NAACP v. Button

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NAACP v. Button
Seal of the United States Supreme Court.svg
Argued November 8, 1961
Reargued October 9, 1962
Decided April 2, 1963
Full case name National Association for the Advancement of Colored People v. Button
Citations 371 U.S. 415 (more)
83 S. Ct. 328; 9 L. Ed. 2d 405
Prior history 202 Va. 142, 116 S. E. 2d 55
Virginia laws on barratry, champerty, and maintenance violate the 1st and 14th Amendments
Court membership
Case opinions
Majority Brennan, joined by Warren, Black, Goldberg
Concurrence Douglas
Concur/dissent White
Dissent Harlan, joined by Clark, Stewart
Laws applied
1st Amendment; 14th Amendment

NAACP v. Button, 371 U.S. 415 (1963) is a 6-to-3 ruling by the Supreme Court of the United States which held that the reservation of jurisdiction by a federal district court did not bar the U.S. Supreme Court from reviewing a state court's ruling, and also overturned certain laws enacted by the state of Virginia in 1956 as part of the Stanley plan and massive resistance, as violating the First and Fourteenth Amendments to the United States Constitution. The statutes here stricken down by the Supreme Court (and one overturned by the Virginia Supreme Court after the 1959 remand in Harrison v. NAACP) had expanded the definitions of the traditional common law crimes of barratry, champerty, and maintenance and had been targeted at the NAACP and its civil rights litigation.


On September 29, 1956, the Virginia General Assembly enacted five statutes regulating lawyers, forbidding the practices of barratry, champerty, and maintenance.[1] Barratry is the "stirring up" of litigation by inducing individuals or organizations to sue when they otherwise would not.[2] Champerty occurs when a third party (not the plaintiff or nor their legal counsel) assumes the risks and financial costs of a lawsuit in return for a portion of the monetary award.[2] Maintenance occurs when a third party supports or promotes a litigant's suit to prolong litigation when the parties would otherwise have brought an end to litigation or settled the suit.[2] The bills were specifically aimed at curbing the National Association for the Advancement of Colored People (NAACP), which many segregationists believed was "stirring up" integration lawsuits against the Commonwealth.[3]

The bills also collectively required annual filings of financial reports and membership lists for any group that promotes or opposes state legislation aimed at (1) any race, (2) any organization attempting to influence public opinion on behalf of any race, or (3) any group raising funds to employ legal counsel in connection with racial litigation.[3]

The Virginia NAACP soon filed suit in federal court 1956 against the Attorney General of Virginia (first James Lindsay Almond Jr. then when he resigned to run for governor his interim successor Kenneth Cartwright Patty), to have the five barratry, champerty, and maintenance laws thrown out as an unconstitutional infringement of its members' rights under the 1st Amendment to freedom of speech and freedom of assembly.[4] The district court overturned three of the laws on constitutional grounds, and remanded the remaining two to state courts. The newly elected Attorney General, Albertis S. Harrison, Jr., appealed to the U.S. Supreme Court, although he delegated the case to outside counsel David J. Mays and his associate Henry Taylor Wickham. In Harrison v. NAACP, 360 U.S. 167 (1959), the U.S. Supreme Court accepted Mays' arguments and held that the federal district court should have abstained from deciding the laws' constitutionality until state courts had had a reasonable chance to construe them.

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

The NAACP appealed to the U.S. Supreme Court, which granted certiorari. While Mays remained on the brief, he let Wickham handle the argument.[6]



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

For Brennan, the first issue before the court was a procedural one. In Harrison v. NAACP, the Supreme Court had ordered the district court to remand the case back to the state courts for disposition. However, the district court was to still maintain jurisdiction over the issue. The question before the Supreme Court was whether the NAACP could appeal the Virginia Supreme Court of Appeals' ruling directly to the U.S Supreme Court, or was the NAACP required to go through the federal district court again? Brennan held that although the federal district court had reserved jurisdiction, this did not impinge on the Supreme Court's authority to review a supreme state court's decision.[7]

