For many years the Virginia branch of the National Association for the Advancement of Colored People (NAACP) had supported litigation designed to end racial segregation in the public schools. In 1956, the General Assembly tightened a longstanding ban against the solicitation of legal business, by expressly forbidding any organization to retain a lawyer in connection with litigation to which it was not a party and in which it had no pecuniary interest. The Virginia courts sustained this amendment as applied to the NAACP, despite the organization’s plea that its litigation program was not covered by the law and, if it were covered, any sanctions would abridge freedoms of expression. The Supreme Court, by a six-to-three vote, struck down the law on First Amendment grounds.
The core of Justice Brennan’s opinion in the NAACP’s favor was recognition that in this context, ‘‘litigation is not a technique of resolving private differences [but] is a means for [achieving] equality of treatment [for] the members of the Negro [community]’’ and deserves recognition as ‘‘a form of political expression.’’ Building on the Court’s recent recognition of freedom of association as a right implicit in the First Amendment, Justice Brennan now declared that association ‘‘for litigation may be the most effective form of political association’’ and thus claimed a full measure of constitutional protection, especially in the context of the NAACP’s school desegregation program in Virginia.
Recognizing that a compelling interest might justify such a constraint, the Commonwealth argued that the need to sustain high standards in the legal profession validated regulating all forms of ‘‘solicitation’’ of legal business. The Supreme Court majority rejected that claim, conceding the importance of ethical norms for lawyers, but finding the NAACP practices targeted by the new law a far cry from such clearly regulable transgressions as fomenting litigation or deception of prospective clients. Where only public interest litigation was involved, such concerns vanished. Justices Harlan, Clark, and Stewart dissented, insisting that freedom of association had been stretched too far if it prevented a state from imposing high ethical standards on its attorneys. In their view, the amended Virginia law did ‘‘no more than prohibit [the NAACP from] soliciting legal business for its staff attorneys’’—and that was an activity which they believed could be regulated consistent with the First Amendment.
The applications of NAACP v. Button have been legion and important. Recognition of litigation as a protected form of expression was to have profound consequences. Its reach would extend well beyond the uniquely appealing civil rights context that had spawned the doctrine, and to which some observers believed it would be confined. The very next term, the Court struck down Virginia’s attempt to forbid a railroad workers’ union from informing injured workers, or the survivors of workers killed on the job, of the availability of legal representation by an attorney recommended by the union. As in Button, such a program could not constitutionally be banned as ‘‘solicitation’’ without abridging the union members’ First Amendment rights. While the public interest element may have been less immediate in the union program than it had been with the NAACP, the two cases seemed to the majority indistinguishable. Two dissenters insisted that the programs were quite different, and the majority’s analogy therefore flawed.
Fifteen years later, the Court would invalidate South Carolina’s reprimand of an American Civil Liberties Union (ACLU) lawyer who had written to a recently sterilized woman advising her of the ACLU’s willingness to represent her in a suit challenging a program to sterilize pregnant mothers as a condition of Medicare eligibility. Applying Button, the Court ruled that the state failed to show that compelling interests in regulating attorney conduct and ensuring integrity justified such a sanction in the public interest setting.
On the same day, however, the justices drew an important distinction by sustaining Ohio’s ban on ‘‘ambulance chasing’’ by lawyers—the practice of giving unsolicited advice regarding legal options to a potential client, and then accepting that client’s business on the basis of such advice. Nothing in Button, said the Court, immunized such practices from high ethical standards imposed on the legal profession. And in the mid-1980s, the Court extended that exception by sustaining a $10 limit on the fee that could be charged by an attorney or agent representing a veteran who sought Veterans Administration benefits for a servicerelated disability. Distinguishing the railway union case, the majority noted that in the earlier case, ‘‘the First Amendment interest [was] primarily the right to associate collectively for the common good.’’
ROBERT M. O’NEIL
References and Further Reading