Harrison v. NAACP Oral Arguments
Public Court Documents
March 24, 1959

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Brief Collection, LDF Court Filings. Harrison v. NAACP Oral Arguments, 1959. 6b794f7d-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/765f1919-fa7c-451c-b7f5-14b8d579b363/harrison-v-naacp-oral-arguments. Accessed August 19, 2025.
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In The SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1958 ALBERTIS S. HARRISON, JR., ATTORNEY GENERAL OF VIRGINIA, ET AL. , Appellants, v. NATIONAL ASSOCIATION FOR THE ADVANCE MENT OF COLORED PEOPLE, A CORPORATION, AND NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INCORPORATED, Appellee. Washington, D. C. March 2b, 1959 No. 127 1760 PENNSYLVANIA AVE., N. W. WASHINGTON, D. C. NATIONAL ( 8-4266 8-4267 J 8-4268 I 8-4269 A DS C O N T E N T S ARGUMENT ON BEHALF OF ALBERTIS S. HARRISON JR. ATTORNEY GENERAL OF VIRGINIA E T ^ L APPELLANTS (Resumed) By Mr, Gravatt ARGUMENT ON BEHALF OF NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, A CORPORATION, AND NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., A CORPORA TION By Mr. Thurgood Marshall REBUTTAL ARGUMENT ON BEHALF OF ALBERTIS S. HARRISON, JR., ATTORNEY GENERAL * OF VIRGINIA, ET AL, APPELLANTS. By Mr. Mays 10 Mills (1) IN TIE SUPREME COURT OF TIE UNITED STATES OCTOBER TERM, 1958 ALBERT11 S, HARRISON, JR. GENERAL OP VIRGINIA, ATTORNEY ET AL., Appellants, v . NATIONAL ASSOCIATION FOR THE ADVANCE MENT OP COLORED PEOPLE, A CORPORATION, AND NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INCORPORATED, No. 127 Appellee. Washington, D. C. Tuesday, March 24, 1959 Oral argument in the above entitled matter was resumed at 12:01 p.m. PRESENT: The Chief Justice, Earl Warren, and Associate Justices Black, Frankfurter. Douglas, Clark, Harlan, Brennan, Whittaker, and Stewart. APPEARANCES: On behalf of Albertis S. Harrison, Jr., Attorney General of Virginia, Et At., Appellants: J. Segar Gravatt, Blackstone, Virginia David J. Mays, 1407 State-Planters Bank Building, Richmond, Virginia On behalf of National Association for the Advancement of Colored People, Inc., Appellees-: Robert L. Carter, 20 West 40th Street, New York, N. Y. Oliver W. Hill, 118 3*Leigh Street, Richmond, Virginia. On behalf of NAACP Legal Defense and Educational Fund, Inc., Appellees: Thurgood. Marshall, 10 Columbus Circle, New York, N. Y. Spotswood W. Robinson, III, 623 North Third Street, Richmond, Virginia. 12 ps 3 The Chief Justice; No. 127 j Albertis S, Harrison, Jr., Attorney General of Virginia, et al, appellants, v« National Association for the Advancement of Colored People, et at. The Cleric: Counsel are present. The Chief Justice: Mr. Gravatt, you may continue your argument. ARGUMENT ON BEHALF OF ALBERTIS S. HARRISON, JR., ATTORNEY GENERAL OF VIRGINIA, ET AL, APPELLANTS (Resumed) By Mr. Gravatt: Mr. Gravatt: Mr. Chief Justice, If the Court please, I do not think it is necessary to refer further to the principles supporting the doctrine of equitable abstention contended for by the appellants here. On yesterday afternoon, when the Court adjourned, Mr.Justice Douglas asked me a question which I confess I did not understand, sir, but I gathered that it Indicated a desire that lve go into a discussion of the statutes involved of themselves. Justice Douglas: I was just wondering whether these statutes apply Just to NAACP, whether it was a general statute, whether it applied to other organizations, associations, bar associations, groups and so forth. Mr. Gravatt: There are three statutes. And with your consent, sir, I would like to discuss all three oi them 13 with that in view, and with the other aspects of the statutes in mind. The first statute here is referred to in the record as Chapter 31 of the Extra Session, 1956. Its principal provisions are as follows; "No person shall engage in the soliciation of funds from the public or any segment thereof when such funds will be used in whole or in part to commence or to prosecute further any original proceeding, unless such person is a party or unless he has a pecuniary right or liability therein, nor shall any person expend funds from whatever source received to commence or to prosecute further any original proceeding, unless such person is a party or has a pecuniary right or liability therein, until any person shall first;” — and then the second section begins, which requires the information -- the information required of a corporation, and this is substantially the same Information that is required In the second registration statute which I have mentioned, which is Chapter 32. "(a) A certified copy of the charter, articles of agreement or association, by-laws or other documents creating, governing or regulating the operations of such partnership, corporation or association If not of record in the office of the State Corporation Commission; (b) a certified list of of the officers, directors, stock-the names and addresses 14 ps 5 holders, members, agents and employees or other persons acting for or in behalf of such partnership, corporation or associa tion; (c) a certified statement showing the source of each and every contribution, membership fee, dues payment or any other item of income or other revenue of such partnership, corporation or association during the preceding calendar year and if required by the State Corporation Commission the name and address of each and every person or corporation or associa tion making any donation or contribution; (d) a certified statement showing in detail by each transaction the expendi tures of such partnership, corporation or association during the preceding calendar year, the objects for which made and any other information relative thereto required by the State Corporation Commission; and (e) a certified statement showing the locations of each office or branch of such partnership, corporation or association, and the counties and cities in which it proposes to or does finance or maintain litigation to which it is not a party." The statute, if the Court please, undertakes to regulate two things. One is the solicitation and expenditure of funds from the public for the purpose defined. The purpose defined is the use or solicitation of money to prosecute and maintain litigation in which the party or the corporation has no personal interest, no direct personal pecuniary liability or Interest, So that there are two propositions involved in 15 ps 6 a consideration of the constitutionality of the statute. In the first place, I believe that this Courl< will recognize the fact that in a number of cases that have come before the Court, where there have been raised the question of registration, and those statutes have been construed to apply to limit freedom of speech -- I refer particularly to Thomas against Collins, and Cantwell against Connecticut, as another of those cases. In each of those of Opinions, and in the case of Murdoch against Pennsylvania, this Court has Indicated rather clearly that it did not undertake to pass on the question of the right of the State to regulate solicloa- tion of funds from the public. So that you have here a question that so far as I know this Court has not as yet passed upon, and the indications from the opinions that I have mentioned to you are that the Court has Indicated that there is certainly an area in which that regulation is justified. Now, the second thing that is dealt with in the statute is the use that the money is to be put to -- that is, that it is money that is being solicited to finance litigation in the courts. There are many reasons why that aspect of this statute should require consideration by the courts of the State of Virginia before it comes here for this Court oo pass upon. In the first place, the lower court has already referred two of these statutes to the State Court -- namely, 16 ps 7 Chapters 33 and 36. Chapter 36 deals directly and particularly with this aspect of this statute — namely, the proper construction of a provision in these statutes that runs through several of them prohibiting the expenditure of money to finance litigation to which a person is not a party. So that if the Court were to — the lower court -- if the decision of the lower court, and this Court, takes Jurisdiction of this matter upon its merits, to pass on the constitutional issues, you may immediately be confronted with a construction in the State court of a companion statute that must be construed in pari materia with these provisions which would be a construc tion that would relieve the Court of the responsibility of meeting the constitutional issue or that might put a constitu tional interpretation upon the statute which would be different from the interpretation which has been applied to it by the lower court. Justice Frankfurter: What was the basis of differen tiating by the lower court as between 36 and the other? Mr. Gravatt: He dealt with it very, very briefly in his opinion, if your Honor please. And he criticised the statute, but he said — in Chapter 36 — and I am reading from the opinion of the lower court, the majority opinion, page 119 of the record, "In Chapter 36 the significant language to be construed relates to Inducing one to act in the giving of advice by one whose professional advice has not been sought ps 8 in accordance with the canons of legal ethics," But he referred to the entire statute. "It clearly appears that the language employed must be construed as a priori to the facts Involved. Upon such construction will depend the decision of whether the statutes apply to the activities of the plaintiffs and the members of the bar employed by them." That is what the court said as to Chapter 36, Justice Frankfurter: Does that mean that for the District Court to have construed Chapter 36 would have been an abstract, practically revising the opinion, speaking loosely, rather than saying whatever the statutes meaning must be derived from the particular facts of the case for adjudication by a court. Mr. Gravatt: The two statutes that were sent back are statutes which deal In addition to this question of soliciting money or expending money to maintain litigation that the person is not a party to -- those two statutes dealt with Improper solicitation of law business. And Chapter 36, which I have here in my hand, and I will be glad to leave copies of this section — I find that Chapter 36 is not in this record. The other statute is in the record. And I think it is quite material that the Court should have Chapter 36 before it. If you will permit me, I will hand these copies to the Cleric or to the Court at this moment. The Chief Justice: You may leave them for the Court. 