Harrison v. NAACP Brief and Appendix on Behalf of Appellants

    BRIEF AND APPENDIX 
ON BEHALF OF APPELLANTS

In the

Supreme Court of the United Slates
October Term, 1958

No. 127

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 EDUCA­
TIONAL FUND, INCORPORATED,

Appellee.

Appeal from the United States District Court for the 
Eastern District of Virginia

D avid J. M ays 
H enry  T . W ic k h a m

1407 State-Planters Bank Bldg. 
Richmond, Virginia

T u c k er , M ays, M oore & R eed 
Of Counsel

Clarence  F. H ic k s  
Gloucester, Virginia 

Special Assistant to the 
A tt’y General of Virginia

J. S egar Gravatt 
Blackstone, Virginia

Counsel for the Appellants 

Dated: February 13, 1959



Opinion of the Court Below ......................................................  1

J urisdiction of the Court........................................ -..... ............  2

Statutes Involved ......................................................... -...............  2

Questions Presented................... .................................................. 2

Statement of Case............... ................................ .........................  3

Operation of the NAACP ........................................ -................  5

Operation of Legal Defense F u n d ...................................... .......  7

Necessity for Chapters 31 and 3 5 ................................................  9

Necessity for Chapter 32 ................. .... ...................................—. 12

Motives of Legislature __ _____ __-....................... -...............  14

Economic Reprisals ............... .... ................................................. 14

S ummary of Argument............. ............ .... ...................................  17

I. Court Below Should Have Declined to Exercise Its Equity 
Jurisdiction .......................................................................... - 17

II. Registration Statutes Do Not Restrict Freedom of Asso­
ciation in Such a Manner as to Violate the Due Process 
Clause .................................    19

III. Chapter 35 Does Not Violate the Equal Protection Clause
or the Due Process Clause of the Fourteenth Amendment 21

Argument .................................. ..... .... ........... ..........................—  22

I. The Court Below Should Have Declined to Exercise Its
Equity Jurisdiction ......................    22
A. The Three-Judge District Court Should Not Have Re­

strained Enforcement of Criminal Statutes of the Com­
monwealth of Virginia.................................................... 22

i

TABLE OF CONTENTS

Page



Page

B. The Court Below Erred in Holding That Proceedings 
Should Be Stayed Only When Statutes Involved Are
Vague and Ill-defined ....................................................  29

C. The Majority Below Erred in Holding That the Stat­
utes in Question Were So Free from Ambiguity as to 
Need No Definite Adjudications in State Courts.........  37

II. The Registration Statutes Were Enacted Under the Valid 
Exercise of the State's Police Power ........ ..........................  41

III. Chapter 35 Does Not Violate the Equal Protection Clause
of the Due Process Clause of the Fourteenth Amendment 60

Co nclusio n  ...................... .................... ..... ............. ...................... . 63

A ppe n d ix  I :

Acts of the General Assembly of Virginia (Extra Session,
1956) :
Chapter 31 .................................................................... App. 1
Chapter 32 ................... ........................... ............. .......  App. 4
Chapter 35 .... ...... .......................... ..............................  App. 9

A ppe n d ix  II :
North Carolina Statute ......................................................  App. 11

A ppe n d ix  I I I :
Alabama Statute .................................................. .............  App. 13

TABLE OF CITATIONS 

Cases

A. F. of L. v. Watson, 327 U. S. 582 ............ ........... ............ . 30, 31

Albertson v. Millard, 345 U. S. 242 ............. .................. . 18, 30, 31

ii



Beauharnais v. Illinois, 323 U. S. 250 ......................................  20,

Bradwell v. Illinois (16 Wall.) 130..................................................

Bryan v. Austin, 148 F. Supp. 563 ............................... ............  31,

Bryant v. Zimmerman, 278 U. S. 63 .............  21, 51, 52, 54, 55,

Buck v. Gibbs, 34 F. Supp. 510........................................................

Burroughs v. United States, 290 U. S. 534 ............................... 21,

Cantwell v. Connecticut, 310 U. S. 296......... .................................. -

Daniel v. Family Security Life Insurance Co., 336 U. S. 220

Doud v. Hodge, 350 U. S. 485 ........................................................

Douglas v. Jeannette, 319 U. S. 157..... ..................................... 18,

Feiner v. New York, 340 U. S. 315.................................... . 20,

Fletcher v. Peck, 6 Cranch 87 .......... ...... ....................................—

Goesaert v. Cleary, 335 U. S. 464 ..............................................  42,

Government and Civil Employees v. Windsor, 353 U. S. 364
18, 32, 33,

Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 .........

Hannabass v. Maryland Casualty Co., 169 Va. 559 ........................

In re Issermen, 345 U. S. 286 ....................................................  62,

In re Lockwood, 154 U. S. 116........................................................

Kasper v. Brittain, 245 F. 2d 92, cert. den. 355 U. S. 834 .......  20,

Lane v. Wilson, 307 U. S. 268..........................................................

Lassiter v. Taylor, 152 F. Supp. 295 ...............— ..........................

Lewis Publishing Company v. Morgan, 229 U. S. 288...................

McCloskey v. Tobin, 252 U. S. 107..........................................  21,

National Association for the Advancement of Colored People v. 
Alabama, 357 U. S. 449 ..........................................  21, 55, 56,

47

62

32

56

27

52

51

44

29

28

46

43

43

35

29

37

63

62

49

37

32

52

61

60



National Association for the Advancement of Colored People v. 
Patty, 159 F. Supp. 503 .............................................. ...............  1

Pennsylvania v. Williams, 294 U. S. 176______ _____ ______ __ 22

Railroad Commission of Texas v. Pullman Co., 312 U. S. 496 .. 18, 36

Sonzensky v. United States, 300 U. S. 506 ............................... 21, 52

Spillman Motor Sales Co. v. Dodge, 296 U. S. 8 9 ................... 18, 27

Spector Motor Service v. McLaughlin, 323 U. S. 8 9 ...............  18, 36

Stefannelli v. Minard, 342 U. S. 117......... ................ ....................  28

Steiner v. Mitchell, 350 U. S. 247 ............................................... . 38

Terrace v. Thompson, 263 U. S. 197..............................................  28

Thomas v. Collins, 323 U. S. 516.............. ...................................... 51

United Public Workers v. Mitchell, 330 U. S. 75 ................... 18, 23

United States v. Harriss, 347 U. S. 612..................... 19, 20, 40, 44,
45, 50, 52

United States v. McKesson & Robbins, 351 U. S. 305 ..................  38

Watkins v. United States, 354 U. S. 178........................................  44

Watson v. Buck, 313 U. S. 387 ....................... 18, 23, 24, 27, 28, 37

Statutes

Code of Virginia:
Section 19-265 ...................................... ....................................... 25
Sections 18-238 - 18-239 ......................................................  25, 26
Sections 8-578 - 585 .................................................................... 36

United States Code:
2 U. S. C. Section 261 ............................................................... 45
2 U. S. C. Section 241 ............................................................... 52

26 U. S. C. Section 1132.............................................................  52
28 U. S. C. Section 1253 .........          2

Page

iv



In the

Supreme Court of the United Slates
October Term, 1958

No. 127

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 EDUCA- ’ 
TIONAL FUND, INCORPORATED,

Appellee.

Appeal from the United States District Court for the 
Eastern District of Virginia

BRIEF ON BEHALF OF APPELLANTS

OPINION OF THE COURT BELOW
The opinion of the three-judge United States District 

Court for the Eastern District of Virginia, Richmond 
Division, is reported at 159 F. Supp. 503 (1958) as 
National Ass’n. for Advancement of Colored People v. 
Patty.



2

THE JURISDICTION OF THE COURT
The jurisdiction of this Court rests on 28 U. S. C., Sec­

tion 1253.
The final decree of the court below was filed on April 30, 

1958 (R. 122). The notice for appeal was filed on May 22, 
1958 (R. 124).

THE STATUTES INVOLVED
The validity of three state statutes is involved. Chapters 

31 and 32, pp. 29-33, Acts of the General Assembly of 
Virginia, Extra Session, 1956 (respectively codified as Sec­
tions 18-349.9 et seq. and 18-349.17 et seq. of the Code of 
Virginia, 1956 Additional Supplement, pp. 32-36) are reg­
istration statutes. Chapter 35, pp. 36-37, Acts of the Gen­
eral Assembly of Virginia, Extra Session, 1956 (codified as 
Section 18-349.25 et seq. of the Code of Virginia, 1956 
Additional Supplement, pp. 36-37) relates to the crime of 
barratry. Due to the length of these statutes they are not 
here set out verbatim. Their text is set forth as Appendix I 
to this brief.

THE QUESTIONS PRESENTED
1. Under the facts of these cases, did the court below 

err in restraining the enforcement of criminal statutes of 
the Commonwealth of Virginia ?

2. Did the court below err in holding that proceedings 
should be stayed only when state statutes under attack are 
vague and ambiguous ?

3. Did the court below err in holding that the provisions 
of the statutes in question were so free from doubt as to 
not require definite adjudications in state courts?



3

4. Did the court below err in holding that all oi the 
provisions of the registration statutes (Chapters 31 and 32) 
violated the Due Process Clause of the Fourteenth Amend­
ment?

5. Did the court below err in holding that the barratry 
statute (Chapter 35) deprived the appellees of rights guar­
anteed by the Fourteenth Amendment ?

STATEMENT OF THE CASE
The National Association for the Advancement of Col­

ored People, hereinafter referred to as the NAACP, is a 
membership corporation organized under the laws of the 
State of New York (R. 498). It has local units or branches 
which have been organized as unincorporated associations in 
most of the states and the District of Columbia (R. 168). 
The branches in Virginia are grouped into an association 
called the Virginia State Conference and these branches 
support the NAACP and the State Conference by the pay­
ment of membership dues (R. 169-170).

Roy Wilkins heads the staff of the NAACP which is 
responsible to a board of directors. The staff members 
“preside over the functioning of the local branches through­
out the country and the state conferences of branches” (R. 
167). For all practical purposes the branches and the State 
Conference are constituent parts of the NAACP (R. 505).

The NAACP Legal Defense and Educational Fund, 
Incorporated, hereinafter referred to as “Legal Defense 
Fund”, is a New York membership corporation organized 
for the following purposes as stated in its charter:

“ (a) To render legal aid gratuitously to such Ne­
groes as may appear to be worthy thereof, who are 
suffering legal injustice by reason of race or color and



4

unable to employ and engage legal aid and assistance 
on account of poverty.

“ (b) To seek and promote the educational facilities 
for Negroes who are denied the same by reason of race 
or color.

“ (c) To conduct research, collect, collate, acquire, 
compile and publish facts, information and statistics 
concerning educational facilities and educational oppor­
tunities for Negroes and the inequality in the educa­
tional facilities and educational opportunities provided 
for Negroes out of public funds; and the status of the 
Negro in American life” (R. 28).

There is only a small number of members of the Legal 
Defense Fund and no membership dues are required. Its 
income is derived mainly from contributors who are solic­
ited by letter and telegram from New York City (R. 293, 
294).

The Legal Defense Fund has been approved by the State 
of New York to operate as a legal aid society because of the 
provisions of the barratry statute of New York (R. 314).

Thurgood Marshall is Director and Counsel of the Legal 
Defense Fund and it is his duty to carry out the policies of 
the board of directors (R. 278). He has under his direction 
a legal research staff of six full time lawyers who reside in 
New York City but who may be assigned to places outside 
of New York (R. 279).

In addition to the full time staff, the Legal Defense Fund 
has lawyers in several sections of the country on a retainer 
basis and, in addition, approximately one hundred volunteer 
lawyers throughout the country who come in to assist when­
ever needed (R. 278). Spottswood W. Robinson, III, is 
the Southeast Regional Counsel for the Legal Defense Fund 
on an annual retainer. The southeast region includes the 
Commonwealth of Virginia (R. 288, 303). The Legal De­



5

fense Fund also has at its disposal social scientists, teachers 
of government, anthropologists and sociologists, especially 
in school litigation (R. 286).

The Operation of the NAACP
Speaking of the legal activity of the NAACP, Roy 

Wilkins testified:

“Well, under legal activity we have sought to assist in 
securing the constitutional rights of citizens which may 
have been impaired or infringed upon or denied. We 
have offered assistance in the securing of such rights. 
Where there has been apparently a denial of those 
rights, we have offered assistance to go to court and 
establish under the Constitution or under the federal 
laws or according to the federal processes, to seek the 
restoration of those rights to an aggrieved party.” (R. 
170,171)

Wilkins further testified that in assisting plaintiffs “we 
would either offer them a lawyer to handle their case or to 
help to handle their case and pay that lawyer ourselves, or 
we would advise them, if they had their own lawyer, would 
advise with them or assist in the costs of the case” (R. 177). 
No money ever passes directly to the plaintiff or litigant 
(R. 177).

The NAACP says publicly that it believes that a certain 
law is invalid and should be challenged in the courts. Ne­
groes are urged to challenge such laws and if one steps 
forward, the NAACP agrees to assist (R. 179).

Although it is not in the regular course of business, pre­
pared papers have been submitted at NAACP meetings 
authorizing someone to act in bringing law suits and the 
people in attendance have been urged to sign (R. 180).

Robert L. Carter, General Counsel for the NAACP, is



6

paid to handle legal affairs for the corporation. Repre­
sentation of the various Virginia plaintiffs falls within his 
duties. The NAACP offers “legal advice and assistance 
and counsel, and Mr. Carter is one of the commodities” 
(R. 203, 204).

The State Conference has a legal staff composed of thir­
teen members and in every instance except two plaintiffs 
have been represented by members of such staff in cases in 
which assistance is given (R. 153).

All prospective plaintiffs are referred to the Chairman of 
the Legal Staff, Oliver W. Hill, and counsel for such plain­
tiffs makes his appearance when Hill has recommended that 
they have “a legitimate situation that the NAACP should 
be interested in” (R. 152).

The State Conference assists in cases involving discrim­
ination and the Executive Board formulates certain policies 
to be applied in determining whether assistance will be given. 
Hill then applies these policies and when he decides that the 
case is a proper one, it is taken “automatically” with the 
concurrence of the President (R. 156).

Members of the Legal Staff of the State Conference 
attend meetings held by the branches in their capacity as 
counsel for the Conference and either the particular branch 
or the State Conference pays the traveling expenses in­
curred (R. 164).

Oliver W. Hill testified that he is not compensated as 
Chairman of the Legal Staff. It is his duty to advise Ne­
groes who come to him voluntarily “or directly from some 
local branch, or after having been directed there by Mr. 
Banks” whether or not he will recommend to the State Con­
ference that their case will be accepted (R. 207).

After a case is accepted, Hill selects the lawyer (R. 209). 
He refers the case to a member of the Legal Staff residing



7

in the particular area from which the complaining party 
came. For the Richmond area, “one of us would frequently 
handle the situation” (R. 208). A bill for the legal services 
is submitted to Hill who approves it with the concurrence 
of the President of the State Conference (R. 210).

