Earl Warren: 127, Albertis S. Harrison, Jr., Attorney General of Virginia, et al., Appellants, versus National Association For The Advancement Of Colored People, et al. Mr. Gravatt, you may continue with your argument.
J. Segar Gravatt: Mr. Chief Justice, if the Court please. I do not think it's necessary to refer further to the principles supporting the doctrine of equitable abstention contended for by the appellants here. On yesterday afternoon when we can -- when the Court adjourned, Mr. Justice Douglas asked me a question which I confess I did not understand sir, but I gather that it indicated a desire that we go into a discussion of the statutes involving themselves and I think that --
William O. Douglas: I -- I was just wondering to -- whether the statute applied just to NAACP, whether it was a general statute, whether it would apply to other organizations, associations, bar -- bar association groups and so on?
J. Segar Gravatt: There are three statutes and with your consent sir, I will -- would like to discuss all three of them with that in view and with the other aspects of the statutes in mind. The first statute here is referred to the in the record as Chapter 31 of the extra session 1956. Its principle provision is as follows, 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 pecuniary right or liability in -- therein. Or shall any person extend on this from whatever source received to commence or to prosecute further any original proceeding unless such person is a party or has a pecuniary right or liability therein until any person shall first, and then this -- the second section begins which requires the information. The information required of a corporation and this is substantially the same information that is required of the second registration statute which I have mentioned, which is Chapter 32. Certified copy of the charter articles of agreement, association bylaws or other document creating, governing or regulating the operation of the partnership, corporation, association if not on record, in the office of State Corporation Commission. A list of the names and addresses of the officers, directors stockholders, members, agents, and employees or other person acting for or in behalf of such partnership, corporation or association. (C) A certified statement showing the source of each and every contribution, membership fee, dues payment or other item of income or other revenue of such partnership, corporation, or association during the preceding calendar year, 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. A certified statement showing in detail by each transaction, the expanded interest of such partnership, corporation, or association on the preceding calendar year, during the preceding calendar year the objects will fit -- which made it and have the information routed thereto, required by a State Corporation Commission. And a certified statement showing the location of each office or branch of such partnership, association, corporation or association in the counties and cities in which it proposes to or does finance or maintain litigation to which it is not a party. The statute, if the Court please, undertakes to regulate two things, one is the solicitation and expenditure of funds from the public for the purpose defined. The purpose defined is the use of solicitation of money to prosecute and maintain litigation in which the party or the corporation has no personal interest, no direct personal pecuniary liability or interest. So that there are two propositions involved in a consideration of the constitutionality of the statute. In the first place, I believe that this Court will recognize the fact that in a number of cases that have -- has -- have come before the Court where there have been raised a question of registration and those statutes have been construed to apply the limit freedom of speech, I refer particularly to Thomas against Collins, Cantwell against Connecticut is another of those cases. In each of those opinions and in the case of Murdock against Pennsylvania, this Court has indicated rather clearly that it did not undertake to pass the question of the right of the State to regulate solicitation of funds from the public. So that you have here a question that so far as I know this Court has not as yet passed upon and the indication from the opinions that I have mentioned to you are -- that the Court has indicated that there is certainly an area in which that regulation is justified. Now, the second thing that is dealt with in the statute is the use -- that the money as they put to, that is, that it is money that's been solicited to finance litigation in the courts. There are many reasons why that aspect of this statute should require a consideration by the courts of the State of Virginia before it comes here for this Court to pass upon. In the first place, the lower court has already referred two of these statutes to the state court namely Chapters 33 and 36. Chapter 36 deals directly in particular with this aspect of the statute namely the proper construction of a provision in the statutes that runs through several of them, prohibiting the expenditure of money to finance litigation to which a person is not a party. So that if the Court were to -- the lower court, if the decision of the lower court and this Court takes jurisdiction of this matter upon its merit, to pass on the constitutional issues, you may immediately be confronted with a construction in the state court of a companion statute that must be construed, entire materials with these provisions which would be a construction that would relieve the Court of the responsibility of meeting the constitutional issue, or that if I put a constitutional interpretation upon the statute which would be different from the interpretation which had been applied to it by the lower court.
Felix Frankfurter: What was the basis of differentiation by the lower court as between 36 and the others?
J. Segar Gravatt: It was -- that was -- very brief in his opinion, if Your Honor please, and he just -- he criticized the statute but say for -- in Chapter 6 -- 36, and I am reading from the opinion of the lower court, the majority opinion at page 119 of the record. In Chapter 36 a significant language to be construed relates to inducing one to act in the giving of advice by one whose professional advice has not been sought in accordance with the canons of legal ethics. But he referred the entire statute. It clearly appears that language employed must be construed as applied to the facts involved upon such construction will depend the decision of whether the statutes applied to the activities of the plaintiffs and the members of the bar employed by them. That is what the Court said as to Chapter 36.
Felix Frankfurter: Does that mean -- does that mean that for -- if the District Court to have construed Chapter 36 would have been an abstract, practically in the advice, the opinion speaking --
J. Segar Gravatt: I don't think there's any difference rather than --
Felix Frankfurter: (Voice Overlap) -- rather than saying whatever the statute -- the statute's meaning must be derived from the particular facts of a case or adjudication by a Court and therefore your local court --
J. Segar Gravatt: The two statutes that were sent back are statutes which deal in addition to this question of soliciting money or spending money to maintain litigation that a man is -- the person is not a party to. Those two statutes also dealt with improper solicitation of law business. And Chapter 36, which I have here in my hand and I would glad if Your Honor would leave copies of this Section, I find that Chapter 36 is not in this record. The other statute is in the record and I think it's quite material that the Court should have Chapter 36 before it and if you permit me I'll hand these copies to the clerk or to the Court at this moment.
Earl Warren: You may leave them -- you may leave them for the Court.
J. Segar Gravatt: All right, sir.
Felix Frankfurter: What I'm trying to elicit is whether the distinction made by the District Court was that 31 and 32 according to the numbers.
J. Segar Gravatt: 35 and -- 33 and 36 are the ones that they referred back.
Felix Frankfurter: No, the ones that they didn't.
J. Segar Gravatt: The ones that they didn't are 32 and 33.
Felix Frankfurter: That -- do I gather the Court thought 32 and 33 permit or invite the construction on the face of a statute whereas 35 and 36 precludes that.
J. Segar Gravatt: The Court said -- I think not 31 and 32, as best I can gather from the lower court's opinion, upon the basis that it required the disclosure of information that in the registration that the Court construed the statute to require the disclosure of the rank and file members of this organization.
Felix Frankfurter: Now could your -- could the --
J. Segar Gravatt: And I think that's a question that here -- in his opinion he indicates that he knocked the statute (Inaudible).
Felix Frankfurter: May I ask this?
J. Segar Gravatt: Yes, sir.
Felix Frankfurter: Could your Court of Appeal construe 31 and 32 in such a way within its power, undoubted power from my point of view of its power of construction, that was not the basis of a District Court's decision out.
J. Segar Gravatt: If I am correct in my understanding of the District Court's decision I think unquestionably that it can as to the statute that we are now discussing and I will --
Felix Frankfurter: I'm not saying the difference of opinion as to validity.
J. Segar Gravatt: No, sir.
Felix Frankfurter: Difference of opinion as to the meaning --
J. Segar Gravatt: As to construction -- yes.
Felix Frankfurter: Now, which would it be -- would or would not be right.
