NAACP v. Alabama Petitioner's Reply Brief

    IN THE

£>ujirpmp (Unmet ni tlj? £latp0
October Term, 1957

No. 91

NATIONAL ASSOCIATION FOB THE ADVANCE­
MENT OF COLORED PEOPLE, a Corporation,

Petitioner,
v.

STATE OF ALABAMA, ez rel. JOHN PATTERSON, 
Attorney General,

Respondent.

On W rit op Certiorari to the Supreme Court op A labama

PETITIONER’S REPLY BRIEF

R obert L . Carter,
20 West 40th Street,

New York, New York,
T hurgood M arshall,

107 West 43rd Street,
New York, New York,

A rthur D. S hores,
1630 Fourth Avenue, North, 

Birmingham, Alabama,
Attorneys for Petitioner.

Charles L . B lack, Jr.,
W illiam T. Coleman, Jr.,
F red D . Gray,
George E. C. H ayes,
W illiam R. M ing, Jr.,
James M. N abrit, Jr.,
L ouis H . P ollak,
F rank D. R eeves,
W illiam T aylor,

of Counsel.



PAGE

Petitioner’s, and its Members’, Right to Free Asso­
ciation ........................................................................... 1

The Constitutional Right of Anonym ity....................  3
The Place of Anonymity in a Democratic Society.. 3
Anonymity as an Aid to Free Expression.................. 6
Secret Elections in Democracies................................... 8
The Absence of Justification for Compulsory Dis­

closure ..........................................................................  8

Table of Cases
Adler v. Board of Education, 342 U. S. 485................ 3
American Communications Associations v. Douds,

339 U. S. 382 ..............................................................  3
Barrows v. Jackson, 346 U. S. 249 .............................  3
De Jonge v. Oregon, 299 U. S. 353 ...............................  2
Grosjean v. American Press Co., 297 U. S. 233.......... 11
Hague v. Committee for Industrial Organization,

307 U. S. 496 ..............................................................  2
Joint Anti-Fascist Refugee Committee v. McGrath,

341 U. S. 1 2 3 ..............................................................  3
Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 . . . .  3
New York ex rel. Bryant v. Zimmerman, 278 

U. S. 63 ......................................................................  9,10
Pierce v. Society of Sisters, 268 U. S. 5 1 0 ................ 2,10
Thomas v. Collins, 323 U. S. 5 1 6 .................................  2
Thornhill v. Alabama, 310 U. S. 8 8 .........................  11
Roth v. United States, 352 U. S. 964, 1 L. ed. 2d.

(Adv. pp. 1498, 1506-1507) .....................................  11
United Public Workers v. Mitchell, 330 U. S. 75___  3
Watkins v. United States, 354 U. S. 1 7 8 .................. 3, 8
Whitney v. California, 274 U. S. 357 .......................... 2

INDEX



11

Statutes

PAGE
Title 7, Code of Alabama (1940), Section 370 .......... 4

Other Authorities

Blankenship, How to Conduct Consumer and Opinion 
Research (1946) ........................................................  6,7

Bleyer, Main Currents in the History of American 
Journalism (1927) ..................................................... 4

Cantril, Gauging Public Opinion (1944) .................... 7
Cushman, Civil Liberties in the United States (1956) 2
Defoe, Shortest Way with the Dissenters.................. 4
The Federalist, Henry Holt Edition (1898) ............ 4, 5
The Federalist, Modern Library Edition (1937)___  5
Foreign Affairs, Yol. 25, Nos. 1 & 4, Vol. 27, No. 2,

Vol. 36, No. 1 ............................................................  5
Maclver, ed., Conflict of Loyalties (1952) ................ 5
Minto, Daniel Defoe (1909) .......................................  4
National Opinion Research Center, Interviewing for 

NORC (1945) ............................................................. 6
Orwell, Nineteen Eighty-Four ...................................  7
Schlesinger, Paths to the Present (1949) ................ 5
“ State Control of Political Organizations’ First 

Amendment Checks on the Powers of Legislation, ’ ’
66 Yale L. J. 545 (1957) ...........................................  3

Sweezy v. New Hampshire, 354 U. S. 234 .................. 2, 8, 9
Taylor, How to Conduct A  Successful Employees’ 

Suggestion System ................................................... 7



IN THE

S u p r e m e  CUmtrt rtf tljp S t a i r s
October Term, 1957 

No. 91

-----------------------0----------------------
N ational A ssociation fob the A dvancement of 

Colored P eople, a Corporation,
Petitioner,

v.