17 Mr. Gravatt: All right, sir. Justice Frankfurter: What I am trying to elicit is whether the distinction made by the District Court was that 31 and 32 -- if those are the numbers — Mr. Gravatt: 33 and 36 are the ones they referred back. Justice Frankfurter: The ones they did not. Mr. Gravatt: The ones they did not are 32 and 33. Justice Frankfurter: If I gather correctly, the Court thought 32 and 33 permit or invite the construction on the face of the statute, whereas 35 and 36 preclude that. Mr. Gravatt: The Court said, I think, not 31 and 32 — as best I can gather from the lower court’s opinion upon the basis that it required the disclosure of information and the registration — the Court construed the statute to require the disclosure of the rank and file members of this organization. Justice Frankfurter: Nov;, could — Mr. Gravatt: And I think that is a question that in his opinion he indicates that he knocked the statute out on. Justice Frankfurter: May I finish? Mr. Gravatt: Yes, sir. Justice Frankfurter: Could your point of appeal construe 31 and 32 in such a way, within its power, undoubted power, from my point of view, its power of constructing, that would knock the basis of the District Court's decision out? Mr. Gravatt: If I am correct in my understanding of the District Court's decision, I think unquestionably that it can, as to this statute that we are now discussing Justice Frankfurter: I am not saying a difference of opinion as to validity. Mr. Gravatt: No, sir. Justice Frankfurter: A difference of opinion as to meaning, from which validity would or would not derive. Mr. Gravatt: I understand your question perfectly, I hope, sir -- yes, sir. Now, you move to section 1, subparagraph 1 of section 2 of Chapter 31, which is in the Appendix of our brief, if you wish to refer to it — and here is the part that the court knocked out: "A certified list of the names and addresses of the officers, directors, stockholders, members, agents and employees or other persons acting for or in behalf of such partnership. I submit to the Court -- let me read this other part of the statute. Section 5 — there is no punishment for an individual whose name is not filed. There is a penalty on the corporation for not supplying the information. Here is section 5. "Any individual acting as an agent or employee of any partnership, corporation or associa- 19 20 ps 11 tlon in any activity in violation of this Act shall be guilty of a misdemeanor and may be punished as provided by law." So that the penal provisions of this statute did not reach anybody except the agent of the corporation0 And I submit to the Court that if you will read section 1, the language which I have just read to you, where it says "members” it does not at that point qualify a member as being a member agent. But the statute is dealing with soliciting, the statute is dealing with expending the funds. And when it follows the words "stockholders, members, agents and employees, all other persons acting for or on behalf of such partnership, corporation or association" — if the Court is required to give a statute a constitutional construction rather than an unconstitutional construction, I most respectfully submit to your Honors that it conforms to the purpose of this law and it conforms to the constitutionality of the law to interpret so as to require registration of those members who act as those members and others acting for or on behalf of such partnership. That what this law is designed to do, that it is 'wide open to a construc tion by any reasonable application of this language. And in the light of this court's opinion in NAACP against Alabama, which has been decided since this statute was written, I think that certainly the State court, that would be strong and persuasive reason, taken with the basic purpose of this statute, for the State court to construe it to apply only to those 21 ps 12 persons who represent the corporation in soliciting funds as provided in the statute from the public. In any event, I most respectfully submit to the Court that there are grave questions of interpretation and constitutional construction in this statute, construction of this statute, that bear directly upon the question of its constitutionality. In the recent case of Government Employees against Windsor, this Court laid down the proposition that the State construction of the statute had to be a State construction in the light and testing of the constitutional freedoms which are here urged against these statutes. Justice Stewart: Mr* Gravatt, have any proceedings been Initiated in the State courts with respect to 33 and 36? Mr. Gravatt: Yes, sir; they have. Justice Stewart: What is their status now? Mr. Gravatt: They have been tried in the lower court and an opinion has been rendered. And In that opinion, the statutes were held not to be unconstitutional. I was not in that case, and I do not -- the opinions have not been published. But I understand that those two sections have been held by the Circuit Court of the City of Richmond, I thlnlc, to meet the requirements of constitutionality. I assume they will go to the Supreme Court of Appeals of Virginia, So that the Court is confronted — and this same 22 psl3 proposition runs through every one of these statutes. I say the same proposition — this proposition runs through every one of them. I am reading now from 36, which is in the State court: "It shall he unlawful for any person not having a a direct interest in the proceedings, either before or after the proceedings commence, to promise, give, offer, conspire, agree" — and so forth — "any money, bank note" — and 30 forth — "personal services" — a great many different things describe there, "or any other assistance as an Inducement to any person to commence." So that you have got in section 36 the question of -- that is Involved here -- the question of whether or not this Association has a right to expend money in promoting litigation in which they do not have an interest. And it raises -- that is one of the principal questions that is raised here on this appeal, and It is a question that is before the State court at the present time that they must determine. Now, if there is any question that any member of the Court would like to ask me about that section, I would be glad to undertake to supply It. The matter of eliciting the names of persons who contribute — we recognize that is a serious matter. As to whether or not they should be required to disclose who has made a contribution. But if the statute -- It Is a question of 23 ps 14 how far the State can go in undertaking to protect the public from fraud and to what extent and what effect this thing has upon these people, And I submit to the Court that we need a State construction and that the State court ought to be required to meet those issues before they come here; because if, as has been pointed out in several of Mr. Justice Frankfurter's opinions on this subject, and if there is a situation that existed before the court applied this apparent ly -- clarified this principle, there were in several cases that I have the citation to here -- the Court was entering orders enjoining enforcement of the statutes in granting permission to come back to the Court after the State had — after there itfas a State construction. So that you will construe State statutes, in interpreting the Constitution of the United States, on a tentative basis, as to what the result might be of litigation in the State courts. And this question of contributions is such a question. Justice Frankfurter; Under your procedure, to elicit a State construction, does one have to go to the whole hierarchy of the courts or go directly to the Court of Appeals? Mr, Gravatt: No, sir; I think there are situations inhere you can get directly to the Supreme Court of Appeals. But I do not believe that you can do that in this instance. I think that the statute provides that a proceeding attacking a State statute is to be brought in -- I believe it is the 24 Circuit Court of the City of Richmond, or one of the Richmond courts, anyhow. And the appeal goes from there. We, of course, have in Virginia a declaratory judg ment procedure which expressly authorizes the application of the court under proper circumstances for construction of State statutes, and that is the proceeding that has been invoked here by our opponents for construction of the State statutes. justice Stewart: Is there any question, then, of the availability of that kind of a remedy? Mr. Gravatt: None whatever; none whatever, justice Stewart: And pending final decision by the State court, would the courts have the power to issue any restraining or injunctive orders necessary? Mr. Gravatt: Sir, we have never undertaken to enforce this statute in any way. When we came into uhe three- judge court, we suggested to the court and agreed with our opponents that we would not undertake to enforce these statutes upon them until this matter was finally determined. I under stand from counsel that the same arrangement is in existence now, with counsel, pending the procedure in the State court, justice Stewart: I have in mind — excuse me. Mr. Gravatt: You also have a retention upon the docket, a provision that has been used, and I think it is a wholesome and a proper one - that the Federal court should retain this matter - In the event there might be somebody In 25 ps 16 Virginia that perhaps the Attorney General could not control, the Federal court is wide open for an injunction to restrain any such prosecution. But I have no idea at all that such a thing would take place. So that there would be no risk, as I see it, to these Interests, to proceed in an orderly and normal fashion that would certainly bring about a final solu tion of this problem that would be much more in conformity with what is required. Justice Harlan: The State court litigations that are now pending on 33 and 36 -- were they commenced before this suit was commenced? Mr. Gravatt: They were commenced after the judge rendered his decision in which he split these statutes. He declared three of these statutes in violation of the Constitu tion. He said two of them needed local construction. And as to those two, he retained the matter on the docket of the court with the right reserved to the complainants to apply to the court for further relief, pending a State construction of the statutes. If you will pardon me, I think it is rather anomalous kind of an order. I think if he was going to take that position, it certainly should have been much more desirable if he said all of it goes. His opinion is based upon the idea that this was a kind of a