Valentine Seeks Unity in Party (Raleigh News & Observer)

    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.