S tate of A labama, ex rel. John Patterson, 
Attorney General,

Respondent.

O n  "Writ of Certiorari to the S upreme Court of A labama 

-------------------------- o-----------------------

PETITIONER’S REPLY BRIEF

Petitioner’s, and its Members’ , Right to Free 
Association

Respondent concedes that corporations enjoy freedom 
of speech and press. While it does not clearly deny that 
in some circumstances there may be a constitutional right, 
founded in free speech and association, to withhold the 
kind of information the state has tried to exact here, it 
argues principally that corporations have no constitutional 
right to free association and, at any rate, may not assert 
constitutional defenses on behalf of their members—these 
must be set up by the individual himself.

However, if respondent concedes a corporate right to 
free speech and press it agrees that rights exist which 
any reasonable appraisal inextricably connects with 
free association. This has been made clear in the opinions 
of this Court. “ The right of peaceable assembly is a right 
cognate to those of free speech and free press and is



2

equally fundamental.”  DeJonge v. Oregon, 299 U. S. 353, 
364. The three rights, indeed, are “ inseparable.”  Thomas 
v. Collins, 323 U. S. 516, 530. As a distinguished scholar 
has observed, thus the right of assembly is “ an independent 
right similar in status to that of speech and press. ’ ’ Cush­
man, Civil Liberties in the United States (1956), p. 60.

Like the other basic First Amendment freedoms, free­
dom of assembly is protected by the Fourteenth Amend­
ment against unreasonable impairment by the states. 
DeJonge case, supra; Whitney v. California, 274 U. S. 357; 
Thomas v. Collins, supra; Hague v. Committee for Indus­
trial Organization, 307 U. S. 496.

This constitutional status of freedom of association 
was most recently reaffirmed by this Court in Sweezy v. 
New Hampshire, 354 U. S. 234, 250:

“  . . . Our form of government is built on the prem­
ise that every citizen shall have the right to engage 
in political expression and association. This right was 
enshrined in the First Amendment of the Bill of 
Rights. Exercise of these basic freedoms in America 
has traditionally been through the media of political 
associations. Any interference 'with the freedom 
of a party is simultaneously an interference with 
the freedom of its adherents.”

It is, of course, not entirely realistic to speak of a 
corporation’s freedom of association. These artificial 
entities express themselves and associate through officers, 
agents, and (in the case of membership corporations) 
members. As a practical matter, to say that only peti­
tioner’s members may assert their individual rights to 
anonymity is to concede a self-nullifying right for then 
the only ones who could claim the right to non-exposure 
would be those who already are exposed. But, beyond this 
obvious realistic consideration, the cases have, when 
appropriate, permitted one person or entity to assert the 
rights of another. We have, in our original brief cited 
and discussed Pierce v. Society of Sisters, 268 U. S. 510;



3

Joint Anti-Fascist Refugee Committee v. McGrath, 341 
U. S. 123; Barrows v. Jackson, 346 U. S. 249. We may 
add, as other decisions which expressly or implicitly recog­
nize the propriety of such assertion: Kedroff v. St. 
Nicholas Cathedral, 344 U. S. 94; Adler v. Board of Educa­
tion, 342 U. S. 485; American Communications Association 
v. Douds, 339 U. S. 382; United Public Workers v. Mitchell, 
330 U. S. 75; see also Comment: “ State Control of Political 
Organizations: First Amendment Checks on Powers of 
Regulation”  66 Yale L. ,T. 545, 546-550 (1957).

The Constitutional Right of Anonymity

Aside irom the harassing aspect of the requirement of 
exposure, petitioner submits that it impairs a constitutional 
right of anonymity that may not be infringed in the absence 
of an overriding communal interest which the state is con­
stitutionally competent to protect. The right of anonymity 
is an incident of a civilized society and a necessary adjunct 
to freedom of association and to full and free expression 
in a democratic state.

In Watkins v. U. S., supra, this Court said (354 U. S. 
at 187):

‘ ‘ There is no general authority to expose the private 
affairs of individuals without justification in terms 
of the functions of Congress.”

What is true of individuals, petitioner submits, is true of 
associations; and what is true of Congress is true of all 
other agencies of government, Federal and state. Govern­
ment may not, without justification, pierce the veil of 
anonymity.