plan and a conspiracy on the part of the State of Virginia to deny it directly to the NAACP, And yet these other two statutes are tainted with exactly the same 26 ps 17 kind of deleterious purpose, if that is what it is. And he sent them back for interpretation. Justice Harlan. And those suits were instituted following that disposition. Mr. Gravatt: They were; yes, sir„ Now, if the Court please, the next statute that we have to deal with is a registration statute also, and it requires substantially the same information that is required in 31 -- Chapter 32. It starts out with a preamble which states a policy of the State to preserve the peaceful relations among the races in the midst of these distressing problems that we are having to cope with. I might call to your attention, if the Court please, that we have had no trouble in Virginia, but we have had lawsuits, and we have litigated. And I will grant that our people have not been pleased or happy — but xve have had no violence. We have had no riots. And this section is designed to try to keep the name of Virginia, which most Virginians love, unsrnirched by that kind of a contest about this matter. I think that the requirements that are set up in the statute should be construed in the light of that purpose, express purpose of the Legislature. There are four things required in order to require registration under this statute. One, a person or corporation who engages as one of its principal functions or activities in ps 18 promoting or opposing in any manner passing of legislation. Two, who are or which has as one of its principal functions or activities the advocation of racial integration or segregation,, Third, whose activities cause or tend to cause racial conflicts or violence. Now, very hurriedly, the first one, I think, if the Court please, is susceptible of a State construction as to who or what constitutes principal function or activity. It Is a lobbying statute. It has to do with lobbying in the Legislature, and the case of the United States against Harriss is pertinent to a discussion in a decision of that question by the lower court. The other — who or which has as one of its principal functions or activities the advocating of racial integration or segregation or whose activities cause or tend to cause racial conflicts or violence -- Judge Soper threw out that last phrase, "whose activities cause or tend to cause racial conflicts or violence," a3 being an unconstitutional restraint. I submit to your Honors that in the case of Beauharnais against Illinois, similar language was construed by this Court to mean conduct tending to a breach of the peace. I submit to the Court that if nothing else, if all el3e In that statute is unconstitutional, that provision of it is severable. 27 And anybody in Virginia who goes out at this time to 28 19 advocate racial segregation or racial integration under such circumstances and in such a manner as to bring about and to show an intention to bring about a breach of the public peace is a person that Virginia ought to have the power and the opportunity to control* And if you stick to the decision of the lower court upon this issue, you have held unconstitutional a provision in a statute that under a State construction in my opinion would be a severable position of the statute that would take from the hands of the State the only remaining weapon that they have to protect and control the people in this hour when we need so much to have that done* 3) Justice Black: To which clause are you referring'’ Mr. Gravatt: I am referring to clause No. 3 whose activities cause or tend to cause racial conflicts or violence* It is on Appendix page 5> section 2. Justice Black: Section 2? Mr, Gravatt: Yes, sir. It is on down about the seventh or eighth line of that paragraph. There are four things required in that statute* Justice Frankfurter: You are saying that under your severability clause, either a specific or general provision, all the others may be offensive to the Fourteen Amendment and be invalid, but that the final clause can be sustained and If severed Is not an integral part of an organic whole and can 29 Mr. Gravatt: Yes, sir; that thing is so important, Judge, I know I have not much time, and I wanted to plant that with the Court, Justice Douglas: I suppose you are referring to the Harness decision on this point. Mr. Gravatt: Yes, sir; I ala refer to it. Justice Douglas; In this connection. Mr* Gravatt: Yes, sir. The lower court threw that language out as being too vague, being unconstitutional in the sense it was too vague, it did not give a person notice of what the offense might be. Justice Stewart: Did I understand you to 3ay that the statute requires that the person have an intent to cause violence? Mr. Gravatt: The statute, sir, uses the language — !,who or which is engaged" — wait a minute — "whose activities cause or tend to cause racial conflicts or violence," The preamble of the statute — that language, it seems to me, should be construed in the light of the express purpose of that statute to preserve the public peace; and that the Supreme Court of Appeals of Virginia can say that this statute does not mean that all advocacy of racial integration or segrega tion is unlawful under this provision of the lav/, but that racial integration, the advocates of racial integration or segregation, ps 20 stana — 30 ps 21 so as to and under circumstances as to cause racial conflict or violence, are in violation of the law. Do you understand me., sir? Justice Stewart: I think I do, sir. But as I understand it, you are not then saying that the statute requires that there he an intent to cause racial violence? Mr. Gravatt: I am not — the statute doesn't say it, sir* But I am not sure that that is not something that perhaps the Court should read into it. In construing a criminal statute — there is always an element of circumstances and Intent that enters into it, I think, unless it is dispensed with. Justice Frankfurter: Let's see if I understand your argument. Is it that if this statue, with Its four or five provisions, disjunctive provisions, came before the Supreme Court of Appeals of Virginia, that court may say, "We have to find all appeals for the first clauses invalid, hut we construe the last clause to mean as though there had been a separate statute saying anybody whose activities are purposely designed to beget physical conflict," -- and so construed, you say, the Virginia Supreme Court would have sustained it, and you further afrgue that this Court would be called upon to sustain It. And since we do not knot-/ what the Supreme Court of ps 22 Virginia may or ivould give such a construction,, it should be allowed to do so. Is that your argument? Mr. Gravatt: That is correct, sir. We had John Kasper In Virginia Just at the time this thing was done. And if your Honors will refer to the case of Kasper against Brittain, you will find out the reason for that, the necessity of that provision. Now, there are other things that ought to be said about these statutes. I come now, If the Court please, to the last one, which is the statute known as the barratry statute. And that has to do with the Instigation or stirring, up of litigation, and it also deals with the payment of expenses for litigation by people that are not parties and do not have an interest or are not Justified by a relation of parents and child or trustee relation or in some other way related to the litiga tion. The court held that that statute was an Improper infringement. I submit to the Court that this language in this statute must be construed In the light of what the whole thing is designed to deal with, and that Is that the money has to be paid to support the litigation, as the moving cause of the litigation, that but for the payment of the money by the person who stirs up the litigation, that action would not 31 have been brought 32 ps 23 And that construction the court rejected and. simply found out of hand that with the very best of intentions, with out any wrongful purpose at all to stir up or to instigate intermeddling in litigation, that this statute means that any body who pays out money to finance litigation they are not a party to comes into the hands of it. It may be so construed. But I submit to the Court that the State court can construe this statute in the light of the other statute that was referred to them, namely, section 33, which the State court now has to construe and which is directly directed by an amendment to a statute with respect to professional ethics in Virginia that has been on the books for many, many years -- it 13 directly directed at improper solicitation of business and the Improper inducement of people to institute and to carry on a lawsuit. I believe if the Court — Justice Harlan: May I ask you one question? Mr. Gravatt: Yes, sir. Justice Harlan: What effect should we give, if any, to Judge Soper’s findings that all of this legislation is aimed at the NAACP to defeat this Court's decision? Mr. Gravatt: If your Honor please, that Is a question that I do not think — I think the right of Virginia — If I may be so frank — in this area — Justice Harlan: Well, I want you to be entirely 33 ps 24 Mr. Gravatt: Yes, sir. In this area, I think that the rights of Virginia to legislate on these subjects are constitutional rights. I think they are rights that are reserved. And I do not think that any motive or any purpose by the Government, by the elected representatives of the people, however it might be expressed, can deny to the State of Virginia the right to legislate in areas that are reserved to them under the Constitu tion of the United States. Justice Frankfurter: — in order to determine whether Virginia or any other State, I am sure you would be the last to say there was any difference. Mr. Gravatt: None in the world. Justice Frankfurter: The right to legislate constitutionally may be determined by the scope, the intended scope of legislation. You are familiar with the Hopkins against California. If legislation apparently covering all that the face of the statute makes It cover is in fact either as a matter of enforcement or by other proof directly directed against some singled out Individual or class, that ma3̂ males a difference, may it not? Mr. Gravatt: I agree, sir. And I think they ought to be convicted after the case Is in. In other words, I think if this statute i3 enforced improperly — we have got frank. 