J. Segar Gravatt: I understand your question perfectly, I hope so. Now, in -- you can move to Section 1, subparagraph 1 of Section 2 of Chapter 31, which is in the appendix of our brief if you wish to refer to it. And here are the parts that the Court knocked out, a certified list of the names and addresses of the officers, directors, stockholders, members, agents, and employees or other persons acting for or in behalf of such partnership. I submit to the Court, now let me -- let me read this other part of the statute, Section 5, there is no punishment for an individual whose name is not filed. That is a penalty on the corporation for not supplying the information, here in Section 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 maybe punished as provided by law. So that the penal provisions of the statute do not reach anybody except the agent of the other corporation. And I submit to the Court that if you will read Section 1, the language which I have just read to you, where it says members, it does not at that part qualify a member as being a member agent, but the statute is dealing with soliciting. The statute is dealing with expanding of funds, and when it follows the words stockholders, members, agents, and employees, all other persons acting for or on behalf of such partnership, corporation or association, if the Court is required to give a statute a constitutional construction rather than an unconstitutional construction, I most respectfully submit to Your Honor that it conforms to the purpose of this law, and it conforms to the constitutionality of the law to interpret it, so as to require registration of those members who act, as those members and others acting for or on behalf of such partnership. That's what this thing -- what this law is designed to do, that it's wide open to a construction by any reasonable application of this language. And in the light of -- of this Court's opinion in NAACP against Alabama which has been decided since this statute was written, I think that certainly the -- the state court, that would be strong and persuasive reason taken with the basic purpose of this statute for the state court to construe it, to apply only to those persons who represent the corporation in soliciting firms as provided in the statute for the public. In any event, I most respectfully submit to -- to the Court that there are grave questions of interpretation and constitutional construction in the statute -- construction of the statute that bear directly upon the question of its constitutionality. And in the recent case of Government Employees against Windsor, this Court laid down the proposition that the state's construction of the statute had to be a state construction in the light and testing of the constitutional freedoms which are here urged against these statutes.
Potter Stewart: Mr. Gravatt.
J. Segar Gravatt: Yes, sir.
Potter Stewart: Any proceedings have been initiated in the state courts with respect to 33 and 36?
J. Segar Gravatt: Yes, sir, they have.
Potter Stewart: What's their status?
J. Segar Gravatt: They have -- they have been tried in the lower court and an opinion has been rendered and in that opinion the statutes were held not to be unconstitutional. I -- I was not in that case and I do not know if the opinion has not been published, but I understand that those two Sections have been held by the Circuit Court in the City of Richmond I think to meet the requirements of constitutionality, I assume that they would go to the Supreme Court of Appeals of Virginia. So that the Court is confronted in this same proposition, runs through every one of these statutes, not only -- I say, the same proposition, this proposition runs through every one of them. It shall be unlawful, I read now from 36, which is in the state court, it shall be unlawful for any person not having a direct interest in the proceedings either before or after the proceedings commences, to promise gift, offer, conspire or agree or so forth, any money, bank loan and so forth, personal services or great many different things described there, or any other assistance as an inducement to any person to commence. So that you got in Section 36 the question of -- that's involved here the question of whether or not this association has a right to spend money in promoting litigation in which they do not have an interest. And it raises -- that is one of the principle questions that's raised here on this appeal and it's a question that is before the state court at the present time that they must determine. Now, if there's any question that any -- that is found by the Court would like to ask me about that Section I will be glad to undertake to supply the matter of listing the names of persons who contribute. We recognize as a serious matter, as to whether or not they should be required to disclose who has made the contribution. But if the statute is -- it's a question of how far the State can go in undertaking to protect the public from fraud, and to what extent and what effect that this thing has upon these people and I submit to the -- that we need a state construction and that the state court ought to be required to meet those issues before they come in, because if -- this has been pointed out in several of Mr. Justice Frankfurter's opinions on this subject. And it is a situation that existed before the Court applied this to clarify this principle. There were in several cases that -- I have a citation to here, the Court was (Inaudible) enjoined the enforcement of state statutes and granting permission to come back to the Court after the State had -- after there was a state construction so that you were construing state statutes and interpreting the Constitution of the United States on a tentative basis as to what the result might be in litigation in the state courts. And this question of contribution is such a question.
Felix Frankfurter: Under your -- under your procedure, to elicit a state construction, does one have to go through the whole hierarchy of courts (Voice Overlap) --
J. Segar Gravatt: No, sir. I think through the --
Felix Frankfurter: -- to the Court of Appeal, your (Voice Overlap) --
J. Segar Gravatt: You cannot -- I do not think that this -- there are situations where you can get the record to the Supreme Court of Appeals, but I do not believe that you can do that in this instance. I think that the statute provides a proceeding attacking a state statute. It's to be brought in, I believe in the Circuit Court of the City of Richmond or one of the Richmond courts anyhow and the appeal goes from there, it is -- we of course have in Virginia, the trial court judgment procedure which authorizes, expressly authorizes their application to the Court under proper circumstances for the construction of state statutes and that is the proceeding that has been invoked here by these -- by our opponents for the construction of these state statutes.
Potter Stewart: Is there any question then of the availability of that kind of a remedy?
J. Segar Gravatt: None whatever, none whatever.
Potter Stewart: And pending final decision by the state court, would the courts have power to issue any restraining or injunctive orders necessary?
J. Segar Gravatt: Sir, that -- we have never undertaken to enforce the statute in anyway. When we came into the three judge court, we suggested to the Court and agreed with our opponents that we would not undertake to enforce these statutes upon them until this matter was finally determined. I understand from counsel that the same arrangement is in existence now with counsel pending the procedure in the state court.
Potter Stewart: I have in mind -- excuse me.
J. Segar Gravatt: You also have a retention upon the doctrine, a provision in -- that has been used, and I think it's a wholesome and a proper one, that the federal court should retain this matter, in event there might be somebody in Virginia that perhaps the Attorney General could not control. The federal court is wide open for an injunction to restrain any such prosecution but I have no idea at all that it -- that such a thing would take place. So that there would be no risk as I see it to these interests to proceed in an orderly and normal fashion that would certainly bring about a final solution of this problem that would be much more in conformity with the (Inaudible).
Speaker: The state court -- the state court litigation that are now pending on 33 and 36, were they commenced before this suit was commenced?
J. Segar Gravatt: They were commenced after the judge rendered his decision in which he split these statutes. He declared three of these statutes in violation of the constitution. He said two of them need local construction and those two he would -- as to those two, he retained the matter on the docket of the Court, with the right reserved to the complainants to apply to the Court for further relief pending a state construction of the statute, a very anomalous, I think if you pardon me, I don't -- it's a rather anomalous kind of an order. I think that if he was going to take that position that it certainly should've -- would've been much more desirable he had said all of it goes. His opinion was based upon the idea that this was a kind of a plan and a conspiracy on the part of the State of Virginia to deny -- directly direct that to NAACP and yet these other two statutes are tainted with exactly the same kind of deleterious or purpose if that is -- it is what it is and he sent them back for interpretation --
Speaker: And those suits were instituted following that disposition.
J. Segar Gravatt: They were, yes, sir. Now, if the Court please, the next statute that we have to deal with is a registration statute also and it requires substantially, the same information that is required in the 31, as Chapter 32. It describes -- it starts out with a preempt which states a policy of the State to preserve the peaceful relations among races in the midst of these distressing problems that we are having to cope with. I might call your attention, if the Court please, that we have had had no trouble in Virginia. We have had law suits and we've litigated and I regret that our people have not been pleased or have been. But we have had no violence. We have had nobody -- no riots. And -- and these -- this Section is designed to try to keep the name of Virginia, which most Virginians love un-smudged, by that kind of a contest about this matter. And I think that the requirements that are setup in the statute should be construed in the light of that purpose, expressed purpose of the legislature. There are three -- four things required in order to require a registration under this statute. One, at first a corporation engages as one of its principal functions of the activities in promoting or closing in any matter to pass the legislation. Two, who or which has as one of its principal functions or activity the advocating of racial integration or segregation. Three, whose activities cause or tend to cause racial conflicts or violence. Now, very hardly, the first one I think, if the Court please, is susceptible of a state construction as to who or what constitutes principal function or activity, it's a lobbying statute, it had to do with lobbying in the legislature. And the case of United States against Harris is pertinent to a discussion and a decision of that question by the lower court. The other -- who or which has one of its principle functions or activities advocating a racial integration or segregation, or whose activities cause or tend to cause racial conflicts or violence. Judge Soper throughout that last phrase, whose activities -- whose activities cause or tend to cause racial conflicts or violence has been an unconstitutional restrain. I submit to Your Honors that in the case Beauharnais against Illinois, a similar language was construed by this Court to mean conduct tending to a breach of the peace. I submit to the Court that if nothing else, if all of it in that statute is unconstitutional, that provision of it is severable. And anybody in Virginia who goes out at this time to advocate racial segregation or racial integration under such circumstances and in such a manner as to bring about and to show an intention to bring about a breach of the public peace is a person that Virginia ought to have the power and the opportunity to control. And if you stick to the decision of the lower court upon this issue, you have now on the constitution a provision and a statute that under a state construction in my opinion would be a severable provision of the statute that would take from the hand of the State the only remaining weapon that they have to protect and to control the people in this hour when we need so much to have that done.