Hill further stated that no investigation is made as to 
the ability of the plaintiffs to pay the cost of litigation. He 
feels that irrespective of wealth, a person has the right “to 
get cooperative action in these cases” (R. 222).

The Operation of the Legal Defense Fund
Thurguod Marshall testified that it is the policy of the 

Legal Defense Fund before sending assistance in a legal 
case that the case must be referred to it by either the party 
directly in interest or the party’s attorney. When aid is 
given, the party’s attorney is controlled solely by the canons 
of ethics and “by nothing or anybody else” (R. 280).

In the words of its Director and Counsel, the Legal 
Defense Fund operates in the following manner:

“* * * If the investigation conducted either from the 
New York office or through one of our local lawyers 
reveals that there is discrimination because of race or 
color and legal assistance is needed, we will furnish 
that legal assistance in the form of either helping in 
payment of the costs or helping in the payment of law­
yers fees, and mostly it is legal research in the prepa­
ration of briefs and materials of that type. We are 
getting calls all the time.” (R. 279)

However, upon being examined concerning the meaning 
of a letter received from the southwest regional counsel of 
the Legal Defense Fund, Marshall stated that he assumed 
that there were particular plaintiffs requesting aid when 
it was stated that “Proposed legal action will include * * *



8

(c) Suits against strategically chosen school boards in 
Eastern Louisiana contiguous to Mississippi” (R. 308, 309, 
637).

In the same letter to which reference is made above the 
following statement is found:

“* * * We have a statute making racial segregation 
mandatory in the thirty-odd state owned and operated 
parks in Texas. We shall undoubtedly strive to test 
that law in 1956. In the past we have found it extreme­
ly difficult to get persons to undertake to use the sensi­
tive facilities such as restaurants, swimming pools, 
dance facilities, and the like. We shall continue to press 
that issue.” (R. 638, 639) (Italics supplied)

The Legal Defense Fund does not cooperate if a case is 
referred by an organization including the NAACP (R. 
280). However, the lawyer who has already been retained 
by the party receiving aid from the Legal Defense Fund 
is always on the legal staff of the State Conference of the 
NAACP (R. 289).

When a so-called client comes to a member of the legal 
staff of the State Conference, he may then receive aid, not 
only from the full legal staff of the State Conference, but 
also from the full legal staff of the Legal Defense Fund, 
including the services of its southeastern regional counsel 
(R. 292).

The testimony of Thurgood Marshall on cross-examina­
tion indicated that the Legal Defense Fund represented 
only those people who cannot afford to pay for litigation 
(R. 314). However, he stated that he knew of no instance 
in which an investigation was made to find out whether or 
not any of the plaintiffs could pay the cost of the school 
litigation in Arlington, Charlottesville, Newport News or 
Norfolk (R. 315).



9

Marshall further admitted that if a plaintiff owned real 
estate with a fair market value of $15,000.00, free and clear, 
he would be in pretty good shape to finance his own law suit 
(R. 316).

B. B. Rowe testified as to the fair market value of the 
real estate owned of record by the plaintiffs in Newport 
News school segregation case, the total value being in excess 
of $280,000 (R. 453-456).

Robinson, on being examined as an adverse witness by 
the defendants, stated that his duties do not require him to 
obtain a credit report or look extensively into the financial 
situation of the parties who may request assistance of the 
Legal Defense Fund (R. 334). As to the type of investi­
gation conducted he stated:

“I do not make an investigation beyond the point of 
looking at the client, if the client comes into the office, 
exercising judgment as to appearances as they do ap­
pear, and considering those in the light of what I am 
requested to do * * *” (R. 334)

Robinson further testified that the Legal Defense Fund 
would represent all of the plaintiffs in a class action even 
though all but one could afford the cost of the litigation 
(R. 341).

The Necessity for Chapters 31 and 35

Five witnesses who were plaintiffs in the Prince Edward 
County school segregation case testified on behalf of the 
appellants. All of them admitted signing a paper that reads 
in part as follows:



10

“ ‘AUTHORIZATION 
To Whom It May Concern:

“ ‘I (we) do hereby authorize Hill, Martin and 
Robinson, attorneys, of the City of Richmond, Vir­
ginia, to act for and on behalf of me (us) and for and 
on behalf of my (our) child (children) designated be­
low, to secure for him (her, them) such educational 
facilities and opportunities as he (she, they) may be 
entitled under the Constitution and laws of the United 
States and of the Commonwealth of Virginia, and to 
represent him (her, them) in all suits, matters and 
proceedings, or whatever kind or character, pertaining 
thereto.” (R.422)

However, all of them also testified:
1. They did not know that they were plaintiffs in the 

Prince Edward County school segregation case, which was 
filed in 1951, until 1956.

2. When they signed papers they thought only that they 
would obtain a better or new school for their children.

3. They have had no communication from Hill, Martin 
or Robinson concerning the law suit (R. 346-374).

Another witness who was a plaintiff in the Charlottesville 
school segregation case stated that he has had no conver­
sation or written correspondence with Hill or Robinson, all 
of his contacts having been through the NAACP (R. 374).

Moses C. Maupin, who was also a plaintiff in the Char­
lottesville case, testified that he signed an authorization 
paper at a meeting of the NAACP at which time no lawyers 
were present (R. 377).

Otis Scott, also a plaintiff in the Prince Edward case, 
said that he was told by Hill and Robinson that “they 
wouldn’t take the case up for segregated schools. If they



11

taken the case at all it would be on a non-segregated basis” 
(R. 476).

Viola Neal testified that she was a plaintiff in the Prince 
Edward case and authorized her attorneys, Hill and Robin­
son, to do what they thought best. She desired to end segre­
gation in the public schools. On cross-examination she 
stated:

1. She did not talk to Hill or Robinson between the time 
of the school strike on April 23, 1951, and April 26 at which 
time she signed the authorization papers1 (R. 479).

2. The authorization was signed before she had a con­
ference with Hill or Robinson (R. 480).

3. Hill and Robinson had not discussed the Prince Ed­
ward case with her until they came to see her about testi­
fying in this case (R. 480).

George P. Morton, a Prince Edward resident, stated 
that Hill and Robinson told him that the only way equal 
facilities could be obtained was to have a non-segregated 
school (R. 488).

vSarah B. Brooks, a plaintiff in the Charlottesville case, 
testified on cross-examination that speakers at a public 
meeting said “for all children and mothers who wanted 
children to go to a better school to sign up.” She did not 
know she was authorizing a law suit and no one explained 
the authorization which she signed (R. 242-243).

Julian A. Sherman, a witness on behalf of the appellants 
testified as follows:

1. He was the Eastern Representative of the Claims 
Research Bureau of the Law Department of the Associ­

1 The meeting at which Hill and Robinson were present and told the 
Negroes that they were prepared to file suit to end segregation was 
held on May 3 (R. 491).



12

ation of American Railroads, and participates in investi­
gations of claims arising from personal injuries under the 
Federal Employer’s Liability Act (R. 464-465).

2. Solicitation of personal injury claims is widespread 
in Virginia, as well as in the rest of the country, and di­
vision of fees is also widespread as well as offering of finan­
cial inducements to solicit business. Running and capping 
is indulged in by unethical attorneys and by laymen in their 
employ (R. 464-465).

3. The information required by Chapter 31 would help 
alleviate these conditions by supplying proof of the division 
of fees and of maintenance, thus enabling more effective 
prosecution (R. 465-466).

The Necessity for Chapter 32
Dr. Francis V. Simkins, professor of American History 

at Longwood College, Farmville, Virginia, testified that he 
has made a special study of Southern history. As to the 
history of secret societies, he stated that the Union League, 
formed in 1862 to promote patriotism in the North, spread 
to the South where it became an organization of Negroes 
and carpetbaggers. Its membership list was secret and 
under that cloak of secrecy its members committed acts of 
violence (R. 415-416).

The Ku-Klux Klan was the most important secret society 
in the South. It was notorious for its secrecy and also ulti­
mately became notorious for the crimes it committed (R. 
415-416). The Klan has had the tendency to reappear 
periodically and it exists today because of racial tensions 
(R. 419). Statutes requiring the disclosure of membership 
lists help curb the harmful activities of such organizations 
(R. 419).



13

John Patterson, the Attorney General of Alabama, re­
counted instances of racial disturbances and violence occur­
ring in the State of Alabama, including the so-called “Mont­
gomery bus boycott situation”, instances in Birmingham, 
the towns of Maplesville, Marion and Tuskegee. General 
Patterson then pointed out that such a registration law as 
Chapter 32 “would help the authorities to enforce the law, 
catch the offenders, and possibly help us identify organiza­
tions that are working in certain areas so that we could take 
preventive measures to prevent the things from happening 
before they do” (R. 471-472).

The Superintendent of the Virginia State Police and four 
county sheriffs testified that Chapter 32 would be of help in 
law enforcement (R. 378).

The Sheriffs generally stated that an order to integrate 
the public schools would cause more racial tension, possibly 
bloodshed, and would raise difficult law enforcement prob­
lems. Secret organizations would antagonize the situation 
and in their opinion, the provisions of Chapter 32 would aid 
in crime detection, the prevention of violence and would be 
helpful in selecting additional deputies who may be needed 
in time of racial disturbances (R. 384-411).

Sheriff C. F. Coates, on cross-examination, further testi­
fied that a colored man had just complained to him that the 
NAACP placed pressure on him to join its local Branch. 
The testimony is as follows:

“A colored man in my community came to me, on 
yesterday, and told me that the NAACP had put pres­
sure on him to try to make him join the NAACP. He 
refused to join. They instructed him that he had to 
join and he had to vote like they said to vote, and if 
there was any bloodshed in that community from inte­
gration of the school that the NAACP was going to 
be in the middle of it. He refused to join it. The head



14

of this organization, so he said, on account of him re­
fusing to join their organization, had sent a bunch of 
thugs around to his place to tear it up.” (R. 403)

The Motives of the Legislature
Harrison Mann, a member of the House of Delegates 

from Arlington County, testified that he was the chief 
patron of Chapters 31, 32, 33, 35 and 36 and was responsible 
for the drafting of Chapters 32 and 35 prior to the special 
session of the General Assembly held in 1956 (R. 430-431).

Mann’s reasons that prompted him to strive for the en­
actment of the statutes in question were:

1. The Autherine Lucy incident in Alabama and the 
violence ensuing therefrom (R. 428).

2. John Kasper was beginning his operations in Wash­
ington, right across the Potomac River (R. 428-429).

3. Existing racial tension in Virginia (R. 428-429).
4. The Prince Edward plaintiffs’ ignorance of the fact 

that they had brought a law suit (R. 431).
5. The actions of the NAACP in Texas in soliciting and 

paying litigants (R. 436-437).
6. Charges of certain Arlington lawyers that the 

NAACP was engaged in practicing law (R. 431).
7. Certain white organizations were commencing suits 

in Maryland, Kentucky, Louisiana and elsewhere (R. 431).
8. The organization of the Defenders in Virginia and 

the recurrence of the Ku-Klux Klan in Florida (R. 434).

Economic Reprisals
The appellees, in an attempt to substantiate their allega­



15

tions of harassment, abuse and economic reprisals against 
its members and contributors, called eight witnesses, two 
being colored. Their testimony falls into two categories, 
those who told of social reprisals and threats and those who 
told of economic reprisals.

Jack C. Orndoff, a white plaintiff in the Arlington school 
segregation case, withdrew from the case because of 
abusive and threatening telephone calls and some letters 
received after a newspaper listed the names of all of the 
plaintiffs. No testimony was introduced to indicate that 
Orndoff was a member of or contributor to the NAACP 
or Legal Defense Fund (R. 230-233).

Mildred D. Brown, a resident of Charlottesville, testified 
that she was a member and officer of the Charlottesville- 
Albemarle Chapter of the Virginia Council on Human Re­
lations. She started receiving threatening phone calls after 
her name appeared in a newspaper in connection with the 
organization of the said chapter on Human Relations in 
August, 1956. She has received no such calls since Decem­
ber, 1956 (R. 249). A cross was also burned in front of her 
house on September 6, 1956. Mrs. Brown attributed the 
cross-burning and some of the telephone calls at least in­
directly to the activities of John Kasper and his White 
Citizens Council (R. 249). Since August, 1956, Mrs. 
Brown also has been shunned by some of her friends and 
their children have been forbidden to play with her children. 
There is no evidence that she is a member of or contributor 
to the NAACP or the Legal Defense Fund.

Sarah Patton Boyle is an author who has been advocating 
integration since 1951. Her articles in the field of race re­
lations have been published as letters to the editor in the 
Norfolk-Virginia Pilot, the Richmond Times-Dispatch and 
the Charlottesville Progress. Mrs. Boyle also published



16

an article in the Christian Century and one in the Saturday 
Evening Post. Since 1951 she has received over two hun­
dred letters, the contents of which vary from being reason­
able to extreme insults and threats of violence (R. 265). 
The maker of one phone call threatened to have her husband 
fired, and a cross was burned about fifteen feet from her 
house (R. 265). The cross-burning is attributed, at least 
in part, to the activities of John Kasper and his followers 
(R. 268). Mrs. Boyle also stated that she has suffered pub­
lic embarrassment and that her presence is now objection­
able in certain social circles, all of which is a personal dis­
tress to her (R. 266). The harrassment which she has 
received in great volume was contributed to the article pub­
lished in the Saturday Evening Post (R. 268). The evi­
dence does not indicate that she is a member of or con­
tributor to the NAACP or the Legal Defense Fund.

Mrs. Edith Burton, a member of the NAACP from 
Arlington, wrote to the newspapers attacking the activities 
of the Defenders, a pro-segregation organization. After 
that time she received anonymous communications in the 
form of letters and telephone calls. The phone calls have 
now stopped (R. 251).

Mrs. Margaret I. Finner, a white member of the NAACP, 
testified that she became a plaintiff in the Arlington school 
segregation case because of Orndoff’s withdrawal. After 
her name was published in the newspapers as being a plain­
tiff, she received distressing anonymous communications 
(R. 252).

Barbara S. Marx was one of the white plaintiffs in the 
Arlington school segregation case, and she received dis­
agreeable, obscene and threatening communications when­
ever her name gets in the newspapers (R. 260). It was not 
a secret that she was a member of the NAACP, and she



17

was well-known as a person promoting and advancing the 
integration cause in Virginia long before the school case 
(R. 262).

Robert D. Robertson, a Negro, stated that he was the 
President of the Norfolk Branch of the NAACP. After 
publicity was given to the fact that he requested the officials 
of Norfolk County to protect those people living in a sub­
division called “Coronado,” he received ugly and threaten­
ing telephone calls. He also got similar calls whenever 
Negroes got favorable court decisions such as in the Sea­
shore State Park case and the Norfolk school segregation 
case (R. 234, et seq.).