The Place of Anonymity in a Democratic Society

It is important to recognize that there is nothing in­
herently wrong in desiring to keep one’s name from the 
public. Alabama itself by statute, recognizes the value of



4

anonymity in some circumstances: Title 7, Code of Ala­
bama (1940), Section 370 expressly confers upon a news­
paperman the immunity from being compelled to disclose 
in any legal proceeding or before a legislative committee 
the source of any information procured or obtained by him 
and published in his newspaper.

Anonymity has a long and honorable history and may 
serve important social objectives. The cause of civilized 
progress was greatly benefited by the fact that Daniel 
Defoe could publish anonymously his Shortest Way with 
the Dissenters, and it was correspondingly greatly harmed 
when Defoe’s identity was discovered and he was fined and 
pilloried for his offense (Minto, Daniel Defoe (1909), pp. 
38-40).

In this country, even before the founding of our repub­
lic, the practice of speaking anonymously on social and 
political matters was accepted as normal and proper. 
Benjamin Franklin signed his first pieces for the New 
England Courant as “ Silence Dogwood”  (Bleyer, Main 
Currents in the History of American Journalism (1927), 
pp. 56-57). The use of names like “ Philanthrop,”  “ Hu- 
manus”  and “ Cato”  as signatures on articles on public 
affairs was widespread (Id., pp. 43-100). In 1775, Thomas 
Paine used the signature “ Humanus”  in an article for 
the Pennsylvania Journal; after Rev. William Smith, 
president of the University of Philadelphia, used the name 
“ Cato”  in attacking Paine’s Common Sense, Paine replied 
under the name of “ Forester”  (Id., p. 91). The New 
Hampshire and Vermont Journal or Farmers Weekly 
Museum regularly published articles in the 1790’s written 
by such persons as “ The Lay Preacher,”  “ Peter Pencil,”  
“ Simon Spunkey,”  “ Peter Pendulum”  and “ The Pedlar”  
(Id; p. 128).

The most famous of all American political writings, 
The Federalist, written by Alexander Hamilton, James 
Madison and John Jay, was published anonymously. In­



0

deed, the attribution of several of the essays is still in 
doubt. As Professor Earle points out (Tlic Federalist, 
Modem Library edition (1937), Introduction, p. ix), dur­
ing the controversy over the endorsement of the Consti­
tution, ‘ The press o f the day was submerged with con­
tributions from anonymous citizens.”  Among those 
anonymously opposing ratification was New York’s Gov­
ernor George Clinton, who wrote under the name “ Cato.”  
(See the introduction by Paul Leicester Ford to the Henry 
Holt edition of The Federalist (1898), pp. xx-xxi.)

Thus, in the early days of our Republic, persons who 
were or were to become President of the LTnited States, 
Chief Justice of the United States, Secretary of the 
Treasury and Governor of New York did not hesitate to 
maintain their anonymity in publishing weighty public 
and political documents.

This practice is still used by public officials. Foreign 
Affairs, the United States’ most influential periodical 
dealing with international policy, has frequently in recent 
> eai s masked the names of its contributors, carrying 
leading articles signed simply by single initials, including 
the famous “ X ”  article, “ The Sources of Soviet Conduct,”  
which set forth the Government’s policy towards the Soviet 
Union (Foreign Affairs, Yol. 25, Nos. 1 & 4, Vol 27 No 2 
Vol. 36, No. 1).

The millions of Americans who are members of secret 
fraternal orders certainly believe firmly in their right to 
operate anonymously (Schlesinger “ Paths to the Present”  
[1949], p. 44).  ̂ Professor Schlesinger describes them as 
playing a “ positive and continuing role in society”  (Id 
p. 48).1 v v

1 A vigorous warning against the growing tendency to limit pri­
vacy and force all our activities into the glare of government super­
vision and public inspection is made by Professor Lasswell “ The 
Threat to Pnvacy,”  in Maclver, ed„ Conflict o f Loyalties (1952) 
pp. 121-140. \



6

Anonymity as an Aid to Free Expression

In a number of ways modern society recognizes anonym­
ity as a valuable aid in assuring free expression of 
opinion. It is standard practice for newspapers to print 
letters signed with initials or fictitious names. While the 
editors require that the writer disclose his name to them, 
they recognize that a freer expression of opinion can be 
achieved if they do not require public exposure of the 
writer’s identity.