Hugo L. Black: To which clause are you referring that?
J. Segar Gravatt: Sir?
Hugo L. Black: To which clause are you referring to?
J. Segar Gravatt: I am referring to clause number 3, whose activities cause or -- cause or tend to cause racial conflicts or violence, it's on appendix -- page 5, Section 2.
Hugo L. Black: Section 2.
J. Segar Gravatt: Yes, sir. About the -- 1, 2, 3 -- it's on down about the seventh or eighth line of that paragraph, there are four things required in that statute.
Felix Frankfurter: You were saying that under your severability clause or either specific or general provisions, all the others maybe a -- offensive to the Fourteenth Amendment maybe invalid, but that the final clause can be sustained and if severed is not an integral part of an organic role can stand -- rather, it'd be that's your position?
J. Segar Gravatt: Yes, sir. That thing is so important, judge, and I know I haven't much time and I wanted to plant that with the Court.
William O. Douglas: Of course, you're referring after the -- with the Beauharnais decision in this Court.
J. Segar Gravatt: Yes, sir. I did -- did refer to it and I think that in that decision --
William O. Douglas: In this connection?
J. Segar Gravatt: Yes, sir. There was language used -- the judge threw that out -- the lower court threw that language out as being too vague. Being unconstitutional in the sense, it was too vague. It didn't give a person notice of what they -- the offence might be.
Potter Stewart: Did I understand you to say the statute requires that the -- that the person have any -- have any intent to cause violence?
J. Segar Gravatt: The statute sir, used as a language who or which is engaged or -- wait a minute, whose activities cause or tend to cause racial conflicts or violence. The preamble of the statute, that language it seems to me should be construed in the light of express purpose of the statute to preserve the public peace. And that the Supreme Court of Appeals of Virginia can say that this statute does not mean that all advocacy of racial integration or segregation is unlawful under this provision of the law. But that racial integration, they advocate their racial integration or segregation so as to and under circumstances as to cause racial conflict or violence is a violation of the law. Do you understand?
Potter Stewart: I think I do, sir. But as I understand it, you're not then saying that the statute requires that there be an intent to cause racial -- racial violence or --
J. Segar Gravatt: I -- I am not -- the statute doesn't say so --
Potter Stewart: Could you read it to me?
J. Segar Gravatt: But, I am not sure that that is not something that perhaps the Court should read into it in construing a criminal statute, there's always an element of circumstances and intent that enters into it I think unless it is dispensed there --
Felix Frankfurter: The people understand your argument. Is it that if this statute with its four or five provisions, its disjunctive provision came before the Supreme Court of Appeal of Virginia, that Court may say we have to find all appeal for first clauses invalid, but we construe the last clause to mean, as though there had been a separate statute saying anybody whose activities are purposefully designed to beget physical conflict and so construe you say, the Virginia Supreme Court would have sustained it. And you further argued this Court would be called upon to sustain it. And since we do not know what the Supreme Court of Virginia may or would give such a construction, it should be allowed to do so, is that your argument?
J. Segar Gravatt: That is correct sir. We had gone -- cast it in Virginia, just at the time that this thing was done. And if Your Honors will refer to the case of (Inaudible) against Britton, you will find out the reason for that -- the necessity of that provision. Now, the other things that ought to be said, I'm afraid about these statutes, I come now if the Court please to the last one which is a statute that is known as a barratry statute. And that has to do with the instigation or stirring up of litigation and it also deals with the payment of extensive litigation by people that are not a party and do not have an interest or not justified by a relation of parent-child or trust relation or in some other way related to the litigation. The Court held that that statute was an improper infringement. I submit to the Court that this language in the statute must be construed in the light of what the whole thing is designed to deal with and that is that the money has to be paid to support the litigation, as the moving cause of the litigation, that but for the payment of the money, by the person who stirs up the litigation, that that action would not have been brought. And that construction the Court rejected and simply found out of hand that with the very best of intentions, that any wrongful purpose at all to stir up or to instigate intermeddling in litigation, that this statute means that anybody who pays out money is simply to the financing litigation, that they are not a party to comes in to the hands of it. It may be so construed, but I submit to the Court that the state court can construe this statute in the light of the other statutes that was referred to, namely Section 33, which the state court now has to construe. And which is directly directed by an amendment to statute with respect to professional ethics in Virginia that fell on the books for many, many years, is directed at improper solicitation of business and the improper inducement of people to institute and to carry on lawsuits. I believe that the Court --
Speaker: Could I ask you one question?
J. Segar Gravatt: Yes, sir.
Speaker: What effect should we give if any to Judge Soper's findings that all this legislation was aimed at the NAACP entered to beat this Court's decision?
J. Segar Gravatt: If Your Honor please, that is a question that I -- I do not think -- I think the rights of Virginia, if I may be frank, in this area sir --
Speaker: Well, I'm going to be frank with you because --
J. Segar Gravatt: Yes, sir. Maybe we -- in this area, I think that the rights of Virginia to legislate on these subjects are constitutional rights. I think they are rights that are reserved. And I do not think that any motive or any purpose by the governor, by the elected representatives of the people, however it might be expressed can't deny it to the State of Virginia the right to legislate in areas that are reserved to them under the Constitution of the United States. Now --
Felix Frankfurter: I'm not going to quarrel with you with that, but may I put the matter differently?
J. Segar Gravatt: Yes, sir.
Felix Frankfurter: In order to determine whether Virginia or any other state court, I'm sure you would be the last to say that there's any difference there (Voice Overlap) --
J. Segar Gravatt: None in the world, sir.
Felix Frankfurter: The right to legislate constitutionally may be determined by the scope, the intended scope of legislation. You're familiar with the case of Yick Wo against -- what is it, Yick Wo against California -- if -- Hopkins, if -- if legislation though apparently covering all that the base of a statute makes it cover is in fact either as a matter of enforcement or by other proof directed against some singled out individual or class, that may make a difference, maybe --
J. Segar Gravatt: I agree, sir. And I think that we ought to be convicted after the case is in. In other words, I think if this statute is enforced improperly, if it isn't enforced against (Inaudible) organizations in Virginia, then doing on the other side of this issue, what these gentlemen are doing, and we'll have others. If there is any impartiality or any abuse in the enforcement of it, I think it's a question, a serious question --
Felix Frankfurter: But your answer to Justice Harlan's question was that you cannot -- that this Court cannot define a discriminatory purpose qualifying a generally appearing statute by the expressed design indicated by the legislative and executive authority of a state as to what the legislation is for.
J. Segar Gravatt: Sir, the language --
Felix Frankfurter: Is that -- is that what you said to Justice Harlan?
J. Segar Gravatt: No, sir. I don't mean to say that.
Felix Frankfurter: Well I'm --
J. Segar Gravatt: I -- I mean to say that --
Felix Frankfurter: You would give an argument --
J. Segar Gravatt: I want to give you -- give you an illustration of what I do mean. Let's assume that Russia is making motor vehicles that are outselling American vehicles, but they won't function properly if you drive them less than 60 miles an hour. And the General Assembly of Virginia said, "We don't want any Russian automobiles in Virginia. We won't have them. Our speed limit has been too high anyhow, we've got a 60 mile speed limit, it's been too high anyhow. Now let's cut the speed limit down to 45 so we can get those things out here." If they had that deliberate purpose, I think they had the power to pass that statute and reduce the speed limit. And I do not think that the Russians could come in and say, "Because you had a wrong purpose, you put the speed limit down, because the government said you had a wrong purpose or because the constitutional convention said you had a wrong purpose. We don't -- we say that you haven't got the power to regulate speed limit on you public roads --
Felix Frankfurter: But would you agree?
J. Segar Gravatt: -- even though it may also have relevancy to the public safety and other aspects of it, of the road."
Felix Frankfurter: But would you agree that they couldn't shut out -- that although they tried to shut out Russian automobiles, they couldn't shut out German Volkswagen who were subject to the same infirmity. Could they?
J. Segar Gravatt: Well, the law might do it.
Felix Frankfurter: I mean, could they?