As to economic reprisals, Sarah B. Brooks, a cleaning 
woman doing day work, testified that one of her employers 
dismissed her after her name appeared in the newspaper as 
being one of the plaintiffs in the Charlottesville school 
segregation case (R. 239-241). There was no evidence 
that she was a member of or contributor to the NAACP or 
Legal Defense Fund. Furthermore, it was stipulated by 
counsel that she has been fully employed by white employers 
since the discharge mentioned aforesaid (R. 492).

SUMMARY OF ARGUMENT

I.
The Court Below Should Have Declined to 

Exercise Its Equity Jurisdiction
A. The exceptional circumstances necessary for a court 

of equity to enjoin the enforcement of state criminal statutes 
were not present in these cases. A real threat of prosecu­
tion must be coupled with danger of great and irreparable 
injury before a federal court, in the exercise of its equity 
jurisdiction, will interfere with a state in the execution of



18

its criminal statutes. Watson v. Buck, 313 U. S. 387 (1941) 
and Douglas v. Jeannette, 319 U. S. 157 (1943).

A general threat by state officials to enforce laws which 
they are charged to administer ( United Public Workers v. 
Mitchell, 330 U. S. 75, 88 (1947)) and the possibility of a 
fine (Spillman Motor Sales Co. v. Dodge, 295 U. S. 89, 96 
(1935)) are not sufficient for the exercise of equity juris­
diction.

B. A federal court of equity should not decide that a 
state statute is constitutional or unconstitutional until defi­
nite determinations have been made by a state court. The 
doctrine of equitable abstention is in furtherance of well 
established policies of comity between state and federal 
courts and of the principle that constitutional questions will 
not be decided by federal courts unless they are unavoidable. 
Government & C. E. 0. C., C.I.O. v. Windsor, 353 U. S. 
364 (1957) ; Albertson v. Millard, 345 U. S. 242 (1953) ; 
Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 
(1944) and Railroad Commission of Texas v. Pullman Co., 
312 U.S. 496 (1941).

While it is true that one of the reasons for declining to 
exercise equity jurisdiction is that a particular statute is 
vague and ambiguous, the court below erred in holding that 
proceedings should be stayed only when the statute is vague 
and ill-defined. The vast majority of the decisions of this 
court make no such affirmative assertion. Compare the dis­
sent in Albertson v. Millard, supra.

C. Even assuming that the court below properly stated 
the doctrine of abstention, the provisions of the statutes in­
volved in these cases are not so free from ambiguity as to 
need no definite adjudications in the state courts.



19

The court below stated that Chapter 35, the barratry 
statute, forbids the appellees to defray the expenses of 
racial litigation. A careful reading of the definitions con­
tained in Section 1 thereof leads the appellants to believe 
that stirring up litigation must be coupled with the payment 
of expenses of litigation before there is a violation of 
Chapter 35.

Likewise, certain provisions of Chapter 32 were held to 
be too broad or too vague to be constitutional. It is not 
proper for a federal court of equity to predict that a state 
court could not save the statute by construction. This Court 
so construed the Federal Lobbying Act in United States v. 
Harriss, 347 U. S. 612 (1954) as to overcome the objection 
of unconstitutional vagueness.

Chapter 31 was declared unconstitutional for the same 
reasons as Chapter 32. Again, assuming the reason of the 
court below to be correct as to the applicability of the rule 
of abstention, the provisions of the statutes before this 
Court are not so definite, or so plainly unconstitutional that 
a state court, by no interpretation, could find them consti­
tutional, in whole or in part.

II.
The Registration Statutes Do Not Restrict Freedom of 

Association in Such a Manner as to Violate the Due 
Process Clause.
While the court below has declared that certain clauses 

of Section 2 of Chapter 32 were either too broad or too 
vague to meet constitutional requirements and has refused 
to construe them in a constitutional manner, the primary 
constitutional objection to the registration statutes appear



20

to be the requirement of the disclosure of membership lists 
of the appellees.

The first clause of Section 2 of Chapter 32 provides for 
the registration of persons who lobby “in any manner”. 
Certainly, the state courts are able to construe this clause 
to meet any constitutional objections that may be raised. 
United States v. Harriss, 347 U. S. 612 (1954).

The facts disclosed in the record of these cases justify 
the requirement, found in the second clause of Section 2 of 
Chapter 32, that persons whose activities include “the advo­
cating of racial integration or segregation” must register. 
Beauharnais v. Illinois, 343 U. S. 250 (1952); Feiner v. 
New York, 340 U. S. 315 (1951) and Kasper v. Brittain, 
245 F. (2d) 92, cert. den. 355 U. S. 834 (1957).

The language, “cause or tend to cause racial conflicts or 
violence” found in the third clause of Section 2 of Chapter 
32 was condemned for vagueness. Again, could not a state 
court, under the authority of United States v. Harriss, 
supra, construe this language to meet the charge of uncon­
stitutional vagueness? Further, this court in Beauharnais 
v. Illinois, supra, did not condemn the phrase, “productive 
of breach of the peace or riots” found in an Illinois criminal 
statute. To the contrary, this Court approved of the state 
court’s ruling characterizing the words prohibited by the 
statute as those “liable to cause violence or disorder.”

Clause 4 of Section 2 of Chapter 32 and the provisions 
of Chapter 31 provide generally for the registration of 
those who solicit funds from the public for use in litigation. 
Such persons are further required to file with the State 
Corporation Commission a list of contributors and of mem­
bers of organizations whose dues may be used to finance 
litigation. Similar provisions or “restrictions” have been 
approved in such cases as United States v. Harriss, supra;



21

Sonsensky v. United States, 300 U. S. 506 (1937); Bur­
roughs v. United States, 290 U. S. 534 (1934).

The appellants contend also that the case of Bryant v. 
Zimmerman, 278 U. S. 63 (1928), is in point and that this 
Court’s decision on the due process question contained there­
in was not based on the illegal aims of the organization.

The appellants further urge that this Court’s recent de­
cision in N AACP  v. Alabama, 357 U. S. 449 (1958), may 
be distinguished on the grounds that the facts in the record 
in these cases clearly show that the enactment of the regis­
tration statutes was justified as being in the public interest.

Finally, the court below erred in considering the legis­
lative history of these statutes to determine the motives or 
purposes of the state legislature, and in this “setting” in 
passing upon their constitutionality.

III.

Chapter 35 Does Not Violate the Equal Protection Clause 
or the Due Process Clause of the Fourteenth Amendment

The court below misconstrued the provisions of Chapter 
35 by holding that they prohibited the appellees from de­
fraying the expenses of litigation. It is the appellants’ 
contention that the appellees must be shown to be guilty 
of stirring up litigation before the defraying of expenses 
of litigation becomes a crime. Based on this construction 
no case has been found that holds that the exemption of 
legal aid societies is an unreasonable classification. Chap­
ter 35 is substantially similar to the common law offense 
of barratry and does not violate the Due Process Clause. 
McCloskey v. Tobin, 252 U. S. 107 (1920).



22

ARGUMENT
I .

The Court Below Should Have Declined to
Exercise Its Equity Jurisdiction

The attendant facts of these cases require discussion of 
three separate principles or rules of equity. The first is the 
time-honored equity principle that courts ordinarily will 
not enjoin the enforcement of a criminal statute. The sec­
ond is based upon public policy and is well stated by Mr. 
Justice Stone in Pennsylvania v. Williams, 294 U. S. 176, 
185 (1935):

“It is in the public interest that federal courts of 
equity should exercise their discretionary power to 
grant or withhold relief so as to avoid needless ob­
struction of the domestic policy of the states.”

The third rule or principle to be discussed is that federal 
courts are loath to pass on a federal constitutional question 
when there is another non-constitutional question which may 
well dispose of the case in a state court. An authoritative 
construction of a state statute by a state court may void the 
necessity for determining a federal constitutional question.

A.
T h e  T h r e e - J udge D ist r ic t  Court S h ou ld  N ot H ave 

R e str a in ed  t h e  E n fo r c em en t  of Cr im in a l  S ta t­
u tes  of t h e  C o m m o n w e a l t h  of V ir g in ia .

The record in these cases does not show that the appellees 
were threatened with prosecution under the provisions of 
Chapters 31, 32 or 35. Further, it has been uniformly held 
that a general threat by state officials to enforce laws which



23

they are charged to administer is not sufficient for the exer­
cise of equity jurisdiction. United Public Workers v. Mitch­
ell, 330 U.S. 75, 88 (1947).

Certain facts in Watson v. Buck, 313 U. S. 387 (1941), 
are strikingly similar to circumstances surrounding these 
cases. There, the American Society of Composers, Authors 
and Publishers (ASCAP) together with individual com­
posers, authors and publishers of music controlled by 
ASCAP brought suit to restrain the Attorney General of 
Florida and all state prosecuting attorneys, who were 
charged with the duty of enforcing certain parts of two 
Florida statutes, from enforcing a 1937 statute and certain 
sections of a 1939 statute. The complaint alleged that the 
defendants “had threatened to—and would, unless restrained 
—enforce” the statutes in question. The defendants in their 
answer specifically denied that they have made any threats 
to enforce the statutes but admitted as to the 1939 law that 
they would perform all duties imposed upon them by such 
law. This Court made the following observation concern­
ing the question of threats of prosecution in the Watson 
case at page 399:

“* * * The most that can possibly be gathered from 
the meager record references to this vital allegation of 
complainants’ bill is that though no suits had been 
threatened, and no criminal or civil proceedings in­
stituted, and no particular proceedings contemplated, 
the state officials stood ready to perform their duties 
under their oath of office should they acquire knowledge 
of violations. * * *”

The appellees in the instant cases merely alleged in their 
complaints that the appellants were charged with the en­
forcement of Chapters 31, 32 and 35. In response, the 
appellants stated that their duties and responsibilities were



24

fixed by law. No evidence was introduced to the effect that 
the appellants had threatened to prosecute suits against the 
appellees or take action against anyone under the statutes. 
It must be concluded, then, that the language of this Court, 
quoted above, is applicable to the facts of these cases.

This Court concluded in Watson v. Buck, supra, at p. 401, 
that “neither the findings of the court below nor the record 
on which they were based justified an injunction against the 
state prosecuting officers” and said:

“* * * The clear import of this record is that the 
court below thought that if a federal court finds a 
many-sided state criminal statute unconstitutional, a 
mere statement by a prosecuting officer that he intends 
to perform his duty is sufficient justification to warrant 
the federal court in enjoining all state prosecuting offi­
cers from in any way enforcing the statute in question. 
Such, however, is not the rule. ‘The general rule is that 
equity will not interfere to prevent the enforcement of 
a criminal statute even though unconstitutional. . . . 
To justify such interference there must be exceptional 
circumstances and a clear showing that an injunction 
is necessary in order to afford adequate protection of 
constitutional rights. . . . We have said that it must 
appear that ‘the danger of irreparable loss is both great 
and immediate;’ otherwise the accused should first set 
up his defense in the state court, even though the valid­
ity of a statute is challenged. There is ample oppor­
tunity for ultimate review by this Court of federal 
questions.’ Spielman Motor Sales Co. v. Dodge, 295 
US 89, 95, 96, 79 L ed 1322, 1325, 1326, 55 S Ct 678.” 
(313 U. S. 400-401)

The court below appeared to recognize that in the absence 
of danger of great, immediate and irreparable injury, a 
federal court, in the exercise of its equity jurisdiction, will 
not interfere with a state in the execution of its criminal



25

statutes. However, it concluded that the facts “abundantly” 
justified the exercise of its equitable powers. What are such 
facts ? They may be placed under four headings and, as 
stated in the words of the court below, are:

'  - - r ■ '
1. The penalties prescribed by the statutes are heavy 

and under Chapter 32 each day’s failure to register consti­
tutes a separate offense ;

2. The deterrent effect of the statutes upon the acquisi­
tion of members;

3. The deterrent effect of the statutes upon the lawyers 
of the appellees under the threat of disciplinary action; and

4. The danger of immediate and persistent efforts on the 
part of state authorities to interfere with the activities of 
the appellees f 159 F. Supp. 521).

Persons violating the provisions of Chapters 31, 32 and 
35 are deemed guilty of a misdemeanor and Section 19-265 
of the Code of Virginia, 1950, reads as follows:

“A misdemeanor, for which no punishment or no 
maximum punishment is prescribed by statute, shall be 
punished by fine not exceeding five hundred dollars or 
confinement in jail not exceeding twelve months, or 
both, in the discretion of the jury or of the trial justice, 
or of the court trying the case without a jury.”

Certainly it cannot be held that a misdemeanor penalty 
is so “heavy” as to be deemed “exceptional circumstances” 
for enjoining the enforcement of a state criminal statute. 
Further, the provisions of Chapters 31 and 32 to the effect 
that persons who knowingly make a false or fraudulent 
affidavit shall be guilty of a felony and punished as provided 
by Sections 18-238 and 18-239 of the Code of Virginia,



26

1950, cannot be said to be so unusual or heavy as to warrant 
the interference of a court of equity. Sections 18-238 and 
18-239 read, respectively, as follows:

“If any person commit or procure another person to 
commit perjury, he shall be confined in the penitentiary 
not less than one nor more than ten years; or, in the 
discretion of the jury, be confined in jail not exceeding 
one year, or fined not exceeding one thousand dollars, 
or both.”

“He shall, moreover, on conviction thereof, be ad­
judged forever incapable of holding any post mentioned 
in §2-26, or of serving as a juror.”

Since, of course, corporations are not jailed, a fine not to 
exceed ten thousand dollars, as provided by the provisions 
of Chapters 31, 32 and 35, cannot be considered excessive 
or “heavy”. Also, placing individual responsibility upon 
the officers and directors of a corporation to see that a fine 
for violation of Chapters 31 and 32 is paid is not unusual 
under our jurisprudence.

Chapters 31 and 35 provide that foreign corporations 
violating the provisions thereof shall have their certificates 
of authority to transact business in Virginia revoked by 
the State Corporation Commission. Again, such a penalty 
is not foreign to our system of laws.

Chapter 32 does provide that each day’s failure to regis- 
f ter shall constitute a separate offense. However, can it be
j *
} prophesied that a jury or trial court would place an excessive 

fine on a corporation which in good faith did not register 
because it was advised, for example, that the provisions of 
Chapter 32 were not applicable to it ? Conceding that such 
a penalty is not usually found in many criminal statutes it is 
not unknown. Furthermore, assuming that it is too “heavy” 
and necessitates interference by a court of equity as the



27

court below found, does it follow that the enforcement of 
a barratry statute and a registration statute, with normal 
criminal provisions, should likewise be enjoined? The cases 
decided by this Court answer this question in the negative.

The possibility of a fine is a consequence hardly demand­
ing the interference of any court of equity. Spillman Motor 
Sales Co. v. Dodge, 295 U. S. 89, 96 (1935).

As to the deterrent efifect of the statutes upon the acqui­
sition of members, it is to be noted that the complainants 
in Watson v. Buck, supra, claimed that the Florida laws 
were “confessedly aimed at ASCAP and its constituent 
members” and would virtually destroy them. Buck v. Gibbs, 
34 F. Supp. 510, 513-514 (1940). Even this was not enough 
to warrant the interference of a federal court of equity.

