Valentine Seeks Unity in Party (Raleigh News & Observer)
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July 29, 1982

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Brief Collection, LDF Court Filings. NAACP Legal Defense and Educational Fund, Inc. v. US Dept of the Army Brief of Appellant, 1989. 0c850922-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/68b6f063-a7e2-4c37-8672-a10acca2192c/naacp-legal-defense-and-educational-fund-inc-v-us-dept-of-the-army-brief-of-appellant. Accessed July 01, 2025.
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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Docket No. 88-1380. NAACP LEGAL DEFENSE & EDUCATIONAL FUND INC., Appellant, and MATTIBELLE C. HARRIS, ET AL., Plaintiffs, -v- UNITED STATES DEPARTMENT OF THE ARMY, JOHN 0. MARSH, Jr., Secretary, United States Department of the Army, Defendants-Appellees. On Appeal from an Order Of the United States District Court for the Eastern District of North Carolina, Fayetteville Division (James C. Fox, J.), Civil Action No. 81-60-CIV-3 Civil Action No. 80-168-CIV-3 BRIEF OF APPELLANT NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. MORRISON & FOERSTER Attorneys for Appellant NAACP Legal Defense and Educational Fund, Inc. 1290 Avenue of the Americas New York, New York 10104 (212) 468-8000 Of Counsel Barrington D. Parker Jr. Leslie D. Callahan TABLE OF CONTENTS Page Preliminary Statement............................. 1 STATEMENT OF THE ISSUES........................... 4 STATEMENT OF THE CASE............................. 5 A. Nature of the Appeal..................... 5 B. The Facts ............................... 6 SUMMARY OF ARGUMENT............................... 9 ARGUMENT I. THE DISTRICT COURT VIOLATED DUE PROCESS BY ENJOINING LDF WITHOUT PRIOR NOTICE, A HEARING OR PERSONAL JURISDICTION................. 10 A. LDF received no notice or hearing regarding the court order barring contributions to the sanctions award............... 10 B. The District Court did not have personal jurisdiction over the Legal Defense Fund.......... 12 II. THE DISTRICT COURT HAD NO LEGAL BASIS FOR AN ORDER AGAINST LDF.............................. 14 III. BY INTERFERING WITH LDF's DECISIONS REGARDING ALLOCATION OF ITS RESOURCES IN SUPPORT OF CIVIL RIGHTS LITIGATION, THE DISTRICT COURT VIOLATED LDF's FIRST AMENDMENT RIGHTS OF FREE SPEECH AND ASSOCIATION 16 Page A. LDF's right to contribute to the sanctions award is an activity protected by the First Amendment...................... 16 B. No restriction on the exercise of First Amendment rights is constitutional unless it is necessary to serve a compelling govern mental interest...................... 20 CONCLUSION........................................ 21 N24520 ii TABLE OF AUTHORITIES Cases American Civil Liberties Union v. Tennessee, 496 F.Supp 218 (M.D. Tenn. 1980)........................... 18 Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, reh*q denied, 434 U.S. 881 (1977)........... 18 Page(s) Bowens v, N.C. Dep't. of Human Resources, 710 F.2d 1015 (4th Cir. 1983).... 11 Brotherhood of Railroad Trainmen v. Virginia 377 U.S. 1, 84 S.Ct. 1113, reh'q denied, 377 U.S. 960 (1964)........... 18 Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir. 1972)............................ 5 Dracos v. Hellenic Lines, Limited 705 F.2d 1392 (4th Cir. 1983), cert, denied, 474 U.S. 975 (1985)...................................... 14 Eilers v. Palmer, 575 F.Supp. 1259 (D. Minn. 1984)....................... 19 Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, (1970).................. 11 Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115 (1940)......................... 13, 14 Harris v. Marsh 123 F.R.D. 204 (E.D.N.C. 1988)............................. 3, 6, 8, 20 Harris v. Marsh, 679 F.Supp. 1204 (E.D.N.C. 1987)........................ 2, 3, 9, 20 Hutchinson v. United States 677 F.2d 1322 (9th Cir. 1982)........................ 14 In re Franklin National Bank Securities Litigation, 574 F. 2d 662 (2d Cir. 1978)..................... 13 iii Page(s) In re Primus, 436 U.S. 412, 98 S.Ct. 1893 (1978)........................ 18 Kenny v. Quiqq, 820 F.2d 665 (4th Cir. 1987)............................. 5 Kulko v. Superior Court of California 436 U.S. 84, 98 S.Ct. 1690, reh'g denied, 438 U.S. 908 (1978) .......... 11 Louisiana v. NAACP, 366 U.S. 293, 81 S.Ct. 1333 (1961).......... 17, 20 Martin v. Wilks, ___ U.S. ___, 109 S.Ct. 2180, reh'g denied, 58 U.S.L.W. 3120 (1989) .................... 13 McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189 (1976)........................ 11 Memphis Light, Gas & Water Div. V. Craft, 436 U.S. 1, 98 S.Ct. 1554 (1978)................................. 