371 U.S. 415 (1963), argued 8 Nov. 1961, reargued 9 Oct. 1962, decided 14 Jan. 1963 by vote of 5 to 1 to 3; Brennan for the Court, White concurring in part and dissenting in part, Harlan, Clark, and Stewart in dissent. This case arose in the context of a Virginia “barratry” statute that challenged civil rights groups (such as the NAACP) and their attorneys who utilized the courts to combat racial discrimination through sponsored litigation. Under the statute, attorneys who represented organizations having no “pecuniary interest” in such litigation were subject to disbarment.
The Supreme Court said that the NAACP could assert the rights of its members in defending against the claim that they had engaged in barratry, the illegal solicitation of legal business. Further, the NAACP's efforts to provide attorneys in suits challenging racial discrimination was protected by the First and Fourteenth Amendments. Writing in dissent, Justice John M. Harlan argued that unlike other group activities such as association, discussion, and advocacy, litigation was primarily conduct and not expression. Thus, it was subject to reasonable state regulation. The majority disagreed, however, and held that sponsored litigation might be the only means through which some groups could express the grievances of their members and seek redress. Such group litigation was protected by the First Amendment and, indeed, statutes such as those at issue in this case posed “the gravest danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of Negroes” (pp. 416–417). The Button decision represents a landmark ruling upholding interest group utilization of the judicial process as a prime component of their political activity.
Elliot E. Slotnick