Moreover, the court below was not justified in implying 
that the appellees could not obtain relief from the “deterrent 
effect” in a state court. It should also be pointed out that 
this “deterrent effect” could be applicable only to Chapters 
31 and 32. The barratry provisions of Chapter 35 could 
have no effect on the acquisition of members.

As to the fact that the statutes had a deterrent effect upon 
the lawyers of the appellees “under the threat of disciplinary 
action”, it has already been pointed out that the record in 
these cases does not justify such a finding of fact. The 
lawyers have been threatened by no one. Again, such a fact, 
if indeed true, could not justify an interference with the 
registration provisions of Chapters 31 and 32. The lawyers 
of the appellees, of course, stand in danger of disciplinary 
action if they are guilty of stirring up litigation. All other 
members of the Virginia bar stand in like danger.

Finally, there is nothing in the record to show that state 
authorities have made persistent efforts to interfere with 
the activities of the appellees. To repeat, there have been 
no threats of prosecution.



28

In Douglas v. Jeannette, 319 U. S. 157 (1943), this Court 
held that the facts of the case did not justify the restraint 
of threatened criminal prosecutions of members of Jehovah’s 
Witnesses. The complaint was dismissed even though the 
challenged ordinance was (1) unconstitutional; (2) convic­
tions and threats of convictions had occurred under the 
ordinance; and (3) there were numerous members of a 
class threatened with prosecution.

Assuming for sake of argument that the penalties show 
great and irreparable injury to the appellees, the court below 
has ignored the principle that such injury must be coupled 
with actual threats of prosecution. Such threats are not 
present in these cases. Language in Watson v. Buck, supra, 
is again material and controlling. There, this Court said at 
page 400:

“* * * The imminence and immediacy of proposed 
enforcement, the nature of the threats actually made, 
and the exceptional and irreparable injury which com­
plainants would sustain if those threats were carried 
out are among the vital allegations which must be 
shown to exist before restraint of criminal proceed­
ings is justified. * * *”

Compare Terrace v. Thompson, 263 U. S. 197 (1923), 
where the plaintiff would have had to risk confiscation of 
his real property in order to test the validity of a state stat­
ute in a criminal prosecution.

To conclude, it is appropriate to quote the following lan­
guage from Stefanelli v. Minord,, 342 U. S. 117, 120 (1951), 
which dealt with the discretion of federal courts in enjoining 
state criminal proceedings:

“* * * Here the considerations governing that dis­
cretion touch perhaps the most sensitive source of fric­



29

tion between States and Nation, namely, the active 
intrusion of the federal courts in the administration of 
the criminal law for the prosecution of crimes solely 
within the power of the States.”

B.
T h e  Court B elow  E rred in  H olding  T h a t  P roceed­

in g s  S h ou ld  B e S tayed O n ly  W h e n  t h e  S ta tu tes

I nvolved A re V ague  and  I l l -d e f in e d .

The doctrine of equitable abstention is here involved. It 
is invoked by a federal court of equity, even though a show­
ing of danger of great and immediate injury is present, in 
the furtherance of well established public policies, namely:

1. Proper comity between state and federal courts re­
quires scrupulous regard for the rightful independence of 
state governments and their courts, and

2. The principle that federal courts should refrain from 
decision on constitutional questions unless it is unavoidable.

The exhaustive dissenting opinion of the court below on 
the question here presented, found at 159 F. Supp. 540-548, 
ably expresses the views of the appellants. There, the 
dissenting judge concluded that the decisions of this Court 
do not support the holding that proceedings should be 
stayed only where an ill-defined statute is involved.

The appellants do not disagree with the decision in Doud 
v. Hodge, 350 U. S. 485 (1956), cited by the majority below, 
to the effect that the three-judge district court had jurisdic­
tion of these cases. The withholding of equitable relief under 
the doctrine of absention is not a denial of the jurisdiction 
which Congress has conferred on the federal courts. Great 
Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293, 297 
(1943).



30

The following language found in the majority opinion 
below is also approved by the appellants:

“See also A. F. of L. v. Watson, 327 U. S. 582, 599, 
66 S. Ct. 761, 90 L. Ed. 873, where, in directing a dis­
trict court to retain a suit involving the constitutionality 
of a state statute pending the determination of pro­
ceedings in the state courts, the Supreme Court said 
that the purpose of the suit in the federal court would 
not be defeated by this action, since the resources of 
equity are adequate to deal with the problem so as to 
avoid unnecessary friction with state policies while 
cases go forward in the state courts for an expeditious 
adjudication of state law questions.” (159 F. Suop. at 
p. 522)

Furthermore, A. F. of L. v. Watson, 327 U. S. 582 
(1946), does not stand for the proposition that federal 
courts of equity should stay proceedings only where it is 
reasonably possible for a state statute to be given an inter­
pretation which will render it constitutional. Such does not 
appear as an affirmative assertion. In the late Mr. Justice 
Murphy’s dissent at page 606 he stated:

“* * * ]3ut there are federal constitutional issues in­
herent on the face of this provision that do not depend 
upon any interpretation or application made by Florida 
courts. Those issues were raised and decided in the 
court below. And they should be given appropriate 
attention by this Court.”

A federal court of equity should not decide that a state 
statute is constitutional or unconstitutional until definite 
determinations have been made by a state court. This is true 
even though the provisions of such statute appear to be free 
of doubt or ambiguity. Albertson v. Millard, 345 U. S. 
242 (1953).



31

In the Albertson case, the Communist Party of Michigan 
and its Executive Secretary brought suit in a federal court 
to enjoin the enforcement of the Michigan Communist 
Control Bill, requiring the registration of Communists, the 
Communist Party and Communist front organizations, on 
the ground that it was unconstitutional vague. The three- 
judge district court held that the statute was constitutional 
and this Court vacated the judgment with directions to hold 
the proceedings in abeyance pending state court construction 
of the statute. While it is true that a state court proceeding 
on the statute was pending at the time of this Court’s deci­
sion, it was brought after the proceeding began in the 
federal courts. This fact is not decisive in view of this 
Court’s directive at page 245 “to hold the proceedings in 
abeyance a reasonable time pending construction of the stat­
ute by the state courts either in pending litigation or other 
litigation which may be instituted.”

As in vl. F. of L. v. Watson, supra, the dissent in the 
Albertson case makes it clear that this Court approves the 
application of the doctrine of equitable absention even 
though a statute is not ill-defined in the view of a three- 
judge federal court. In the latter dissent, Mr. Justice Doug­
las felt that the case should be disposed of on its merits since 
there were no abstract questions or ambiguities involved and 
since it was plain beyond argument that the complainants 
were covered by the statute.

The majority of the court below cited three other decisions 
of this Court, without analysis, and apparently based its 
decision mainly upon a dissenting opinion of the late Chief 
Judge Parker in Bryan v. Austin, 148 F. Supp. 563 (D.C. 
E.D.S.C., 1957), in holding:

“The policy laid down by the Supreme Court does 
not require a stay of proceedings in the federal courts



32

in cases of this sort if the state statutes at issue are 
free of doubt or ambiguity. * * *” (159 F. Supp. 503, 
533)

However, in the later case of Lassiter v. Taylor, 152 F. 
Supp. 295 (D. C. E.D. N.C., 1957), a three-judge federal 
court of which Chief Judge Parker was also a member 
handed down a per curiam opinion involving a statute pre­
scribing a literacy test for voters.2 The only question in the 
case was whether the statute should be declared void on the 
ground that it was violative of the complainants’ rights 
under the Federal Constitution. The action was stayed on 
the following ground:

“Before we take any action with respect to the Act 
of March 27, 1957, however, we think that it should be 
interpreted by the Supreme Court of North Carolina 
in the light of the provisions of the State Constitution. 
Government and Civic Employees Organizing Com­
mittee etc. v. S. F. Windsor, 77 S. Ct. 838. * * *” 
(152 F. Supp. at p. 298)

The case of Government & C. E. O. C., CIO v. Windsor, 
353 U. S. 364 (1957), relied upon in Lassiter v. Taylor, 
supra, was decided by this Court after Bryan v. Austin, 
supra, and it must be assumed that chief Judge Parker, him­
self, recognized that the Windsor case did not stand as 
authority for the rule that a federal court of equity should 
stay an action only when the state statute involved was 
vague and ambiguous. In other words, the majority below, 
relying upon the dissenting opinion in Bryan v. Austin, 
committed error by ignoring the later case of Lassiter v. 
Taylor and misconstruing the Windsor decision.

In the Windsor case this Court held that a three-judge

2 For the text of the statute, see Appendix II of this brief.



33

district court must neither decide that a state statute is 
constitutional nor decide that it is unconstitutional until 
after definite determinations had been made by the state 
courts.

An examination of the factual background of the Wind­
sor case leads to the inescapable conclusion that the merits 
of these cases should not have been reached by a three-judge 
federal court at this time. There, a labor organization and 
one of its members who was employed by the Alabama 
Alcoholic Beverage Control Board (A. B. C. Board) filed 
suit in a federal district court seeking a declaratory judg­
ment and an injunction to restrain the enforcement of a 
statute referred to as the Solomon Bill.3 The defendants 
were officials of the A. B. C. Board. Section 2 of the statute 
provides:

“Section 2. Any public employee who joins or par­
ticipates in a labor union or labor organization, or who 
remains a member of, or continues to participate in, 
a labor union or labor organization thirty days after 
the effective date of this act, shall forfeiture all rights 
afforded him under the State Merit System, employ­
ment rights, re-employment rights, and other rights, 
benefits, or privileges which he enjoys as a result of this 
public employment.”

Although no employee of the A. B. C. Board had been 
threatened with deprivation of his rights under the pro­
visions of Section 2, quoted above, officials had informed 
the union that the statute would be enforced in the same 
manner as other pertinent laws.4

3 The full text of the Alabama Statute is set forth as Appendix III 
of this brief.

4 It is also to be noted that two hundred and fifty employees of the 
A. B. C. Board were members of the union before the passage of the 
statute while only one or two continued membership after passage. 
(78 So. (2nd) 646, 649).



34

The complainants urged that the Solomon Bill was sub­
ject to no possible construction other than that of uncon­
stitutionality under the Due Process Clause of the Four­
teenth Amendment since the Alabama legislature had used 
“unmistakably simple, clear and mandatory language”. The 
district court applied the doctrine of equitable abstention 
and withheld the exercise of its jurisdiction pending an 
exhaustion of state judicial remedies. It observed that the 
statute could be construed to meet the challenge of uncon­
stitutionality (116 F. Supp. 354). This Court affirmed the 
judgment (347 U. S. 901).

The union then filed suit in a state circuit court praying 
for a declaratory judgment to determine its status under 
the Solomon Bill. The Supreme Court of Alabama affirmed 
the final decree of the circuit court which had held that the 
statute was applicable to the union, its activities and its 
members. (262 Ala. 785, 78 So. (2nd) 646).

At this stage of the proceedings, the state court had made 
a determination that the Solomon Bill was applicable to the 
complaining union and its members. The other sections of 
the statute could not be termed vague and ambiguous. Ac­
cordingly, when the case was again submitted to the three- 
judge district court for final decree, it was dismissed with 
prejudice on the ground that the Alabama court had not 
construed the statute in such a manner as to render it un­
constitutional (146 F. Supp. 214).

This Court reversed the second judgment of the three- 
judge district court “with directions to retain jurisdiction 
until efforts to obtain an appropriate adjudication in the 
state courts have been exhausted”. In so doing, this Court 
said:



35

“* 5,1 * In an action brought to restrain the enforce­
ment of a state statute on constitutional grounds, the 
federal court should retain jurisdiction until a definite 
determination of local law questions is obtained from 
the local courts. * * * The bare adjudication by the 
Alabama Supreme Court that the union is subject to 
this Act does not suffice, since that court was not asked 
to interpret the statute in light of the constitutional 
objections presented to the District Court. If appel­
lants’ freedom-of-expression and equal-protection argu­
ments had been presented to the state court, it might 
have construed the statute in a different manner. * * *” 
(353 U. S. at page 366)

The similarity of the facts in the Windsor case with the 
facts of these cases is striking. In both, constitutional ques­
tions concerning the alleged abridgements of freedom of 
speech and association were presented to the three-judge 
district courts. The effect of the passage of the Alabama 
statute and two of the Virginia statutes here involved was 
found by the courts below to have brought about a loss of 
members and a resulting reduction of the revenues of the 
complainants. The penalties prescribed by the Alabama 
statute were of as great, if not greater, severity. Finally, 
there had been no actual enforcement of the statutes in 
either state. It should also be noted that there is nothing 
in the record of these cases to uphold the majority’s state­
ment that a multiplicity of suits would be prevented by the 
exercise of the court’s equity jurisdiction.

In these cases, the majority below clearly should have 
withheld a decision on the merits under the authority of 
the Windsor case. By doing otherwise, it has made a tenta­
tive answer which may be displaced tomorrow by a state 
adjudication. “No matter how seasoned the judgment of the 
district court may be, it cannot escape being a forecast



36

rather than a determination”. Railroad- Commission of 
Texas v. Pullman Co., 312 U. S. 496, 499 (1941).

The appellees could have proceeded in a state court under 
Virginia’s Declaratory Judgment Act (Sections 8-578-585 
Chapter 25, Title 8, Vol. 2, pp. 407-411, Code of Virginia, 
1957 Replacement Volume), as indeed they have as to Chap­
ters 33 and 36, Acts of Assembly of Virginia, Extra Ses­
sion, 1956, in accordance with the directions of the Court 
below. If the majority of the Court below had so directed, 
the rights of the appellees would have been fully protected 
and a state court would have had the opportunity to con­
sider the statutes here involved in light of the constitutional 
questions raised below. This would have been in accord 
with the Windsor case. Further, the majority below would 
have avoided forecasts of local laws which the decisions of 
this Court condemn. Spector Motor Service, Inc. v. Mc­
Laughlin, 323 U. S. 101 (1944).

Finally, it must be emphasized that the majority below 
declared Chapters 31, 32 and 35 unconstitutional in toto. 
The Virginia legislature expressed a purpose directly con­
trary to this finding as to Chapter 32 by the enactment of 
Section 8 hereof. It reads:

“If any one or more sections, clauses, sentences or parts 
of this act shall be adjudged invalid, such judgment 
shall not affect, impair or invalidate the remaining 
provisions thereof, but shall be confined in its operation 
to the specific provisions held invalid, and the inapplica­
bility or invalidity of any section, clause or provision 
of this act in one or more instances or circumstances 
shall not be taken to affect or prejudice in any way its 
applicability or validity in any other instance.”

As to Chapters 31 and 35, the Supreme Court of Appeals 
of Virginia has repeatedly applied the test of separability,



37

even in the absence of a saving provision. Hannabass v. 
Maryland Casualty Co., 169 Va. 559 (1938).