11 National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449, 78 S.Ct. 1163 (1958)........... 17 National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 83 S.Ct. 328 (1963)............................ 17 National Association for the Advancement of Colored People v. NAACP Legal Defense and Educational Fund, Inc., 753 F.2d 131 (D.C. Cir.) cert, denied, 472 U.S. 1021 (1985)....................... 3, 6 Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244 (1984)...................................... 20 Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977)........................ 10 United Mine Workers Of America, District 12 v. Illinois State Bar Association, 389 U.S. 217 88 S.Ct. 353 (1967)....................... 18 iv Page(s ) United States Transportation Union v. State Bar Of Michigan, 401 U.S. 576, 91 S.Ct. 1076 (1971)................... 18 Warner Bros., Inc, v. Dae Rim Trading, Inc., 877 F.2d 1120 ( 2d Cir. 1989).............................. 5 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562 (1969)........................ 5, 13, 14 Statutes and Rules Fed. R. Civ. P. 4............................. 13 Fed. R. Civ. P. 11............................ 2, 3, 14 Fed. R. Civ. P. 16............................ 2, 3, 14 Fed. R. Civ. P. 19............................ 13 Fed. R. Civ. P. 65............................ 8, 10 28 U.S.C. SS 1291 and 1292(a)(1)............... 5 28 U.S.C. SS 1331 and 1332................... 14 28 U.S.C. § 1927.............................. 2 42 U.S.C. SS 2000e et seq..................... 2, 5 Other Authorities 9 J. Moore Moore's Federal Practice 1 203.06 (2d ed. 1989)...................... 5 N24531 v UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Docket No. 88-1380. NAACP LEGAL DEFENSE & EDUCATIONAL FUND INC., Appellant, and MATTIBELLE C. HARRIS, ET AL., Plaintiffs, -v- UNITED STATES DEPARTMENT OF THE ARMY, JOHN 0. MARSH, Jr., Secretary, United States Department of the Army, Defendants-Appellees. Preliminary Statement Appellant NAACP Legal Defense and Educational Fund, Inc. ("LDF") submits this brief in support of its appeal from a sua sponte order of the District Court enjoining LDF from reimbursing litigants or their counsel any portion of Rule 11 sanctions imposed on them by that Court. LDF was not a party to proceedings below. The District Court's order — which was tantamount to an injunction — was preceded by neither notice to LDF of threatened restrictions on its activities nor an opportunity to be heard and issued in the absence of in personam or subject matter jurisdiction. The order restricts LDF's right to spend its money as it chooses in support of civil rights litigation, a right guaranteed by the First Amendment and recognized and respected by numerous Courts. Following trial of various claims for relief brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e, et seq., United States District Court Judge James C. Fox entered an order denying them. Judge Fox then assessed sanctions against Plaintiffs and their attorneys under Rules 11 and 16, Fed. R. Civ. P., under 28 U.S.C. Section 1927, and under the so-called common law "bad faith" exception. Harris v. Marsh, 679 F. Supp. 1204 (E.D.N.C. 1987). At the same time the District Court permitted limited reallocation among the sanctioned parties, it sua sponte ordered that "no monies may or shall be paid by the NAACP or its Legal Defense Fund." (sic) 679 F. Supp. at 1392. The Court explained its rational for restrictions it felt necessary for the protection of LDF donors as follows: "Contributions are made to this organization and its litigation branches by members of the public who expect their money to be used by staff lawyers in a reasonable manner to pay for meritorious cases. The NAACP is an historic institution that has contributed substantially to the racial progress of this country. It continues to serve this vital purpose and the court does not 2 propose to see any money diverted from its crucial mission." 