34 ps 25 many organizations in Virginia that are doing on the other side of this issue what these gentlemen are doing, and we will have others. And if there is any impartiality or any abuse in the enforcement of it, I think it is a serious question. Justice Frankfurter: Judge Harlan's question was that this Court cannot find the discriminatory purpose qualifying a generally appearing statute by the express design indicated by the legislative and executive authorities of the State as to what the legislation is for. Is that xvhat you said? lie. Gravatt: No, sirj I don't mean to say that. I mean to say — I want to give you an illustration of what I do mean. Let us assume that Russia is making motor vehicles that are outselling American motor vehicles, but they won't function properly if you drive them less than 60 miles an hour. And the General Assembly of Virginia says "We don't want any Russian automobiles in Virginia, we won't have them. Our speed limit has been too high anyhow. We have a 60 mile speed limit. It has been too high. Let's cut the speed limit down to 45 so we can get those things out of here." If they had that deliberate purpose, I think they have the power to pass that statute and reduce the speed limit. And I do not think the Russians can come in and say 35 ps 26 "Because you had a wrong purpose In putting the speed limit down, because the Governor said you had a xvrong purpose, or because a constitutional convention said you had a wrong purpose, we say you have not got the power to regulate the speed limit on the public roads, even though It may' have some relevancy to the public safety." Justice Frankfurter: Would you agree that although they tried to shut out the Russian automobiles, they could not shut out German Volkswagens subject to the same infirmity, could they? Mr. Gravatt: The lav; might do it. Justice Frankfurter: Could they? Mr. Gravatt: I don't see any reason why they could not, if it were granted on an exercisable power, sir. Justice Frankfurter: It would not single out Russian cars as against German cars? Mr. Gravatt: No, sir; all wouId have to fall under the 3ame rule. But If the effect was to knock the Russian and German cars out, I think that would be incidental. Wow, I wish to say Just this one other thing to your Honors about this matter that Justice Harlan asked me about. Though some of the language may not appear and some of the expressions may not appear to this Court as becoming expressions, this has been a trial for the people of Virginia, 36 ps 27 VS fl3 (4) and in the interposition resolution and in every address that the Governor has made all that they have ever declared that they had a purpose to do was what was legal and honorable and constitutional. That is what they said they wanted to do. And if the Fourteenth Amendment is a negative thing., acting negatively upon Virginia, prohibiting them from doing things, if Virginia can find lawful, honorable, constitutional ways to arrange a thing that all of the people of Virginia concededly want, certainly most of the people, then what would be wrong with it? That ought not to condemn legislation here in this Court simply because it may incidentally reach a purpose that lies beyond — that is within the bounds of what the State can properly do. mils (4$ ws fls ps I do not concede that these statutes have any such purposeo The record in this case is that these statutes are designed to cope with all organizations and they have been so enforced, up until now. And what the future holds with respect to those matters, I submit to this Honorable Court none of us know. And we certainly should not tie our hands or tie Virginia's hands so far as the future may be concerned in the light of developments that may take place with a blanket pronouncement and withdrawal of power to legislate in this area which rnay become so terribly vital. I thank you very much. The Chief Justice: Mr. Marshall. ARGUMENT ON BEHALF OP NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, A CORPORATION, AND NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., A CORPORATION. By Mr. Thurgood Marshall: Mr. Marshall: Mr. Chief Justice, and may it please the Court, there is one point I feel obliged to correct — on the question about the reason for sending Chapter 36 over to the State Court. Mr. Gravatt, I am certain, inadvertently read from the dissenting opinion of Record 119. The opinion — I understood the question to be why did the court do it, and the court, I assume, is intended 37 38 to be the district court, the majority. And the question about Chapter 36 in the district court’s opinion, the majority opinion of Judges Soper, and Hoffman appears on pages 91 to 93, is the reason for those statues going out. Justice Stewart: Basically it appears on page 93, does it not — "Since Chapters 33 and 36 are vague and ambiguous, we will not pass upon their constitutionality." That is the basic reason, isn't it? Mr. Marshall: It is pretty hard to put it as the one reason, because when you start on 91 and run over to 92, as I remember, it is obscure and difficult to understand, but the general purpose seems to be — I think the whole purpose and the language tied up together made it quite difficult for any court, any Federal court, rather, to proper3.y Interpret it. If it please the Court, I think that it is time in this case to put these statutes in proper perspective. That is, these are just not run-of-the-mill statutes that came dov/n the road. These are not statutes concerning any speed limits. These are statutes concerning, as Mr. Gravatt said, on one side he charges us with the effort to tie the hands of Virginia. There is nothing in the record on that, but the record is replete with the deliberate, calculated purpose of the executive and legis3.ative department of Virginia to tie 39 the hands of the appellees in this case. The record will show that immediately after the May 17 decision of this Court in the Brown case — and I want to pinpoint one question there, and that is that in those four decisions — was the Prince Edward County case in the Commonwealth of Virginia. And immediately after those opinions, the Commonwealth of Virginia started out to do the opposite of what this court said in September in the Cooper case, the little Rock case. The Cooper case said that the Brown decision imposed upon all agencies of government in a State — and here it would apply to the Commonwealth of Virginia — to quote from your decision in the Cooper case, "a duty to devote effort towards initiating desegregation and bringing about the elimination of racial discrimination in the public school system.11 That, may it please the Court, is a positive duty on the State to proceed towards compliance with the decision of this Court. Yet, in the State where one of the cases actually came from, the Governor and the Legislature of Virginia, with the active support of nearly every political faction in the State, set about to do Just the opposite. And the record shows it. And the district court found it. They first had what became known, and is in the record, and is in the opinion — Virginia started upon 40 massive resistance. This massive resistance involved two major courses. One was the pupil assignment law, in an effort to get around the Brown decision. Then they enacted laws closing and cutting off the funds supported nonsegregated public schools. Then they passed other implementing laws, all of they directed towards making it well nigh Impossible for white and Negro children to attend together any school within the State. This is all in the record. The course consisted in the enactment of laws designed to exterminate, at least in Vii’ginia, the two organizations which had assisted in school litigation, to make it impossible for the lawyers to represent these people in these case unless the plaintiffs themselves had some connection with the lawsuit. And we have these latter cases — X mean statutes before us today* And the constitutionalxty of these statutes, as said in the opening argument for the appellant, but be all considered in the atmosphere -- well, let's consider them — that they were enacted. On August 30, 1954, the Governor of Virginia appointed a commission on public education to study the Brown decision of this Court and to make recommendations and on record, the record appearing at page 55, there appears the report. And the commission declared that the decision of this Court means that the most fundamental rights of the States and of their citizens exist by the Court's sufferance 41ws5 and that the lav; of the land i3 whatever the Court may determine it to be by the process of judicial legislation, and the commission further concluded, again on page 55, that separate facilities in our public schools are in the best interest of both races, educationally and otherwise, and that compulsory integration should be resisted by all proper means in our power, which I gathered from Mr. Gravatt means that any law passed by the State, by the Commonwealth of Virginia for this purpose is insulated from attack any place other than in the same Commonwealth. The commission recommended a special session of the legislature. Indeed, they had one beginning on February 1, of 1956. There they passed their interposition resolution, stating that the Common-wealth of Virginia, "Emphatically disapproves the decision of this Court in the Brown case," which they characterized as a deliberate, palpable, and dangerous attempt of the Court itself to usurp the amendatory power. And on the record, 518, it will show that this resolution challenged the usurp authority that would inflict upon their citizens the consequences of that decision, and then pledged, "our firm intention to take all appropriate measures honorably, legally, and constitutionally available to us to resist this illegal encroachment upon our sovereign wso 42 powers." That is on 520. Then the General Assembly was actually called into extra session on August 27, pursuant to the requirement of the Constitution, and the Governor, "Shall recommend to the Assembly what shall be done." And the Governor did declare that, "l am before you today for the purpose of submitting recommendations to continue our system of segregated public schools." Page 626. And later, on page 633 and 634 of the record, the Governor said, "The proposed legislation recognizes the fact that this is the time for a decisive and clear answer to these questions. Do we accept the attempt of the Supreme Court of the United States, without constitutional or any other legal basis, to usurp the rights of the state and dictate the administration of their internal affairs? Two, do we accept integration? Three, do we want to permit the destruction of our schools by permitting 'a little integra tion, 1 and witness its subsequent sure and certain insidious spread throughout the Commonwealth." The Governor then