J. Segar Gravatt: I think if they -- I don't see any reason why they couldn't, if any, if it were granted on an exercisable power, sir --
Felix Frankfurter: But they couldn't single out Russians cars from the German cars --
J. Segar Gravatt: No, sir. All of that fall under the same rule. And the rule had to be applied to everybody. But if its effect was to knock the Russian or German cars out, I think that would be incidental. Now, I wish to say just this other one thing to Your Honors about this matter that Justice Harlan asked me about. Though some of the language may not appear, and some of the expressions may not appear to this Court, as being becoming expression, this has been a trial for people of Virginia, and in those -- in the interposition rather, and in every address that the government had made, all that they have ever declared that they had a purpose to do of what is legal and honorable and constitutional, that's what they said they wanted to do. And if the Fourteenth Amendment is a negative thing, acting negatively upon Virginia and the other states, prohibiting them from doing things, if Virginia can find a lawful, honorable, constitutional way to arrange a thing that all of the people of Virginia conceded they want, certainly most of them, then what would be wrong? That ought not to condemn legislation here in this Court, simply because it is to -- made incidental of meeting a purpose that lies beyond or that is within the bounds of what the State can probably do. I do not concede that these statutes have any such purpose. The record in this case is that these statutes are designed to cope with all organizations and they have been so enforced up until now. And what the future holds with respect to those matters, I submit to this Honorable Court none of us know. And we shan't -- should not tie our hands or tie Virginia's hands, so far as the future maybe concerned in the light or developments that may take place with a blanket announcement and withdraw a power to legislate in this area which may become so terribly vital. I thank you very much.
Earl Warren: Mr. Marshall.
Thurgood Marshall: Mr. Chief Justice, may it please the Court. There's one point I feel obliged to correct on the question about the reason for sending Chapter 36 over to the state court. Mr. Gravatt, I am certain inadvertently read from the dissenting opinion of record 119. The opinion, I understood the question to be, why did the Court do it? And the Court I assume was intended to be the District Court, the majority. And the question about Chapter 36 in the District Court's opinion, the majority opinion of Judges Soper and Judge Hoffman appears on pages 91 through 93 is the reason for those statutes going out.
Potter Stewart: Basically the advise, it appears on page 93 doesn't it, since Chapters 33 and 36 are vague and ambiguous --
Thurgood Marshall: That's --
Potter Stewart: -- do not pass upon their constitutionality, that's the basic reason.
Thurgood Marshall: That's -- it's pretty hard to put it as the one reason, I -- because when you start on 91 and run over to 92 as I remember, its obscure and difficult to understand what the general purpose seems to be. I think the whole purpose and the language tied up together made it quite difficult for any court to -- any federal court rather, to properly interpret it. If it please the Court, I think that it's time in this case to put these statutes into proper perspective. That is, these are just not run of the mill statutes that came down the road, at least not statutes concerning any speed limits. It's a statute concerning, as Mr. Gravatt said on one side, they charges as with the effort to tie the hands of Virginia. There is nothing in record on that but the record is replete what the deliberate calculated purpose of the executive and legislative department of Virginia to tie the hands of the appellees in this case. The record will show that immediately after the May 17th decision of this Court, in the Brown case, and I want to pinpoint one question there and that is that in those four decisions was the Prince Edward County Case in the Commonwealth of Virginia. And immediately after those opinions, the Commonwealth of Virginia started out to do the opposite of what this Court said September in the Cooper case, the Little Rock case. The Cooper case said that the Brown decision imposed upon all agencies of government in a state and here it would apply to the Commonwealth of Virginia. And the Court from your decision in the Cooper case, “A duty to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system." That, may it please the Court, is a positive duty on the State to proceed toward compliance with the decision of this Court. Yet in the State where one of the cases actually came from, the governor and the legislature of Virginia with the active support of nearly every political faction in the State set about to do just the opposite. And the record shows it and the District Court found it. And they first had what became known and is in the record and is in the opinion, Virginia started upon massive resistance. This massive resistance involved two main causes, one was the enactment of a pupil assignment law in an effort to get around the Brown decision. Then they enacted laws closing and cutting off the funds supporting non-segregated public schools. Then they passed other implementing laws. All of them directed toward making it well (Inaudible) possible for white and Negro children to attend, to go to any school within the State, this is all in the record. The other course consisted in the enactment of laws designed to exterminate at least in Virginia the two organizations which had assisted in school litigation to make it impossible for the lawyers to represent these people in these cases, unless the plaintiffs themselves had some connection with the lawsuit. And we have these -- a lot of cases, I mean statutes before us today. And the constitutionality of these statutes as said in the opening argument for the appellants must be all considered in the atmosphere, well let's consider them, as they were enacted. On August the 30th, 1954 the Governor of Virginia appointed a commission on public education to study the Brown decision of this Court and to make recommendations. And on record, the record turning to page 55, there appears the report and the commission declared that the decision of this Court means that the most fundamental rights of the states and of their citizens exist by the court sufferings and that the law of the land is whatever the court maybe determined to be by the process of judicial legislation. And the commission further included again on page 55 that separate faculties in our public schools are in the best interest of both races, educationally and otherwise and the compulsory integration should be resisted by all proper means in our power, which I gather from Mr. Gravatt means that any law passed by the State, by the Commonwealth of Virginia for this purpose is insulated from attack, any place other than in the same Commonwealth. And the commission recommended a special session of the legislature indeed, they had one beginning on February 1 of 1936. And there, they passed there interposition resolution stating that the Commonwealth of Virginia “emphatically disapproves” the decision of this Court in the Brown case, which they characterized as a deliberate, culpable, and dangerous attempt of the Court itself to use of the mandatory power. And the on the record at 518 it will show that if this -- if the resolution challenges the usurped authority that would inflict upon their citizens the consequences of that decision, and then pledged, “our firm intention to take all appropriate measures honorably, legally and constitutionally available to us, to resist this illegal encroachment upon our sovereign powers.” It's on 522 -- 520. And then the general assembly was actually called into general session on exposition on August 27th pursuant to the requirement of the constitution and the Governor shall recommend to the assembly what should be done. And the Governor did declare that, “I am before you today for the purpose of submitting recommendations to continue our system of segregated public schools,” page 626. And later on page 633 and 634 of the record, the Governor said, “The proposed legislation recognizes the fact that this is a time for a decisive and clear answer to these questions. (1) Do we accept the attempt of the Supreme Court of the United States, without constitutional or any other legal basis, to usurp the rights of the States and dictate the administration of their internal affairs? (2) Do we accept integration? (3) Do we want to permit the destruction of our schools by permitting 'a little integration' and witness its subsequent sure and certain insidious spread throughout the Commonwealth?” The governor then said, “My answer is a positive no." And on the other hand, shall we take all appropriate measures honorably, legally, and constitutionally available to us, to resist this illegal encroachment upon our sovereign powers?" My answer to this is a definite yes. I believe it is to be the answer of the people of Virginia, etcetera, etcetera, the end of the quote of the government. And in response to this assertion the legislature did enact a whole series of statutes and what was characterized by the District Court in its findings as a “General plan to obstruct the integration of the races in schools of Virginia, of which plan the statutes in suit constitute an important part.” And there, the pupil assigned with law and the other things (Inaudible). The importance of this legislative history if it could be called that, I don't consider it legislative history because it's too close in hand to the history, was that on one hand every effort would be made through pupil assignment, cut off of funds, every means they could think of to prevent integration on a voluntary basis or any other basis, once having done that, the -- a General Assembly of Virginia obviously realized that they had then shut the door on every possible means of getting it done except by public meetings, political actions, and resort to the courts. So near the end of that session we get these five statutes. These five statutes, 31 first of all, there is no question about who it's aimed at. And indeed the District Court found as to what organization it was aimed at. It moves into the theory of requiring the listing of members, the other things about listing of corporation papers or public documents anyhow, would be one thing. But since the decision of this Court in the Alabama case, I think there can be no question and I notice that there is not too much argument on the other side about it, about the merits of this. The only argument is let it go to the state courts, because I don't believe --
Felix Frankfurter: The argument is we don't know the merits of -- we can't tell the merits until the state court decides what the statutes mean, that's the argument.