Having asserted the Supreme Court's jurisdiction over the matter, Brennan now turned to the constitutional issues. The Commonwealth of Virginia argued that it was not regulating the free speech of individual lawyers and citizens, but rather that of a corporation (the National Association for the Advancement of Colored People), and that the U.S. Constitution did not protect the free speech rights of corporations as strongly as it did that of people. Brennan disagreed: Corporations, he said, not only have rights equal to that of individuals, but a corporation may also assert free speech and free assembly rights on behalf of its members.[8] The nature of these free speech rights in particular, Brennan said, were not limited to "abstract discussion", but included lawful advocacy against government intrusion on this and other rights.[9] Litigation, too, he said, was protected. Litigation was not merely a mechanism for resolving differences between two private parties but a constitutionally protected form of political expression.[10] Furthermore, litigation is constitutionally protected because it is one of the few lawful means by which equal protection of the laws can be enforced.[10] The state of Virginia had argued that organizational activity (collecting membership dues, hiring attorneys, advocating lawsuits, etc.) of the kind the NAACP engaged in was not literally a speech act, a petition for redress of grievances, or assembly of the kind mentioned in the First Amendment. But Brennan and the majority disagreed, concluding that Court precedent clearly establishes that this kind of lawful activity is protected by the First and Fourteenth Amendments.[11]

Relying on the authoritative construction of the acts by the Virginia Supreme Court of Appeals, Brennan noted that merely telling another individual that their rights have been violated and referring that person to an attorney or group of attorneys became a crime under the five statutes.[12] This chilled the lawyers' and individual's First Amendment rights, and made the individual's ability to enforce its Fourteenth Amendment rights difficult, both of which were unconstitutional:[13] "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."[12]

The Virginia Supreme Court of Appeals had asserted that government had an interest in ensuring high professional standards in the legal community, and that it was not the state's intent to restrict freedom of expression. Brennan said this was no defense, for only the most compelling of governmental interests justifies an imposition on freedom of speech—and Court precedent had long established that a state's interest in prohibiting professional misconduct did not constitute a compelling interest.[14] Virginia does have a governmental interest in regulating the practice of law, Brennan said, because litigation can be malicious: It can abuse the legal system for personal gain, it can be used to oppress others, and lay people can urge the use of the legal system for their own personal financial gain.[15] But "the exercise ... of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious."[16] Yet First Amendment litigation is exactly the sort of activity the Virginia laws sought to bar.[17] Furthermore, Virginia could not show at trial any substantive evil flowing from the NAACP's activities.[18]

The judgment of the Virginia Supreme Court of Appeals was reversed.[19]

Douglas' concurrence[edit]

Associate Justice Douglas concurred in the Court's ruling. He addressed the dissent by pointing out that not only the laws' legislative history, but both the district court and the Virginia Supreme Court of Appeals clearly found that the legislature passed them to discriminate against the NAACP and to circumvent the U.S. Supreme Court's rulings.[20] "[T]hey make clear the purpose of the present law — ... to evade our prior decisions... The fact that the contrivance used is subtle and indirect is not material to the question."[21]

White's concurrence and dissent[edit]

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

White thought that the five Virginia legal business laws unconstitutionally infringed on freedom of speech and the constitutionally protected lawful exercise of the court system to ensure the full exercise of those rights.[22] A more narrowly drawn statute, White felt, may have passed constitutional scrutiny, but the majority's decision appeared unable to admit such an outcome.[23] White would not have discussed the maliciousness of the NAACP's activities, as that issue was not properly before the Court.[24]

Harlan's dissent[edit]

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

Harlan argued that the record before the Court clearly showed that the lawyers working for the NAACP were members of the organization's legal staff, that NAACP policy and officers controlled the lawyers' actions, and that the NAACP did not merely represent clients who came to it but instead actively sought out very specific types of clients to advance its policy agenda. Thus the dissenters thought that the "normal" attorney-client relationship was often not present in the NAACP's relationships with its legal clients.[25]

