Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.
The Supreme Court has recognized that joining together to advance political and civil rights is “expressive and associational conduct at the core of the First Amendment’s protective ambit.” 1 Accordingly, when the government regulates in ways that restrict or burden such association, it typically must show that its law or action is narrowly drawn to achieve a compelling governmental interest.2 In the Supreme Court’s words, “[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” 3
A state generally has the authority to regulate professions that it licenses, including attorneys.4 That authority may apply even to professionals’ speech, especially in a commercial context. For example, a state may restrict “in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons” in certain places, such as an accident scene, where consumers are particularly vulnerable to undue influence.5
When professionals are engaged in “political expression and association,” however, a state “must regulate with significantly greater precision.” 6 In particular, the freedom of association includes a “basic right to group legal action” and protects “collective activity undertaken to obtain meaningful access to the courts.” 7 This protection extends to the activities of lawyers and legal organizations themselves in some circumstances.8 Thus, a state may not bar organizations that use “litigation as a vehicle for effective political expression and association” from offering legal services to prospective clients based on “some potential” for violation of ethical standards.9
The 1963 case NAACP v. Button established that the First Amendment protects “cooperative, organizational activity” to pursue “legitimate political ends” through litigation.10 The case involved a Virginia law banning “the improper solicitation of any legal or professional business,” which the Virginia courts had construed to ban certain outreach activities of the National Association for the Advancement of Colored People, Inc. (NAACP) related to the provision of legal assistance.11 The Supreme Court began its analysis by clarifying that “abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.” 12 Although the NAACP “is not a conventional political party,” the Court explained, its litigation activity enables “the distinctive contribution of a minority group to the ideas and beliefs of our society.” 13 “For such a group,” the Court continued, “association for litigation may be the most effective form of political association.” 14 The Court therefore held that Virginia’s broadly construed law violated the First Amendment “by unduly inhibiting protected freedoms of expression and association.” 15
Following the Button decision, the Court held in three cases that labor unions enjoyed First Amendment protection in assisting their members to pursue legal remedies. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;16 in the second, the union retained attorneys on a salaried basis to represent members;17 in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.18 In each case, the Court concluded that the government had an insufficient regulatory interest to prohibit the legal services at issue because the government relied on a remote possibility of harm to prospective clients resulting from unethical practices.19
Because not all forms of advocacy are protected under the First Amendment, not all associations for the purpose of advocacy are protected to the same degree. In Scales v. United States, the Court upheld the “membership clause” of the Smith Act, which, under the Court’s interpretation, made it a felony for an individual to be an active member of an organization that advocates the overthrow of the U.S. government by force or violence if the individual shares that specific intent.20 The defendant in Scales was convicted based on his membership in the Communist Party of the United States.21 That group’s advocacy, the Court explained, “is not constitutionally protected speech.” 22 The Court reasoned that membership in a group engaged in “forbidden advocacy” should receive no greater First Amendment protection than the proscribable speech itself.23
Additionally, although access to the courts was a key consideration in Button, not all laws limiting such access burden the freedom of association. For example, the Court upheld a statutory limit on attorney’s fees for certain veterans’ benefits claims, reasoning that the limitation did not infringe the freedom of association because it applied “across-the-board to individuals and organizations alike.” 24 In another case, the Court concluded that waiving the court fees of indigent individuals, but not organizations, did not violate the First Amendment.25 Because an organization could qualify for the fee waiver only if its members were individually indigent anyway, the Court reasoned, litigating as an organization would not materially assist their expressive capacity.26 Thus, it appears that barriers to litigation are unlikely to impede the freedom of association if they have similar effects on individuals and organizations.
- In re Primus, 436 U.S. 412, 424 (1978).
- NAACP v. Button, 371 U.S. 415, 433 (1963).
- In re Primus, 436 U.S. at 422.
- Id. at 422 (citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978)). Courts generally review First Amendment challenges to commercial speech restrictions under a less-rigorous standard called “intermediate scrutiny.” See Amdt188.8.131.52 Commercial Speech Early Doctrine.
- Id. at 438.
- United Transp. Union v. State Bar of Mich., 401 U.S. 576, 585 (1971).
- E.g., Button, 71 U.S. 415.
- In re Primus, 436 U.S. at 431.
- 371 U.S. at 430.
- Id. at 419–26.
- Id. at 429.
- Id. at 431.
- Id. The Court later employed a similar rationale in extending the First Amendment’s protection to a lawyer’s solicitation of a client on behalf of the American Civil Liberties Union (ACLU). In re Primus, 436 U.S. at 431–32.
- Button, 371 U.S. at 437.
- Bhd. of R.R. Trainmen v. Virginia, 377 U.S. 1 (1964).
- United Mine Workers v. Ill. State Bar Ass’n, 389 U.S. 217 (1967).
- United Transp. Union v. State Bar of Mich., 401 U.S. 576 (1971).
- Bhd. of R.R. Trainmen, 377 U.S. at 6–8; United Mine Workers, 389 U.S. at 225; United Transp. Union, 401 U.S. at 583.
- 367 U.S. 203, 205, 221–22 (1961).
- Id. at 205–06.
- Id. at 228. Eight years later, in Brandenburg v. Ohio, the Court revised the standard applied in Scales for distinguishing between “abstract advocacy” of illegal conduct (which the First Amendment protects) and “incitement” (which the government can proscribe and punish). Under Brandenburg, speech falls outside the First Amendment’s protection only if it is directed to producing imminent lawless action and likely to produce such action. 395 U.S. 444, 447 (1969).
- Scales, 367 U.S. at 229.
- Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 335 (1985) superseded by statute, Veterans’ Judicial Review Act of 1988, Pub. L. No. 100-687, 102 Stat. 4105.
- Rowland v. Cal. Men’s Colony, 506 U.S. 194, 211–12 (1993).