NAACP v. Alabama Motion and Brief of Amici Curiae

    IN  THE

Supreme Court of the United States
October Term, 1957

No. 91

National A ssociation fob the A dvancement of 
Colored P eople, a Corporation,

v Petitioner,

State of A labama, ex rel. John P atterson, 
Attorney General.

On Writ of Certiorari to the 
Supreme Court of the State of Alabama

MOTION AND BRIEF OF AMICI CURIAE

LEO PFEFFER, 
Attorney for Amici.

SHAD POLIER,
WILL MASLOW,

Attorneys forAmerican Jewish Congress.

ORRIN G. JUDD,
Attorney for American Baptist 

Convention, Commission on 
Christian Social Progress.

EDWARD J. ENNIS,
OSMOND K. FRAENKEL,

Attorneys for American Civil 
Liberties Union.

CLAUDE C. SMITH,
Attorney for American Friends 

Service Committee.

EDWIN J. LUKAS,
THEODORE LESKES,

A  ttorneys for American 
Jewish Committee.

SHANLEY NORRIS EGETH, 
Attorney for American 

Veterans Committee.

DAVID A. ROSE,
ARNOLD FORSTER,

Attorneys for Anti-Defamation 
League of B ’nai B ’rith.

JOSEPH B. ROBISON,
Of Counsel.

JAMES H. TULLY,
A  ttomey for Board of Home Missions 

of the Congregational and 
Christian Churches.

FRANK S. KETCHAM,
Attorney for Council for Christian 

Social Action of the 
United Church of Christ.

FRANK CHUMAN,
HAROLD GORDON,

A ttorneys for Japanese A meric an 
Citizens League.

MORRIS P. GLUSHEIN,
Attorney for Jewish Labor Committee.

DAVID L. ULLMAN,
Attorney for National Community 

Relations Advisory Council.

SAMUEL ROTHSTEIN,
Attorney for United Synagogue of America.

CARL RACHLIN,
Attorney for Workers Defense League.

3 0 7  B A R  P R E S S .  I N C . .  5 4  L A F A Y E T T E  S T R E E T ,  N E W  Y O R K  |3 ,  N .  Y .  —  W A  5 - 3 4 3 E



TABLE OF CONTENTS

MOTION FOE LEAVE TO FILE .............................  1

BRIEF ..............................................................................  5

Statement of the Ca s e ............................................................ 6

Question Presented..................................................................  7

S ummary of A rgument ............................................................ 8

A rgument ....................................................................................... 9

I. Freedom of Association is a Liberty Guaran­
teed by the Fourteenth Amendment to the 
United States Constitution and is one of the 
Co-Equal Guarantees of the First Amendment 
Applied to the States by the Fourteenth........  9
A. Freedom to Associate as a Constitutional

“ Liberty”  ...................................................  9
B. Freedom of Association Under the First

and Fourteenth Amendments ..................  13

C. The Association’s Freedom of Association 21

II. An Organization Whose Purpose and Activi­
ties are the Protection of Federally Secured 
Rights May Not be Subjected to Oppressive 
and Burdensome State Restrictions ................  22
A. The Nature of Petitioner’s Activity..........  23

B. Petitioner’s Activities in Vindication of
Federally Secured Rights May Not Be 
Unduly Burdened by the State ................  23

PAGE



I I

III. The State of Alabama may not Directly De­
stroy Petitioner or Forbid its Activities........  27
A. The Special Nature of the Right Claimed 27

B. Alabama has not Demonstrated the Ne­
cessity for Its Restrictive Action ............  28

IV. The State of Alabama may not Indirectly
Destroy Petitioner or Frustrate its Activities
by Requiring it to Expose its Membership
Lists ..................................................................... 30
A. Indirect Destruction and Frustration by

Oppressive Burdens ..................................  30

B. The Oppressive Burden of Compulsory
Exposure .................................  31

C. The Constitutional Right of Anonymity. .. 33

D. The Place of Anonymity in a Democratic
Society .........................................................  34

E. Anonymity as an Aid to Free Expression 36

F. Secret Elections in Democracies..............  38
G. The Absence of Justification for Compul­

sory Disclosure ............................................ 38

PAG*

Conclusion 40



I l l

TABLE OF AUTHORITIES

Decisions

Abrams v. United States, 250 U. S. 616 (1919)..........  31
Adler v. Board of Education, 342 U. S. 485 (1952).... 22
American Communications Association v. Douds, 339

U. S. 382 (1950).........................................................  22
American Steel Foundries v. Tri-City Central Trades

Council, 257 U. S. 184 (1921).................................  17

Barrows v. Jackson, 346 U. S. 249 (1953)..................  40
Beatty v. Gillbanks, 9 Q. B. D. 308 (1882)..................  16
Bolling v. Sharpe, 347 U. S. 497 (1954)......................  10
Bowe v. Secretary of the Commonwealth, 320 Mass.

230 (1946)...................................................................  17
Bridges v. Wixon, 326 U. S. 135 (1945)........................  15
Brown v. Topeka, 347 U. S. 483 (1954)......................  30
Bryant v. Zimmerman, 278 U. S. 63 (1928)..................  39
Buck v. Kuykendall, 267 U. S. 307 (1925)..................  23

City of St. Louis v. Fitz, 53 Mo. 582 (1873)..............11,12
City of St, Louis v. Eoche, 128 Mo. 541 (1895)..........  ’ 12
City of Watertown v. Christnacht, 39 S. D. 290

(1917) ......................................................................... 12
Coker v. Fort Smith, 162 Ark. 567 (1924)..................  12
Crandall v. Nevada, 73 U. S. (6 Wall.) 35 (1867).......24, 25

De Jonge v. Oregon, 299 U. S. 353 (1937)..................  14

Edwards v. California, 314 U. S. 160 (1941) ..............  24
Ex Parte Cannon, 94 Tex. Cr. R. 257 (1923) ..........  12
Ex Parte Smith, 135 Mo. 223 (1896)..........................  12

Farrington v. Tokushige, 273 U. S. 284 (1927).........  30
Fidelity and Deposit Co. v. Tafoya, 270 U. S. 426

( l 926) ................................................................... 23,25,26

PAGE



I V

Gayle v. Browder, 352 IT. S. 903 (1956), a ff’g 142 F.

PAGE

Supp. 707..................................................................... 29

Hague v. CIO, 307 U. S. 496 (1939).............................. 14
Hannegan v. Esquire, 327 IT. S. 146 (1946)..............  30
Hanover Insurance Co. v. Harding, 272 H. S. 494

(1926) ......................................................................... 23
Hill v. Florida, 325 IT. S. 538 (1945).............................. 24

Joint Anti-Fascist Refugee Committee v. McGrath,
341 U. S. 123 (1951)...................................... 15,17,21,31

Kedroff v. St. Nicholas Cathedral, 344 IT. S. 94
(1952)   22

Kovacs v. Cooper, 336 U. S. 77 (1949)..........................  27

Meyer v. Nebraska, 262 IT. S. 390 (1923)..................  9,21
Morgan v. Virginia, 328 U. S. 373 (1946)..................  23
Murdock v. Pennsylvania, 319 U. S. 105 (1943)........... 30

People v. Belcastro, 356 HI. 144 (1934).......................  12
People v. Pieri, 269 N. Y. 315 (1936)..........................  12
Pierce v. Society of Sisters, 268 IT. S. 510 (1925).......21, 30

Schneider v. New Jersey, 308 U. S. 147 (1939)..........  28
Slochower v. Board of Higher Education, 350 U. S.

551 (1956)...................................................................  24
Southern Pacific Company v. Arizona, 325 U. S. 761

(1945) .........................................................................  23
Sterling v. Constantin, 287 U. S. 378 (1932)..............  30
Sweatt v. Painer, 339 U. S. 629 (1950).......................  30
Sweezy v. New Hampshire, 354 IT. S. 234 (1957) ....15, 38, 39

Terral v. Burke Construction Co., 257 U. S. 529
(1922) .........................................................................  24

Thomas v. Collins, 323 IT. S. 516 (1945)............14,15,28,29



V

United Public Workers v. Mitchell, 330 U. S. 75
(1947) ........................................................................ 15,22

United States v. Congress of Industrial Organiza­
tions, 335 U. S. 106 (1948)...................................... 18

Watkins v. United States, 354 U. S. 178 (1957).... 32, 33, 39
Whitney v. California, 274 U. S. 357 (1927)................ 14,15

Statutes

Alabama Code, 1940, Title 10, Secs. 192, 193, 194........  28

New York Penal Law, Section 722 ................................  12

PAGE

Miscellaneous

Abernathy, Right of Association, 6 So. Car. L. Q. 32
(1953)    12,20

American Jewish Congress, Assault Upon Freedom
of Association (1957) .............................................. 29

American Law Institute, Statement of Essential Hu­
man Rights (distributed by Americans United
for World Organization) ........................................ 16

1 Annals 759-761 .............................................................  14

Blankenship, How to Conduct Consumer and Opinion
Research (1946) .......................................................  36