said, "My answer is a positive no.R "On the other hand, shall we take all appropriate measure honorably, legally, and constitutionally available to us to resist this illegal encroachment upon our sovereign powers? My answer to that is a definite yes. I believe it ws7 43 it is to be the answer of the people of Virginia" — et cetera, et cetera — the end of the quote of the Governor - In response to thi, exhortation, the legislature did enact a whole series of statutes in what was characterized by the district court in its findings as "a general plan to obstruct the integration of the races in schools of Virginia of which plan the statute in suit constitute an important part." There was the pupil assignment law and other things. But the importance of this legislative history, if it could be called that — I don't consider it legislative history, because it is too close at hand to be history — was that on one hand every effort would be made) to pupil assignment, cut off of funds, every means they could think of, to prevent Integration on a voluntary basis or any other basis. Once having done that, the General Assembly of Virginia obviously realized that they had then shut the door on every possible means of getting it done except by public meeting, political action, and resort to the cour'cs. Near the end of that session, we get these five statutes. These five statutes — $1, first of all, there is no question about who it is aimed at. And indeed the ws8 (5) dm fls ws district court found as to what organization it was aimed at. It moves into the theory of requiring the listing of members. The other things about listing of corporation papers that are public documents anyhow would be one thing. But since the decision of this Court in the Alabama case, I think., there could be no question, and I notice that there is not too much argument on the other side about it, about- the merits of this — the only argument is of the State Justice Frankfurter: You cannot tell the merits until the State court decides what the statutes mean. Is that the argument? Mr. Marshall: That is the argument. The difference, Mr. Justice Frankfurter, on the other hand is that in the meantime the irreparable injury is there, which I would like to get to at this point. 44 45 Suet (5) k 1 dm Once the membership is released and under the statute is made public, then the inference with the First Amendment rights recognized by this Court in the Alabama case immediately takes effect as of the adoption of the statute because this statute, in the light of its purpose, in light of the record in this case is in the same category as a self executing statute which this Court has uniformly struck down. Such self-executing statutes as it appeared in the Pierce case against the Society of Sisters, and if it please che Court, the most interesting thing about that case, about going over to the State Court, that case was filed, decided, appealed to this Court and decided before it became effective, before it even became effective. The second case is the Truax against Raich and which held that the mere passing of the statute which interfered with the rights of aliens to work — tho passage of the statute would make it impossible for a man to get a job if he were an alien. The third case is a decision more recent of this Court in Barrows against Jackson which involved restricted covenants and came from California. In this particular case these statutes, once passed, with the conditions as they existed in Virginia, as shorn by the record and as found by the Court meant that from that day on, membership would be impossible and that plus the fact that 46 dm2 if the membership list were ever released — that is a different point — but the mere passage of the statute creates the damage to these First Amendment rights which are the freedom of assembly, etc. I think it is significant that there is little argument against that. The Chapter 32 to the same extent requiring the handing over of this information runs into the same category of interfering with the right of freedom of association, and it is very interesting that in Chapter 32, while objecting and prohibiting all types of action as towards political activities, it is significant that the statute particularly exempts all political parties. And it is significant it didn't name them — it just exempts all political parties. If the Court please, in Chapter 35, you really get the exact purpose of the whole package here. For, if they can, one, in 31 and 32 prevent these organizations from being organizations and existing, and if they can prevent money from being used in litigation, that should do the job. But, Chapter 35 goes a step further. It says at any rate that the lawyers are going to be in trouble and any organization that participates even if you get over all of the other hurdles. I think that this Court must recognize that when we talk about free access to the Courts and when we find that as 47 dm3 far back as Crandall against Nevada and other cases since that time, free access must mean free access and I don’t believe that there is any need for the record showing — but it does show — that this litigation costs considerable money. And, if as Virginia would have it done, the doors of the Court are opened, but it is only open to those who are able to finance litigation, the doors would effectively be reasonably closed because I don't think there is any question that in Virginia you have a line of litigation which on one side has the whole panoply of the State Government, the entire Attorney General's office, the county lawyers for each county, and the Treasury of the Commonwealth of Virginia to support it. Now I believe that in any such litigation I don't believe anybody could imagine that a poor individual — I don't mean poor as a pauper — but there are very few individuals that could cope with that size of money and so the reason for 31 and 32 is to cut off the money. The answer, of course, made in their brief and made in part in argument is that in 35, all they are doing is just codifying the law of barratry. But, as we point out in our brief they did j U 3 t t h e opposite. For the oommon lav; oi ry and maintenance and champerty, confusing as it might be at times, with the overlapping of the three there has never been any question of not only the right, but the duty of a lawyer, if it is not 48 dm4 for personal or what has he to gain for himself, to oe able to render his legal services for the benefit of his community. It has never been any question, and if there were any question in Chapter 35 they go into the most minute detail to except everybody from the statute but the NAACP. For example, legal aid societies are specifically exempted. Everybody else is exempted. 3o obviously, the legislature realized exactly what it was doing. Justice Harlan: How do you distinguish the course that was taken by the District Court with respect to these three statutes and the course they took on 33 and 36? Mr. Marshall; I think the difference was that 33 and 36 have those two sections which are set out on page 91 and 92 and runs over — starts at the bottom of page 9 1. I think that the District Court took the position that they were so ambiguous, and I think it is a judgment as between the two which the District Court made and which I think i3 very significant in that the Court did not just cast aside the abstention or judicial self-restraint doctrine. They actually applied it. You see the language especially on 93. "The instigation of suit, or giving the money to needy litigants amounts to an inducement.'1 This language, as I understand it, the opinion of the District Court is that the language in 35 has no possibility of ambiguity because it starts out, Mr. Justice Harlan, if you notice the beginning — the statutes are in the back of the Appellant’s brief. They start off with the definition in the very beginning of 35 and they run on and on and on and they took great pains — it appears on appendix page 9. It is pretty hard to fine ambiguity in Chapter 35. Notice, Mr. Justice Harlan on appendix page 10 all of the exemptions under there. I think that helps to clarify it, but that is the basis of the sending over of the two statutes and if I may, with the permission of the Court, state opposition clearly on the point about sending them over to the State court. In the brief, the Appellant put it on two points — one, is that where there is need for construction and the other is that these are criminal statutes and that equity and especially the Federal equitable courts do not enjoin the enforcement of criminal statutes even if they are unconstitutional and in that particular argument in their brief it is a very good statement as far as it goes. The end of it is unless there are exceptional circumstances, and we alleged exceptional circumstances, we produced testimony of exceptional circumstances and the District Court found exceptional circumstances. Secondly, as I understand Mr. Gravatt’s argument he said that all they are arguing for is that the case gc sack 50 dra6 ct(6)fls and be held by the District Court while it is litigated in the State Court. That, of course, is not the rule. If it is a criminal statute and there has been no prosecution, then the Court has not jurisdiction. So on the prosecution point we think that three cases I mentioned the Sisters, Truax against Raich and Barrow against Jackson take care of that point of the lack of prosecution. On the point as to the general enforcement, I think the irreparable injuries are in this record. Because there is to be a threat of prosecution of these corporations, that is the evil inherent in these statutes. It is that the mere presence of the statutes on the books prevent the members, the contributors, and the people that make the organisation move from cooperating with the organization, the presence of the statute would do that. 51 swet-mill 5 It seems to me that the cases they mention all are summed up in VJatson v, Buck, And if the Court pleases, we take the position that Watson v 0 Buck is not at all controlling In this case, because in the case of Watson v. Buck there were 40~odd sections of that statute that ran some 30 pages in the record. I think when the Court said it was an involved statute, it really used the correct language. And in that particular one, there was no showing of ir reparable harm which would negate the need to send it back for the District Court. And the Court did reverse it, send it back, and ordered it dismissed. I think that the argument so far is that the Court should use the doctrine of abstention or judicial self-restraint. Their brief pays very little attention to the basic rights here Involved, which are these rights: One, that these statutes interfere with First Amendment rights of freedom of association and freedom of expression. They also violate the right of freedom of access to the courts. They also violate the right summed up in the liberty to pursue your profession, your business, or what-have-you. We also take the position, secondly, that that being true, the appellants, even If it might have been possible to show it, have so far, by the record, their brief and argument, been unable to 3how the basis for the invoking of the doctrine of equitable abstention 52 In the first place, the doctrine of equitable abstention is an equitable doctrine. And here you have as clearly as you ever will have the statement of the lawyer for the appellants that Virginia must have the right to stop compliance with this Court's decision. If you are going to balance equities, I do not have any problem when that statement is made clear. In addition, as we point out in our brief, when these statutes were passed, the Prince Edward case had been re turned to the District Court, and indeed, it is still there. And if these statutes are constitutional and are applied, this Court, and the District Court, are effectively denied an opportunity to pass on whatever might happen in the Prince Edward County case, because there is nobody else to finance .