679 F. Supp. at 1392, n.280. In a subsequent order dated August 31, 1988 modifying the sanctions award in certain respects, the Court below again ordered that "no monies may or shall be paid by the NAACP or the LDF." Harris v. Marsh, 123 F.R.D. 204, 228 (E.D.N.C. 1988). These orders, we respectfully submit, constituted a conspicuously flagrant disregard of basic, well-established rules of law and are pock-marked by a host of errors, both procedural and substantive. LDF, a New York not-for-profit corporation, was not a party to the proceedings below and the Court therefore lacked in personam jurisdiction. LDF was not claimed or found to have violated Rule 11, Rule 16 or to have done anything wrong. No litigant requested sanctions or limitations of any sort against LDF and it had no notice that any might be imposed. As a result, LDF had 1 The Court below was, apparently, confused as to precisely which organization it sought to enjoin. The NAACP has no Legal Defense Fund or litigation branches. Since 1966 LDF's literature and stationary has made clear that "it is not a part of the National Association for the Advancement of Colored People although it was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget." See National Association for the Advancement of Colored People v. N.A.A.C.P. Legal Defense and Educational Fund, Inc., 753 F.2d 131, 136 n.48 (D.C. Cir. 1985), cert. denied, 472 U.S. 1021 (1985). 3 no opportunity to be heard or to present its arguments against what the Court had in mind to do to it. But even more objectionable than an injunction without notice, hearing or jurisdiction, the District Court's order also violated LDF's right to raise and to spend money in support of civil rights litigation, a right congruent with its First Amendment rights of free speech and association and one that necessarily extends to successful as well as to unsuccessful civil rights litigation. STATEMENT OF THE ISSUES 1. Did the District Court's sua sponte injunction violate due process by issuing without prior notice, a hearing or personal jurisdiction over LDF? 2. Did the District Court have any legal basis for entering an order interfering with the funding decisions of LDF? 3. Did the District Court's sua sponte injunction violate LDF's First Amendment rights of free speech and association by restricting use of its financial resources in support of civil rights litigation in the absence of a compelling state interest? 4 STATEMENT OF THE CASE A. Nature of the Appeal This appeal is from orders entered by the District Court on December 28, 1987 and August 31, 1988 following the trial of actions brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e, et. seq., alleging racial discrimination among the civilian work force at Fort Bragg, North Carolina. Although LDF was not a party or an intervenor in the District Court, this Court, nonetheless, has jurisdiction since LDF was the subject of, and hence was aggrieved by, a District Court injunction. Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir. 1972); 9 J. Moore Moore's Federal Practice H 203.06 at 3-23 (2d ed. 1989); accord Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100, 89 S.Ct. 1562 (1969); Warner Bros., Inc, v. Dae Rim Trading Inc., 877 F.2d 1120 (2d Cir. 1989); Kenny v. Quiqq, 820 F.2d 665 (4th Cir. 1987). This Court has appellate jurisdiction pursuant to 28 U.S.C. Sections 1291 and 1292(a)(1). 5 B. The Facts LDF is a not-for-profit legal aid corporation incorporated in 1940 pursuant to the laws of the State of New York. LDF's purpose is to assist, and to provide representation in, litigation challenging race discrimination. The work of LDF is conducted by paid staff attorneys augmented by attorneys in private practice working in cooperation with LDF's staff. See National Association for the Advancement of Colored People v. N.A.A.C.P. Legal Defense and Educational Fund, Inc., 753 F.2d 131 (D.C. Cir. 1985), cert, denied, 472 U.S. 1021 (1985); Harris v. Marsh, 123 F.R.D. 204, 219 (E.D.N.C. 1988). These activities are supported by funds solicited from public donors, foundations and other funding sources and spent on the litigation and related efforts LDF's staff and Board of Directors believe will contribute to the objectives of combatting and reducing race discrimination. LDF is governed by a Board of Directors, drawn from across the country, many of whose members are attorneys. The Board establishes broad policy goals and priorities for the organization. The Board of Directors employs a staff of salaried attorneys who are led by the Director-Counsel. While the Board of Directors possesses the ultimate authority to determine which litigation LDF will support, 6 this authority is delegated to LDF's Director-Counsel and to staff attorneys. Pursuant to its general practice LDF does not appear and did not appear in the Court below as a corporation and did not sign pleadings. Generally LDF litigates through its staff attorneys or associates with attorneys admitted locally. In courts in which LDF staff attorneys are not admitted, they participate in litigation Pro hac vice. In many cases a LDF staff attorney serves as lead counsel. In other cases such as this one, a LDF staff attorney plays a limited role. Julius L. Chambers, Esq., a subject of the District Court's sanctions award, has worked over the years as a cooperating attorney on cases with