Bleyer, Main Currents in the History of American
Journalism (1927) .................................................... 34

Bryce, The American Commonwealth, Third Edition
(1899), Yol. II ............................................................18,32

Cantril, Gauging Public Opinion (1944) ........................  37
Chafee, The Blessings of Liberty (1956) ......................  19
103 Congressional Record A  5882-9 (1957)...................  3
Cushman, Civil Liberties in the United States (1956) 14



V I

Defoe, Shortest Way with the Dissenters....................  34
De Tocqueville, Democracy in America, Vintage Edi­

tion (1954) Vols. I and I I ........................................13,18

Emerson & Haber, Political and Civil Rights in the
United States (1952) ...............................................  15

Fainsod, How Russia is Ruled (1954) ..........................  11
The Federalist, Henry Holt Edition (1898)................  35
The Federalist, Modern Library Edition (1937)......... 35
Figgis, Churches in the Modern State (1951)..............  22
Foreign Affairs, Vol. 25, Nos. 1 & 4, Vol. 27, No. 2,

Vol. 36, No. 1 .............................................................  35

Howe, Political Theory and the Nature of Liberty,
67 Harv. L. Rev. 91 (1953)..................................  22

Laski, The Personality of Associations, 29 Harv. L.
Rev. 404 (1916).........................................................  22

Latham, The Group Basis of Politics (1952)................. 18
Locke, Letter Concerning Toleration (1689).................  11
Lowell, Public Opinion and Popular Government

(1914) ......................................................................... 19

Maclver, ed., Conflict of Loyalties (1952)......................  35
Minto, Daniel Defoe (1909)............................................ 34

National Opinion Research Center, Interviewing for
NORC (1945).............................................................  36

Orwell, Nineteen Eighty-Four........................................ 38

Pound, The Development of Constitutional Guaran­
tees of Liberty (1957).............................................. 10

Rose, Theory and Method in the Social Sciences
(1954)  ..................................................................... 20

PAGE



V I I

PAGE

Schlesinger, Paths to the Present (1949).............. 18,26,35
State Control of Political Organizations: First

Amendment checks on powers of Regulation, 66 
Yale L. J. 545 (1957).............................................  22

Taylor, How to Conduct A Successful Employees’
Suggestion System...................................................  37

Thomas v. Collins, 1944 Term, No. 14, Brief of United
States, amicus curiae...............................................  33

Tolischus, They Wanted War (1940)............................  11

Universal Declaration of Human Rights......................  16



IN THE

Supreme Court of the United States
October Term, 1957

No. 91

National. A ssociation for the A dvancement of 
Colored People, a Corporation,

Petitioner,
v.

S tate of A labama, ex rel. John Patterson, 
Attorney General.

On Writ of Certiorari to the 
Supreme Court of the State of Alabama

MOTION OF AMICI CURIAE

The undersigned, as counsel for American Jewish 
Congress; American Baptist Convention, Commission on 
Christian Social Progress; American Civil Liberties Union; 
American Friends Service Committee; American Jewish 
Committee; American Veterans Committee; Anti-Defama­
tion League of B ’nai B ’rith; Board of Home Missions of



2

the Congregational and Christian Churches; Council for 
Christian Social Action of the United Church of Christ; 
Japanese American Citizens League; Jewish Labor Com­
mittee; National Community Relations Advisory Council; 
United Synagogue of America; and Workers Defense 
League, and on their behalf, respectfully move this Court 
for leave to tile the accompanying brief as amici curiae.

The organizations that propose to submit this brief are 
private, voluntary associations of Americans formed to 
achieve specific purposes, religious, civic, educational, and 
others. As such, they have a direct interest in this 
proceeding which raises the question whether a state may 
constitutionally place prohibitions or crippling restrictions 
on the operation of a voluntary association similarly or­
ganized for a specific purpose, that of promoting equal 
rights for all, without discrimination based on race.

The record in this case shows that public officials of 
the respondent State of Alabama have attempted to frus­
trate the efforts of the petitioner National Association for 
the Advancement of Colored People (NAACP) on behalf 
of the rights of Negroes in Alabama and to outlaw it 
from the state. We are concerned with the implications 
of this assertion of governmental power irrespective of 
whether or not we support the aims of the NAACP in 
combatting racial inequality. It has become perfectly 
obvious that Alabama not only is attempting to maintain 
its statewide pattern of racial segregation but is also 
working for the destruction of all organized opposition 
to this policy. Alabama’s effort to expel the NAACP has 
therefore placed in jeopardy the fundamental constitu­
tional right of individuals to join together to form asso­
ciations in order to express and advance their views.

The organizations that propose to submit the accom­
panying brief are deeply disturbed by this assault on 
freedom of association. Today, it is the NAACP that 
is subjected to attack. Tomorrow, the same measures



3

may be taken against any group that supports a cause 
opposed by state officials.1

In our complex society, the right individually to pro­
test, individually to sue or to seek legislation is of but 
limited practical value by itself. Particularly in an atmo­
sphere of extreme hostility, such as that which now con­
fronts Southern opponents of racial segregation, the right 
to organize is protected, we believe, by the First, Fifth 
and Fourteenth Amendments against interference by gov­
ernment authorities.

In the accompanying brief, we argue that the order 
affirmed by the court below unreasonably restrains not 
only petitioner’s freedom of association as guaranteed by 
the First and Fourteenth Amendments but also its lib­
erty as guaranteed by the Fourteenth. The argument that 
petitioner’s right to exist as an organization is a “ liberty”  
within the meaning of that Amendment has not been de­
veloped in petitioner’s brief.

We develop the argument that Alabama has unduly 
restrained freedom of association, as guaranteed by the 
First and Fourteenth Amendments, beyond its treatment 
in petitioner’s brief, particularly showing that the right 
to freedom of association necessarily includes the right 
to preserve, as against unreasonable demands by the 
state, the anonymity of those who associate. 1

1 That the N AACP is not the only possible target of oppressive 
measures may be seen in a part of a speech made by the trial court 
judge in this proceeding. In a speech made on July 11, 1957, Judge 
Jones said that (103 Cong. Rec. A 5888-9) :

“ Many of our religious organizations, the NAACP, and it 
has the financial and moral backing of the American Jewish 
Congress in New York, committees of labor unions, and the 
Supreme Court of the United States, and both of the Nation’s 
chief political parties, are all working together to achieve com­
plete integration of the races, and this we know is the first step 
toward amalgamation, the consolidating and fusing into 1 race 
the 2, the white and black races.”



4

We make the further argument, not made in petition­
er’s brief, that the action of the State of Alabama denies 
petitioner due process of law because it unduly burdens 
petitioner’s exercise of Federal rights. Petitioner is an 
association that was organized, in large part, to win for 
Negroes equal protection of the laws as guaranteed by 
the Federal Constitution and statutes. This activity, we 
maintain, like other activities inherently protected by the 
Federal Constitution and statutes, is protected against 
undue restraint by the states.

Each of these arguments, if sustained, would require 
reversal of the order below.

We respectfully urge that acceptance of this brief 
amici curiae is especially appropriate. The organizations 
joining in this motion are directly interested in the ques­
tion whether the Federal Constitution stands as an effec­
tive shield against oppressive action by a state designed 
to exclude from its territory any organization it dislikes. 
Furthermore, many of them have members in the State 
of Alabama. Since the measures taken against the NAACP 
here could be taken against any organization, the right 
of each of these organizations to exist, as well as that 
of the NAACP, is at stake.

We have sought the consent of counsel for both parties 
to the filing of this brief. Counsel for petitioner consented 
but counsel for the State of Alabama refused consent.

Respectfully submitted,

L eo Peefeer 
Attorney for Amici 
15 East 84th Street 
New York 28, N. Y.

October 3, 1957



IN THE

Supreme Court of the United States
October Term, 1957

No. 91

National A ssociation for the A dvancement of 
Colored P eople, a Corporation,

Petitioner,
v.

S tate of A labama, ex rel. J ohn Patterson, 
Attorney General.

On Writ of Certiorari to the 
Supreme Court of the State of Alabama

------------ m % m -----------

BRIEF OF AMICI CURIAE

The following organizations respectfully submit this 
brief, as amici curiae, in support of the petitioner:

American Jewish Congress; American Baptist Conven­
tion, Commission on Christian Social Progress; American 
Civil Liberties Union; American Friends Service Com­
mittee; American Jewish Committee; American Veterans

[ 5 ]



6

Committee; Anti-Defamation League of B ’nai B ’rith; 
Board of Home Missions of the Congregational and Chris­
tian Churches; Council for Christian Social Action of the 
United Church of Christ; Japanese American Citizens 
League; Jewish Labor Committee; National Community 
Relations Advisory Council; United Synagogue of Amer­
ica; and Workers Defense League. Our interest in the 
issues raised by this case is set forth in the motion for 
leave to file a brief amici curiae annexed hereto.

Statement of the Case

The proceedings in this case are fully detailed in peti­
tioner’s brief (pp. 8-11) and will be only briefly sum­
marized here.