• JL.lo . It also is shown in the record, and it is shown in Judge Soper's opinion, the number of cases pending in Virginia admittedly financed or financial assistance given by the two appellees herein. And every one of them is a Federal case. I think that when this Court said there are times when restraint should be used, I would be the last one to object. I mean, I have always agreed. But it is a question as to when it is to be exercised. And as of this moment, records, briefs and argument, I say the Commonwealth of Virginia has not yet shown even the basis for exercising It, let alone to 53 c3 use it. There isnJt a consideration in this case yet. justice Frankfurter: May I ask a question of you? How can you take judicial notice of the fact that the Supreme Court of Virginia has, itself, Invalidated legislation designed toward carrying out opposition manifested by political leaders in segregation — take judicial notice of the fact? Mr. Marshall; Yes, sir. Justice Frankfurter: Now, why must I assume that if this were inferred by the Supreme Court of Virginia, it would invalidate legislation that ought to be invalidated? Mr. Marshall; I would not assume that, Mr. Justice Frankfurter, because I do not think we ever get to that point. I am not arguing that point. Justice Frankfurter: But if the meaning of legisla tion is referred — if 31 and 32 are referred, as 33 and 36 were, for construction, unless you say that nothing in Mr. Gravatt*s argument, that the last clause of 31 may be given a construction that would withstand constitutional attack — an effort in sheer futility to refer to the state courts for construction, which no construction can save? Mr. Marshall: Well, my theory is that there is no construction that can save — Justice Frankfurter: What do you say to the last clause? V Mr. Marshall; The last clause by itself would be 54 meaningless. Justice Frankfurter: Why would it he meaningless? Mr. Marshall: I agree with Judge Soper that it is that vague. It is in the vague status where it is unconsti tutional because of vagueness, not that it needs construction. Justice Frankfurter: This point is again and again construed legislation that appeared vague, and saved it by giving it meaning. Mr. Marshall: On the other hand, that is a different point, if I may, as to v/hether or not this Court construes it or the state court. Justice Frankfurter: No, but this Court can decide whether it is susceptible of a meaning, no matter, even con strued as the state court says it is. Mr. Marshall: If it please the Court, Mr. Justice Frankfurter, I do not believe this Court should go that far, because if the Court once takes the position that there is — although the Court cannot imagine it, and nobody else can imagine it — Justice Frankfurter: You must take that position, that it is unimaginable that the Supreme Court of Virginia can cut the last clause of 31 down to the proportions of the meaning that Mr. Gravatt has given it, namely, that it should apply only to cases of designed inducing of violence. Mr. Marshall: Well, we just have a difference of 55 opinion. I cannot imagine a court doing it. In my point, Mr. Justice Frankfurter — Justice Frankfurter: That is an answer. You say that you do not suspect it is susceptible of any such limita tion. Is that what you are saying? Mr. Marshall: That is my position. And further, Mr. Justice Frankfurter — really, their position adds up to this, and it is more clearly set out throughout their brief than in the argument. That is, that any time a statute comes up, if it has not been construed by a state court, the Federal court should not touch it — Justice Frankfurter: I do not have to take an ex cessive position by counsel in order to deny myself the right to partake in a reasonable position. Mr. Marshall: I certainly agree, sir. But the point to me is that I think this Court has a perfect right to decide as to whether or not the doctrine should be applied in this case. That I recognize. I also recognize, I think, that there must be some real substantial basis for it. I think that is my position, because otherwise, the District Courts would be almost com pletely prevented from hearing the cases on the unconstitution- ality of state statutes. And in these cases where the statute itself — there is no question — there might be question on what Mr. Gravatt was saying as to whether this statute might not apply to somebody else. But there is no question that these statutes apply to the appellees. There is no question that anybody can get out of it, and this case is a case seeking injunction because the sta tutes are unconstitutional as applied to the two appellees. Justice Frankfurter: But, Mr. Marshall, the statute may be invalid because it singles out a specific individual, unit, or class — the singling out of which would constitute an unfair discrimination under the protection clause — or the statute may be invalid because It applies to everybody, it could not apply to everybody. Mr. Marshall; That is true, sir. My position, Mr, Justice Frankfurter, is that this one clearly applies to the two appellees. The record shows it, and the record also shows — Justice Frankfurter: That is, your contention is that it applies to those two appellees discriminatorily, but this might also apply to others. Now, will you contend that if it were not discrimina tory, it would be valid? Mr. Marshall: Oh, no, sir. Justice Frankfurter: All right. Mr, Marshall!: Oh, no, sir. The interesting thing, though, to show from the record in this case the justifica tion for the statute — I mean, the argument was made that 56 this statute is necessary to protect the public from fraud — there is not one word of testimony in the record on that, not one single word. The justification for the statute, for the barratry statute, if it please the Court, for this barratry statute here, is a witness who testified that he was the head of the examiners for the Railroad Association, and they needed this type of statute to protect the railroad from trumped-up litigation. Justice Frankfurter: I should like to say for my self that nothing seems to me more treacherous for the purpose of constitutional adjudication than to have evidence as to what the purpose and meaning and motive of the statute is. Mr. Marshall: Mr. Justice, there are quite a few other Justices on that point. The point, though, if it please the Court, and Mr. Justice Frankfurter, I do think that it is important to this case to recognize, for example, as to whether or not these statutes apply to us, the appellees here. Justice Frankfurter: You have to have evidence in order to establish discrimination. But the general tendency of putting on witnesses to find out what the purpose of Congress was or the purpose of a general assembly seems to me, as I have indicated, most hazardous. Mr. Marshall: Well, I think it is hazardous. But I think, on the other side, that where even during that 57 7 fls procedure you find admissions that are helpful to one’s side, I think I would like to use them. Justice Frankfurter: If the other side has furnished you a case, you ought not to he so uncharitable as to reject it. Mr. Marshall: For example, the Attorney General of Alabama testified and admitted in cross-examination that he came up for the express purpose of giving testimony against the NAACP — not in favor of the statutes. I do not think there is any question but that these statutes apply to the appellees here. I do not think there is any question that the statutes do interfere with these particular rights that I have set aside — that is, freedom of expression, freedom of association, access to the courts, and liberty to follow your profession or business without unlawful restraint by the state. I think.the real difference between Mr. Gravatt!s argument and our argument is that he takes the position that the state, in order "to maintain peace" can do anything. And we maintain that whatever the state does, through its legis lature, has to be measured by the Fourteenth Amendment, inso far a3 this particular point is concerned. And I believe that that is the real basic difference between the two. I do not see any offer that has been made by the state that requires this Court to exercise its jurisdiction. 