Public opinion researchers similarly accept the fact 
that some persons will hesitate to express themselves 
freely and honestly if they think that there is a chance 
that their names will ultimately be associated with the 
answers they give. In Interviewing for NORC (1945), 
the National Opinion Research Center, which has con­
ducted surveys for many government agencies, advised 
its employees (p. 15):

“ A few persons may be reluctant to talk if they feel 
their names will be taken. You can explain that 
NORC never wants the name of anyone who doesn’t 
want us to have it.”

That the loss of anonymity can have a serious effect 
on free expression o f opinion is recognized in the book, 
How to Conduct Consumer and Opinion Research, Blank­
enship, ed. (1946). The essay on “ Measurement of Em­
ployees’ Attitude and Morale,”  advises employers to place 
(pp. 223-4)

“ . . . emphasis on the point that the questionnaires 
must not be signed, that no one in the company will 
have access to the answered questionnaires, that 
there is no means of identifying a particular person’s 
blank. All of the mechanics of distributing the ques­
tionnaire forms and the placing of the answered 
forms in the ballot box are such as to guarantee 
anonymity to the employee.”



7

In the same book, the essay on “ Trends in Public Opin­
ion Research’ ’ describes conclusions drawn by the Office 
of Public Opinion Research from a comparison of ques­
tionnaires answered secretly with others answered by 
persons who were told that their identity would be known

xpeiiments with secret ballots as compared with 
oral interviews have shown that respondents are not 
always frank m stating their opinions. An unpopular 
opinion or one that reflects in any way upon the 
prestige of the respondent often gets a higher rating 
in the secret ballot than in oral replies.” 2

In employees’ suggestion programs, likewise, it is com­
mon practice to set up a system in which the person makin«- 
the suggestion does not identify himself but receives a 
numbered receipt from which he may be identified after 
the suggestion has been considered. In How To Conduct A 
Successful Employees’ Suggestion System (p. 9), Ezra S. 
Taylor rates anonymity as the most important condition for 
successful suggestion systems.

, YndGj  .lymg 911 these. practice8> anonymous polls, letters 
to the editor and the like, is the well-founded belief that 
anonymity in the expression of views contributes to the 
tree play of ideas and hence to the ultimate search for 
truth the same search for truth that the founding fathers 
sought to foster by the guarantees of the First Amendment.

Conversely, it. is apparent that a society in which citizens 
are not allowed to engage in political activity free of the 
watchful eye of the state would be intolerable. As George 
Orwell has shown in Nineteen Eighty-Four, such prying 
is consistent only with totalitarianism.

- The o^ginal experiments are reported in detail in Cantril 
Gauging Public Opinion (1944), Chap. V.



8

Secret Elections in Democracies

Anonymity, 9ecrecy, privacy, however it may be called, 
thus has a special value in a democratic society. Nowhere 
is this seen better than in the act that symbolizes the unity 
of democratic government and its citizens, the election of 
public officers. It is not too much to say that the degree 
of freedom that prevails in a country’s election is the 
surest test of the liberty of its citizens. As Mr. Justice 
Frankfurter pointed out, concurring in Siveezy v. New 
Hampshire, 354 U. S. 234, 266 (1957):

“ In the political realm, as in the academic, thought 
and action are presumptively immune from inquisi­
tion by political authority. It cannot require argu­
ment. that inquiry would be barred to ascertain 
whether a citizen had voted for one or the other of 
the two major parties either in a state or national 
election. Until recently, no difference would have 
been entertained in regard to inquiries about a 
voter’s affiliations with one of the various so-called 
third parties that have had their day, or longer, in 
our political history. This is so, even though ade­
quate protection of secrecy by way of the Australian 
ballot did not come into use till i888.”

This right of “ political privacy”  (354 U. S. at 267) de­
serves protection whether exercised through major parties, 
through minor parties as in Siveezy, or through organiza­
tions with political objectives such as petitioner.

The Absence of Justification for Compulsory Disclosure

Petitioner concedes, of course, that where a paramount 
societal interest is to be served or where injury to the com­
munity is to be avoided, the right of anonymity must yield 
and disclosure of identity may constitutionally be com­
pelled. But, as this Court held in Watkins v. U. S. supra, 
some justification must be shown. There is, the Court said, 
no “ general power to expose where the predominant result



‘J

can only be an invasion of the private rights of individuals”  
(354 U. S. at 200). In the words of Mr. Justice Frank­
furter, concurring in Sweezy v. New Hampshire, supra, 
354 U. S. at 266-7, the Court must strike a balance between 
“ the right of a citizen to political privacy, as protected by 
the Fourteenth Amendment, and the right of the State to 
self-protection.”