The petitioner, National Association for the Advance­
ment of Colored People (NAACP), is a New York member­
ship corporation formed in part to promote equal rights 
for Negro citizens of the United States. Petitioner has 
maintained a Southeast Regional Office in Birmingham. 
Alabama, and has organized local affiliates in that state 
(R. 1-2, 6).

On June 1, 1956, the Attorney General of Alabama filed 
a bill of complaint in the Circuit Court of Montgomery 
County, Alabama, asking it to enjoin petitioner from con­
ducting any business in that state. The bill of complaint 
charged petitioner with, among other things, not having 
registered as a foreign corporation as required by Alabama 
law and with having furnished legal help and financial 
assistance to persons challenging racial segregation at the 
University of Alabama and on the buses in the State 
capital (R. 1-2).

On the same day, the Circuit Court issued an ex parte 
temporary restraining order and injunction prohibiting 
petitioner from conducting any business, from maintaining



7

offices, organizing chapters or soliciting members, contribu­
tions or dues in the state. The court also enjoined 
petitioner—although the State’s bill of complaint did not 
request it—from filing any document with Alabama officials 
that would qualify it to do business in the state (R. 2-3, 
18-20).

Subsequently, on motion by the State, the court issued 
an order of discovery requiring petitioner to produce for 
inspection by the State a large number of records and 
documents including all correspondence in its Alabama 
files concerning certain Federal court suits challenging 
racial segregation and a list of all of its members in the 
state (R. 6, 20-22). The order was issued over petitioner’s 
objection that it violated its constitutional rights (R. 0).

Petitioner, in its answer to the complaint, offered to 
comply at once with the registration statute (R. 7). There­
after petitioner agreed to submit all the data required 
except its correspondence and membership lists (R. 11-13). 
The court held this to be insufficient compliance with its 
order and fined petitioner $100,000 (R. 14-15). The court 
never considered petitioner’s motion to dismiss the original 
complaint and the restraining order issued thereunder 
(R. 16). Its judgment was affirmed by the Supreme Court 
of Alabama (R. 23-30). The proceeding is here on writ of 
certiorari to review that decision.

Question Presented

We adopt the statement of the Question Presented as 
set forth in petitioner’s brief (p. 2) :

“ Did the State of Alabama interfere with the freedom 
of speech and freedom of association and deny due 
process of law to petitioner, the NAACP, and its



8

members in violation of the Fourteenth Amendment in 
interfering with and prohibiting the continuation of 
the efforts of petitioner to secure and enforce rights 
of Negro citizens guaranteed by the Constitution and 
laws of the United States?”

Summary of Argument

Freedom of association is a liberty guaranteed against 
Federal infringement by the Fifth Amendment to the 
United States Constitution and against state infringement 
by the Fourteenth. In addition it is one of the co-equal 
guarantees of the First Amendment applied to the states by 
the Fourteenth. It is a freedom secured not only to the 
members of the association but to the association itself as 
well. In any event, the association has the status to 
assert and defend its members’ freedom to associate in it.

Besides the general right of freedom of association 
enjoyed by petitioner, it is entitled to special Federal 
protection against state interference by reason of the fact 
that it is an organization whose purpose and activities are 
the protection of Federally secured rights, and as such 
may not be subjected to oppressive and burdensome state 
restrictions.

For these reasons the State of Alabama may not 
destroy petitioner or forbid its activities. Moreover, it may 
not indirectly effect the same result by imposing restric­
tions whose purpose and effect is to destroy petitioner or 
frustrate its activities. In view of the nature of petitioner 
and the climate in which it operates in the State of Ala­
bama, a requirement that it make public its membership 
records constitutes the imposition of an oppressive burden 
whose effect is to prevent petitioner from carrying out its 
activities in that state.



9

In any event, an association, like an individual, has a 
constitutional right of anonymity which may not be gov- 
ernmentallv impaired in the absence of some justification 
in terms of a lawful governmental objective. No such 
justification has been shown in this case and none in fact 
exists.

Hence, the order of the Alabama court forbidding peti­
tioner to carry on its activities in that state and requiring 
it to disclose its membership is unconstitutional state action 
in deprivation of rights guaranteed by the Federal Con­
stitution and should therefore be reversed and set aside.

ARGUMENT 

P O I N T  O N E

Freedom of association is a liberty guaranteed by 
the Fourteenth Amendment to the United States Con­
stitution and is one of the co-equal guarantees of the 
First Amendment applied to the states by the 
Fourteenth.

A. Freedom to Associate as a Constitutional “ Liberty”

At least since this Court’s decision in Meyer v. Ne­
braska, 262 U. S. 390 (1923), it has been recognized that 
the liberty secured against state deprivation by the Four­
teenth Amendment and Federal deprivation by the Fifth 
extends far beyond mere freedom from bodily restraint. 
The term “ liberty,”  the Court said in that case (262 U. S. 
at 399),—

“ denotes not merely freedom from bodily restraint, 
but also the right of an individual to contract, to



10

engage in any of the common occupations of life, to 
acquire useful knowledge, to marry, establish a home 
and bring up children, to worship God according to 
the dictates of his own conscience, and generally to 
enjoy those privileges long recognized at common 
law as essential to the orderly pursuit of happiness 
by free men.”

This principle was re-asserted by this Court as 
recently as 1954. In Bolling v. Sharpe, 347 U. S. 497, 499, 
the Court, speaking through the Chief Justice, said:

“ Although the Court has not assumed to define 
‘ liberty’ with any great precision, that term is not 
confined to mere freedom from bodily restraint. 
Liberty under law extends to the full range of con­
duct which the individual is free to pursue, and it 
cannot be restricted except for a proper govern­
mental objective. ’ ’ 1 

*
It is indisputable, we submit, that the associating to­

gether by men to pursue a common objective or, indeed, 
for no objective other than to enjoy each other’s com­
pany is “ conduct which the individual is free to pursue”  
in “ the orderly pursuit of happiness by free men.”  
Civilized society contemplates free and voluntary asso­
ciations among the people. So long as man remains a 
gregarious being, his urge to associate with fellow men 
will be as vital and as compelling as his urge to live. A

1 Dean Roscoe Pound has pointed out ( The Development of Con­
stitutional Guarantees of Liberty (1957), p. 48) that the Constitu­
tion was drafted by lawyers who took Lord Coke’s comments on 
Magna Carta “ for a legal Bible”  and that Coke there described the 
word “ liberties”  as “ meaning more than freedom of the physical 
person from arrest or imprisonment”  but as including “ the freedoms 
that men have.”



11

constitutional provision protecting liberty against arbi­
trary governmental deprivation would have little mean­
ing if it did not encompass the freedom of men to asso­
ciate with each other.

What John Locke, in his Letter Concerning Toleration 
(1689), said about religious association has been recog­
nized and accepted as part of our constitutional system 
in respect to all associations. A “ society of members 
voluntarily uniting to [a common] end”  is entitled to 
manage its own affairs and to be free from arbitrary 
governmental restrictions and restraints. A totalitarian 
state is by its nature suspicious of, if not actively hostile 
to, all associations not dominated by the state and looks 
to every such association as a potential rival if not 
enemy.2 Our Anglo-American heritage on the other hand 
welcomes voluntary associations as an indispensable as­
pect of a democratic pluralistic society.

The state courts have uniformly recognized freedom 
to associate as a liberty constitutionally protected from 
arbitrary governmental restraint. As long ago as 1878, in 
City of St. Louis v. Fits, 53 Mo. 582, a concurring opin­
ion by Judge Sherwood of the Missouri Supreme Court 
condemned as unconstitutional on its face an ordinance 
making it a crime “ knowingly to associate with persons 
having the reputation of being thieves and prostitutes.”  
He declared that “ its direct effect is to invade and neces­
sarily destroy one at least of those ‘ certain inalienable 
rights’ of the citizen bestowed by the Creator and guar­
anteed by the organic law, personal liberty.”  Although 
the majority of the court held only that the ordinance 
was unconstitutional as construed, a similar ordinance

2 Suppression of independent associations is a normal and neces­
sary feature of totalitarian regimes, both Communist (Fainsod. How  
Russia is Ruled (1954), pp. 109, 127, 320) and Fascist (Tolischus, 
They Wanted War (1940), pp. 143-4).



12

was subsequently declared unconstitutional on its face in 
City of St. Louis v. Roche, 128 Mo. 541 (1895). At that 
time, the Missouri court expressly approved Judge Sher­
wood’s opinion in the Fitz case. In the Roche case, the 
court said (128 Mo. at 546):

“ If it can he made a penal offense for a person to 
associate with those of his own choosing, however 
disreputable they may he, when not in furtherance 
of some overt act of public indecency, or the per­
petration of some crime, then it necessarily follows 
that by the same authority he may be compelled to 
associate with persons not of his own choosing.”