56 Swetland Mills (7) ps fls ct 5S Justice Stewart: Mr. Marshall, on the question of equitable abstention could you make clear to me, because it is not now clear, what prejudice to the appellees xvould ensue if the District Court should retain Jurisdiction pending a determination and a construction and a interpertation of these statutes by the courts of the Commonwealth of Virginia in view of the fact that the District Court has already done that with respect to 33 and 36? What prejudice, if any, would follow if the same thing were done with 31, 32 and 35? And also in view of what I understood Mr. Gravatt to say, and that is that pending a final determination by the State courts, there would be no proceedings Initiated under any of this legislation. Mr. Marshall: Well, there are two answers, Mr, Justice Stewart. That first one is that under the Pierce and the other two cases I mentioned, the self-executing statutes, the self-executing statutes, the injury starts whether you have enforcement or not. Justice Stewart: Well, now, isn't that equally true of 33 and 36? Mr, Marshall: The injury could possibly be, yes, certainly. Justice Stewart: So, as to those the District Court did exactly what Mr. Gravatt is now saying should be done ps 2 with these others, and since the District Court did so, what additional prejudice would ensue if the same thing were done with these others? Mr, Marshall: In this particular case we have an injunction which protects, for example, bear in mind that the people I am worried about in this particular letlgation are not the appellees as such, but among them are the lawyers and it is pretty hard for a lawyer to take the Prince Edward case which is the case decided by the Court and further litigate while he is going through the State courts. He v/ould be in trouble with disbarment or what have you provided the statute Is upheld. He would be In considerable trouble, and I am not too sure it is the job of a lawyer to deliberately violate a law whether it is constitutional or not. I think he is one of the few people that believes that the lav; is the lav; and it is our position that to go over into the State courts would be one thing but I say that this Court must not Ignore the fact that here is the State deliberate ly interferin£ with the jurisdiction of Federal courts, and I don't believe that is the business of a State court. I believe it is the peculiar business of the Federal court to see to it that Its doors are open. If a State passes a lav; preventing litigants from coming into a Federal court, there wouldn't be any question 60 about it Indeed, the history and the statutes themselves when they say cases involving racial, or what have you, It is obvious they are talking about the Federal courts. There are no cases in the State courts that I know of. Justice Stewart: There have been cases In the State courts of Virginia, have there not? Mr, Marshall: The only one I know of recently in the State court of Virginia is the case mentioned by Mr. justice Frankfurter. The Negro didn't bring that case. The State of Virginia brought it. That was for an interpretation of the statute. Some State officer brought it, He didn't. The only cases that are in this record are Federal court cases and if they can keep litigation out of the Federal courts, they can maintain their massive resistance that Is why, It seems to me,there is no reason for this rourt to get to the point as to whether or not it should be sent over, I don't think the case has been made for the invocation of the doctrine. Justice Stewart: I understand fully and appreciate x-Jhat you have said. Perhaps I didn't express myself clearly in my question. In any event, I don't think you have answered It completely. My point is this: Since the District Court 62 ps 4 % did refer to the State courts 33 and 36 from which you have taken no appeal — Mr. Marshall: No, sir. Justice Stewart: What prejudice would be involved if the same thins were now done with the balance of these? Mr. Marshall: The prejudice would be done in two ways: One is that the sword of Dairoclese would be hanging over the appellees in this case Justice Stewart: The sword is there now though, is it not, vjith 33 and 36? Mr. Marshall: Well, with 33 and 36, as I read those statutes we can continue to operate without violating 33 and 36 if the organizations wanted to do it. They are still bad because we would be precluded in some efforts, but if they are all, there is no operation, there is none with an organization that has been organized and existing as long as these two organizations have. The NAACP has been existing since 1909 and the second appellee, the Legal Defense has been existing since 1940. I think the real problem in this case is that if this case is sent back to the District Court for holding, pending that the harm will come up again bearing in mind that considerable of the interrorem effect of the statutes was eased with the decision of the District court. Once that is re-established then they have that same problem again. Witness the fact that when you are reading this case you can’t help but be moved by the fact that just one after the other of plaintiffs in the Prince Edward County case, after being talked to by a legislative committee, come in to testify against their own case. The atmosphere down in Virginia — I don't think there is any question about it and I think that the real argument about the injury would be on that basis. Justice Stewart: I understand. Justice Black: Would you mind explaining what you mean by saying that it would absolutely preclude any operation of any kind by your organiz?tj-r as lawyers in Virginia? Mr.. Marshall: Well, Mr. Justice Black, I would like to go through two points. One, the record shows, and it was found that if the membership list is disclosed, that the membership will drop off. It Is not possible to determine how far it could drop off. A membership corporation can't operate without members in so far as the State is concerned. As to the actual helping out financially with the litigation, the trouble there is that although possibly money could be raised, for example, in the District of Columbia and 64 ps 6 arounds to help in those cases, the statute prevents you from giving the money. It not only prevents you from raising it, it prevents you from paying it over. As to the lawyers, the statute says that any lawyer that does not have this relationship required by the statute Is violating the law. Justice Black: What do you mean by that? Mr. Marshall: Well, the statute Is very specific on that. Justice Black: Would you mind just stating, If you can, briefly exactly what you understand that statute forbids? Mr, Marshall: That if the lawyer gets the money from anybody other than the client and if the client gets the money from anybody but somebody close to him, the lawyer is a party to this barratry, and this includes everybody. Justice Black: Subject to what? Mr. Marshall: To criminal penalties. The penalty is — and disbarment of the lawyer, too. The penalty on 35 is a $500 fine or a year's imprisonment or both if the violator is a person, and subjects the corporation to a $10,000 fine and revocation of the organization to carry on work in Virginia. Justice Black: Under the statute, as you understand it, how can the organization escape that consequense of the statute? 65 ps 7 Mr. Marshall: In 35 there is no escape. In 31 and 32, by filing our membership list, we could operate; lie could at least operate. But under 35 as I understand it there is no way we could qualify, except to stop what v;e are doing. Justice Frankfurter; Did I understand you to say that all the statutes be staid until the Supreme Court of Appeals would pass on it? Mr. Marshall: It lias my understanding in this particular case that at the suggestion of Judge Soper the appellants did agree there would be no enforcement of any of those statutes until this case was finally determined. Justice Frankfurter: Any of them? Mr. Marshall:. They were all in at that time. Justice Black: Did that go far enough to mean that if the statute wouId later be held, the statutes wouId later be held constitutional, what had been done prior to that time could not be punishable? Mr. Marshall: I do not think that was in there, but I would assume that. But the real problem Is — Justice Black: How could they raise that? Mr. Marshall: Especially in v i e w of the fact that they did not represent all of the enforcement officers. Justice Frankfurter: Could not the Attorney General of the Commonwealth 3peak for the officers — 66 ps 8 Mr. Marshall: We now have the third Attorney- General since this case started. First we had Attorney General Almond and then we had Attorney General Patterson and now we have Attorney General Harrison. As I understand, the agreement was made when Attorney General Almond was there. But the point, if I may mention to Justice Black is that the members would he afraid to join even now for fear that at some time the statute might he declared constitutional. You see, the membership -- their name would he on the list whenever it was forced to be turned over. Justice Black: The point I was trying to identify is in connection with the 3tatus quo along the line suggested — does any Attorney General or any State officer have the right now to say that he will forgive all past offenses under a statute which is held unconstitutional? Mr. Marshall: I don't know. I would have to ask the Virginia lawyers. One answer that is made from the other counsel is at least the lawyers would have no assurance that we would have disbarment. That point doesn't worry me. I think this, Mr, Justice Black. And frankly I am not familiar with the Virginia law. But In most instances, a prosecutor could nolle prosse or refuse to prosecute. But I don't believe he could make an agreement to that affect that would be bind5_ng. 67 ps 9 I don't go behind the motives of the Attorney General in this case at all. I assumed that he would not do it. Justice Harlan: The Federal court could effect it by a temporary injunction. Mr. Marshall: That Is no problem once that is done. But this was done in lieu of it. If I may, Mr. Justice Stewart, on the other point — when I was talking to Mr. Justice Black — Is that the statutes that are now over in the State court do not require disclosore of membership. 