There are many clauses and sections of the statutes before 
this Court and the majority below made no attempt to save 
any parts thereof. Similar action was condemned by this 
Court in Watson v. Buck, supra, at pp. 395-396.

If a state court struck down the requirements of revealing 
lists of contributors and members to the public, could it be 
said beyond doubt that the remaining provisions of Chap­
ters 31 and 32 would abridge free speech and association 
or fall by reason of legislative intent ? At the least, questions, 
of law remain undecided which should be first considered by 
the state courts.

C.
T h e  M a jo r it y  B elow  E rred in  H olding  T h a t  t h e  

S t a tu tes  in  Q u e st io n  W ere  S o F ree from  A m b i­
g u it y  as to N eed  N o D e f in it e  A d ju d ic a t io n s  in  
S ta te  Co urts.

The appellants contend that even under the lower court’s 
application of the doctrine of equitable abstention decision 
in these cases should have been stayed at that time.

The majority below discussed at great length what was 
claimed to be the legislative history of the statutes in these 
cases. It was asserted in a footnote that this is necessary 
and “of the highest relevance” when a claim of unconsti­
tutionality is put forward. The case of Lane v. Wilson, 307 
U. S. 268 (1939) is relied upon to uphold such an assertion. 
However, a perusal of that decision does not reveal that 
such a rule was announced therein.

The appellants do not believe that mere assertion of a 
claim that a statute is unconstitutional could change long 
established rules of statutory construction. The legislative



38

history of a statute is immaterial when its language is un­
ambiguous. United States v. McKesson & Robbins, 351 U. 
S. 305 (1956) and Steiner v. Mitchell, 350 U. S. 247 
(1956).

While disclaiming the need for interpretation on the 
ground that the state statutes are free of doubt, the majority 
below has proceeded to interpret the statutes and to base 
such interpretation, in part at least, upon legislative history. 
This assumption of power to interpret speaks eloquently 
for the fact that, even under the limited application of the 
doctrine of abstention adopted by the majority below, de­
cision on the constitutionality of the state statutes should 
not have been reached.

The barratry statute (Chapter 35) under consideration 
in these cases denounces as a crime the offense of stirring 
up litigation. Definitions are set forth in Section 1 and 
read, in part, as follows:

“ (a) ‘Barratry’ is the offense of stirring up litiga­
tion.

“ (b) A ‘barrator’ is an individual, partnership, asso­
ciation or corporation who or which stirs up litigation.

“ (c) ‘Stirring up litigation’ means instigating or at­
tempting to instigate a person or persons to institute 
a suit at law or equity.

“ (d) ‘Instigating’ means bringing it about that all 
or part of the expenses of the litigation are paid by the 
barrator or by a person or persons (other than the 
plaintiffs) acting in concert with the barrator, unless 
the instigation is justified.”

The appellants cannot understand how anyone could reach 
the conclusion, upon reading the above quoted definitions, 
that an interpretation was not needed before determining 
the applicability of the barratry statute.



39

After argument was heard by the Court below, counsel 
was requested to submit a statement as to the facts which 
might show that the appellees were in violation of Chap­
ters 31, 32 and 35.

The appellants informed the court below that the activi­
ties prohibited by the provisions of Chapter 35 may be con­
sidered as twofold, namely, stirring up litigation and pay­
ment of expenses of litigation. Furthermore, it was stated 
that the statute could be construed as requiring that both 
such activities occur before there could be a violation.

The question of charitable contributions also arose in the 
court below. The appellees charged that they were pro­
hibited. The appellants contended that they were not pro­
hibited if made either by a person who is not engaged in 
“stirring up litigation” or by a legal aid society.

The examples of the meaning of Chapter 35, mentioned 
above, make it abundantly clear that an authoritative inter­
pretation of its provisions is necessary before reaching con­
stitutional questions.

Finally, the appellants informed the court below that they 
had to admit and, indeed, admit to this Court, that they 
could not speak with certainty from the record as to whether 
either the Virginia State Conference or the NAACP was 
in violation of the provisions of Chapter 35.5 Under these 
circumstances the court below should not have undertaken 
to pass on the constitutionality of Chapter 35.

The court below was also guilty of interpreting Chapter 
32 while stating that its provisions were “free from ambi­

5 The Executive Secretary of the Virginia State Conference testified 
that it did not stir up litigation (R. 143, 144). The Executive Secre­
tary of the NAACP testified that it does not request individuals to 
bring test case (R. 178). The record is silent concerning the activities 
of the Legal Defense Fund in the field of “stirring up litigation”.



40

guity”. It is stated that the third clause of Section 2 of thje 
statute requiring registration of anyone whose activities 
cause or tend to cause racial conflicts is “so vague and in­
definite” as not to satisfy constitutional requirements (159 
F. Supp. 527). The case of United States v. Harriss, 347 
U. S. 612 (1954), was relied upon.

In the Harriss case, the issue before this Court was the 
constitutionality of the disclosure provisions of the Federal 
Lobbying Act. The majority so construed the provisions 
as to overcome the objection of unconstitutional vagueness. 
It is of interest to note that the dissents in that case were 
based primarily on the ground that the act was constitu­
tionally vague and could not be saved by construction.

Likewise, the first clause of Section 2 of Chapter 32, ap­
plying to any person whose principal activities include 
“the promoting or opposing in any manner the passage of 
legislation by the General Assembly” was held too broad 
to be valid under the ruling of the Harriss case, supra (159 
F. Supp. 525). Certainly, it cannot be said that a state 
court is without authority to define and limit words and 
phrases, such as, “in any manner”, found in state statutes 
in order to avoid constitutional questions.

It can be thus seen that the court below has interpreted 
provisions of Chapter 32. In view of the constitutional ques­
tions raised in these cases, a state court may place a different 
construction on Section 2 of Chapter 32.

Chapter 31 was declared unconstitutional for the same 
reasons as Chapter 32. Again, assuming the reasoning of 
the Court below to be correct as to the applicability of the 
rule of abstention, the statutes before this Court are not so 
plainly unconstitutional that by no interpretation could they 
be held constitutional, in full or in part.



41

II.
The Registration Statutes Were Enacted Under the Valid 

Exercise of the State’s Police Power
All through the opinion of the majority of the court 

below runs the suggestion—and, at times, assertions—that 
the Commonwealth of Virginia is attempting to destroy 
the appellees through the enactment of the statutes now 
before this Court.

The appellees were permitted to introduce and the court 
below considered:

(1) A report of the Commission on Public Education 
which had been appointed by the Governor of Virginia to 
study the effects of the school segregation decisions;

(2) A resolution of the General Assembly of Virginia 
pledging its intention to resist illegal encroachments upon 
the State’s sovereign powers;

(3) Action of delegates to a constitutional convention 
which amended the State Constitution to permit the pay­
ments of tuition grants ;

(4) An address of the Governor of Virginia to the Gen­
eral Assembly required by the State Constitution for the 
purpose of recommending legislation, which address made 
no reference to the statutes here involved;

(5) Various statutes which were recommended by the 
Governor concerning the public schools of this State ; and

(6) The Pupil Placement Act dealing with the assign­
ment of pupils to the public schools, which act was not 
recommended by the Governor of Virginia.

The above recited evidence, if it can be so denoted, has 
no relation to the statutes here involved and cannot be used,



42

either severally or collectively, to deduce the legislative aims, 
motives, purposes, or intentions in enacting Chapters 31, 
32 or 35.

But assuming that such “evidence” was directly related 
to the enactment of Chapters 31, 32 and 35, it could not be 
used, as was done by the court below, as a basis for deter­
mining the validity of the statutes. If there be one reason­
able basis for the legislation, the motives of legislators, be 
they evil or otherwise, are immaterial insofar as the con­
stitutionality of such legislation is concerned. Goesaert v. 
Cleary, 335 U. S. 464, 467 (1948).

Evidence was presented to show a reasonable basis for 
the enactment of the instant statutes. Chapters 31 and 35 
deal with the regulation of litigation and the practice of 
law. As already pointed out, the testimony of some of the 
witnesses, who were plaintiffs in the school segregation 
cases, clearly indicated the need for such statutes. Further, 
one witness for the appellants testified that barratry and 
running and capping were widespread in connection with 
personal injury claims against railroads.

As to the necessity for Chapter 32, requiring the regis­
tration of those organizations engaged in racial activities, 
there is testimony to the effect that such a statute would 
aid in law enforcement in the event integration in the pub­
lic schools occurred. There is further testimony of racial 
disturbances taking place outside of the state and the ex­
pression of opinion that the requirements of Chapter 32 
would aid in the prevention of such disturbances.

Finally, the chief patron of all of the statutes, Delegate 
Mann, testified that it was not his aim or motive to destroy 
the appellees. He wished such legislation to prevent racial 
disturbances which were occurring in other states and to 
prevent the stirring up of litigation and running and cap­



43

ping which was evidently taking place in the State of Texas.
The principle that a court may not inquire into the 

motives which may have prompted a state legislature to act 
apparently was first laid down in the case of Fletcher v. 
Peck, 6 Cranch 87 (1809). In an opinion by Chief Justice 
Marshall it was said at page 131:

“* * * The case, as made out in the pleadings, is 
simply this: One individual who holds lands in the 
state of Georgia, under a deed covenanting that the 
title of Georgia was in the grantor, brings an action of 
covenant upon this deed, and assigns, as a breach, that 
some of the members of the legislature were enduced 
to vote in favor of the law, which constituted the con­
tract, by being promised an interest in it, and that there­
fore the act is a mere nullity.

“This solemn question cannot be brought thus col­
laterally and incidently before the court. It would be 
indecent in the extreme, upon a private contract be­
tween two individuals, to enter into an inquiry respect­
ing the corruption of the sovereign power of a state. 
If the title be plainly deduced from a legislative act, 
which the legislature might constitutionally pass, if the 
act be clothed with all the requisite forms of a law, a 
court, sitting as a court of law, cannot sustain a suit 
brought by one individual against another founded on 
the allegation that the act is a nullity, in consequence 
of the impure motives which influence certain mem­
bers of the legislature which passed the law.”

The case of Goesaert v. Cleary, supra, involved a Michi­
gan statute which prohibited women, other than daughters 
and wives of licensed owners of bars, from being bartenders. 
It was urged that the intent of the legislature was to monopo­
lize the liquor business for men. The statute was upheld 
and this Court pointed out that since the statute is not with­
out basis in reason “we cannot cross-examine, either actually



44

or argumentatively, the minds of Michigan legislators or 
question their motives” (335 U. S. at page 466).

In the case of Daniel v. Family Security Life Insurance 
Co., 336 U. S. 220 (1945), this Court had before it a South 
Carolina statute which prohibited undertakers from acting 
as agents for life insurance companies. It was contended 
that the statute affected only the defendant and that the 
insurance lobby had obtained the enactment. This Court 
appeared to disagree with the desirability of the statute, 
but said that the legislature of South Carolina could have 
thought that the funeral insurance business was evil. The 
opinion stated:

“* * * a judiciary must judge by results, not by the 
varied factors which may have determined legislators’ 
votes. We cannot undertake a search for motive in 
testing constitutionality.” [Citing numerous cases.] 
(at page 224).

See also, Watkins v. United States, 354 U. S. 178, 200 
(1957), wherein it was held that the wrongful motives of 
members of congressional investigating committees will not 
vitiate investigation if a legislative purpose is being served 
by the work of the committee.

The “setting’ in which the majority below placed these 
statutes before considering the constitutional issues was 
plainly improper and is not authorized by the decisions 
noted above.

It has already been said in this brief that the majority 
below disposed of the first clause of Section 2 of Chapter 
32 on the ground that its terms were too broad. United- 
States v. Harriss, supra, is not authority for this. To the 
contrary, it holds that such a provision as the first clause 
of Section 2 is not a restriction upon free speech if properly 
construed.



45

The Federal Lobbying Act, found in 2 USC Section 261 
et seq. and considered in the Harriss case, requires desig- 
nated reports to Congress from any person “receiving any 
contributions or expending any money” for the purpose of 
influencing the passage or defeat of any legislation by Con­
gress. Among the information required is the name and 
address of contributors of amounts over $500.00, and the 
name and address of persons to whom expenditures were 
made in excess of $10.00. Further information was re­
quired as to details of employment and otherwise concern­
ing the lobbyists themselves. The federal statute is similar 
to Chapter 32 which may also be construed as applying only 
to persons who had direct contact with members of the 
General Assembly of Virginia.

“Thus construed, §§305 and 308 also do not violate 
the freedoms guaranteed by the First Amendment— 
freedom to speak, publish and petition the Govern­
ment.

“Present-day legislative complexities are such that 
individual members of Congress cannot be expected 
to explore the myriad pressures to which they are regu­
larly subjected. Yet full realization of theAmerican 
ideal of government by elected representatives depends 
to no small extent on their ability to properly evaluate 
such pressures. Otherwise the voice of the people may 
all too easily he drowned out by the voice of special 
interest groups seeking favored treatment while mas­
querading as proponents of the public zveal. This is the 
evil which the Lobbying Act was designed to help pre­
vent.

_ “Toward that end, Congress has not sought to pro­
hibit these pressures. It has merely provided for a 
modicum of information from those who for hire at­
tempt to influence legislation or who collect or spend 
funds for that purpose. It wants only to know who is



46

being hired, who is putting up the money, and how 
much.”

t- *  r

“It is suggested, however, that the Lobbying Act, 
with respect to persons other than those defined in 
§307, may as a practical matter act as a deterrent to 
their exercise of First Amendment rights. Hypotheti­
cal borderline situations are conjured up in which such 
persons choose to remain silent because of fear of pos­
sible prosecution for failure to comply with the Act. 
Our narrow construction of the Act, precluding as it 
does reasonable fears, is calculated to avoid such re­
straint. But, even assuming some such deterrent effect, 
the restraint is at most an indirect one resulting from 
self-censorship, comparable in many ways to the re­
straint resulting from criminal libel laws. The hazard 
of such restraint is too remote to require striking down 
a statute which on its face is otherwise plainly zvithin 
the area of congressional power and is designed to safe­
guard a vital national interest.” [Italics supplied] (347 
U. S. 625,626).

The second clause of Section 2 of Chapter 2 was also 
declared invalid as a denial of free speech though it was 
recognized that First Amendment freedoms are not abso­
lute. That clause applies to those whose activities include 
“the advocating of racial integration or segregation.”

The evidence in these cases clearly show that there is 
racial tension in the state at this time. Furthermore, the 
evidence shows that racial disturbances due to integration 
in the public schools have occurred in other states. Under 
these circumstances it was proper for the legislature to enact 
such statutes as Chapter 32.

A clear and present danger justifies a regulation by the 
state which may impose limitations upon free speech. In 
Feiner v. New York, 340 U. S. 315 (1951), a student ad­



47

dressed a crowd in Syracuse, New York, making derogatory 
remarks about public officials and indicating that the Ne­
groes should rise up in arms and fight for equal rights. In 
view of the excitement aroused by his speech, the police on 
the scene requested him to stop speaking. He refused and 
was arrested. He was convicted under a New York statute 
which makes it a crime to provoke a breach of the peace 
by virtue of “offensive, disorderly, threatening, abusive or 
insulting language, conduct or behavior.” This Court up­
held the conviction on the basis that the restraint was neces­
sary to prevent a breach of peace. Mr. Justice Black dis­
sented.