The Roche decision was followed in Ex Parte Smith, 
135 Mo. 223 (1896). Subsequently, a number of state courts 
followed the lead thus given by Missouri. Ex Parte Can­
non, 94 Tex. Cr. E. 257 (1923); City of Watertown v. 
Christnacht, 39 S. D. 290 (1917); Coker v. Fort Smith, 162 
Ark. 567 (1924) and People v. Belcastro, 356 111. 144 
(1934). In the last cited case, the court summed up the 
holdings of the various cases in the statement that “ No 
legislative body in this country possesses the power to 
choose associates for citizens”  (356 111. at 148).3

Even where a “ consorting with criminals”  statute has 
been upheld, it has been on the basis that the statute 
required the association to be with intent to commit a 
crime. Thus, in sustaining the validity of section 722 of 
the New York Penal Law, which makes it a misdemeanor 
to consort with thieves and criminals “ with intent to pro­
voke a breach of the peace”  and “ with an unlawful 
purpose,”  the Court of Appeals said (People v. Pieri, 269 
N. Y. 315, 322, 324 (1936):

3 The cases are discussed in Abernathy, “ Right of Association,” 
6 So. Car, L. Q. 32, 46-47 (1953).



13

“ The combination of intents, however, indicates that 
the association of these evil-minded persons must be 
to do or plan something unlawful. The consorting 
alone is no crime * * *.

“ * * * Mere association of people of ill repute with 
no intent to breach the peace or to plan or commit 
a crime is too vague a provision to constitute an 
offense.”

In sum, as de Tocqueville said more than a hundred 
years ago (Democracy in America, Vintage Edition (1954), 
Vol. I, p. 203) :

“ The most natural privilege of man, next to the right 
of acting for himself, is that of combining his exertions 
with those of his fellow creatures and of acting in 
common with them. The right of association therefore 
appears to me almost as inalienable in its nature as the 
right of personal liberty. No legislator can attack 
it without impairing the foundations of society.”

Of course, like all other constitutionally protected rights, 
the right to associate is subject to reasonable restrictions 
where necessary for the protection of a paramount com­
munal interest. We discuss below whether the limitation 
on petitioner’s freedom imposed by Alabama is a reason­
able restriction on this constitutional right.

B. Freedom of Association Under the First and Four­
teenth Amendments

The First Amendment provides that:

“ Congress shall make no law respecting an establish­
ment of religion, or prohibiting the free exercise there­
o f; or abridging the freedom of speech or of the press;



14

or the right of the people peaceably to assemble and 
to petition the Government for a redress of griev­
ances.”

This Court has declared that, “ The right of peaceable 
assembly is a right cognate to those of free speech and 
free press and is equally fundamental.”  DeJonge v. Ore­
gon, 299 U. S. 353, 364 (1937). The three rights, indeed, 
are “ inseparable.”  Thomas v. Collins, 323 U. S. 516, 530 
(1945). Thus the right of assembly is “ an independent 
right similar in status to that of speech and press.”  Cush­
man, Civil Liberties in the United States (1956), p. 60.4

Like the other basic First Amendment freedoms, free­
dom of assembly is protected by the Fourteenth Amend­
ment against unreasonable impairment by the states. 
DeJonge case, supra; Whitney v. California, 274 U. S. 357 
(1927); Thomas v. Collins, supra; Hague v. Committee for 
Industrial Organization, 307 U. S. 496 (1939).

It is now also well established that freedom of as­
sembly is not limited to occasional meetings but includes 
the organization of associations on a permanent basis.

4 The First Congress, while it was drafting the First Amendment, 
was clearly reminded that the three rights were part of a seamless 
web (1 Annals 759-761): At one point, Representative Sedgwick 
objected to inclusion of assembly with speech and press as being too 
trifling and obvious. “ If people freely converse together they must 
assemble for that purpose; it is a self-evident, unalienable right which 
the people possess; it is certainly a thing that never would be called 
in question; * * * ” He likened it to listing the right to put on one’s 
hat. Representative Page noted that the right of assembly and, in­
deed, the right to wear a hat, had been infringed upon and it was 
necessary to protect the right of assembly because “ If the people 
could be deprived of the power of assembling under any pretext 
whatsoever, they might be deprived of every other privilege contained 
in the clause.”



15

Thus, “ freedom of association”  may be viewed as a 
right to conduct indefinitely continuing assemblies.5

Thus, in Thomas v. Collins, supra, this Court held 
that the right to discuss labor unions and to urge people 
to join them “ is protected not only as part of free speech, 
but as part of free assembly”  (323 U. S. at 532).

As early as 1927, this Court recognized freedom of 
association as a separate and independent right in hold­
ing that a California anti-syndicalism law was a restraint 
upon “ the rights of free speech, assembly, and associa­
tion”  but that it was necessary to protect the state from 
serious injury. Whitney v. California, supra, 274 U. S. at 
372. Subsequently, in Joint Anti-Fascist Refugee Com­
mittee v. McGrath, 341 U. S. 123, 141 (1951), the func­
tioning of associations was described as “ a legally pro­
tected right.”  See also United Public Workers v. Mitchell, 
330 U. S. 75 (1947); Bridges v. Wixon, 326 U. S. 135, 163 
(1945).

The constitutional status of freedom of association 
was most recently reaffirmed by this Court in Sweezy v- 
New Hampshire, 354 U. S. 234, 250 (1957).

5 The constitutional synthesis is described in Emerson & Haber, 
Political and Civil Rights in the United States (1952), p. 248:

“ This right of association is basic to a democratic society. 
It embraces not only the right to form political associations but 
also the right to organize business, labor, agricultural, cultural, 
recreational and numerous other groups that represent the mani­
fold activities and interests of a democratic people. In many of 
these areas, an individual can function effectively in a modern 
industrial community only through the medium of such or­
ganization * * *

“ The United States Constitution nowhere explicitly recog­
nizes a right to form political organizations. * * * Yet it is 
generally accepted that the rights in the First Amendment to 
freedom of speech, press and assembly, and to petition the gov­
ernment for redress of grievances, taken in combination, estab­
lish a broader guarantee to the right of political association.”



16

“ * * * 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 free­
dom of a party is simultaneously an interference with 
the freedom of its adherents.”

Freedom of association has also been given interna­
tional recognition. On December 10, 1948, the General 
Assembly of the United Nations, with the full approval 
and support of the United States, adopted the Universal 
Declaration of Human Rights, Article 20(1) of which de­
clares :

“ Everyone has the right to freedom of peaceable 
assembly and association.” 6

Thus, freedom of speech, press, assembly and asso­
ciation are all part of one complex in which each supports 
the others. I f any one is recognized, logic requires equal 
recognition of the rest. Conversely, impairment of any 
one necessarily impairs the effectiveness of the rest.

0 This provision came about as result of the activities of a com­
mittee appointed in 1945 by the American Law Institute. The com­
mittee, representing the “ principal cultures of the world,” published 
a “ Statement of Essential Human Rights” (distributed by Americans 
United for World Organization). That group took pains to spell out 
the guarantee of freedom of association as distinct from freedom of 
assembly. Article Four of the Statement guarantees freedom of 
assembly. Article Five provides :

“ Freedom to form with others associations of a political, eco­
nomic, religious, social, cultural, or any other character for pur­
poses not inconsistent with these articles is the right of every­
one.”
See also Beatty v. Gillbanks, 9 Q. B. D. 308 (1882).



17

While we do not believe that freedom of association 
is limited to circumstances in which it is used to imple­
ment assertion of the other freedoms, it is at least true 
that it finds part of its justification in its ability to do so. 
This was aply spelled out by the Supreme Court of Massa­
chusetts in a decision condemning a statute curbing politi­
cal activity of labor unions. In Bowe v. Secretary of the 
Commonwealth, 320 Mass. 230, 252 (1946), the court said:

“ One of the chief reasons for freedom of the press 
is to ensure freedom, on the part of individuals and 
associations of individuals at least, of political dis­
cussion of men and measures, in order that the elec­
torate at the polls may express the genuine and in­
formed will of the people. (Citations omitted) Indi­
viduals seldom impress their views upon the elec­
torate without organization. They have a right to 
organize into parties, and even into what are called 
‘ pressure groups,’ for the purpose of advancing 
causes in which they believe.”

The late Mr. Justice Jackson, concurring in the Joint 
Anti-Fascist case, supra (341 U. S. at 187), noted that 
citizens must often

“ * * * pool their capital, their interests, or their ac­
tivities under a name and form that will identify col­
lective interests, * * * to permit the association or 
corporation in a single case to vindicate the interests 
of all.” 7

7 It was this same need to pool strength and resources that was 
recognized by Chief Justice Taft in his classic defense of the right of 
workers to organize unions. American Steel Foundries v. Tri-City 
Central Trades Council, 257 U. S. 184, 209 (1921).



18

Mr. Justice Rutledge similarly noted (concurring in U. S. 
v. Congress of Industrial Organizations, 335 U. S. 106, 
143-4 (1948)):

“ The expression of bloc sentiment is and always 
has been an integral part of our democratic elec­
toral and legislative processes. They could hardly 
go on without it. Moreover, to an extent not neces­
sary now to attempt delimiting, that right is secured 
by the guaranty of freedom of assembly, a liberty 
essentially coordinate with the freedoms of speech, 
the press, and conscience.”