Bespondents rely heavily on New York ex rel. Bryant 
v. Zimmerman, 278 U. S. 63, for the proposition that the 
State of Alabama may properly demand that petitioner 
disclose the names and addresses of its members. The 
holding in the Zimmerman case, however, is much nar­
rower, and does not encompass the questions of constitu­
tional law presented in the instant case.

In the first place, the Zimmerman case dealt with a 
New York statute as applied to the Buffalo branch of the 
Ku Klux Klan. This Court recognized the Ku Klux Klan 
as a “ secret, oath-bound association”  (at 71-72) and ex­
plicitly noted that the class of organizations in the New 
York statute has “ a manifest tendency . . .  to make the 
secrecy surrounding its purposes and membership a cloak 
for acts and conduct inimical to personal rights and public 
welfare. (at (5). The opinion also relates “ common 
knowledge”  and a Congressional report concerning the 
Ku Klux Klan’s unconstitutional purposes and illegal 
activities.

Petitioner is clearly not the kind of organization with 
which this Court concerned itself in the Zimmerman case. 
The constitutional nature of petitioner’s aims and activities, 
set forth and documented at pp. 2-8 of Petitioner’s Brief j 
is well-known throughout the United States and seems a 
proper subject for judicial notice.

The New York statute was upheld on the following 
ground:



10

“  . . . requiring this information to be supplied for 
the public files will operate as an effective or sub­
stantial deterrent from the violations of public and 
private right to which the association might be 
tempted if such a disclosure were not required.”  
(at p. 72)

Compliance with the Alabama order to produce, how­
ever, will operate rather as an effective and substantial 
deterrent on the exercise of constitutional rights of free 
speech and association by petitioner and its members.

Moreover, the Zimmerman case involved no such 
“ special circumstances”  or “ climate of opinion”  as exist 
in Alabama at the present time. (See Petition, pp. 19-25 
and Petitioner’s Brief, pp. 12-18). Thus, the action of the 
state of New York in requiring the Buffalo Ku Klux Klan 
to reveal its members is completely distinguishable from 
the court order at issue here. The infringements upon con­
stitutional rights of free speech and association raised in 
the case at bar are directly connected to the reprisals 
against members indicated by the atmosphere in Alabama— 
economic pressure, including loss of employment, harass­
ment, intimidation, and threats of violence as well as 
actual force.

As the state of Alabama has not demonstrated any 
valid reason for requiring production of petitioner’s mem­
bership list, petitioner has a right to “ protection against 
arbitrary, unreasonable, and unlawful interference with 
. . . [its] patrons . . . ”  Pierce v. Society of Sisters, 268 
U. S. 510, 535-536.

Finally, the Zimmermann case has no application in the 
instant case because the NAACP, unlike the Ku Klux Klan, 
is a political organization which plays an integral role in 
the free trade of ideas wdiich is essential to our democratic 
form of government. As a consequence, the NAACP neces­
sarily has a “ right of anonymity”  on behalf of its members 
as discussed in the preceding sections of this brief.



11

“ The protection given speech and press was fash­
ioned to assure unfettered interchange of ideas for 
the bringing about of political and social changes de­
sired by the people . . . All ideas having even the 
slightest social importance—unorthodox ideas, con­
troversial ideas, even ideas hateful to the prevailing 
climate of opinion—have the full protection of the 
guarantees, unless they encroach upon the limited 
area of more important interests.”

Roth v. United States, 352 U. S. 964,1 L. ed. 2d (Adv. pp. 
1498, 1506-1507); see also Thornhill v. Alabama, 310 U. S. 
88, 101-102 and Grosjean v. American Press Co., 297 U. S. 
233, 249-250.

No constitutional justification exists in this case. The 
order requiring that petitioner expose its membership lists, 
therefore, should be reversed.

Respectfully submitted,
R obert L. Carter,

20 West 40th Street,
New York, New York,

T hurgood M arshall,
107 West 43rd Street,

New York, New York,
A rthur D. S hores,

1630 Fourth Avenue, North, 
Birmingham, Alabama,

Attorneys for Petitioner.
Charles L. B lack, Jr.,
W illiam T. Coleman, Jr.,
F red D. Gray,
George E. C. H ayes,
W illiam R. M ing, Jr.,
James M. N abrit, Jr.,
L ouis H. P ollak,
F rank D. R eeves,
W illiam T aylor,

of Counsel.



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