The dissenters thought the NAACP had violated not only the five new legal business laws, but also similar laws adopted more than 20 years earlier.[26] Harlan noted that the Virginia Supreme Court of Appeals construed the five new legal business laws as not prohibiting the constitutional exercise of freedom of speech and freedom of assembly, and thought that should be determinative.[27] The dissenters denied that litigation enjoyed strong constitutional protection, because it was only "associated" with freedom of expression, and the Virginia statutes only incidentally infringed on this speech.[28] Furthermore, Harlan considered litigation conduct, which does not enjoy the same strong constitutional protection as speech.[29] Harlan also disagreed with the majority's characterization of the NAACP's activities as free from financial gain, calling it not a typical (and protected) attorney-client relationship because the NAACP and its clients lacked enough common interests to avoid maliciousness.[30] The dissenters argued that the Court had never allowed before allowed constitutional lawsuits avoid the rules of evidence, regulation of the law, legal ethics, or other state interests.[31]

Harlan chided the majority for labeling the Virginia statutes vague and overbroad, arguing that neither the trial record nor the state courts' construction of the statutes had found the laws vague.[32] Since Harlan would have upheld the statutes despite the First Amendment challenges, he thought the Fourteenth Amendment guarantees of due process of law and equal protection of the law not infringed.[33]


  1. ^ "School, NAACP Bills Signed by Gov. Stanley." Washington Post. September 30, 1956.
  2. ^ a b c Dickson, p. 314.
  3. ^ a b "Bills Aimed at NAACP Stir Va. Assembly Fight." Washington Post. September 11, 1956.
  4. ^ Dickson, p. 315.
  5. ^ a b NAACP v. Button, 371 U.S. 415, 418.
  6. ^ James R. Sweeney (ed.) Race Reason and Massive Resistance: The Diary of David J. Mays, 1954-1959 (University of Georgia Press 1959) indicates that Mays thought the Supreme Court would strike down the laws. The book does not contain excerpts from the years in which this case was briefed and argued, but the Historical Society of Virginia library does have Mays's voluminous diary from those years.
  7. ^ NAACP v. Button, 371 U.S. 415, 427-428.
  8. ^ NAACP v. Button, 371 U.S. 415, 428.
  9. ^ NAACP v. Button, 371 U.S. 415, 429.
  10. ^ a b NAACP v. Button, 371 U.S. 415, 429-430.
  11. ^ NAACP v. Button, 371 U.S. 415, 430-431.
  12. ^ a b NAACP v. Button, 371 U.S. 415, 434.
  13. ^ NAACP v. Button, 371 U.S. 415, 437.
  14. ^ NAACP v. Button, 371 U.S. 415, 438-439.
  15. ^ NAACP v. Button, 371 U.S. 415, 440-441.
  16. ^ NAACP v. Button, 371 U.S. 415, 440.
  17. ^ NAACP v. Button, 371 U.S. 415, 442-444.
  18. ^ NAACP v. Button, 371 U.S. 415, 444.
  19. ^ NAACP v. Button, 371 U.S. 415, 445.
  20. ^ NAACP v. Button, 371 U.S. 415, 445-446.
  21. ^ NAACP v. Button, 371 U.S. 415, 446.
  22. ^ NAACP v. Button, 371 U.S. 415, 447.
  23. ^ NAACP v. Button, 371 U.S. 415, 447-448.
  24. ^ NAACP v. Button, 371 U.S. 415, 448.
  25. ^ NAACP v. Button, 371 U.S. 415, 448-451.
  26. ^ NAACP v. Button, 371 U.S. 415, 451.
  27. ^ NAACP v. Button, 371 U.S. 415, 451-452.
  28. ^ NAACP v. Button, 371 U.S. 415, 453-454.
  29. ^ NAACP v. Button, 371 U.S. 415, 454.
  30. ^ NAACP v. Button, 371 U.S. 415, 456-463.
  31. ^ NAACP v. Button, 371 U.S. 415, 463-465.
  32. ^ NAACP v. Button, 371 U.S. 415, 465-467.
  33. ^ NAACP v. Button, 371 U.S. 415, 469-470.


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

External links[edit]