Judicial recognition of freedom of association as a 
constitutional right mirrors a fact of American life long 
recognized by observers of the American scene.8 Alexis 
de Tocqueville remarked in 1840 that Americans form 
associations for every possible purpose. Noting that such 
joint activity was necessary in a democracy, he concluded 
that, “ If men living in democratic countries had no right 
and no inclination to associate for political purposes, 
their independence would be in great jeopardy; * * *”  
(de Tocqueville, supra, Vol. II, p. 115).

Forty-eight years later, Lord Bryce similarly stressed 
the importance of associations in this country. He said 
(The American Commonwealth, Third Edition (1899), Vol. 
II, pp. 278-279):

“ Such associations have great importance in the 
development of opinion, for they rouse attention, excite 
discussion, formulate principles, submit plans, em­
bolden and stimulate their members, produce that im­
pression of a spreading movement which goes so far

8 See the chapter, “ Biography of a Nation of Joiners,”  in Schles- 
inger, Paths to the Present (1949), pp. 23-50. The special impor­
tance of the group as “ the basic political form” is stressed in Latham, 
The Group Basis of Politics (1952), p. 10.



19

towards success with a sympathetic and sensitive 
people * * * this habit of forming associations * * * 
creates new centres of force and motion, and nourishes 
young causes and unpopular doctrines into self-confi­
dent aggressiveness.”

President Lowell of Harvard University said in 1914 
(Public Opinion and Popular Government, American Citi­
zen Series, p. 39):

“ Freedom of expressing dissent includes liberty of 
organization, and in order that this may be completely 
effective it must not be confined to purely political 
objects, but must become a part of the popular customs, 
covering all matters in which people are interested.”

This theme was reiterated most recently by the late Pro­
fessor Chafee (The Blessings of Liberty (1956), pp. 150- 
151):

“ If we look over our national history, we see that many 
of the most significant political and social changes 
began with the efforts of some small informal group 
disliked by the ordinary run of citizens. The abolition 
of slavery grew out of Garrison’s Anti-Slavery Society 
and similar associations. The Nineteenth Amendment 
is the culmination of the activities of a few unpopular 
women in the middle of the last century. The popular 
election of Senators, the federal income tax, and sev­
eral other reforms largely originated with the Grangers 
and the Populists * * *. Under modern conditions, 
freedom of speech under the First Amendment is likely 
to be ineffective if it means only the liberty of an 
isolated individual to talk about his ideas. Indeed, 
from the very beginning, freedom of speech has in­
volved the liberty of a number of individuals to asso­
ciate themselves for the advocacy of a common purpose



20

whether they exchange ideas in a hall or by mail like 
the Committees of Correspondence before the Revolu­
tion. Thus, freedom of speech and freedom of assem­
bly fit into each other. They are both related to the 
possibility of petitioning Congress and the state legis­
latures for redress of grievances, which is only part 
of the wider freedom to submit the views of the indi­
vidual or the group to the people at large for judg­
ment.”

An apt summary is supplied by a South Carolina political 
scientist (Abernathy, “ Right of Association,”  6 So. Car. 
L. Q. 32, 75-76 (1953)):

“ Associations have a place of particular importance 
in a democracy, whether they are associations of 
laborers, professional men, or electors and office- 
seekers. They serve as a training ground for group 
participation, organization and management of people 
and programs, and for democratic acceptance of the 
majority will. They can also serve as a potential 
influence for improvement of communication between 
the individual and the government. Concerted demands 
for action by associations of people have a better 
chance for accomplishing the desired governmental 
action than do scattered individual requests. And the 
information furnished to administrators and legisla­
tors by private associations of various kinds is in many 
instances vital to the intelligent treatment of particu­
lar problems.”

It is not surprising therefore to find that at least 5,000 
national associations exist in the United States. (Rose, 
Theory and, Method in the Social Science (1954), pp. 52n, 
55-56.)



C. The Association’s Freedom of Association

We submit that the freedom of association guaranteed 
by the Constitution is enjoyed not merely by the individual 
members of the association but by the association itself. 
Indeed, freedom of association would be of little value if 
only the individual members could assert judicially a claim 
to its protection, for the justification for freedom of asso­
ciation lies in the recognition that unorganized individuals 
are frequently unable or unwilling to assert the rights that 
lie at the foundation of a democratic society. Accordingly, 
this Court has frequently recognized and acknowledged the 
status of an association to assert its members’ right that 
the association be permitted to exist and to conduct its 
activities free of unreasonable and oppressive government 
restrictions.

Pierce v. Society of Sisters, 268 U. S. 510 (1925), we sub­
mit, is exactly in point. In that case, this Court, following 
Meyer v. Nebraska, supra, held that the right of parents 
to have their children educated in private schools was a 
constitutionally protected liberty under the Fourteenth 
Amendment. But the right was not asserted by any parent; 
no parent was a party to the litigation between the private 
association conducting the school and the State of Oregon. 
Nevertheless, the Court expressly allowed the association to 
assert the right.

Determinative too, we submit, is Joint Anti-Fascist 
Committee v. McGrath, supra, wherein this Court recog­
nized the constitutional right of associations to be free from 
arbitrary governmental action whose “ effect is to cripple 
the functioning and damage the reputation of those organi­
zations in their respective communities and in the nation”



22

(341 U. S. at 139). In Kedroff v. St. Nicholas Cathedral, 
344 U. S. 94 (1952), this Court recognized the right of a 
religious association to assert judicially its members’ con­
stitutionally protected freedom of worship and its own 
right to freedom from arbitrary governmental interference 
with its activities.9 These and other decisions of this Court 
(e.g., Adler v. Board of Education, 342 U. S. 485 (1952); 
American Communications Association v. Bonds, 339 U. S. 
382 (1950); United Public Workers v. Mitchell, 330 U. S. 75 
(1947)) expressly or implicitly recognize the status of an 
association to assert in its own right the constitutional 
freedom from arbitrary restraints upon its existence or its 
activities.10

P O I N T  T W O

An organization whose purpose and activities are 
the protection of Federally secured rights may not be 
subjected to oppressive and burdensome state re­
strictions.

We have sought to show above that the petitioner herein 
and its members enjoy a constitutionally protected freedom 
of association immune from arbitrary and unreasonable 
state restraints. It also has a right of narrower scope, 
predicated on the particular nature of the organization and 
the organized activity here affected. We here argue that 
the activities of petitioner in seeking enforcement of 
Federally secured rights are entitled to protection from 
oppressive or burdensome state interference, wholly aside 
from its rights as a lawful association.

9 See also: Howe, “ Political Theory and the Nature of Liberty,’’ 
67 Harv. L. Rev. 91 (1953) ; Figgis, Churches in the Modern State 
(1951) ; Laski, “ The Personality of Associations,”  29 Harv. L. Rev. 
404 (1916).

10 See also Comment: “ State Control of Political Organizations: 
First Amendment Checks on Powers of Regulation,”  66 Yale L. T. 
545, 546-550 (1957).



23

A. The Nature of Petitioner’s Activity

The formation, organization and structure of the 
NAACP are described in its brief (pp. 2-7). As there clearly 
appears, one of the primary purposes of the Association 
and its principal activity is protection of the rights of 
equality guaranteed by the United States Constitution and 
by Federal statutes.

The State of Alabama has itself placed that fact beyond 
dispute. One of its complaints against the Association, on 
which it based its demand that its activities be terminated, 
was the fact that the Association had supported efforts to 
end state-enforced racial segregation (R. 2). This proceed­
ing was thus avowedly designed to frustrate efforts to 
vindicate Federally secured rights. The order issued by 
the trial court has accomplished that aim. The barrier to 
vindication of constitutional guarantees has been erected 
by action of the state, through its executive and judicial 
branches.

B. Petitioner’s Activities in Vindication of Federally Se­
cured Rights May Not Be Unduly Burdened by the 
State

We submit that the petitioner’s interest in the vindica­
tion and enforcement of Federal constitutional and statu­
tory guarantees stands on the same footing as other Feder­
ally secured interests that this Court has protected from 
undue burden by the states.

Thus, this Court has repeatedly invalidated state laws 
burdening interstate commerce. See, for example, Buck v. 
Kuykendall, 267 U. S. 307 (1925); Fidelity and Deposit Co. 
v. Tafoya, 270 U. S. 426 (1926); Hanover Insurance Co. v. 
Harding, 272 U. S. 494 (1926); Southern Pacific Company v. 
Arizona, 325 U. S. 761 (1945); Morgan v. Virginia, 328



24

U. S. 373 (1946). It has similarly condemned limitations on 
the movement of individuals from state to state. Crandall 
v. Nevada, 73 U. S. (6 Wall.) 35 (1867); Edwards v. Cali­
fornia, 314 U. S. 160 (1941). It has curbed state legislation 
restraining exercise of rights created by Federal laws. 
Hill v. Florida, 325 U. S. 538 (1945). In Slochower v. 
Board of Higher Education, 350 U. S. 551 (1956), this 
Court struck down a statute penalizing the exercise of the 
Fifth Amendment privilege against self-incrimination, not­
ing that (350 U. S. at 558):

“ The heavy hand of the statute falls alike on all who 
exercise their constitutional privilege, the full enjoy­
ment of which every person is entitled to receive.”