Thurgood Marshall: That's the argument. The difference Mr. Justice Frankfurter on the other hand is that in the meantime the irreparable injury is there which I would like to get to at this point. Once the membership list is released and under this statute is made public, then the interference with the First Amendment rights recognized by this Court in the Alabama case immediately take effect as of the adoption of the statute, because this statute in the light of its purpose, in light of the record in this case, is in the same category as a self executing statute which this Court has uniformly struck down. Such self executing statutes has appeared in the Pierce case, Pierce against the Sisters, and if it please the Court, the interesting thing about that case about going over to the state court. That case was filed, decided, appealed to this Court and decided before it became effective, before it even became effective. The second case is the Truax against Raich case, in which it held the mere passing of the statute that interfered with the rights of the aliens to work, that without enforcement the passage of the statute would make it impossible for a man to get a job if he were an alien. And the third case is the decision more recently of this of Court in Barrows against Jackson, which involved restrictive covenants and came from California. In this particular case, these statutes once passed with the conditions as they existed in Virginia, as shown by the record and as found by the Court, meant that from that day on, membership would be impossible and that plus the fact that if the membership list whatever left, that -- I mean released, that's a different point. But the mere passage of the statute creates the damage to these First Amendment rights, the freedom of assembly, etcetera. And, I think it's significant that there is little argument against that. In Section -- the Chapter 32 to the same extent requiring the handing over of this information runs into the same category of interfering with the rights of freedom of association and it's very interesting that in Chapter 32, while objecting and prohibiting all types of action toward political activities, it's significant that the statute particularly exempts all political parties and it significantly didn't name them, it just exempts all political parties. And if the Court pleases on Chapter 35, you really get the exact purpose of the whole package of bills. For if they can, one, in 31 and 32 prevent these organizations from being organizations and existing, and if they can prevent money from being used in litigation, that should do the job, but Chapter 35 goes a step further, and says that any rates the lawyers are going to be in trouble in any organization, that participates, even if you get over all of the other hurdles. I think that this Court must recognize that when we talk about free access to the Court, and when we find that as far back as Crandall against Nevada, there have been other cases since that time, free access must mean access. And I don't believe there is any need for the record showing, but it does show that this litigation cost considerable money. And if, as Virginia would have it done, the doors of the Court are open, but it is only open to those who are able to finance litigation. The doors would effectively be reasonably closed, because I don't think there is any question that in Virginia, you have a line of litigation which on one side has the whole panoply of the state government, the entire Attorney General's office, the county lawyers for each county and the Treasury of the Commonwealth of Virginia to support it. Now I believe that in any such litigation, I don't believe anybody could imagine that a poor individual or -- not a -- I don't mean poor as a pauper, but there are very few individuals that could cope with that side of money. And so the reason for 31 and 32 is to cut off the money. The answer of course made in their brief and made in part in argument is that in 35 all they are doing is just codifying the law of barratry. But as we point out in our brief, they did just the opposite. For the common lore of barratry, of maintenance, and champerty, it's confusing as it might be at times of the overlapping of the three. There's never been any question, although not only the right but the duty of a lawyer, if it's not for personal or what have you gained to himself, to be able to render his legal services for the benefit of his community. It's never been any question and if there were any question, in Chapter 35 they go into the most minute detail to accept everybody from the statute but the NAACP. For example, legal aid societies are specifically exempt, everybody else is exempted, so obviously the legislature realized exactly what it was doing.
Speaker: I don't think you distinguish the course it was taken by the District Court with respect to these three statutes and the course which you took on 33 and 36?
Thurgood Marshall: I think the difference was that 33 and 36 had those two sections which are set on page 91 and 92, and runs over to -- stops at the bottom of page 91. I think that the District -- the District Court took the position that they were so ambiguous and I think it's a judgment as between the two which the District Court made, which I think is very significant. And that the Court did not just cast aside the abstention or judicial self restraint doctrine, they actually applied it. You see the language especially on 93, the instigation or suit or to whether the giving of money to needy litigants amounts to an inducement. That language as I understand the opinion of the District Court is that the language in 35 has no possibility of ambiguity because it starts off, Mr. Justice Harlan, if you'll notice in the beginning the statutes are in the back of the appellant's brief. They start off with the definition in the very beginning on 35 and they run on and on and on, they took great pains to -- appears on appendix page 9. I think that's the -- it's pretty hard to find ambiguity in Chapter 35. Notice Mr. Justice Harlan on appendix page 10, all of the exemptions under there I think that helps to clarify it. But that's the basis of the sending over the two statutes, and if I may with the permission of the Court, I'll state our position clearly on the points about sending them over to the state court. In the brief the appellants put it on two points. One is, that where there is need for construction and the other is -- well, these are criminal statutes and that equity and especially the federal equitable cause do not enjoin the enforcement of criminal statutes even if they're unconstitutional. And in that particular argument, in their brief, it's a very good statement as far as it goes, the end of it is unless there are exceptional circumstances. And we alleged exceptional circumstances. We produced testimony on exceptional circumstances and the District Court found exceptional circumstances. Secondly, as I understand Mr. Gravatt's argument, he said that all they're arguing for is that the case go back to be held by the District Court while it's litigated in the state courts and that's of course is not the rule of -- it's a criminal statute and there hasn't been a prosecution then the Court has no jurisdiction. So on the prosecution point, we think that the three cases I mentioned, the Sisters, Truax against Raich, and the Barrows against Jackson take care of that point of the lack of prosecution. On the point that as to the general enforcement, I think the irreparable injuries that are in this record are there because it's not there is to be a threat of prosecution of these corporations that is the evil inherent in these statutes, it is that the mere presence of the statutes on the books prevent the members, the contributors, and the people that make the organization move from cooperating with the organizations, the presence of the statute will do that. And it seems to me that the cases they mention all are summed up in Watson against Buck. And if the Court pleases, we take the position that Watson against Buck is not at all controlling in this case because in the case of Watson against Buck, there were 40 odd sections of that statute that ran some 30 pages in the record. I would -- I think the Court when it said that it was an evolved statute, really used the correct language. And in that particular one, there was no showing of irreparable harm which would negate the need to send it back to the District Court. And the Court did reverse it, send it back, and ordered it dismissed. I think that the argument so far is that the Court should use the doctrine of abstention or judicial self restraint. I haven't -- their brief pays very little attention to the basic rights here involved which are these rights. One, that these statutes interfere with First Amendment rights or freedom of association and freedom of expression. They also violate the right of freedom of excess to the courts. They also violate the right summed up in the liberty to pursue your profession, your business or what have you. We also take the position secondly that that being true, the appellants even if it might have been possible to show it and so far by the record, their brief and argument been unable to show the basis for the invokement -- invoking of the doctrine of equitable abstention. In the first place, the doctrine of equitable abstention is in equitable doctrine and here you have is clearly as you ever will have the statement of the lawyer for the appellants that Virginia must have the right to stop compliance with this Court's decision. But if you are going to balance equities, I don't have any problem when that statement is made clear. In addition, as we point out in our brief, when these statutes were passed, the Prince Edward case had been returned to the District Court and indeed it's still there. And if these statutes are constitutional and are applied, this Court and the District Court are effectively denied an opportunity to pass on whatever might happen in the Prince Edward County case because there's nobody else to finance it. It also is shown in the record and it's shown in Judge Soper's opinion, the number of cases pending in Virginia admittedly financed or financial assistance given by the two appellants, appellees herein. And every one of them is a federal tort case. I think that when this Court says that there are times when restraint should be used, I would be the last one to object. I mean I -- I've always agreed, but the question as to when it is to be exercised and as of this moment record, briefs, and argument, I say the State of -- the Commonwealth of Virginia hasn't yet shown even the basis for exercising it, let alone than to use it, I'm raising the consideration in this case yet.
Felix Frankfurter: May I profess to you Mr. Marshall.
Thurgood Marshall: Yes Mr. Justice.
Felix Frankfurter: I can take judicial notice of the fact that the Supreme Court of Virginia has invalidated legislation, has itself invalidated legislation designed towards carrying of our position manifested by its political leaders of the (Inaudible) segregation. Have you taken --
Thurgood Marshall: Yes, sir.
Felix Frankfurter: -- judicial notice of the fact.
Thurgood Marshall: Yes, sir.
Felix Frankfurter: Now, suppose I assumed that if this were referred to the Supreme Court of Virginia, it wouldn't invalid legislation that ought to be invalidated.