LDF. At the time this Title VII litigation was filed against the United States Army, Mr. Chambers was in private practice in North Carolina in the firm of Chambers, Ferguson, Watt, Wallas & Adkins. That firm served as lead counsel to the plaintiffs. In July, 1984, Mr. Chambers left private practice to become Director-Counsel of LDF. He withdrew as lead in-court counsel in Harris v. Marsh in February, 1985, although his former firm continued with the litigation. LDF did not appear as a corporation in the Court below and, during the course of Harris v. Marsh, Mr. Chambers did not appear on behalf of LDF but appeared 7 through his own firm and on behalf of plaintiffs. LDF Par"ticipated at trial only through the limited work of a part-time staff attorney, Penda D. Hair, Esq. from July, 1983 until March, 1984. See 123 F.R.D. at 219. The Court below described Ms. Hair's work as "extremely limited and episodic," involving "only relatively minor and defined tasks." "She possessed no decision-making authority or responsibility for the day-to-day management of the case." 123 F.R.D. at 219. Another staff attorney, Gail Wright, Esq., attended the sanction hearings. During the complex and protracted Title VII litigation behind this appeal, LDF was never served with any pleading joining it as a party and certainly with none indicating that it might be the subject of restrictive injunctive relief. Despite Appellee's efforts to obtain sanctions from numerous litigants and attorneys on a wide variety of claims, no one below ever requested that LDF be sanctioned or that its activities be subject to any restrictions and the Court made no finding against LDF of any misconduct. Thus, the District Court's sua sponte injunctions were preceded by none of the procedural safeguards normally afforded litigants by the Federal Rules of Civil Procedure (see e.g., Rule 65, Fed. R. Civ. P.) and by due process. 8 The District Court's sua sponte injunction is especially unsupportable because it was, at least in the Court's view, intended to protect, not to punish LDF and its contributors. In justifying its restrictions, the Court below acknowledged the NAACP's (sic) "historic mission" and that it "has contributed substantially to the racial progress of this country." The restrictions were, according to the Court, imposed "to serve this vital purpose" since "the court does not propose to see any money diverted from its crucial mission." 679 F. Supp. at 1392 n.280. In other words, the only compelling interest that animated the District Court was the protection of LDF and its contributors. But this is simply not a constitutionally acceptable justification for an interference with LDF's rights of free expression and association. SUMMARY OF ARGUMENT Without notice or an opportunity to be heard and without obtaining personal jurisdiction over LDF, the District Court sua sponte enjoined LDF from reimbursing any of the sanctions it imposed. An injunction issued under such circumstances violates due process as well as numerous other Rules of Civil Procedure. In addition, LDF's decisions regarding the allocation of resources in support 9 of civil rights activities are protected by First Amendment rights of free speech and association. The District Court's substitution of its judgment for that of LDF on the question of how best to further civil rights and to protect LDF and its contributors was highly inappropriate and, we respectfully submit, comes nowhere near the furtherance of some compelling government interest, the only basis on which LDF's First Amendment rights could properly have been abridged. ARGUMENT I. THE DISTRICT COURT VIOLATED DUE PROCESS BY ENJOINING LDF WITHOUT PRIOR NOTICE, A HEARING OR PERSONAL JURISDICTION. A. LDF received no notice or hearing regarding the court order barring contributions to the sanctions award. The District Court's orders were tantamount to injunctions issued in the complete absence of normal procedural safeguards. See Rule 65, Fed. R. Civ. P. As is shown below, the injunctions invaded LDF's First Amendment rights and . . a first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment." Sherrill v. Knight, 569 F.2d 124, 130-131 (D.C. Cir. 1977). 10 Prior notice and opportunity for a hearing are, of course, the cornerstones of due process. Notice is an "elementary and fundamental requirement of due process in any proceeding which is to be accorded finality" and must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13, 98 S.Ct. 1554, 1562 (1978). Similarly, an opportunity for a hearing is a "fundamental requisite of due process." Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020 (1970). See also Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, reh*q denied, 438 U.S. 908 (1978). Without providing notice and an opportunity for a hearing, a court cannot bind an entity by its judgment. McKinney v. Alabama, 424 U.S. 669, 674, 96 S.Ct 1189, 1193 (1976). While the type of notice and hearing may vary according to the circumstances, "at a minimum, due process usually requires adequate notice of the charges and a fair opportunity to meet them." Bowens v. N.C. Dep't. of Human Resources, 710 F.2d 1015, 1019 (4th Cir. 1983). The Court below ignored almost all of these basic rules. Prior to entry of the December 28, 1987 and August 31, 1988 orders, LDF received no notice that the District Court contemplated restricting its organizational 11 activities and no party had requested such relief. The status and organization of LDF, the nature of its contributions and expenditures and the effect that restrictions on them might have on the work of LDF were all important questions that had not been raised or briefed by any party and, hence, were not properly subject to decision by the District Court. An injunction issued in this context, especially one that implicates constitutionally protected conduct, is, we respectfully submit, impermissable. B. The District Court did not have personal jurisdiction over the Legal Defense Fund. The Court below had no jurisdiction to enter an order affecting the rights and obligations of LDF because LDF was not a party to the action. As a non-party, LDF could not properly be made subject to, or be bound by, the District Court's order. As the Supreme Court has recently stated: [a]11 agree that it is a principle of general application in anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings. 12 Martin v. Wilks. __ U.S.___, 109 S.Ct. 2180, 2184, reh'g denied, 58 U.S.L.W. 3120 (1989). See also Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115 (1940); Zenith v . Hazeltine, supra. In a closely analogous case, the Second Circuit held that a District Court could not require non-party brokerage houses which had not appeared before the court to send class notices at their own expense. In re Franklin National Bank Securities Litigation, 574 F.2d 662, 665-666 (2d Cir. 1978). The Court held that because the District Court lacked personal jurisdiction over the non-parties, it could not enter an order affecting their rights and obligations. Id. Certainly, the fact that the Court sanctioned Mr. Chambers who later became the employee of LDF did not give the Court in personam jurisdiction over LDF, a foreign corporation. See Martin v. Wilks supra; Zenith v. Hazeltine, supra; Hansberry v. Lee, supra. Jurisdiction over LDF could conceivably have been achieved by the service of some process on LDF pursuant to Rule 4, Fed. R. Civ. P. See Rule 19, Fed. R. Civ. P. Had proper process issued, LDF might then have been brought before the Court where restrictions on its First Amendment rights could have been litigated. That, of course, did not happen. Nothing in LDF's relationship to the litigation provided any 13 justification for the circumvention of the usual rules for making a foreign corporation a party to a legal proceeding. See Zenith v. Hazeltine, supra; Hansberry v. Lee, supra; Hutchinson v. United States, 677 F.2d 1322 (9th Cir. 1982). II. THE DISTRICT COURT HAD NO LEGAL BASIS FOR AN ORDER AGAINST LDF. It is undisputed that the District Court made no finding that LDF did anything wrong. There was no claim or finding that LDF violated Rule 11, Rule 16 or any other applicable stricture. In the absence of such a violation there was no basis for an order limiting LDF's freedom to pursue its objectives. Indeed there is no subject matter jurisdiction over LDF. See 28 U.S.C. Sections 1331 and 1332; Dracos v. Hellenic Lines Limited, 705 F.2d 1392 (4th Cir. 1983), cert, denied, 474 U.S. 945 (1985). There is nothing in LDF's relationship to the parties in the proceeding below which provides any legal basis for an ex parte order dictating how LDF can spend its money. Nothing in the proceedings below justifies an order invading Mr. Chambers' financial relationship with his employer. His compensation is a private matter outside the purview of the District Court's Rule 11 authority. If Mr. Chambers is to ultimately pay the sanctions, he must get the money somewhere. No legal basis exists for a ruling 14 preventing him from getting it from LDF which is both his employer and an organization dedicated to supporting both successful and frustrated civil rights lawyers. We can imagine no rational basis for an order forbidding a political or fraternal group, or some other civil rights group or a private individual from contributing to