In Beauharnais v. Illinois, 343 U. S. 250 (1952), the 
defendant was convicted under an Illinois statute which 
reads, in part, as follows:

“It shall be unlawful for any person, firm or cor­
poration to manufacture, sell, or offer for sale, adver­
tise or publish, present or exhibit in any public place 
in this state any lithograph, moving picture, play, 
drama or sketch, which publication or exhibition por­
trays depravity, criminality, unchasity, or lack of vir­
tue of a class of citizens, of any race, color or creed or 
religion which said publication or exhibition exposes 
the citizens of any race, color, creed or religion to con­
tempt, derision, or obloquy or which is productive of 
breach of the peace or riots. * * (at page 252)

The statement with which the defendant was charged with 
making was contained in a leaflet setting forth a petition 
calling on the Mayor and City Council of Chicago, to-wit:

“* * * flo halt the further encroachment, harrass- 
ment and invasion of white people, their property, 
neighborhoods and persons, by the Negro * * Be­
low was a call for ‘One Million self respecting white



48

people in Chicago to unite. * * *’ with the statement 
added that ‘If persuasion and the need to prevent the 
white race from becoming mongrealized by the negro 
will not unite us, then the aggressions * * * rapes, rob­
beries, knives, guns and marijuana of the negro, surely 
will.’ This, with more language, similar if not so vio­
lent, concluded with an attached application for mem­
bership in the White Circle League of America, Inc.” 
(at page 252)

This Court, upon upholding the conviction, discussed at 
length inter-racial problems in Illinois as the basis of the 
statute, taking up in particular race riots. Speaking of 
the statute, this was said:

“* * * It is a law specifically directed at a defined 
evil, its language drawing from history and practice 
in Illinois and in more than a score of other jurisdic­
tions a meaning confirmed by the Supreme Court of 
that State in upholding this conviction. * * (at 
page 253).

“* * * Moreover, the Supreme Court’s characteri­
zation of the words prohibited by the statute as those 
‘liable to cause violence and disorder’ paraphrases the 
traditional justification for punishing libels criminally, 
namely their ‘tendency to cause breach of the peace.’ 
(at page 254).

“It may be argued, and weightily, that this legisla­
tion will not help matters; that tension and on occasion 
violence between racial and religious groups must be 
traced to causes more deeply embedded in our society 
than the rantings of modern Know-nothings. Only 
those lacking responsible humility will have a confident 
solution for problems as intractable as the frictions at­
tributable to differences of race, color or religion. This 
being so, it would be out of bounds for the judiciary to 
deny the legislature a choice of policy, provided it is 
not unrelated to the problem and not forbidden by some



49

explicit limitation on the State’s power. That the legis­
lative remedy might not in practice mitigate the evil, or 
might itself raise new problems, would only manifest 
once more the paradox of reform. * * *” (at page 261).

Justices Black, Douglas and Jackson dissented.
The case of Kasper v. Brittain, 245 F. 2d 92 (6th Cir., 

1957), cert. den. 355 U. S. 834 and petition for rehearing 
den. 355 U. S. 834 (1957), follows the holdings in the above- 
mentioned cases to the effect that a threat of racial violence 
justifies interference with free speech. It should be noted 
that the invasion of free speech in this case was an abso­
lute prohibition and not a mere requirement of registration 
or identification. On August 29th, 1956 Kasper made a 
speech to a crowd of 1,000 or 1,500 to the effect that he had 
been served with an order prohibiting him from further 
hindering, obstructing, or in any way interfering with the 
carrying out of the court order and from picketing the high 
school either by words, acts or otherwise. He further told 
the crowds that the order did not mean anything and that 
the Brown case was not the law of the land.

Subsequent to Kasper’s speeches on August 30th, 31st 
and Septemberlst, a mob estimated at 3,000 people formed, 
with which mob the local police officials, and others deputized 
to meet the emergency, clashed and, though tear gas was 
used, the mob could not be controlled. State police and the 
National Guard with a force of 667 men were necessary to 
restore order by virtue of fixed bayonets. The Circuit 
Court of Appeals found that Kasper had violated an injunc­
tion decree against interference with integration which had 
been issued by the lower federal court. The language of the 
opinion also clearly indicated that it considered such violence 
or threats of violence to come within the “clear and present 
danger” doctrine.



50

Under the authority of this Court’s decisions discussed 
above, the state has a clear right to regulate the free speech 
of those whose activities are included in the second clause 
of Section 2 of Chapter 32.

Again, as previously stated in this brief, the third clause 
of Section 2 of Chapter 32 was condemned by the court 
below on the grounds of vagueness. The terms thereof 
require the registration of anyone whose activities cause 
or tend to cause racial conflicts or violence. In answer to 
this attack, the appellants once more reply upon United 
States v. Harris, supra. There, this court said:

“The constitutional requirement of definiteness is 
violated by a criminal statute that fails to give a person 
of ordinary intelligence fair notice that his contem­
plated conduct is forbidden by the statute. The under- 
lying principle is that no man shall be held criminally 
responsible for conduct which he could not reasonably 
understand to be proscribed.

“On the other hand, if the general class of offenses 
to which the statute is directed is plainly within its 
terms, the statute will not he struck down as vague, 
even though marginal cases could he put where doubts 
might arise. * * * And i f  this general class of offenses 
can be made constitutionally definite by a reasonable 
construction of the statute, this Court is under a duty 
to give the statute that construction. * * *” [Italics 
supplied]. (347 U. S. at pp. 617, 618)

If the appellees’ activities do not come within the terms 
of the third clause of Section 2 of Chapter 32, they had no 
standing in the court below to challenge their validity. On 
the other hand, if their activities do fall within the terms 
of such clause, as the record indicates, the language of this 
Court in the Harriss case, is applicable.



51

The fourth clause of Section 2 of Chapter 32 requires the 
registration of anyone who engages in the raising or expend­
ing of funds for the employment of counsel or the payment 
of costs in connection with litigation on behalf of any race.

Chapter 31 has no requirements similar to those found 
in the first three clauses of Section 2 of Chapter 32, and its 
provisions are not concerned with the regulation of litigation 
solely on behalf of a particular race. Its terms do require 
the registration of anyone who solicits funds from the pub­
lic for use in litigation in which he has no pecuniary right 
or liability therein.

The court below implies that the mere registration of 
those engaged in the litigation described in the fourth clause 
of Section 2 of Chapter 32 and in Chapter 31 is, perhaps, 
not a violation of the Due Process Clause of the Fourteenth 
Amendment. Further, the requirements of Chapters 31 
and 32 that the collectors of the funds to be spent in liti­
gation must register is not an undue restriction on free 
speech. Cantwell v. Connecticut, 310 U. S. 296 (1940) and 
Thomas v. Collins, 323 U. S. 516 (1945).

The “onerous” restrictions in these statutes, according to 
the majority below, is the requirement of the disclosure of 
every contributor and of every member of an organization 
whose dues may be used to finance litigation. It is the con­
tention of the appellants that the public interest of this 
State justifies this type of regulation and that this Court’s 
decision in Bryant v. Zimmerman, 278 U. S. 63 (1928) is 
authority therefor.

Statutes requiring registration of persons and organiza­
tions who engage in certain activities or of members of 
certain organizations are not new to the jurisprudence of 
the United States. Statutes requiring certain persons or 
organizations to list their sources of income and their ex­



52

penditures with particularity are no rarity. Such statutes 
are found in the United States Code as well as upon the 
statute books of the states. United, States v. Harriss, supra.

The Federal Corrupt Practices Act, 2 U. S. C. Section 
241, et seq., provides that the treasurer of a political com­
mittee shall file a statement with the name and address of 
each person contributing $100.00 in a calendar year and 
the name and address of each person to whom an expendi­
ture of over $100.00 is made. The statute was upheld in 
Burroughs v. United States, 290 U. S. 534 (1934).

Another registration act is that contained in the Internal 
Revenue Code of 1939, 26 U. S. C. Section 1132 et seq., 
which requires registration by “every person possessing a 
firearm” with the local district collector. The information 
required is the number or other identification of the firearm, 
the name and address of the possessor, the place where the 
firearm is normally kept, and the place of business or em­
ployment of the possessor. The registration provisions of 
this statute were upheld in Sonzinsky v. United States, 300 
U.S. 506 (1937).

In the case of Lezvis Publishing Company v. Morgan, 229 
U. S. 288 (1913), the Federal statute requiring users of the 
mails for newspapers or other publications to furnish each 
year a sworn statement of the names and post office ad­
dresses of the editor, the publisher, the business manager 
and the owners or stockholders, if the publication was a cor­
poration, and the bondholder, mortgagees and other security 
holders was upheld.

Bryant v. Zimmerman, supra, involved a New York 
statute which provided that every membership corporation 
or unincorporated association with 20 or more members, 
requiring their oath as a condition of membership, should 
register (1) its constitution, (2) its by-laws, (3) its rules,



53

(4) its regulations, (5) its oath of membership, (6) a roster 
of its members, and (7) a list of its officers. Being a mem­
ber of a non-complying organization was made a misde­
meanor. A conviction under this statute was upheld on three 
grounds: (1) the right to be a member of a secret organi­
zation is not a “privilege or immunity” guaranteed by the 
Fourteenth Amendment; (2) even if membership is a liberty 
guaranteed by the Fourteenth Amendment, it is subject to 
the State police power; and (3) equal protection of the laws 
is not denied by virtue of exclusion of certain other mem­
bership oath-bound corporations. The specific exclusions 
were labor unions, fraternities composed only of students 
and benevolent orders. The holding of this Court is con­
tained in the following quote:

“There are various privileges and immunities which 
under our dual system of government belong to citi­
zens of the United States solely by reason of such citi­
zenship. It is against their abridgment by state laws 
that the privilege and immunity clause in the 14th 
Amendment is directed. But no such privilege or im­
munity is in question here. If to be and remain a mem­
ber of a secret, oath-bound association within a state 
be a privilege arising out of citizenship at all, it is an 
incident of state rather than United States ctizenship; 
and such protection as is thrown about it by the Con­
stitution is no wise affected by its possessor being a 
citizen of the United States. Thus there is no basis 
here for invoking the privilege and immunity clause.

“The relator’s contention under the due process 
clause is that the statute deprives him of liberty in that 
it prevents him from exercising his right of member­
ship in the association. But his liberty in this regard, 
like most other personal rights, must yield to the right­
ful exertion of the police power. There can he no doubt 
that under that power the state may prescribe and 
apply to associations having an oath-bound member­



54

ship any reasonable regulation calculated to confine 
their purposes and activities within limits which are 
consistent with the rights of others and the public 
zvelfare. The requirement in §53 that each association 
shall file zvith the secretary of state a sworn copy of its 
constitution, oath of membership, etc., with a list of 
members and officers, is such a regulation. It proceeds 
on the twofold theory that the state within whose terri­
tory and under whose protection the association exists 
is entitled to be informed of its nature and purpose, of 
whom it is composed and by whom its activities are 
conducted,, and that requiring this information to be 
supplied for the public files will operate as an effective 
or substantial deterrent from the violations of public 
and private right to which the association might be 
tempted if such a disclosure were not required. The 
requirement is not arbitrary or oppressive, but reason­
able and likely to be of real effect. Of course, power 
to require the disclosure includes authority to prevent 
individual members of an association which has failed 
to comply from attending meetings or retaining mem­
bership with knowledge of its default. We conclude 
that the due process clause is not violated.” [Italics 
supplied] (278 U.S. 63, 71,72).

The only difference between the facts in Bryant v. Zim­
merman is that the organizations proscribed by that statute 
for registration are oath-bound organizations. It would 
seem to be an absurd distinction to require registration of 
members of oath-bound organizations while holding that 
registration cannot be required of organizations which do 
not have a secret oath. Under the facts of that case, any 
organization which refused to disclose its members was, in 
fact, a secret organization. A distinction between those 
organizations requiring an oath and those who do not re­
quire an oath as a matter of constitutional law would seem 
to be a distinction without substance.



55

Further, it is admitted that there may be two concepts of 
secret organizations: (1) those whose very existence is, in 
fact, a secret and (2) those whose members are protected 
by a cloak of secrecy. We think that it is clear that the 
latter concept is the one covered by the New York statute. 
An organization which has a charter from the State cer­
tainly does not have a secret existence. The Ku-Klux Klan, 
which was the organization involved in the Bryant v. Zim­
merman litigation, is, in fact, incorporated under the laws 
of many states.

The court below attempted to distinguish the Bryant case 
by asserting that the New York statute, unlike Chapter 32, 
was aimed at curbing “activities of an association likely to 
engage in violations of the law.” The first answer to this 
is that the evidence summarized in this brief indicates that 
Chapter 32 was enacted to help prevent disorder or violence. 
Secondly, regardless of the aims of either the New York 
statute or the Virginia statute, the provisions of both ap­
ply to associations, such as adult fraternities and various 
other groups in Virginia, whose members are not likely to 
engage in violations of law.

In the recent case of NAACP  v. Alabama, 357 U. S. 449 
(1958), this Court stated that the decision in Bryant v. 
Zimmerman, supra, was “based on the particular character 
of the Klan’s activities, involving acts of unlawful intimi­
dation and violence” (at page 465 ).

The appellants respectfully submit that the decision in 
the Bryant case was only partially based on the particular 
character of the organization. The court discussed the 
claim that the New York statute violated the Due Process 
Clause of the Fourteenth Amendment and concluded that 
it did not. A t this point in the decision no mention was made 
of the character of the organization. Further, it is safe to



56

assume that no mention would have been made of the type 
of organization except for the exemptions contained in the 
statute. Because of certain exemptions, previously set forth 
in this brief, it was claimed that the Equal Protection Clause 
had been violated. A t this point a discussion of the activities 
of the organisation became necessary. It was completely 
separate from the due process question and so treated. The 
Court assumed that the legislature of New York felt that 
the organization in question had unworthy aims and con­
cluded :

“We think it plain that the action of the courts below 
in holding that there was a real and substantial basis 
for the distinction made between the two sets of asso­
ciations or orders was right and should not be dis­
turbed.” (278 U. S. at p. 77).

It is respectfully submitted, therefore, that the Virginia 
registration statutes do not violate the Due Process Clause 
under the authority of Bryant v. Zimmerman, supra. To 
hold otherwise, will require this Court to overrule that de­
cision.