Thurgood Marshall: I -- because -- I wouldn't assume that Mr. Justice Frankfurter because I don't think ever get to that point. I'm not arguing that point.
Felix Frankfurter: But if the -- if the meaning of legislation is referred -- if the other -- 31 and 32 are referred as 33 and 36 were for construction, unless you say there is nothing to Mr. Gravatt's argument, that the last clause of 31 maybe give him a construction that can withstand the constitution of the Act, and as of the sheer brutality, to refer to the state courts for construction, which no construction can save.
Thurgood Marshall: Well, my theory is that there is no construction that can save this.
Felix Frankfurter: Well, what do you say to this last clause of 31?
Thurgood Marshall: But the last clause by itself would be meaningless, and I agree that judge --
Felix Frankfurter: (Voice Overlap) --
Thurgood Marshall: I agree with Judge Soper that it's that vague. It is in the vague status where it is -- is -- it's unconstitutional because of vagueness.
Felix Frankfurter: Well but --
Thurgood Marshall: Not that it needs construction.
Felix Frankfurter: -- this Court has again and again construed legislation that appeared vague and saved it by giving meaning.
Thurgood Marshall: Well, on the other hand that -- that's a different point if I may, as to whether or not this Court construes it on the state court.
Felix Frankfurter: No. But this Court can decide whether it's susceptible of a meaning no matter how (Inaudible) was construed. The state court can say this.
Thurgood Marshall: Well, if it pleases the Court Mr. Justice Frankfurter, I -- I do not believe that this Court should go that far, because if the Court wants -- takes the position that there is -- although the Court cannot imagine it, and nobody else can imagine it.
Felix Frankfurter: You must take that position and it's unimaginable that the Supreme Court of Virginia, the Supreme Court of Appeal of Virginia can cut the last clause 31 down to the proportions or to the meaning Mr. Gravatt has given us, namely that it should apply only to cases of designed inducing of violence.
Thurgood Marshall: Well, that we -- we have said to this opinion, I can't imagine a Court doing it, and my point Mr. Justice Frankfurter is --
Felix Frankfurter: All right. That's (Inaudible)
Thurgood Marshall: That -- that if --
Felix Frankfurter: That's an answer. Do you say that the words aren't -- by any fair intendment --
Thurgood Marshall: I - I don't say --
Felix Frankfurter: (Inaudible) for state authority, susceptible of any such limitation, that's what you're saying.
Thurgood Marshall: That's my position.
Felix Frankfurter: All right.
Thurgood Marshall: And -- and further Mr. Justice Frankfurter really that position adds up to this. And it's more clearly set out throughout the brief than in the argument, that is that anytime a statute comes up, if it is -- hasn't been construed by a state court, the federal court should not touch it until it's construed.
Felix Frankfurter: But I don't have to take the -- I don't have to take an accepted position by counsel, in order to deny myself the right of taking a reasonable decision.
Thurgood Marshall: Oh, I certainly agree sir. But the -- the point to me is that I think that this Court has a perfect right to decide as to whether or not the doctrine should be applied in this case, that I recognize. I also recognize I think that there must be some real substantial basis for that, I think that's my position --
Felix Frankfurter: All right.
Thurgood Marshall: -- because otherwise the District Courts would be almost completely prevented from hearing the cases on the unconstitutionality of state statutes. And in these cases where the statute itself, there is no question, there might be questions on what Mr. Gravatt was saying, as to whether this statute might not apply to somebody else, but there is no question that these statutes apply appellees. There's no question that -- that anybody can get out. And this case is a case seeking an injunction because the statutes are unconstitutional as applied to the two appellees.
Felix Frankfurter: But Mr. Marshall, the statute maybe invalid because it singled out a specific individual unit or a class, the singling out of which would constitute an unfair discrimination under the protection clause.
Thurgood Marshall: It's what the District Court held.
Felix Frankfurter: Or -- or the statute maybe invalid or it applies to everybody, it couldn't apply to anybody.
Thurgood Marshall: That is true sir. Well this one -- my position Mr. Justice Frankfurter is that this one clearly applies to the two appellees, the record shows it. And the record also shows --
Felix Frankfurter: That is, it applies to your contention that it applies to those two appellees discriminatorily --
Thurgood Marshall: Because --
Felix Frankfurter: -- so it might also apply to others. Now, would you contend that if it weren't discriminatory, it would be valid?
Thurgood Marshall: Oh, no, sir.
Felix Frankfurter: All right.
Thurgood Marshall: Oh, no, sir. The -- the interesting thing though to show from the record in this case, the justification for the statute, I mean the argument was made that this statute is necessary to protect the public from fraud, there's not one word in the testimony in the record on it, not one single word. The justification for the statute, for the barratry statute, if it please the Court, for this barratry statute here is a witness who testified that he was the head of the examiners for the Railroad Association. And they needed this type of statute to protect the railroads from trumped up litigation.
Felix Frankfurter: I should like to say for myself, that nothing seems to me more treacherous for purposes of constitutional adjudication and to have evidence as to what the purpose and meaning and motive of a statute is.
Thurgood Marshall: The -- Mr. Justice there are quite a few other justices on that point. The point though if Your Honor please, I mean, if it please the Court, Mr. Justice Frankfurter, I do think that it is important to this case to recognize for example as to whether or not these statutes apply to us, to the appellees here --
Felix Frankfurter: You have to have evidence in order to establish (Inaudible)
Thurgood Marshall: Yes, sir.
Felix Frankfurter: -- in order to establish discrimination, but the general tendency of putting on witnesses to find out what the purpose of Congress was or the purpose of the General Assembly seems to mean, it's not indicated, most hazardous (Inaudible)
Thurgood Marshall: Well, I -- I think it's hazardous, but I think that on the other side that where even doing that procedure you find admissions that are helpful to one side, I think I like to use them.[Laughter]
Felix Frankfurter: The other side has -- to finish your case, you ought not to be so charitable as to eject them.
Thurgood Marshall: I'm afraid that's -- for example, the Attorney General of Alabama testified and admitted that in this cross-examination that he came up with the expressed purpose of giving testimony against the NAACP. Not in -- not -- not in favor of the statutes. I don't think there is any question but that the statutes apply to the appellees here. I don't think there is any question that the statutes do interfere with these particular rights that I have set aside, that's freedom of expression, freedom of association, access to the courts, and liberty to follow your profession or business without unlawful restraint by the State. I think the real difference between Mr. Gravatt's argument and our argument is that he takes the position that the State in order to “maintain peace” can do anything. And we maintain that whatever the State does through its legislature has to be measured by the Fourteenth Amendment insofar as this particular point is concerned, and I believe that that is the real basic difference between the two. I don't see the -- any offer that's been made by the State that -- that requires this Court to excise its jurisdiction.
Potter Stewart: Mr. Marshall, on the question of equitable abstention, could you make clear to me, because it's not now clear, what prejudice to the appellees would ensue if the District Court should retain jurisdiction, pending a determination on a construction of an interpretation of these statutes by the courts of the Commonwealth of Virginia, in view of the fact that the District Court has already done that with respect to 33 and 36, what prejudice if any would follow if the same thing were done with 31, 32 and 35? And also in view of what I understood Mr. Gravatt say and that is that pending a final determination by the state courts, there would be no proceedings would be initiated under any of this legislation.
Thurgood Marshall: Well, there -- there are two answers Mr. Justice Stewart, the first one is that under the Pierce and the other two cases I mentioned, Truax and Barrows, these self executing statutes, the injury starts whether you have enforcement or not. In the --
Potter Stewart: Now, isn't that equally true of 33 and 36?
Thurgood Marshall: The injury could possibly yes, yes, yes, certainly.
Potter Stewart: So -- and as to those, the District Court did exactly what Mr. Gravatt is arguing that should be done with these other three. And since the District Court did so, what additional prejudice would ensue if the same thing were done with these other three?
