Harrison v. NAACP Oral Arguments

    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.)