| National Association for the Advancement of Colored People v. Button
(No. 5)
202 Va. 142, 116 S.E.2d 55, reversed. |
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| Syllabus
| Opinion
[ Brennan ] | Concurrence
[ Douglas ] | CDInPart
[ White ] | Dissent
[ Harlan ] |
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National Association for the Advancement of Colored People v. Button
CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA
MR. JUSTICE WHITE, concurring in part and dissenting in part.
I agree that, as construed by the Virginia Supreme Court, Chapter 33 does not proscribe only the actual control of litigation after its commencement, that it does forbid, under threat of criminal punishment, advising the employment of particular attorneys, and that, as so construed, the statute is unconstitutional.
Nor may the statute be saved simply by saying it prohibits only the "control" of litigation by a lay entity, for it seems to me that, upon the record before us, the finding of "control" by the Virginia Supreme Court must rest to a great extent upon an inference from the exercise of those very rights which this Court or the Virginia Supreme Court, or both, hold to be constitutionally protected: advising Negroes of their constitutional rights, urging them to institute litigation of a particular kind, recommending particular lawyers and financing such litigation. Surely it is beyond the power of any State to prevent the exercise of constitutional rights in the name of preventing a lay entity from controlling litigation. Consequently, I concur in the judgment of the Court, but not in all of its opinion.
If we had before us, which we do not, a narrowly drawn statute proscribing only the actual day-to-day management and dictation of the tactics, strategy and conduct of litigation by a lay entity such as the NAACP, the issue would be considerably different, at least for me; for, in my opinion, neither the practice of law by such an organization nor its management of the litigation of its members or others is constitutionally protected. Both practices are well within the regulatory power of the State. In this regard, I agree with my Brother HARLAN.
It is not at all clear to me, however, that the opinion of the majority would not also strike down such a narrowly [p448] drawn statute. To the extent that it would, I am in disagreement. Certainly the NAACP, as I understand its position before this Court, denied that it had managed or controlled the litigation which it had urged its members or others to bring, disclaimed any desire to do so, and denied any adverse effects upon its operations if lawyers representing clients in school desegregation or other litigation financed by the NAACP represented only those clients and were under no obligation to follow the dictates of the NAACP in the conduct of that litigation. I would avoid deciding a case not before the Court.