Thurgood Marshall: The -- the difference is that in this particular case we have an injunction which protects for example, bear in mind that the people I'm worried about in this particular litigation not the appellees as such. But among them are the lawyers and it's pretty hard for a lawyer to take the Prince Edward case which is a case decided by this Court and further litigate while he was going to the state courts. He'd be in trouble with this problem and what have you, providing the statute was upheld. He'd be in considerable trouble and I -- I'm not to sure that it's the job of a lawyer to deliberately violate a law whether it's constitutional or not, I think he's one of the few people that's -- a law is a law. And it's our position that to go over into the state courts would be one of them. But I say that this Court must not ignore the fact that here is a State deliberately interfering with the jurisdiction of federal courts. And I don't believe that's the business of a state court. I believe it's the peculiar business of the federal court to see to it that its doors are open.If a State passed a law preventing litigants from coming into a federal court there wouldn't be any question about it. And these, the history and the statutes themselves when they say cases involving racial, what have you, it's obviously they are talking about the federal courts, there had been no cases in the state courts that I know of.
Potter Stewart: There have been in the State Courts of Virginia, have they not?
Thurgood Marshall: The only one that I know of and recently in the state court of Virginia was the statute -- the case I mentioned to Mr. Justice Frankfurter that was not -- the Negroes didn't bring that case, the State of Virginia brought it for interpretation of the statute, some state office had brought it, we didn't. The only cases that are in this record are federal court cases and if they can keep litigation out of the federal courts, they can maintain their massive resistance. And that's why it seems to me that there is no reason for this Court to get to the point as to whether or not it should be sent over. I don't think a case has been made for the implication of the doctrine.
Potter Stewart: I understand fully and appreciate what you've said. Perhaps I didn't express myself clearly in my question in any event, I don't know that you -- you've have answered it completely. My point is this that since the District Court did refer to the state courts 33 and 36, from which you've taken no appeal.
Thurgood Marshall: No sir.
Potter Stewart: But prejudice would be involved if the same thing were now done with the balance of these.
Thurgood Marshall: Well, the prejudice would be done on two ways. One is that the sword of Damocles hanging over the plaintiffs -- the appelles in this case would just be hanging a little, that's one. Number two.
Potter Stewart: Just -- it would -- the sword is there now though, isn't it, with 33 and 36?
Thurgood Marshall: Well, with 33 and 36 as I read those statutes we can continue to operate without violating 33 and 36 if we -- the organizations wanted to do it. They are still bad because if we would be precluded in some efforts, but if they are all, then there is no operation, there is none. And with an organization that has been organizing and existing, as long as these two organizations -- the NAACP has been in existence since 1909 and the second appellee NAACP Legal Defense has been in -- since 1940. I think that the real problem in this case is that the harm is yes continuing. If this case is sent back to the District Court to hold it, pending that the harm will come up again bearing in mind that considerable of the in terrorem effect of these statutes was eased with the decision of the District Court. Once that's reestablished then we have that same problem again as witnessed to the fact that when you read in this case you can't help but being moved by the fact that just one after the other the plaintiffs in the Prince Edward county case have to be talked about legislative committee coming and testify against their own case. This -- this atmosphere down in Virginia, I don't think there is any question about it and I think that the real argument about the injury would be on that basis.
Potter Stewart: I understand.
Hugo L. Black: Would you mind explaining what you meant by saying, that this Act that goes by it, can you absolutely preclude any operation of any kind by your organization or its lawyers in Virginia, what do you --
Thurgood Marshall: Well, Mr. Justice Black I -- I'd would like to go through two points, one the record shows and it was found that if the membership list is disclosed that the membership would drop off, I mean just it's not possible to determine how far it would drop off. Well a membership corporation cannot operate without members, insofar as the state is concerned. As to the actual helping out financially with the litigation the trouble there is that although possibly money could be raised, for example, the District of Columbia and around, to helping those cases, the statute prevents you from giving the money. It not only prevents you from raising it, it prevents you from paying it over. And as to the lawyers, the statute says that any lawyer that doesn't have this relationship required by the statute is violating the law, so that there'd be no question --
Hugo L. Black: Does not have the relationship, what do you mean by that?
Thurgood Marshall: Well, the statute is very specific on that I'd rather (Voice Overlap) --
Hugo L. Black: Would you mind just stating if you can briefly --
Thurgood Marshall: That the --
Hugo L. Black: -- of exactly what you understand this statute forbids?
Thurgood Marshall: That if the lawyer is -- gets the money from anybody other than the client and if the client gets the money from anybody but somebody close to him, the lawyer is a party to this barratry and it includes everybody in the three first definitions in the statute.
Hugo L. Black: And subject to what?
Thurgood Marshall: To criminal penalties. The penalty is -- and this bond with the lawyer too, I have the penalties, penalty on 35 is, a $500 fine or a year's imprisonment or both if the violator is a person and subjects the corporation to $10,000 fine and revocation of authorization to carry on work in Virginia.
Felix Frankfurter: Did I --
Hugo L. Black: And the statute as you understand it how can the organization escape that consequence of the statute?
Thurgood Marshall: By -- in 35, there is no escape, in 31 and 32, by filing on membership lists, we could operate rather or we could at least operate. But under 35 as I understand it, there's no way we can qualify, so stop what we are doing.
Felix Frankfurter: Did I misunderstand Mr. Gravatt to say that all action under all statute would be stayed until the Supreme Court of Appeal would pass on that, did I misunderstand that?
Thurgood Marshall: It -- it was my understanding in this particular case that at the suggestion of Judge Soper the appellants did agree that there would be no enforcement of any of those statutes until this case was finally determined.
Felix Frankfurter: Any of them.
Thurgood Marshall: Well, then it was all five them were in. They were all in at that time.
Hugo L. Black: Does that go far enough to mean that if the statute should later be held the statute should later be held constitutional, what had been done prior to that time could not be prosecuted.
Thurgood Marshall: I don't think that was in there but I would assume that that was the only -- the real problem is Mr. --
Hugo L. Black: How could they waive that if it's a valid statute?
Thurgood Marshall: And especially in view of the fact that they didn't represent all of the enforcement officers.
Hugo L. Black: Well, couldn't the Attorney General of the Commonwealth speak for the enforcement of it?
Thurgood Marshall: We're in trouble if -- we now have the third Attorney General since this case started. First, we had Attorney General Almond, then we had Attorney General Patty, and now we've got Attorney General Harrison. Now, if I understand, an agreement was many when Attorney General Almond was there, I assume that the others were on it. But the -- the point if I may mention it Mr. Justice Black is that the members would be afraid to join even now for fear that at sometimes the statute might be declared constitutional to see membership, their name would be on the list whenever it was forced to be turned over.
Hugo L. Black: So they point out -- then was in connection with preserving the status quo along the lines suggested. Does any Attorney General or interstate officer have the right or the power to say that he will forgive all past offenses under a statute which is held constitutional, which is under attack as being unconstitutional?
Thurgood Marshall: I don't know. I have to ask the Virginia lawyers. Well, the -- the one answer that's made from the other counsel is at least the lawyers will have no assurance of what would have happen to them on disbarment. I mean, that -- that wouldn't be -- but that point doesn't worry me. I think this Mr. Justice Black and I am not frankly familiar with the Virginia law, but in most instances a prosecutor can nol pros or what have you or refuse to prosecute, but I don't believe that he can make an agreement to that effect that would be binding.
Felix Frankfurter: Yes. But that isn't the --
Thurgood Marshall: I don't go behind the motives of the Attorney General in this case at all. I assume that he would not do it.
Potter Stewart: Suppose the federal court had made it effective by temporary injunction.
Thurgood Marshall: That's no problem once that is done, but this was done in lieu of it. And if I may Mr. Justice Stewart, the other point when I was talking to Mr. Justice Black is that the statutes that are not over -- are now over in the state courts do not require disclosure of membership, neither one of them.
Speaker: (Inaudible)
Thurgood Marshall: The two cases. May it please the Court, then if unless there are questions, it appears to me that I would urge respectfully upon this Court the affirmance of the decision of the District Court and I believe that it is particularly timely that following the Alabama decision, that it would be made clear that the federal judiciary, the federal courts, are to be freely open to litigants. And that that is the problem for the federal courts and not the state courts. There are considerable actions pending in Virginia. No one knows what will happen to those court cases.
Felix Frankfurter: Would you mind telling us what the state of the Prince Edward litigation was?
Thurgood Marshall: It's on appeal from the latest ruling of Judge Hutchinson and brief to the Fourth Circuit and the brief was filed by the (Inaudible). The argument on April the 14th, it's a --
Speaker: That's the one they (Inaudible) in 1965?
Thurgood Marshall: That's the one. That's the on, yes, sir.
