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By DAVID L. HUDSON Jr.
First Amendment Center
Fifty years ago — on Jan. 14, 1963 — the U.S. Supreme Court invalidated a Virginia law that was being used to quash the work of the National Association for the Advancement of Colored People.
The court ruled in NAACP v. Button that the First Amendment protected the group’s efforts to solicit plaintiffs to challenge segregation policies.
The state of Virginia had passed a law expanding the definition of the improper solicitation of legal or professional business.
Although the law did not specifically target civil rights groups, its broad language encompassed efforts such as those by the NAACP, which sought to finance and develop litigation aimed at ending racial segregation in public schools. Lower courts had upheld the Virginia law, but the U.S. Supreme Court struck it down, basing its decision largely on First Amendment grounds.
“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 Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession,” wrote Justice William Brennan for the majority. “For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”
Brennan emphasized that “association for litigation may be the most effective form of political association” for minority groups facing government and other societal opposition.
Virginia argued that it was trying to combat evils associated with the unnecessary stirring up of litigation, what is often known as barratry and champerty.
But Brennan determined that “a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”
Traditional bans on solicitation of legal business focused on the use of the legal machinery to oppress others or for financial gain. The NAACP was not engaged in these sorts of activities.
“Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal profession for purely private gain,” Brennan wrote.
First Amendment expert Robert M. O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said the case was quite significant.
“The case established … broad First Amendment protection for civil rights and other cause-oriented litigation … (and) quite simply establish[ed] full protection for encouragement by lawyers of public-interest litigation,” said O’Neil, who clerked for Justice Brennan while this case was before the Court.
O’Neil said that his fellow law clerk — Richard Posner, the eminent legal jurist and scholar on the 7th U.S. Circuit Court of Appeals — wrote a draft of the opinion for Justice Brennan. The opinion contains many important strands of modern First Amendment law, including passages explaining strict scrutiny, compelling interest, overbreadth, chilling effect and other key concepts.
But, most fundamentally, the decision was important to the civil rights movement and public-interest legal work. The decision not only expanded First Amendment jurisprudence but also vitalized public-interest litigation.
David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.