Particularly significant to the instant proceeding is the 
protection that has been given to the right to invoke the 
processes of the Federal courts. In Terral v. Burke Con­
struction Co., 257 U. S. 529 (1922), that right was held para­
mount to the very state interest involved here, regulation 
of foreign corporations. This Court invalidated an Ar­
kansas law that prohibited foreign corporations from doing 
business in Arkansas if they availed themselves of the 
right to start suits in a Federal court or have them removed 
to such a court. In words clearly applicable here, Chief 
Justice Taft said that condemnation of the statute (257 
U. S. at 532-3)

“ * * * res ŝ on the ground that the Federal Consti­
tution confers upon citizens of one State the right to 
resort to federal courts in another, that state action, 
whether legislative or executive, necessarily calculated 
to curtail the free exercise of the right thus secured is 
void because the sovereign power of a State in exclud­
ing foreign corporations, as in the exercise of all others



25

of its sovereign powers, is subject to the limitations of 
the supreme fundamental law.”

The mere fact that the State of Alabama has the right 
to regulate the operation of foreign corporations within 
its borders does not give it carte blanche to curb their 
activities in asserting Federal rights. Justice Holmes 
pointed this out in Fidelity v. Tafoya, supra (270 U. S. 
at 434):

“ But it has been held a great many times that the 
most absolute seeming rights are qualified, and in 
some circumstances become wrong. One of the most 
frequently recurring instances is when the so-called 
right is used as part of a scheme to accomplish a 
forbidden result. Frick v. Pennsylvania, 268 U. S. 
473. American Bank and Trust Co. v. Federal Re­
serve Bank of Atlanta, 256 U. S. 350, 358. Badders 
v. United States, 240 U. S. 391, 394. United States v. 
Reading Co., 226 U. S. 324, 357. Thus the right to 
exclude a foreign corporation cannot be used to pre­
vent it from resorting to a federal court, Terral v. 
Burke Construction Co., 257 U. S. 529; or to tax it 
upon property that by established principles the 
State has no power to tax, Western Union Telegraph 
Co. v. Kansas, 216 U. S. 1, * * *”

The Crandall case, supra, makes it clear that the 
government and the citizen are equally entitled to de­
mand protection against such interference. This Court 
there pointed out that the Federal government frequently 
has need to move its officials from state to state and could 
not permit taxes on such movements. It went on (73 
U. S. at 4 4 ):



26

“ But if the government has these rights on her own 
account, the citizen also has correlative rights. He 
has the right to come to the seat of government to 
assert any claim he may have upon that government, 
or to transact any business he may have with it. To 
seek its protection, to share its offices, to engage in 
administering its functions * * * and this right is in 
its nature independent of the will of any State over 
whose soil he must pass in the exercise of it.”

We submit that the State of Alabama denies petitioner 
due process of law when it uses its courts to prevent or 
deter the petitioner from furnishing legal counsel to an 
Alabama citizen in a proceeding designed to test the 
State’s “ policy of denying entrance to Negroes”  (R. 2), 
or to prevent it from supporting action “ to compel the 
Capitol Motor Lines of Montgomery, Alabama, to seat 
passengers without reference to race”  (R. 2). These 
allegations in the State’s complaint make it plain that 
the proceeding instituted by Alabama was intended to halt 
and has in fact halted legitimate efforts to invoke Federal 
law. It was thus “ part of a scheme to accomplish a for­
bidden result.”  Fidelity v. Tafoya, quoted supra.

It is no answer to say that the State of Alabama has 
not interfered with individuals seeking to vindicate 
Federal rights but only with those who offer them or­
ganized support. We have shown above that organization 
is virtually essential to the advancement of unpopular 
causes in today’s complex society. It is plain enough, as 
Professor Arthur Schlesinger says (op. cit., supra, at 
p. 49), that:

“ The burden of championing minority rights and un­
popular causes has fallen on other types of associa­



27

tions, notably humanitarian, labor and reform bodies. 
These have helped educate the public to the need for 
continuing change and improvement and in their as­
pects as pressure groups have done much to keep 
legislatures and political parties in step with the 
times.”

Petitioner’s activities are designed to give reality to 
Federal constitutional guarantees. The national interest 
in the same end requires this Court to remove unwar­
ranted restraints upon efforts to achieve it.

P O I N T  T H R E E

The State of Alabama may not directly destroy pe­
titioner or forbid its activities.

A. The Special Nature of the Right Claimed

We have shown that the right of association is pro­
tected by the First and Fourteenth Amendments. We con­
tend that this right, especially when, as here, it is exer­
cised with a view to vindication of other constitutionally- 
protected rights in the Federal courts, is among “ those 
liberties of the individual which history has attested as 
the indispensable conditions of an open as against a closed 
society [and which therefore] come to this Court with a 
momentum for respect lacking when appeal is made to 
liberties which derive merely from shifting economic ar­
rangements.”  Mr. Justice Frankfurter, concurring in 
Kovacs v. Cooper, 336 U. S. 77, 95 (1949).

The right of association, as exercised by petitioner and 
as sought to be abridged by respondent, is one of the 
rights which lie “ at the foundation of free government 
by free men. * * * In every case, therefore, where legis-



2 8

lative abridgement of the rights is asserted, the courts 
should be astute to examine the effect of the challenged 
legislation. Mere legislative preference or beliefs respect­
ing matters of public convenience may well support regu­
lation directed at other personal activities, but be insuffi­
cient to justify such as diminishes the exercise of rights 
so vital to the maintenance of democratic institutions.”  
Schneider v. New Jersey, 308 U. S. 147, 161 (1939).

In weighing the state action here attacked against the 
right here asserted, it should be remembered that “ the 
usual presumption supporting legislation is balanced by 
the preferred place given in our scheme to the great, the 
indispensable democratic freedoms secured by the First 
Amendment.”  Thomas v. Collins, 323 U. S. 516, 530 
(1945). Much more than a mere “ rational basis”  must 

he shown to justify state interference with the funda­
mental right sought to be exercised by petitioner.

B. Alabama Has Not Demonstrated the Necessity for Its 
Restrictive Action

As against the societal interest in preserving freedom 
of association, and the special Federal interest in pro­
tecting activities for the vindication of Federally secured 
rights, what can Alabama offer as justification for the 
order it has sought and obtained from its courts pro­
hibiting petitioner from functioning? The only apparent 
goals of the proceeding initiated by the state are enforce­
ment of its law requiring registration of foreign cor­
porations11 and prevention of anti-segregation activity.

The first of these goals is manifestly insufficient to 
justify the Draconian action taken here. As petitioner 11

11 We take no position on whether the Alabama statute dealing 
with foreign corporations (Ala. Code, 1940, Title 10, Secs. 192, 193, 
194) actually requires petitioner, a non-profit membership corpora­
tion, to register or whether the statute is valid as so applied.



29

has amply shown in its brief (pp. 32-38), if Alabama 
sought only the enforcement of its registration statute, 
it was entirely unnecessary to put the Association out of 
business by a judicial order, entered without notice or 
hearing. Moreover, in view of petitioner’s assertion, early 
in the proceeding, that it was prepared to comply with 
the registration requirement (R. 7), the continuation of 
the proceeding and the court’s order prohibiting the 
Association from complying patently had a deeper 
motivation.

This can be found in the allegations in the State’s orig­
inal bill of complaint that petitioner was engaged in anti­
segregation activities and that it was causing “ irreparable 
injury to the property and civil rights of the citizens of 
Alabama”  (R. 2). The allegations of petitioner’s anti­
segregation activity are the only part of the bill of com­
plaint that can account for the State’s insistence that peti­
tioner immediately cease operations. Moreover, the meas­
ures taken against the NAACP here are part of a pattern 
of similar steps taken by other states, all designed to make 
it impossible for the NAACP to operate (Assault Upon 
Freedom of Association, A Study of the Southern Attack 
Upon the National Association for the Advancement of 
Colored People, American Jewish Congress (1957)).

But Alabama’s interest in halting anti-segregation ac­
tivity (presumably in order to “ protect the public against 
false doctrine,”  Mr. Justice Jackson concurring in Thomas 
v. Collins, supra, 323 U. S. at 545) certainly cannot out­
weigh the constitutional objective of protecting freedom 
of association and protecting vindication of Federally se­
cured rights. Indeed, that interest cannot even claim a 
place in the scales. The segregation that Alabama seeks 
to preserve at its State University and on the bus lines in 
its State capital has been specifically condemned by this 
and other Courts. Gayle v. Browder, 352 U. S. 903 (1956),



30

affirming 142 F. Supp. 707; Brown v. Topeka, 347 U. S. 483 
(1954); Sweatt v. Painter, 339 U. S. 629 (1950). The obli­
gation of the State of Alabama toward petitioner and its 
members is to grant them “ protection in the lawful exer­
cise of their rights as determined by the courts”  and not 
“ to make that exercise impossible.”  Sterling v. Con­
stantin, 287 IT. S. 378, 402 (1932).