68 Mills ws fls ps Justice Stewart: Neither one of them? Mr. Marshall: Neither one of them. May it please che Court, then, unless there are questions, it appears to me that I would urge respectfully upon this Court the affirmance of the decision of the district court. And I believe that it is particularly timely that following the Alabama decision, that it be made clear that the Federal judiciary, the Federal courts are to be freely open to litigants and that that is a problem for the Federal courts not the State courts of Virginia. Justice Frankfurter: Would you mind tell us what the state of the Prince Edward case is? Mr. Marshall: It is on appeal from the latest ruling of Judge Hutchison to the Fourth Circuit. The argu ment is on April 14th. Justice Brennan: Is that the one continued to 1965? Mr. Marshall: That is the one, yes, sir. Justice Frankfurter: Are you suggesting if this were referred to the Virginia court, you and your associates could not participate in that argument and file brief3? Mr. Marshall: I would say that under these statutes, we would be prevented from participating in the case. I do not think there is any question about it — unless one of us would take the position that we just did not 69 Ws2 care what would happen. And I do not think that anybody should be required to do that. And that applies to all of these cases, if it please Mr. justice Frankfurter. Judge Soper sets them all out, because he is in the Fourth Circuit. He sets them all oiit in a footnote. I think that this is not the case that the Common wealth would have this Court to believe is an ordinary regulatory statute. It is not a case of a justification for interference with the lawful rights of the members to associate with each other, the members and the organizations to exercise their right of freedom of expression; that the State has deliberately interferred in that field. And in doing so, they have woefully failed to show the justification required in every instance by this Court of showing the overriding necessity to do it. I don't think there is any question, at least in mjr mind, as to what will happen in Virginia if these statutes are by this Court either declared constitutional or sent back to the State courts. I think that once that is done and the posture of this case — and when I say posture, I mean the legislative history, I mean the record in this case, I mean the argument before this Court — that there is not a person connected with either of these organizations who would not be worried to the end of not being able to do the job that ha3 to be done. And for that reason, not on behalf 70 w s3 of the two organizations, hut on behalf of the people in Virginia — and now there are other people coming forward — that those people should be able to continue what has always, since there has been law, so far as we have been able to find in our research — the right of people to pool their resources for charitable work in helping somebody that is being mistreated and is unable to get his legal justice in a court. I think Virginia, instead of codifying the law, has deliberately flown into the teeth, not only of the Constitution, not only of the common law rights of barratry, but seeks to destroy what I consider to be as important as any duty of a lawyer, and that is the duty to see that no man goes undefended, whether or not he has the money. And Virginia has struck all of that down with one blow, including five statutes. And I submit Virginia cannot be permitted to continue in that practice. The Chief Justice: Mr. Mays. ARGUMENT IN REBUTTAL ON BEHALF OP ALBERTIS S. HARRISON, JR., ATTORNEY GENERAL OF VIRGINIA, ET AL, APPELLANTS. By Mr. Mays: Mr. Mays: Mr. Chief Justice, Associate Justices, my time is very brief and I will make my points as 71 rapidly as I can, And they may be a bit disjointed. There is much in the record as to the history of these statutes and it has been said, Your Honors, as was said to the lower court, that all of it was a part of the then government plan to defeat the opinion of thi3 Court. When Your Honors have an opportunity, if you will look at page 470 of the record you will find that Mr. Harrison Mann, a member of the House of Delegates from Arlington County, was the patron, the chief patron of all five of these bills and that he had written himself Chapter 32 dealing with the matter of filing membership lists and registration, and 35 which had to do with barratry, and brought them, as it were, in his saddle bags down to Richmond. They were no part of the plans of the Governor. They we re no part of the plans of any commission,, It was done at the instance of that particular member of the General Assembly. I don't know that that is vital here at all. I don't think it is. But I think it should be brought to your attention. It was not a part of the matter of so-called massive resistance, Justice Douglas: I don't find it on page 470. Mr. Mays; 430 — I am sorry, Mr. Justice. It is a little bit toward the end of the page on 4300 72 ws4 Now, -this registration statute does not apply (9)f Is VIS just to the NAACP* suet-mil 9 ct fls WS It applies to any organisation which comes within the purview of the statute. It applies to white organiza tions. We have some in our county. It applies to any state wide white organization, which is at the other end of the spec trum in dealing with this particular problem. They are bound to register, just as well as the NAACP is. So there is no distinction made; it is done as a * • matter of safety; it is done as a matter of preventing vio lence, and everybody is in the same boat, so far as compli ance with the law Is concerned. In the barratry statute, which has occasioned con siderable comment from adverse counsel, it is stated that this is not a codification of common lav;, and one of the few things that is not. Barratry was at common law the frequent stirring up of litigation; according to Blackstone, that was true. Under the statute, one offense is enough. That distinction is clearly there. It is true also that this particular section has some exceptions which are not in Blackstone. But to say that because some exceptions appear in this particular Chapter 35 that it is aimed only at the NAACP is clearly untrue, because the NAACP, at pages 29 and 30 of its brief, has enumerated many types of association which act 73 in concert I will not take the time to read them. They have used a number of them here by way of illustration, and none of them are excluded as exceptions under this Act, so it can not be fairly said that only the NAACP would be exempt from its terras. The Chief Justice: Mr. Mays, under the common law, did it make any difference whether the litigation was stirred up for profit or not? Mr. Mays: I am not certain, sir, but here there ha to be a stirring up of litigation and a supplying of money, too, in order to make that statute operate. Now, one thing that has puzzled us very greatly in the decision of a lower court, and we have great respect for that court, but Your Honors will notice on page 93 of the record, beginning about line 6, the court there says that Chapters 33 and 36 are vague and ambiguous, and we do not pass upon their constitutionality, and because the statutes are vague and ambiguous, they are sent on to the state court for determination. And yet, Chapter 32 is said by the court to be so vague and indefinite that it cannot pass the test of consti tutionality. And I admit some limitations myself, and. I am not saying this out of subtlety, but the subtlety is too great for me. I do not know why, if two statutes are vague and ambiguous, they go to the state court for interpretation; but if they are vague and indefinite, they can be declared constitutional out of hand. Of course, if the major argument made by adverse counsel, that is, that all of these statuted are tainted, then why is it that two of tie tainted statutes go to the state court for interpretation and three that are tainted are de clared unconstitutional out of hand? These distinctions we have not been able to make. Mr. Marshall has stated to the Court that the lawyers themselves are in considerable fear here. There is no reason they should be. Certainly their activities have not indicated any such fear. They are continuing with all of the cases; they are receiving fees. Things are going on, as far as I can see, as have been going on before. I think that while, to answer Mr. Chief Justice^ question — I think it was — I realise that a Commonwealth attorney, or the Attorney General of Virginia, cannot enter into any commitment to free people from prosecution for past acts. I do not think he has that right. At the same time, there are practicalities in this situation. The Attorney General of Virginia authorized us to say, in the litigation pending before the three-judge court, that no prosecutions would be had under these statutes until they could finally be determined by the courts. That c4 applies to them all, and I think there is every right to be lieve that these lawyers need be in no fear while they pursue the constitutional questions and any other questions that are involved. Certainly they are pursuing them now. There has not been any reference in the argument at all to a very important case, and that is the Alabama case in which registration was involved. I have no time to make a differentiation, unless Your Honors would like me to pursue it. I think our brief covers it. There was a situation where the case had gone up to the appellate court twice, certiorari had been sought and denied twice, there was a fine of $10,000 one day, there was $100,000 the next. And it was obvious that the people who were involved could do only one of two things, and that was come here or go to the bank and get the $100,000. Now, in Virginia, the whole picture is different. I will not say the atmosphere of the two states are different; I do not know the atmosphere in Alabama. I simply know the effort i3 different. They are perfectly free to pursue their remedies without risk of hurt, and the situation is not parallel at all. There, too, in Alabama it was found by this Court that there was economic pressure, there were threats, there were all sorts of things brought to bear, But all of the testimony in this case shows that the threats have not gone 76 "beyond the prank stages. There were one or two firey crosses burned, which was charged, in part, at least, to a gentleman that comes visiting from other states to stir up this thing. There were other things in the prank stage. There were anonymous phone calls. But Mr. Harrison, who sponsored these statutes, got an anonymous phone call, too, just as the people on the other side of this controversy. There was not one single case produced of economic pressure, of anybody who was a member of NAACP. It so happens that they brought in the testimony of one colored woman from the City of Charlottesville, and they said that she worked for some white folks there, and one white lady did not like it because she was a plaintiff in one of the school cases and told her she could not work for her any more. But there were so many white people that were glad to have her services, that she never missed a lick of work. Now, that is the sum total of economic pressure in Virginia. That is all shown by this record. The record does not show that she belonged to the NAACP at all. She was a plaintiff. May I make this one observation? If the NAACP is so extremely anxious to avoid its membership list being made public, why isn!t it that instead of getting one or two people to pursue these school cases, they get as many of them as possible? Instead of having one or two or three plaintiffs, 77 76 why have 100? Surely it must be obvious to anyone that economic pressure is far more likely against someone who is actively agitating school cases as against a supine member of an organi zation which has thousands of members. I thank Your Honors. (Whereupon, at 1:55 o rclock p.m., the argument was concluded.)