In NAACP  v. Alabama, supra, which was decided by 
this Court prior to the noting of jurisdiction in these cases, 
it was held that the State of Alabama could not require the 
NAACP to file its membership lists under a law requiring 
foreign corporations to register with the Secretary of State. 
Such a requirement, under the facts and circumstances of 
that case, was held to be a denial of due process. The facts 
and circumstances were:

1. On past occasions revelation of the identify of the 
NAACP’s rank-and-file members had exposed them to eco­
nomic reprisal, loss of employment, threat of physical co­
ercion and other manifestations of public hostility;



57

2. The filing of membership lists had no substantial 
bearing on the questions of whether the NAACP was con­
ducting an intrastate business in Alabama and whether its 
activities, without qualifying to do business, suggested its 
permanent ouster from the State; and

3. The State of Alabama had fallen short of showing a 
controlling justification for restricting freedom of associ­
ation.

The facts, as shown by the record in these cases are differ­
ent in that:

1. It was not shown that a single “rank-and-file” mem­
ber of the NAACP had been exposed to economic reprisals 
or loss of employment. Furthermore, as shown in the appel­
lants’ “Statement of the Case” only one member of the 
NAACP was subject to threats and he was the president 
of the local branch in Norfolk. Some of the plaintiffs in 
the Prince Edward County segregation case, who testified 
in these cases, stated that their relations with white people 
in the county had not changed and that they had not been 
mistreated (R. 353, 360, 364, 370). The plain facts are that 
the disclosure of rank-and-file membership lists will not pro­
mote or cause reprisals. To state it another wray, if reprisals 
are to be made against Negroes because of their interest in 
integration, the withholding of membership lists of the 
NAACP will not prevent them.

2. The facts in these cases concerning the necessity for 
and the purposes of the registration statutes make it clear 
that the alleged restrictions on freedom of association are 
in the public interest and constitute a reasonable exercise of 
the State’s police power.

3. The record shows that the Commonwealth of Virginia



58

has a controlling justification for the enactment of these 
statutes.

As to the registration of members under Chapter 32, the 
question has been raised: for what purposes can a law 
enforcement officer use these lists as an aid? Some such 
purposes are (1) to help in selection of deputies, and pre­
vent deputizing a person participating actively in an organ­
ization agitating violence; (2) to identify certain known 
troublemakers as members of particular organization, and 
to thereby identify their leaders; (3) to keep a check on 
agitators from outside the community; (4) a list of the 
members of a local organization would apprise sheriffs of 
the possibilities of violence from such organization; and 
(5) a possible deterrent to persons against joining organi­
zations under irresponsible leadership or engaged in unlaw­
ful activities.

These statutes promote and advance free speech rather 
than operate as a restriction. By requiring the identification 
of persons who would speak through the anonymous veil of 
a corporate or similar impersonal entity, listeners are en­
abled to properly evaluate the source of the speech with 
which they are confronted. These statutes would correctly 
identify the people who are backing agitating, as well as 
legitimate, organizations and would enable persons who are 
recklessly accused to defend themselves.

Irresponsible persons have always preferred a cloak of 
anonymity through which to work. If persons who back 
such anonymous organizations are of a responsible char­
acter, publication of their names should lend impetus to and 
not detract from their cause.

Acts of violence perpetuated by the Ku-Klux Klan and 
the Union League under this protective cloak of secrecy 
are written in the pages of history, and the Union League is 
perhaps one of the best examples of a legitimate organiza­



59

tion which fell into bad hands. The Ku-Klux Klan is an­
other prime example of what can happen when responsible 
leadership is replaced by the irresponsible. If the State can­
not know who are the leaders of these groups, as well as the 
rank and file, how can it determine whether they are a pos­
sible source of trouble? There is testimony in the record 
that a local branch of the NAACP has committed violent 
acts upon mere refusal of a Negro to join its organization.

Admitting that the appellee corporations do not engage 
in violent activities today, there is no assurance that their 
branches will not under different circumstances. They admit 
that their control over these branches is “minimal.” The 
legislature could certainly believe that organizations engaged 
in the activities defined by the statute would be the most 
likely to become involved in violence resulting from racial 
tension. Leadership in legitimate organizations does not 
always remain conservative. In fact, there is no contra­
diction in this record of the coercive and forceful activities 
of the Halifax branch of the NAACP.

With regard to Chapter 31 and the information required 
thereby, it should be clear that this statute is an aid to 
detect those persons who are engaging in barratry, main­
tenance, unauthorized practice of law and related offenses. 
Inherent in the power to regulate the practice of law is the 
right to compel information which will enable the state to 
determine whether or not its laws and regulations are being 
violated.

To deny the state the right to require membership lists, 
contributions to and expenditures of such organizations is 
to effectively deny to the state the right to regulate organized 
conduct.

In conclusion, it cannot be said that each and every item 
of information required to be divulged by the registration 
statutes are improper subjects of a state’s interest. Accord-



60

ing to NAACP  v. Alabama, supra, most of these items are 
beyond a constitutional challenge. The majority below was 
in error when it assumed that these proper items of informa­
tion should not remain in the statutes.

III.
Chapter 35 Does Not Violate the Equal Protection Clause 

or the Due Process Clause of the Fourteenth Amendment
The court below stated that the barratry statute “obvi­

ously” violated the Equal Protection Clause since it denied 
appellees the right to defray the expenses of racial litigation 
while permitting legal aid societies to do so if they served 
all “needy” persons in all sorts of litigation. In the first 
place, the record does not show that appellees serve only 
“needy” persons. Secondly, as previously pointed out in this 
brief, the provisions of Chapter 35 may be construed as pro­
hibiting legal aid only when a person is guilty of stirring up 
the litigation. Under such circumstances, a member of a 
legal aid society would be guilty of a violation of the Canons 
of Ethics and the common law offense of barratry.

The opinion of the majority below states that “no argu­
ment has been offered to the court to sustain this discrimina­
tion” (159 F. Supp. 533). Nothing more was said about 
this alleged violation of the Equal Protection Clause, even 
though the burden was upon the appellees to show that 
Chapter 35 violated the Fourteenth Amendment.

The classification condemned by the court below is based 
upon long-recognized standards of the legal profession and 
the appellants are aware of no case which holds that such 
a classification is so arbitrary as to be a denial of the equal 
protection of the laws.

Chapter 35, as pointed out, creates the statutory offense 
of barratry. It conforms to the common law crime with 
two minor exceptions. The statute, contrary to the common



61

law, requires that the barrator be shown to have participated 
in payment of the expenses of the litigation. This, of course, 
is more consideration than given to the common law barra­
tor. Secondly, under the common law, it had to be proven 
that the barrator stirred up litigation on more than one 
occasion.

The practice of law or the following of any of the pro­
fessions has for centuries been considered a privilege, to 
be conferred by the State with great discretion and very 
definitely not as a matter of right. The forty-eight states, 
as well as the Federal government, have always deemed it 
wise to regulate strictly the practice of law in their courts. 
Strict regulation of other professions is a matter of statu­
tory record.

These regulations are usually of two types: (1) licensing 
requirements of persons who would engage in the profes­
sion; and (2) further regulation of these persons who have 
obtained licenses. A necessary incident of this is to define 
what may or may not be done by laymen affecting the prac­
tice of law.

In determining the constitutionality of Chapter 35, the 
case of McCloskey v. TobinJ 252 U. S. 107 (1920), is 
material. A Texas statute defined with much detail the 
offense of barratry and maintenance. It proscribed in par­
ticular any person who “shall seek to obtain employment in 
any claim, to prosecute, defend, present or collect the same 
by means of personal solicitation of such employment.” The 
petitioner was arrested and convicted for soliciting employ­
ment to collect two claims, one for personal injuries and the 
other for painting a buggy.

“The contention is, that since the state had made 
causes of action in tort as well as in contract assignable 
(Galveston, H. & S.A.R. Co. v. Ginther, 96 Tex. 295, 
72 S. W. 166), they had become an article of com­



62

merce; that the business of obtaining adjustment of 
claims is not inherently evil; and that, therefore, while 
regulation was permissible, prohibition of the business 
violates rights of liberty and property, and denies equal 
protection of the laws. The contention may be answered 
briefly. To prohibit solicitation is to regulate the busi­
ness, not to prohibit it. Compare Brazee v. Michigan, 
241 U. S. 340, 60 L. Ed. 1034, 36 Sup. Ct. Rep. 561, 
Ann. Cas. 1917C, 522. The evil against which the 
regulation is directed is one from which the English 
law has long sought to protect the community through 
proceedings for barratry and champerty.. . . Regulation 
which aims to bring the conduct of the business into 
harmony with ethical practice of the legal profession, 
to which it is necessarily related, is obviously reason­
able.” (252U.S. 108)

The right to practice law is not one of the privileges and 
immunities guaranteed by the Fourteenth Amendment. 
Bradwell v. Illinois, 16 Wall. 130; In Re Lockwood, 154 
U. S. 116 (1894).

The fact that an individual or certain individuals may be 
put out of business by a regulation is no reason for declar­
ing it invalid. As was said in Re Issermen, 345 U. S. 286:

“There is no vested right in an individual to practice 
law. Rather, there is a right in the Court to protect 
itself, and, hence, society as an instrument of justice. 
That to the individual disbarred there is a loss of status 
is incidental to the purpose of the Court and cannot 
deter the Court from its duty to strike from its rolls 
one who has engaged in conduct inconsistent with the 
standard expected of officers of the Court.” (345 U. S. 
289)

The vitality of the above mentioned regulation is not 
vitiated by the dissent, which is based upon a different view 
of what related to improper conduct in a Federal court.



63

In 348 U. S. 1, upon rehearing, the dissent prevailed (ap­
parently because of the failure of the Chief Justice to be 
present). Even so, while this Court decided not to disbar 
Isserman from practice before it, it did not upset the dis­
barment by the New Jersey court based upon the same facts. 
(In Re Isserman, 87 A. 2d 903, 9 N. J. 269, cert. den. 345 
U. S. 927.) It is implicit in these decisions when they are 
taken together that a state may apply more stringent stand­
ards for practice before its courts than those required by the 
Federal courts.

When the proper construction is given the provisions of 
Chapter 35 it can be seen that the State is merely regulat­
ing the activities that have long been prohibited by the com­
mon law and condemned by the legal profession.

For the reasons heretofore stated, this Court should va­
cate the judgment of the Court below with directions to dis­
miss these cases or retain jurisdiction until efforts are made 
by the appellees to obtain an authoritative construction of 
the statutes in the state courts. In the alternative, this 
Court should reverse the judgment of the court below on the 
ground that the statutes here involved do not violate the 
Fourteenth Amendment.

CONCLUSION

Respectfully submitted,

D avid J. M ays 
H enry  T. W ic k h a m

Clarence  F. H icks

1407 State-Planters Bank Bldg. 
Richmond, Virginia

Gloucester, Virginia 
Special Assistant to the 
A tt’y General of Virginia

T u c k er , M ays, M oore & R eed J . S egar G ravatt
Of Counsel Blackstone, Virginia

Counsel for the Appellants

Dated: February 13, 1959



64

CERTIFICATE OF SERVICE
I hereby certify that copies of the aforegoing brief have 

been served by depositing the same in a United States mail 
box, with first class postage prepaid, to the following counsel 
of record:

Robert L. Carter 
20 West 40th Street 
New York 18, New York
Thurgood Marshall 
10 Columbus Circle 
New York 19, New York
Spottswood W. Robinson, III 
623 North Third Street 
Richmond, Virginia
Oliver W. Hill
118 East Leigh Street
Richmond, Virginia

on this 13th day of February, 1959.

H e n r y  T. W ic k h a m



A P P E N D I X



Acts of the General Assembly of Virginia
(Extra Session 1956)

C h a pt e r  31

Be it enacted by the General Assembly of Virginia:
1. §1. As used in this act the term “person” shall mean
any individual, partnership, corporation or association, 
whether formally or informally organized. “Party shall 
include an amicus curiae.

§2. No person shall engage in the solicitation 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:

(1) If a partnership, corporation or association, file an­
nually, in the month of January or within sixty days after 
the engaging in of any activity subject to this act, with the 
clerk of the State Corporation Commission (a) a certified 
copy of the charter, articles of agreement or association, 
by-laws or other documents creating, governing or regu­
lating the operations of such partnership, corporation or 
association if not of record in the office of the State Cor­
poration Commission; (b) a certified list of the names and 
addresses of the officers, directors, stockholders, members, 
agents and employees or other persons acting for or in be­
half of such partnership, corporation or association; (c) 
a certified statement showing the source of each and every

A P P E N D IX  I



contribution, membership fee, dues payment or 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 
association making any donation or contribution; (d) a 
certified statement showing in detail by each transaction the 
expenditures 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 state­
ment showing the locations of each office or branch of such 
partnership, corporation or association, and the counties 
and cites in which it proposes to or does finance or main­
tain litigation to which it is not a party.

(2) If an individual, file annually with the clerk of the 
State Corporation Commission (a) the home and each 
business address of such individual ; (b) the name and ad­
dress of any partnership, corporation or association for 
whom such individual acts or purports to act; (c) the names 
and addresses of all directors and officers of any such part­
nership, corporation or association; (d) a certified state­
ment showing the source of each and every contribution, 
dues payment or membership fee collected by such individ­
ual during the preceding calendar year; and (e) a certified 
statement showing in detail by each transaction the ex­
penditures made by such individual for the purpose of 
financing or maintaining litigation to which such individual 
is not a party.

§ 3. If any individual shall violate any provisions of this 
act he shall be guilty of a misdemeanor and may be pun­
ished as provided by law. If any partnership, corporation 
or association violates any provision of this act it may be

App .  2



App.  3

fined not more than ten thousand dollars, and if a foreign 
corporation or association shall be denied admission to do 
business in Virginia, if not admitted, and if admitted, shall 
have its authority to do business in Virginia revoked.

§ 4. Any individual, acting for himself or as an agent or 
employee of any partnership, corporation or association, 
who shall file any statement, certificate or report required 
by this act, knowing the same to be false or fraudulent, shall 
be guilty of a felony and punished as provided in §§ 18-238 
and 18-239 of the Code.

§5. Any individual acting as an agent or employee of 
any partnership, corporation or association in any activity 
in violation of this act shall be guilty of a misdemeanor and 
may be punished as provided by law.

§6. Any court of record having civil jurisdiction shall 
have power to enjoin violations of this act. A violation shall 
be deemed to have occurred in any county or city in which 
any partnership, corporation or association expends funds 
to commence, prosecute or further any judicial proceeding 
to which it is not a party or in which it has no pecuniary 
right or liability, or in which county or city it solicits, 
accepts or receives any money or thing of value to be used 
for such purpose, without having filed the information re­
quired in § 2, and the court or judge hearing the application 
shall have power to enjoin the violator from any violation 
of this act anywhere in this State.

§ 7. In any case in which a citizen files a statement with 
the Attorney General, alleging on information and belief 
that a violation of this act has occurred and the particulars 
thereof are set forth, the Attorney General, after investiga­
tion and a finding that the complaint is well founded, shall 
institute proceedings in the Circuit Court of the city of



App .  4

Richmond for an injunction to restrain the violation com­
plained of, and such court is hereby vested with jurisdiction 
to grant the same.