Felix Frankfurter: Are you suggesting that if this were referred to the Virginia court, you and your associates couldn't participate in that argument or by brief?
Thurgood Marshall: I would say that under these statutes we -- we would be prevented from appearing in the case, I don't think there's any question about it. And unless that -- unless one of us would take the position that we just didn't care what would happen. And I don't think that anybody should be required to do that, that applies to all these cases I believe Mr. Justice Frankfurter. Judge Soper sets them all out because he is in the Fourth Circuit and he knows about it, he sets them all out in a footnote. I think that this is not the case that the State, the Commonwealth would have this Court to believe, have been ordinary regulatory statute. It's not a case of a justification for interference with the lawful rights or the members to associate with each other, the members and the organizations to exercise their right of freedom of expression that the state has deliberately entered into that field. And in doing so, they have awfully failed to show the justification required in every instance by this Court of showing the overwriting necessity to do it. I don't think there is any question at least in my mind as to what will happen in Virginia if these statutes are by this Court either declared constitutional or sent back to the state courts. I think that once that's done in the posture of this case. And when I mean posture, I mean the legislative history, I mean the record in this case, and I mean the argument before this Court that there is not a person connected with either of these organizations who wouldn't be worried to the end of not being able to do the job that has to be done, and for that reason not on behalf of the two organizations, but on behalf of the people in Virginia. And now there are other people coming forward that those people should be able to continue what is always since there has been law so far as we have been able to find in our research the right of people to pull their resources for charitable work in helping somebody that's being mistreated and is unable to get his legal justice in a courtroom. I think Virginia instead of codifying the law has deliberately flown into the teeth not only of the constitution, not only of the common law rights of barratry, but seek to destroy what I consider to be as important as any duty of a lawyer and that is the duty to see that no man goes undefended whether or not he has the money. And Virginia has struck all of that down with one blow including five statutes. And I submit Virginia cannot be permitted to continue in that path.
Earl Warren: Mr. Mays.
David J. Mays: Chief Justice and associate justices, my time is very brief and I will make my points as rapid as I can and then maybe a bit disjointed. There has much in the record as to history of these statutes and it has been said to Your Honor as it was said in the lower court that all of it was a part of a the then governor's plan to defeat the opinion of this Court. When Your Honors have an opportunity, if you will look at page 470 of the record you will find that Mr. Harrison Mann a member of the House of Delegates from Arlington County was the patron, the chief patron of all five of these bills and that he had written himself Chapters 32, dealing with the matter of filing membership list, registration, and 35 which had to do with barratry and bought them -- brought them as it were in his saddlebags down to Richmond. They were no part of the plans of the governor. They were no part of the plans of any commission. It was done at the instance of that particular member of the general assembly. I don't know that that's vital at all, I don't think it is, but I think it should be brought to your attention. It was not a part of the matter of so-called massive resistance.
William O. Douglas: I don't find that on page 470?
David J. Mays: 430.
William O. Douglas: 430.
David J. Mays: I'm sorry.
William O. Douglas: Thank you.
David J. Mays: Yes. Down a little bit towards the end of the page on 430. Now, this registration statute doesn't apply just to the NAACP. It applies to any organization which comes within the purview of the statute. It applies to white organizations. We have some in our counties. It applies to any statewide white organization which is the other end of the spectrum in dealing with this particular problem. They are bound to register just as well as the NAACP is. So there is no distinction made, it's done as a matter of safety. It's done as a matter of preventing violence and everybody is in the same boat so far as compliance with the law is concerned. In the barratry statute which has occasioned considerable comments from adverse counsel, it is stated that this is not a codification of common law and one of the particulars, it isn't. Barratry was a common law that frequents stirring up of litigation. According to Blackson (ph), that was true. Under this statute one offense is enough, that distinction is clearly there. It is true also that this particular section has some exception which are not in Blackson (ph). But to say that because some exceptions appear in this particular Chapter 35, is that it is aimed only at the NAACP is clearly untrue because the NAACP at pages 29 and 30 of its brief has enumerated many types of association which act in concept, I will not take time to read them, they have used a number of them here by way of illustration, and none of them are excluded as exceptions under this Act. So it cannot be fairly said, that only the NAACP would be exempt from its terms.
Earl Warren: Mr. Mays, under the common law --
David J. Mays: Yes.
Earl Warren: -- does it make any difference whether the litigation was stirred up for profit or not?
David J. Mays: I am not certain, sir. But here, there has to be a stirring up of litigation and a supplying of money too in order to make this statute operative. Now, one thing that has puzzled us very greatly in the decision of the lower court and we have great respect for that court, but Your Honors will notice on page 93 of the record, beginning about line six. The Court there says that Chapter 33 and 36 are vague and ambiguous, and we do not pass upon that constitutionality. And because these statutes are vague and ambiguous, they are sent on to the state court for determination. And yet Chapter 32 is said by the Court to be so vague and indefinite, that it can't pass the test of constitutionality. And, I've made some limitations myself, and I'm not saying this out of sarcasm, but the subtlety is too great for me, I do not know why. If two statutes are vague and ambiguous, they go to the state court for interpretation, but if they are vague and indefinite they can be declared constitutional out of hand. And of course if the major argument made by adverse counsel, that is that all of these statutes are tainted, then why is that two of the tainted statutes go to the state court for interpretation and three of that are tainted are declared unconstitutional out of hand? Those are the distinctions we have not been able to make. Mr. Marshall has stated to the Court that the lawyers themselves on considerable fear here, there is no reason there should be, certainly their activities have not indicated any such fear, they continue with all of the cases. They are receiving fees. Things are going on as far as I can see, as have been going on before. And I think that well to answer Mr. Chief Justice question I think it was, I can -- I realize that a Commonwealth Attorney, or Attorney General of Virginia, cannot enter into any commitment to free people from prosecution for past acts, I don't think he has that right. At the same time there are practicalities in this situation. The Attorney General of Virginia authorized us to say in the litigation pending before the three judge court, that no prosecutions would be had under these statutes until they could finally be determined by the Courts. That applies to them all. And I think that it is every right to believe that these lawyers be -- need be in no fear, while they pursue the constitutional questions and any other questions that are involved. Certainly they are pursuing them now. There has not been any reference in the argument at all to a very important case and that is the Alabama case, in which registration was involved, I have no time to make the differentiation unless Your Honors would like me to pursue it, and I think our brief covers it, there where was a situation where the case had gone up to the appellate court twice, certiorari had been sought and denied twice, there was a fine of $10,000 one day and it was $100,000 the next. And it was obvious that the people who were involved could do only one of two things and that was come here or go to the bank and get the $100,000. Now in Virginia the whole picture is different. I won't say the atmosphere of the two states are different, I don't know that the atmosphere of Alabama. I simply know the action is different. They are perfectly free here to pursue their remedies without risk of hurt, and the situation is not parallel at all. Thereto in Alabama, it was found by this Court that there was economic pressure, there were threats, there all sorts of things brought to bear. But all of the testimonies in this case shows that the threats have not gone beyond the prank stages. There were one or two fiery crosses burnt which was charged in part at least to a gentleman who comes visiting our different states to serve these things. There were other things in the prank stage, that's about as far as they got. There were anonymous phone calls. But Mr. Harrison who sponsored these statutes got the anonymous insulting phone calls too, just as people on the other side of this controversy. There was not one single case produced of economic pressure, of anybody who was a member of NAACP. And I'm sure (Inaudible) to do it. It so happened that they brought the testimony in of one colored woman from the city of Charlotte and she said that she worked for some white folk there and one white lady didn't like it because she was a plaintiff in one of the school cases and told her she couldn't work for her anymore. But there were so many white people that were glad to have her services, she never missed a lick from work, she was working merrily along so far as the record shows. Now that is the sum total of economic pressure in Virginia. That is all that's shown by this record. The record doesn't show that she belonged to the NAACP at all, she was a plaintiff. And may I make this one observation, if the NAACP is so extremely anxious to avoid its membership list being made public, why is it, that instead of getting one or two people to pursue these school cases, they get as many of them as possible, instead of having one or two or three plaintiffs, why have 100. And surely, it must be obvious to anyone that economic pressure is far more like against someone who is actively adjudicating the school cases as against the supine member of an organization which has thousands of members. I thank You Honors.