
not without parallel in the requirement that, in the absence of a
statute or rule, a suit in a federal court attacking the validity
of a law may be brought only by one who is in immediate danger of
sustaining some direct and substantial injury as the result of its
enforcement, and not by one who merely "suffers in some indefinite
way in common with people generally," or even in common with
members of the same race or class.
Massachusetts v.
Mellon, 262 U. S. 447,
262 U. S.
487-488.
See McCabe v. Atchison, T. & S.F. R.
Co., 235 U. S. 151,
235 U. S. 162.
And, of course, the motives of the Virginia legislators in enacting
Chapter 33 are beyond the purview of this Court's responsibilities.
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 130;
see Arizona v. California, 283 U.
S. 423,
283 U. S. 455;
cf. Tenney v. Brandhove, 341 U. S. 367,
341 U. S.
377.