the sanctions as an expression of political or otherwise protected views. We suggest that there is nothing in LDF's relations with the parties or the Court which would give it any more authority to regulate LDF's contributions to the parties than the Court would have in the event any of these other entities sought to make contributions under such circumstances. The District Court's order cannot be upheld on the ground that it seeks to prevent LDF's charitable resources from being used to pay sanctions for which LDF was not liable. It is the right of LDF's Board of Directors to determine the proper allocation of its resources — within its corporate purposes — and it was a clear usurpation of that authority for the District Court to override the LDF Board's choice about how best to support civil rights activities. Neither can the order be justified by an argument that the Harris case is not a meritorious civil rights case. Whatever the weight of the District Court's findings on the 15 merits of the Harris case, it simply has no right to prevent LDF from expressing disagreement with those findings. If LDF's governing body concludes that the District Judge is wrong for some reason, or that his sanctions against the clients or lawyers were an improper over-reaction to difficult civil rights advocacy, the LDF Board has the right to spend its money in support of these conclusions. That is the essence of constitutionally protected speech and association and is something uniquely ill-suited to judicial second-guessing. III. BY INTERFERING WITH LDF'S DECISIONS REGARDING ALLOCATION OF ITS RESOURCES IN SUPPORT OF CIVIL RIGHTS LITIGATION, THE DISTRICT COURT VIOLATED LDF's FIRST AMENDMENT RIGHTS OF FREE SPEECH AND ASSOCIATION. A. LDF's right to contribute to the sanctions award is an activity protected by the First Amendment. The United States Supreme Court has long recognized that civil rights litigation is protected by the First Amendment and cannot be regulated except perhaps to serve a compelling government need, and only then if the regulation is narrowly tailored. In 1963, the Supreme Court held that NAACP activities in counseling litigants and referring them to NAACP attorneys for the purpose of instituting desegregation 16 suits were protected by the First Amendment. National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 83 S.Ct. 328 (1963). The Court explained that: In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local for the members of the Negro community in this country. It is thus a form of political expression. 371 U.S. at 429, 83 S.Ct. at 336. Rejecting the claimed need to enjoin the NAACP's activities because of the state's interest in prohibiting solicitation of clients, the Supreme Court emphasized that "a state may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.'' Id. 371 U.S. at 439, 83 S. Ct. at 341. Because Virginia had not shown a compelling interest in regulating the NAACP's litigation activities, the Court held that the statute unconstitutionally interfered with the NAACP's freedom of expression and freedom of association. Id. See generally Louisiana v. NAACP. 366 U.S. 293, 81 S.Ct. 1333 (1961); NAACP V. Alabama, 357 U.S. 449, 78 S.Ct. 1163 (1958). In numerous cases since then the Supreme Court, as well as lower courts, have applied this principle. Thus, First Amendment protection includes a union's right to have its legal department advise employees and their families and 17 refer them to competent counsel. Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, reh'q denied, 377 U.S. 960 (1964). Similarly, this First Amendment right extends to a union employing a salaried attorney to assist members with compensation claims. United Mine Workers of America, District 12 v. Illinois State Bar Association. 389 U.S. 217, 88 S.Ct. 353 (1967). The Supreme Court has emphasized that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." United States Transportation Union v. State Bar of Michigan. 401 U.S. 576, 585, 91 S.Ct. 1076, 1082 (1971). Such First Amendment protection also includes soliciting a party as a plaintiff in public interest litigation for the purpose of vindicating that party's rights. In re Primus. 