P O I N T  F O U R

The State of Alabama may not indirectly destroy 
petitioner or frustrate its activities by requiring it to 
expose its membership lists.

A. Indirect Destruction and Frustration by 
Oppressive Burdens

If freedom to associate may not be directly forbidden, 
the same result cannot constitutionally be achieved by im­
posing burdensome conditions that effectually prevent or 
unduly harass its exercise. Hannegan v. Esquire, 327 U. S. 
146 (1946); Murdock v. Pennsylvania, 319 U. S. 105 (1943). 
This was plainly established by this Court in its successive 
decisions in Pierce v. Society of Sisters, supra and Far­
rington v. Tokushige, 273 U. S. 284 (1927). In Pierce, this 
Court held that a state could not constitutionally prohibit 
the operation of private schools. Two years later, in Far­
rington, it held equally unconstitutional minute and de­
tailed government regulation that would have made their 
operation difficult if not impossible. As the Pierce case 
held that a private, voluntary educational association could 
not constitutionally be outlawed, the Farrington case held 
that the operations of such an association could not consti­
tutionally be subjected to oppressive and burdensome 
regulations.



31

B. The Oppressive Burden of Compulsory Exposure

The mantle of protection that the Constitution throws 
over the right to hold and espouse political, religious and 
other views is designed primarily for those who adhere to 
unpopular causes, those who advance the “ opinions we 
loathe.”  (Justice Holmes dissenting in Abrams v. U. S., 
250 U. S. 616, 630 (1919).) No Bill of Rights is needed to 
protect what is popular and conventional. Thus, we must 
assume, in testing any proposed application of the consti­
tutional guarantees, that the cause in question is repudi­
ated and actively opposed by the majority of the commu­
nity and, probably, by those who control the government 
as well.

In this case, however, it is not necessary to hypothesize 
the unpopularity of the cause. Here, not only unpopularity 
but official hostility is plainly shown. We need not repeat 
the ample demonstration made in petitioner’s brief (pp. 
12-17) that any Negro in Alabama whose affiliation with 
petitioner becomes public runs a substantial risk of eco­
nomic retribution and even physical violence.

Indeed, in at least one respect, punishment is imposed 
by agencies of the respondent itself. Under local laws 
adopted by the State legislature, the boards of education 
of two Alabama counties are authorized to discharge pub­
lic school teachers who belong to organizations advocating 
racial integration (R. 13). If petitioner produced its mem­
bership lists containing the names of teachers in those 
counties, their jobs would be forfeited under these laws.

In Joint Anti-Fascist Refugee Committee v. McGrath, 
supra, it was recognized that the climate in which an or­
ganization exists and carries on its activities is a reality 
that must be considered in determining whether the organi­
zation has been accorded due process of law. The Court



32

there sustained the legal sufficiency of a complaint which 
alleged that the action of the Attorney General “ caused 
many contributors, especially present and prospective civil 
servants, to reduce or discontinue their contribution to 
the organization; members and participants in its activi­
ties have been ‘ vilified and subjected to public shame, dis­
grace, ridicule and obloquy * * * ’ thereby inflicting upon 
it economic injury and discouraging participation in its 
activities; it has been hampered in securing meeting 
places; and many people have refused to take part in its 
fund-raising activities”  (341 U. S. at 131).

The oppressive effect of exposure was also clearly rec­
ognized in the recent case of Watkins v. U. S., 354 U. S. 
178,197 (1957) wherein this Court stated that when “ forced 
revelations concern matters that are unorthodox, unpopu­
lar, or even hateful to the general public, the reaction in 
the life of the witness may be disastrous.”

The very factors that justify protection of freedom of 
association in a democracy require also that organizations 
be protected from prying by an unfriendly government. 
If association “ nourishes young causes and unpopular 
doctrines into self-confident aggressiveness”  (Bryce, su­
pra), it is only after they have grown strong enough to 
“ produce that impression of a separate movement which 
goes so far towards success”  (ibid). At the early critical 
formative stage of a movement, anonymity may well mean 
the difference between life and death.

The close relationship of anonymity to effective organi­
zation has received express recognition under the Federal 
statutes guaranteeing the right of employees to organize 
labor unions. As petitioner’s brief clearly demonstrates 
(pp. 27-29), the rights created by the Wagner Act would 
be illusory if the employer were free to discover the names 
of the first employees to join. Hence, the National Labor 
Relations Board and the courts have held that the right



33

to organize necessarily includes the right to do so secretly, 
as petitioner has shown in its brief.12

We submit, therefore, that state-compelled disclosure 
of the membership of an unconventional or unpopular asso­
ciation destroys its effectiveness and frustrates perform­
ance of its constitutionally protected activities. Such state 
compulsion is as violative of First and Fourteenth Amend­
ment rights as is direct destruction of the association or 
prohibition of its activities, unless it is necessary to achieve 
a paramount state objective. We show below that no 
such justification appears here.

C. The Constitutional Right of Anonymity

Aside from the harrassing aspect of the requirement 
of exposure, we believe that it impairs a constitutional right 
of anonymity that may not be infringed in the absence of an 
overriding communal interest which the state is constitu­
tionally competent to protect. The right of anonymity is 
an incident of a civilized society and a necessary adjunct 
to freedom of association and to full and free expression 
in a democratic state.

In Watkins v. U. S., supra, this Court said (354 U. S. 
at 187):

“ There is no general authority to expose the private 
affairs of individuals without justification in terms 
of the functions of Congress.”

What is true of individuals, we believe, is true of associa­
tions; and what is true of Congress is true of all other 
agencies of government, Federal and state. Government 
may not, without justification, pierce the veil of anonymity.

12 The matter of union secrecy is dealt with in detail in the gov­
ernment’s brief amicus curiae in Thomas v. Collins, supra, 1944 Term, 
No. 14, pp. 21-31.

It is also worth noting that, despite the large number of state 
statutes passed in the last fifteen years substantially restricting union 
activities, none requires exposure of membership lists.



34

D. The Place of Anonymity in a Democratic Society

It is important to recognize that there is nothing in­
herently wrong in desiring to keep one’s name from the 
public. Anonymity has a long and honorable history and 
may serve important social objectives. The cause of 
civilized progress was greatly benefited by the fact that 
Daniel Defoe could publish anonymously his Shortest Way 
with the Dissenters, and it was correspondingly greatly 
harmed when Defoe’s identity was discovered and he was 
fined and pilloried for his offense (Minto, Daniel Defoe 
(1909), pp. 38-40).

In this country, even before the founding of our re­
public, the practice of speaking anonymously on social and 
political matters was accepted as normal and proper. 
Benjamin Franklin signed his first pieces for the New 
England Courant as “ Silence Dogwood”  (Bleyer, Main 
Currents in the History of American Journalism (1927), 
pp. 56-57). The use of names like “ Philanthrop,”  “ Hu- 
manus”  and “ Cato”  as signatures on articles on public 
affairs was widespread (Id., pp. 43-100). In 1775, Thomas 
Paine used the signature “ Humanus”  in an article for 
the Pennsylvania Journal; after Rev. William Smith, 
president of the University of Philadelphia, used the name 
“ Cato”  in attacking Paine’s Common Sense, Paine re­
plied under the name of “ Forester”  (Id., p. 91). The 
Neiv Hampshire and Vermont Journal or Farmers Weekly 
Museum regularly published articles in the 1790’s written 
by such persons as “ The Lay Preacher,”  “ Peter Pencil,”  
“ Simon Spunkey,”  “ Peter Pendulum”  and “ The Ped­
lar”  (Id., p. 128).

The most famous of all American political writings, 
The Federalist, written by Alexander Hamilton, James 
Madison and John Jay, was published anonymously. In-



35

deed, the attribution of several of the essays is still in 
doubt. As Professor Earle points out (The Federalist, 
Modern Library edition (1937), Introduction, p. ix), dur­
ing the controversy over the endorsement of the Consti­
tution, “ The press of the day was submerged with con­
tributions from anonymous citizens.”  Among those 
anonymously opposing ratification was New York’s 
Governor George Clinton, who wrote under the name 
“ Cato.”  (See the introduction by Paul Leicester Ford to 
the Henry Holt edition of The Federalist (1898), pp. 
xx-xxi.) i | |

Thus, in the early days of our Republic, persons who 
were or were to become President of the United States, 
Chief Justice of the Supreme Court, Secretary of the 
Treasury and Governor of New York did not hesitnte to 
maintain their anonymity in publishing weighty public 
and political documents.