§ 8. If a fine is imposed on any partnership, corporation 
or association for violation of the provisions of this act, 
each director and officer of such corporation or association, 
each member of the partnership, and those persons respon­
sible for the management or control of the affairs of such 
partnership, corporation or association may be held jointly 
and severally personally liable for payment of such fine.
2. An emergency exists and this act is in force from its 
passage.

C h a pt e r  32

Be it enacted by the General Assembly of Virginia:
1. §1. The continued harmonious relations between the 
races are hereby declared essential to the welfare, health 
and safety of the people of Virginia. It is contrary to the 
public policy of the State to permit those conditions to arise 
between the races which impede the peaceful co-existence of 
all peoples in the State and it is the duty of the government 
of the State to exercise all available means and every power 
at its command to prevent the same so as to protect its 
citizens from any dangers, perils and violence which would 
result from interracial tension and unrest and possible vio­
lations of Article 2 of Chapter 4 of Title 18 of the Code 
of Virginia. It is therefore further declared that it is vital 
to the public interest that information to the extent and in 
the manner hereinafter provided be obtained with respect 
to persons, firms, partnerships, corporations and associ­
ations whose activities are causing or may cause interracial 
tension and unrest.



App.  5

§ 2. Every person, firm, partnership, corporation or asso­
ciation, whether by or through its agents, servants, em­
ployees, officers, or voluntary workers or associates, who or 
which engages as one of its principal functions or activities 
in the promoting or opposing in any manner the passage of 
legislation by the General Assembly in behalf of any race 
or color, or who or which has as one of its principal func­
tions or activities the advocating of racial integration or 
segregation or whose activities cause or tend to cause racial 
conflicts or violence, or who or which is engaged or engages 
in raising or expending funds for the employment of counsel 
or payment of costs in connection with litigation in behalf 
of any race or color in this State, shall, within sixty days 
after the effective date of this act and annually within sixty 
days following the first of each year thereafter, cause his 
or its name to be registered with the clerk of the State 
Corporation Commission, as hereinafter provided; provided 
that in the case of any person, firm, partnership, corpora­
tion, association or organization, whose activities have not 
been of such nature as to require it to register under this 
act, such person, firm, partnership, corporation, association 
or organization, within sixty days following the date on 
which he or it engages in any activity making registration 
under this act applicable, shall cause his or its name to be 
registered with the clerk of the State Corporation Commis­
sion, as hereinafter provided; and provided, further, that 
nothing herein shall apply to the right of the people peace­
ably to assemble and to petition the government for a re­
dress of grievances, or to an individual freely speaking or 
publishing on his own behalf in the expression of his opinion 
and engaging in no other activity subject to the provisions 
hereof and not acting in concert with other persons.

§3. At the time of such registration, the following in­



App .  6

formation as to the preceding twelve month period shall be 
furnished under oath and filed in such clerk’s office:

If the registrant is an individual, firm or partnership, 
the home and each business address of such individual or 
member of the firm or partnership, the source or sources of 
any funds received or expended for the purposes set forth 
in §2 of this act, including the name and address of each 
person, firm, partnership, association or corporation mak­
ing any contribution, donation or gift for such purposes; 
and an itemized statement of expenditures for such purposes 
in detail.

If the registrant is a firm, partnership, corporation, asso­
ciation or organization, the business addresses of the prin­
cipal and all branch offices of the registrant ; the purpose or 
purposes for which such firm, partnership, corporation, as­
sociation or organization was formed; if not already filed, 
a certified copy of the charter, articles of agreement or 
association, by-laws or other documents governing or reg­
ulating the operations of such firm, partnership, corpora­
tion or association; the names of the principal officers, the 
names and addresses of its agents, servants, employees, 
officers or voluntary workers or associates by or through 
which it carries on or intends to carry on the activities de­
scribed in §2 of this act in this State; a list of its stock­
holders or members in this State and their addresses; a 
financial statement showing the assets and liabilities of the 
registrant and the source or sources of its income, itemizing 
in detail any contributions, donations, gifts or other income, 
and from what source or sources received during the calen­
dar year preceding such initial registration and each year 
thereafter; and a list of its expenditures in detail for the 
same period.

§ 4. The clerk of the State Corporation Commission shall



App .  7

prepare and keep in his office the files containing the infor­
mation required by § § 2 and 3. Such records shall be public 
records and shall be open to the inspection of any citizen at 
any time during the regular business hours of such office.

§5. (a) Any person, firm or partnership who or which 
engages in the activities described in § 2 of this act without 
first causing his or its name to be registered and informa­
tion to be filed as herein required shall be guilty of a mis­
demeanor and punished accordingly.

(b) Any corporation, association or organization which 
shall engage in any activity described in § 2 of this act with­
out first causing its name to be registered and information 
to be filed as herein required shall upon conviction be fined 
not exceeding ten thousand dollars.

(c) Any person, acting for himself or as agent or em­
ployee of any firm, partnership, corporation or association, 
who shall file any statement, certificate or report required 
by this act, knowing the same to be false or fraudulent, shall 
be guilty of a felony and punished as provided in §§ 18-238 
and 18-239 of the Code.

(d) When any corporation or association, upon convic­
tion of violation of the provisions of this act, has been sen­
tenced to payment of a fine, and has failed to promptly pay 
the same, both the corporation or association and each officer 
and director and those persons responsible for the manage­
ment or control of the affairs of such corporation or asso­
ciation may be held liable jointly and severally for such fine.

(e) Each day’s failure to register and file the informa­
tion required by §2 shall constitute a separate offense and 
be punished as such.

§6. Any person, firm, partnership, corporation or asso­



App .  8

ciation engaging- in any activity described in §2 of this act 
without complying with this act may be enjoined from con­
tinuing in any such activity by any court of competent 
jurisdiction.

§ 7. In any case in which a citizen files a statement with 
the Attorney General alleging on information and belief 
that a violation of this act has occurred and the particulars 
thereof are set forth, the Attorney General after investi­
gation and a finding that the complaint is well founded shall 
institute proceedings in the Circuit Court of the City of 
Richmond for an injunction to restrain the violation com­
plained of, and such court is hereby vested with jurisdiction 
to grant the same.

§8. If any one or more sections, clauses, sentences or 
parts of this act shall be adjudged invalid, such judgment 
shall not affect, impair or invalidate the remaining provi­
sions thereof, but shall be confined in its operation to the 
specific provisions held invalid, and the inapplicability or 
invalidity of any section, clause or provision of this act in 
one or more instances or circumstances shall not be taken 
to affect or prejudice in any way its applicability or validity 
in any other instance.

§9. This act shall not apply to persons, firms, partner­
ships, corporations or associations who or which carry on 
such activity or business solely through the medium of 
newspapers, periodicals, magazines or other like means 
which are or may be admitted under United States postal 
regulations as second-class mail matter in the United States 
mails as defined in Title 39, §224, United States Code An­
notated, and/or through radio, television or facsimile broad­
cast or wire service operations. This act shall also not apply 
to any person, firm, partnership, corporation, association,



App .  9

organization or candidate in any political election campaign, 
or to any committee, association, organization or group of 
persons acting together because of activities connected with 
any political campaign.

C h a pt e r  35
Be it enacted by the General Assembly of Virginia :

1. §1. Definitions.
(a) “Barratry” is the offense of stirring up litigation.
(b) A “barrator” is an individual, partnership, associ­

ation or corporation who or which stirs up litigation.
(c) “Stirring up litigation” means instigating or at­

tempting to instigate a person or persons to institute a suit 
at law or equity.

(d) “Instigating” means bringing it about that all or 
part of the expenses of the litigation are paid by the bar­
rator or by a person or persons (other than the plaintiffs) 
acting in concert with the barrator, unless the instigation is 
justified.

(e) “Justified” means that the instigator is related by 
blood or marriage to the plaintiff whom he instigates, or 
that the instigator is entitled by law to share with the plain­
tiff in money or property that is the subject of the litigation 
or that the instigator has a direct interest in the subject 
matter of the litigation or occupies a position of trust in 
relation to the plaintiff; or that the instigator is acting on 
behalf of a duly constituted legal aid society approved by 
the Virginia State Bar which offers advice or assistance in 
all kinds of legal matters to all members of the public who 
come to it for advice or assistance and are unable because 
of poverty to pay legal fees.



App ,  10

( f ) “Direct interest” means a personal right or a pecuni­
ary right or liability.

This act shall not be applicable to attorneys who are 
parties to contingent fee contracts with their clients where 
the attorney does not protect the client from payment of the 
costs and expenses of litigation, nor shall this act apply to 
any matter involving annexation, zoning, bond issues, or 
the holding or results of any election or referendum, nor 
shall this act apply to suits pertaining to or affecting pos­
session of or title to real or personal property, regardless 
of ownership, nor shall this act apply to suits involving the 
legality of assessment or collection of taxes or the rates 
thereof, nor shall this act apply to suits involving rates or 
charges or services by common carriers or public utilities, 
nor shall this act apply to criminal prosecutions, nor to the 
payment of attorneys by legal aid societies approved by the 
Virginia State Bar, nor to proceedings to abate nuisances. 
Nothing herein shall be construed to be in derogation of the 
constitutional rights of real parties in interest to employ 
counsel or to prosecute any available legal remedy under the 
laws of this State.

§ 2. It shall be unlawful to engage in barratry.
§ 3. A person found guilty of barratry, if an individual, 

shall be guilty of a misdemeanor, and may be punished as 
provided by law; and if a corporation, may be fined not 
more than ten thousand dollars. If the corporation be a 
foreign corporation, its certificate of authority to transact 
business in Virginia shall be revoked by the State Corpora­
tion Commission.

§4. A person who aids and abets a barrator by giving 
money or rendering services to or for the use or benefit of



App .  11

the barrator for committing barratry shall be guilty of 
barratry and punished as provided in § 3.

§5. Courts of record having equity jurisdiction shall 
have jurisdiction to enjoin barratry. Suits for an injunction 
may be brought by the Attorney General or the attorney for 
the Commonwealth.

§6. Conduct that is made illegal by this act on the part 
of an attorney at law or any person holding a license from 
the State to engage in a profession is unprofessional con­
duct. Upon hearing pursuant to the provisions of § 54-74 
of the Code, or other statute applicable to the profession 
concerned, if the defendant be found guilty of barratry, his 
license to practice law or any other profession shall be re­
voked for such period as provided by law.

2. An emergency exists and this act is in force from its 
passage.

APPENDIX II
The North Carolina Statute

The Act of March 29, 1957, is as follows:
Sec. 1. Every person presenting himself for registration 

shall be able to read and write any section of the Constitu­
tion of North Carolina in the English language. It shall be 
the duty of each registrar to administer the provisions of 
this section.

Sec. 2. Any person who is denied registration for any 
reason may appeal the decision of the registrar to the county 
board of elections of the county in which the precinct is 
located. Notice of appeal shall be filed with the registrar



App.  12

who denied registration, on the day of denial or by 5 :00 
p. m. on the day following the day of denial. The notice of 
appeal shall be in writing, signed by the appealing party, 
and shall set forth the name, age and address of the appeal­
ing party, and shall state the reasons for appeal.

Sec. 3. Every registrar receiving a notice of appeal shall 
promptly file such notice with the county board of elections, 
and every person appealing to the county board of elections 
shall be entitled to a prompt and fair hearing on the question 
of such persons’ right and qualifications to register as a 
voter. A majority of the members of the board shall be the 
decision of the board. All cases on appeal to a county board 
of elections shall be heard de novo, and the board is author­
ized to subpoena witnesses and to compel their attendance 
and testimony under oath, and is further authorized to sub­
poena papers and documents relevant to any matter pending 
before the board. If at the hearing the board shall find that 
the person appealing from the decision of the registrar is 
able to read and write any section of the Constitution of 
North Carolina in the English language and if the board 
further finds that such person meets all other requirements 
of law for registration as a voter in the precinct to which 
application was made, the board shall enter an order direct­
ing that such person be registered as a voter in the precinct 
from which the appeal was taken. The county board of 
elections shall not be authorized to order registration in any 
precinct other than the one from which an appeal has been 
taken. Each appealing party shall be notified of the board’s 
decision in his case not later than ten (10) days after the 
hearing before the board.

Sec. 4. Any person aggrieved by a final order of a 
county board of elections may at any time within ten (10) 
days from the date of such order appeal therefrom to the



App .  13

Superior Court of the county in which the board is located. 
Upon such appeal, the appealing party shall be the plaintiff 
and the county board of elections shall be the defendant, and 
the matter shall be heard de novo in the superior court in 
the same manner as other civil actions are tried and disposed 
of therein. If the decision of the court be that the order of 
the county board of elections shall be set aside, then the court 
shall enter its order so providing and adjudging that such 
person is entitled to be registered as a qualified voter in the 
precinct to which application was originally made, and in 
such case the name of such person shall be entered on the 
registration books of that precinct. The court shall not be 
authorized to order the registration of any person in a pre­
cinct to which application was not made prior to the proceed­
ing in court. From the judgment of the superior court an 
appeal may be taken to the Supreme Court in the same 
manner as other appeals are taken from judgments of such 
court in civil actions.

Sec. 5. All laws and clauses of laws in conflict with this 
Act are hereby repealed.

Sec. 6. This Act shall be effective upon its ratification.

APPENDIX III 
The Alabama Statute

Be It Enacted by the Legislature of Alabama:
Section 1. As used in this act the term “labor union or 

labor organization” means any organization of any kind, in 
which employees participate for the purpose of dealing with 
one or more employers concerning grievances, labor disputes, 
wages, rates of pay, hours of employment, or conditions of 
work; and the term “public employee” means any person



App.  14

whose compensation is derived in whole or in part from the 
State, or any agency, board, bureau, commission or insti­
tution thereof.

Section 2. A n y  public employee who joins or participates 
in a labor union or labor organization, or who remains a 
member of, or continues to participate in, a labor union or 
labor organization thirty days after the effective date of this 
act, shall forfeiture all rights afforded him under the State 
Merit System, employment rights, re-employment rights, 
and other rights, benefits, or privileges which he enjoys as 
a result of his public employment.

Section 3. This act shall not apply to persons employed 
as teachers by any county or city board of education or 
trade schools or institutions of higher learning, nor shall it 
apply to those employees of the State Docks Board referred 
to in Title 38, Section 17, of the Code of Alabama, 1940, 
nor shall it apply to employees of cities or counties.

Section 4. Any public employee who prior to the passage 
of this act or to his public employment belonged to a labor 
union or labor organization and as a result thereof has 
acquired insurance benefits or any other financial benefits 
may continue to participate in such labor union or labor or­
ganization to the extent that he shall not lose any benefits 
thus acquired.

Section 5. The provisions of this act are severable. If 
any part of the act is declared invalid or unconstitutional, 
such declaration shall not affect the part which remains.

Section 6. All laws or parts of laws which conflict with 
this act are repealed.

Section 7. This act shall become effective immediately
upon its passage and approval by the Governor, or upon its 
otherwise becoming a law.



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