436 U.S. 412, 426, 98 S.Ct. 1893, 1901 (1978). See Bates v. State Bar of Arizona, 433 U.S. 350, 376, 97 S.Ct. 2691, 2705, reh'q denied, 434 U.S. 881 (1977) . Lower courts have reached similar conclusions. In American Civil Liberties Union v. Tennessee, 496 F. Supp. 218 (M.D. Tenn. 1980), the court rejected a challenge to a public interest litigation group's funding of litigation based upon a claimed paramount state interest in preventing 18 barratry and held that the group's funding activities were protected by the First Amendment. Id. at 222. Similarly, in Eilers v. Palmer, 575 F.Supp. 1259, 1261 (D. Minn. 1984), the court rejected attempts to discover the identity of parties funding litigation holding that financial support of litigation is a "form of expression and association protected by the First Amendment." The Eilers court further emphasized that any restrictions on these protected activities are subject to close scrutiny. Id. A constitutionally protected right to support civil rights litigation means a right to spend money on it. If the right exists, how it is best exercised is a determination for the LDF Board, not the Court, and certainly not through a sua sponte, ex parte order. No one could seriously argue that Judge Fox could have barred LDF from properly spending its money on legal research, court reporter bills, salaries or expert witness fees in a civil rights case. Where the First Amendment is implicated, spending money on sanctions is analytically no different from spending money in any of these other areas. Unless the District Court's order is reversed, it will undoubtedly chill participation in future civil rights litigation, much of which has become complex, expensive, technical and beyond the reach of many practitioners. To 19 continue effectively to support litigation, LDF must be able to offer and deliver assistance to civil rights attorneys not only when they win, but also when they lose. If a constitutional right to financially support litigation does not apply when civil rights attorneys are unsuccessful or when, as here, a court concludes that a case was mishandled, then the right has disappeared. B. No restriction on the exercise of First Amendment rights is constitutional unless it is necessary to serve a compelling governmental interest._____ Even if some restriction on LDF's First Amendment activities were permissible — a proposition we deny — in order to pass constitutional muster, any such regulation must serve a compelling government interest. See Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244 (1984); Louisiana v. NAACP, supra; Button, supra. The sole rationale articulated by the Court below for its restrictions was the protection of LDF's contributors. Significantly, the District Court did not suggest that LDF was barred from reimbursing sanctions because of some interest in imposing the entire obligation upon the individual attorneys. On the contrary, the Court expressly provided that the firms of the sanctioned attorneys could contribute a portion of the award. Harris, 679 F. Supp. at 1392; Harris, 123 F.R.D. at 228. Having 20 determined that the attorneys would not be required to bear the entire sanctions award, the District Court unquestionably had no compelling interest in prohibiting LDF from reimbursing any of it. By any calculus, the lower Court's paternalistic concern for LDF's contributors is not a compelling interest. LDF has a large and responsible Board that is fully able to protect the corporation and to make informed decisions about the allocation of its resources. Abridging LDF's First Amendment rights is no way to protect those rights. CONCLUSION For the foregoing reasons, the District Court's orders barring LDF from reimbursing the sanctions it imposed should be reversed. Dated: New York, New York October 16, 1989 Respectfully submitted MORRISON & FOERSTER By: Jr. 1290 Avenue of the Americas New York, New York 10104 (212) 468-8000 Attorneys for Appellant NAACP Legal Defense and Educational Fund, Inc. N22955 21 CERTIFICATE OF SERVICE I certify that two true and correct copies of the foregoing BRIEF OF APPELLANT NAACP LEGAL DEFENSE FUND AND EDUCATIONAL FUND, INC. were served by first class mail, postage pre-paid, on October 16, 1989, on the following individuals: Geraldine Sumpter, Esq. Ferguson, Stein, Watt, Wallas & Adkins, P.A. Suite 730 700 East Stonewall Street Charlotte, North Carolina 28202 Bonnie Kayatta-Steingart, Esq. Fried, Frank, Harris, Schriver & Jacobson One New York Plaza New York, New York 10004-1980 Prof. George Cochran Law Center University of Mississippi University, Mississippi 38677 William C. McNeil, III, Esq. Employment Law Center Suite 400 1663 Mission Street San Francisco, California 94103 Cressie Thigpen, Esq. Thigpen, Blue, Stephens and Fellers 205 Fayetteville Street Mall Suite 300 Raleigh, North Carolina 27602 Sidney S. Rosdeitcher, Esq. Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019 Robert S. Greenspan, Esq. Thomas M. Bondy, Esq. U.S. Department of Justice Civil Division, Appellate Staff Room 3617 Washington, D.C. 20530 Dated: New York, New York October 16, 1989 i7" p. Barrington D. Parker, Jr.