This practice is still used by public officials. Foreign 
Affairs, the United States’ most influential periodical 
dealing with international policy, has frequently in recent 
years masked the names of its contributors, carrying 
leading articles signed simply by single initials, including 
the famous “ X ”  article, “ The Sources of Soviet Con­
duct,”  which set forth the Government’s policy towards 
the Soviet Union (Foreign Affairs, Vol. 25, Nos. 1 & 4, 
Yol. 27, No. 2, Vol. 36, No. 1).

The millions of Americans who are members of secret 
fraternal orders certainly believe firmly in their right to 
operate anonymously (Schlesinger, op. cit., supra, at p. 44). 
Professor Schlesinger describes them as playing a “ pos­
itive and continuing role in society”  {Id., p. 48).13

13A vigorous warning against the growing tendency to limit pri­
vacy and force all our activities into the glare of government super­
vision and public inspection is made by Professor Lasswell “ The 
Threat to Privacy,” in Maclver, ed., Conflict of Loyalties (1952),



36

E. Anonymity as an Aid to Free Expression

In a number of ways modern society recognizes anonym­
ity as a valuable aid in assuring free expression of 
opinion. It is standard practice for newspapers to print 
letters signed with initials or fictitious names. While the 
editors require that the writer disclose his name to them, 
they recognize that a freer expression of opinion can be 
achieved if they do not require public exposure of the 
writer’s identity.

Public opinion researchers similarly accept the fact 
that some persons will hesitate to express themselves 
freely and honestly if they think that there is a chance 
that their names will ultimately be associated with the 
answers they give. In Interviewing for NORC (1945), 
the National Opinion Research Center, which has con­
ducted surveys for many government agencies, advised 
its employees (p. 15):

“ A few persons may be reluctant to talk if they feel 
their names will be taken. You can explain that 
NORC never wants the name of anyone who doesn’t 
want us to have it.”

That the loss of anonymity can have a serious effect 
on free expression of opinion is recognized in the book, 
How to Conduct Consumer and Opinion Research,, 
Blankenship, ed. (1946). The essay on “ Measurement of 
Employees’ Attitude and Morale,”  advises employers to 
place (pp. 223-4)

“ * * * emphasis on the point that the questionnaires 
must not be signed, that no one in the company will 
have access to the answered questionnaires, that there 
is no means of identifying a particular person’s



37

blank. All of the mechanics of distributing the ques­
tionnaire forms and the placing of the answered 
forms in the ballot box are such as to guarantee 
anonymity to the employee.”

In the same book, the essay on “ Trends in Public Opin­
ion Research”  describes conclusions drawn by the Office 
of Public Opinion Research from a comparison of ques­
tionnaires answered secretly with others answered by 
persons who were told that their identity would be known 
(p. 298):

“ Experiments with secret ballots as compared with 
oral interviews have shown that respondents are not 
always frank in stating their opinions. An unpopular 
opinion or one that reflects in any way upon the 
prestige of the respondent often gets a higher rating 
in the secret ballot than in oral replies.” 14

In employees’ suggestion programs, likewise, it is com­
mon practice to set up a system in which the person making 
the suggestion does not identify himself but receives a 
numbered receipt from which he may be identified after 
the suggestion has been considered. In How To Conduct A 
Successfid Employees’ Suggestion System (p. 9), Ezra S. 
Taylor rates anonymity as the most important condition for 
successful suggestion systems.

Underlying all these practices, anonymous polls, letters 
to the editor and the like, is the well-founded belief that 
anonymity in the expression of views contributes to the 
free play of ideas and hence to the ultimate search for 
truth, the same search for truth that the founding fathers 
sought to foster by the guarantees of the First Amendment.

Conversely, it is apparent that a society in which citizens 
are not allowed to engage in political activity free of the 
watchful eye of the state would be intolerable. As George

14 The original .experiments are reported in detail in Cantril, 
Gauging Public Opinion (1944), Chap. V.



38

Orwell has shown in Nineteen Eighty-Four, such prying is 
consistent only with totalitarianism.

F. Secret Elections in Democracies

Anonymity, secrecy, privacy, however it may be called, 
thus has a special value in a democratic society. Nowhere 
is this seen better than in the act that symbolizes the unity 
of democratic government and its citizens, the election of 
public officers. It is not too much to say that the degree 
of freedom that prevails in a country’s election is the 
surest test of the liberty of its citizens. As Mr. Justice 
Frankfurter pointed out, concurring in Sweezy v. New 
Hampshire, 354 U. S. 234, 266 (1957):

“ In the political realm, as in the academic, thought 
and action are presumptively immune from inquisi­
tion by political authority. It cannot require argument 
that inquiry would be barred to ascertain whether a 
citizen had voted for one or the other of the two major 
parties either in a state or national election. Until 
recently, no difference would have been entertained in 
regard to inquiries about a voter’s affiliations with one 
of the various so-called third parties that have had 
their day, or longer, in our political history. This is 
so, even though adequate protection of secrecy by way 
of the Australian ballot did not come into use till 1888.”

This right of “ political privacy”  (354 U. S. at 267) de­
serves protection whether exercised through major parties, 
through minor parties as in Sweezy, or through organiza­
tions with political objectives such as petitioner.

G. The Absence of Justification for Compulsory 
Disclosure

We concede, of course, that where a paramount societal 
interest is to be served or where injury to the community is 
to be avoided, the right of anonymity must yield and dis­



39

closure of identity may constitutionally be compelled. But, 
as this Court held in Watkins v. U. S., supra, some justifi­
cation must be shown. There is, the Court said, no “ gen­
eral power to expose where the predominant result can 
only be an invasion of the private rights of individuals”  
(354 U. S. at 200). In the words of Mr. Justice Frank­
furter, concurring in Siveezy v. New Hampshire, supra, 
354 U. S. at 266-7, the Court must strike a balance between 
“ the right of a citizen to political privacy, as protected by 
the Fourteenth Amendment, and the right of the State to 
self-protection.”

It is on that basis that the decision in Bryant v. Zim­
merman, 278 U. S. 63 (1928) can be explained (although 
we do not express approval of that decision). In that case 
this Court upheld application to the Ku Klux Klan of a 
New York statute requiring oath-bound organizations, with 
specified exceptions, to make public the names of their 
members. The principal basis for the decision was that the 
legislature could take judicial notice that the Ku Klux Klan 
operated illegally and had anti-social and anti-democratic 
objectives.

No such justification exists here. The activities of 
petitioner are not anti-social or anti-democratic; on the 
contrary, they are, as we have shown, in furtherance of 
constitutionally secured rights. The justification accepted 
as sufficient in Bryant v. Zimmerman is completely absent 
here and no other justification has been shown. No justi­
fication, we submit, exists, and the order requiring the 
petitioner to make public its membership records should 
therefore be reversed.15

15 We have shown above that petitioner has standing to assert the 
right to freedom of association on behalf of both itself and its mem­
bers. Its standing to assert the right of anonymity is even more clear. 
The right not to have the state require exposure of the names of the 
members of an organization is one that must be asserted by the or­
ganization. A  requirement that it be asserted by the individuals 
affected would require that the individual surrender the right at the 
same time that he asserted it. See also Barrows v. Jackson, 346 U. S. 
249 (1953).



40

Conclusion

The State of Alabama has challenged and attempted 
to limit the right of American citizens freely to associate. 
Its actions represent a grave threat to all voluntary asso­
ciations. Such a challenge demands of this Court unam­
biguous exercise of its historic powers not only to en­
force constitutional guarantees but also to keep open the 
channels for their assertion.

The undersigned organizations therefore respectfully 
submit that the decision below should be reversed.

Respectfully submitted,

L eo P feffer,
Attorney for Amici.

Shad P olier,
W ill, M aslow,

Attorneys for American Jeivish 
Congress.

Orrin G. Judd,
Attorney for American Baptist 

Convention, Commission on 
Christian Social Progress.

E dward J. E nnis ,
Osmond K. F raenkel,

Attorneys for American Civil 
Liberties Union.

Claude C. S m ith ,
Attorney for American Friends 

Service Committee.

E dwin J. L ukas,
T heodore L eskes,

Attorneys for American Jeivish 
Committee.



41

S hanley Norms E geth,
Attorney for American Veterans 

Committee.

David A . Rose,
A rnold F orster,

Attorneys for Anti-Defamation League 
of B ’nai B ’ritli.

James H. T ully,
Attorney for Board of Home Missions 

of the Congregational and Christian 
Churches.

F rank S. K etcham ,
Attorney for Council for Christian 

Social Action of the United Church 
of Christ.

F rank Ch um an ,
H arold Gordon,

Attorneys for Japanese American 
Citizens League.

M orris P. Glushein ,
Attorney for Jeivish Labor Committee.

David L. U llman ,
Attorney for National Community 

Relations Advisory Council.

Samuel R othstein,
Attorney for United Synagogue of 

America.

Carl R achlin ,
Attorney for Workers Defense League.

J oseph B. R obison,
Of Counsel.

October 3, 1957



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