decided: May 30, 1978.
IN RE PRIMUS
APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA.
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Stevens, JJ., joined, and in all but the first paragraph of Part VI of which Marshall, J., joined. Blackmun, J., filed a concurring opinion, post, p. 439. Marshall, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. Rehnquist, J., filed a dissenting opinion, post, p. 440. Brennan, J., took no part in the consideration or decision of the case.
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MR. JUSTICE POWELL delivered the opinion of the Court.
We consider on this appeal whether a State may punish a member of its Bar who, seeking to further political and ideological goals through associational activity, including litigation, advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a nonprofit organization with which the lawyer and her associates are affiliated. Appellant, a member of the Bar of South Carolina, received a public reprimand for writing such a letter. The appeal is opposed by the State Attorney General, on behalf of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina. As this appeal presents a substantial question under the First and Fourteenth Amendments, as interpreted in NAACP v. Button, 371 U.S. 415 (1963), we noted probable jurisdiction.
Appellant, Edna Smith Primus, is a lawyer practicing in Columbia, S. C. During the period in question, she was associated with the "Carolina Community Law Firm,"*fn1 and was an officer of and cooperating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU).*fn2 She received
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no compensation for her work on behalf of the ACLU,*fn3 but was paid a retainer as a legal consultant for the South Carolina Council on Human Relations (Council), a nonprofit organization with offices in Columbia.
During the summer of 1973, local and national newspapers reported that pregnant mothers on public assistance in Aiken County, S. C., were being sterilized or threatened with sterilization as a condition of the continued receipt of medical assistance under the Medicaid program.*fn4 Concerned by this development, Gary Allen, an Aiken businessman and officer of a local organization serving indigents, called the Council requesting that one of its representatives come to Aiken to address some of the women who had been sterilized. At the Council's behest, appellant, who had not known Allen previously, called him and arranged a meeting in his office in July 1973. Among those attending was Mary Etta Williams, who had been sterilized by Dr. Clovis H. Pierce after the birth of her third child. Williams and her grandmother attended the meeting because Allen, an old family friend, had invited
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them and because Williams wanted "[to] see what it was all about . . . ." App. 41-42. At the meeting, appellant advised those present, including Williams and the other women who had been sterilized by Dr. Pierce, of their legal rights and suggested the possibility of a lawsuit.
Early in August 1973 the ACLU informed appellant that it was willing to provide representation for Aiken mothers who had been sterilized.*fn5 Appellant testified that after being advised by Allen that Williams wished to institute suit against Dr. Pierce, she decided to inform Williams of the ACLU's offer of free legal representation. Shortly after receiving appellant's letter, dated August 30, 1973*fn6 -- the centerpiece of this
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litigation -- Williams visited Dr. Pierce to discuss the progress of her third child who was ill. At the doctor's office, she encountered his lawyer and at the latter's request signed a release of liability in the doctor's favor. Williams showed appellant's letter to the doctor and his lawyer, and they retained a copy. She then called appellant from the doctor's office and announced her intention not to sue. There was no further communication between appellant and Williams.
On October 9, 1974, the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina (Board) filed a formal complaint with the Board, charging that appellant had engaged in "solicitation in violation of the Canons of Ethics" by sending the August 30, 1973, letter to Williams. App. 1-2. Appellant denied any unethical solicitation and asserted, inter alia, that her conduct was protected by the First and Fourteenth Amendments and by Canon 2 of the Code of Professional Responsibility of the American Bar Association (ABA). The complaint was heard by a panel of the Board on March 20, 1975. The State's evidence consisted of the letter, the testimony of Williams,*fn7
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and a copy of the summons and complaint in the action instituted against Dr. Pierce and various state officials, Walker v. Pierce, Civ. No. 74-475 (SC, July 28, 1975), aff'd in part and rev'd in part, 560 F.2d 609 (CA4 1977), cert. denied, 434 U.S. 1075 (1978).*fn8 Following denial of appellant's motion to dismiss, App. 77-82, she testified in her own behalf and called Allen, a number of ACLU representatives, and several character witnesses.*fn9
The panel filed a report recommending that appellant be found guilty of soliciting a client on behalf of the ACLU, in violation of Disciplinary Rules (DR) 2-103 (D)(5)(a) and (c)*fn10 and 2-104 (A)(5)*fn11 of the Supreme Court of South
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Carolina,*fn12 and that a private reprimand be issued. It noted that "[the] evidence is inconclusive as to whether [appellant] solicited Mrs. Williams on her own behalf, but she did solicit
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Mrs. Williams on behalf of the ACLU, which would benefit financially in the event of successful prosecution of the suit for money damages." The panel determined that appellant violated DR 2-103 (D)(5) "by attempting to solicit a client for a non-profit organization which, as its primary purpose, renders legal services, where respondent's associate is a
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staff counsel for the non-profit organization." Appellant also was found to have violated DR 2-104 (A)(5) because she solicited Williams, after providing unsolicited legal advice, to join in a prospective class action for damages and other relief that was to be brought by the ACLU.
After a hearing on January 9, 1976, the full Board approved the panel report and administered a private reprimand. On March 17, 1977, the Supreme Court of South Carolina entered an order which adopted verbatim the findings and conclusions of the panel report and increased the sanction, sua sponte, to a public reprimand. 268 S. C. 259, 233 S. E. 2d 301.
On July 9, 1977, appellant filed a jurisdictional statement and this appeal was docketed. We noted probable jurisdiction on October 3, 1977, sub nom. In re Smith, 434 U.S. 814. We now reverse.
This appeal concerns the tension between contending values of considerable moment to the legal profession and to society. Relying upon NAACP v. Button, 371 U.S. 415 (1963), and its progeny, appellant maintains that her activity involved constitutionally protected expression and association. In her view, South Carolina has not shown that the discipline meted out to her advances a subordinating state interest in a manner that avoids unnecessary abridgment of First Amendment freedoms.*fn13 Appellee counters that appellant's letter to Williams falls outside of the protection of Button, and that
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South Carolina acted lawfully in punishing a member of its Bar for solicitation.
The States enjoy broad power to regulate "the practice of professions within their boundaries," and "[the] interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been 'officers of the courts.'" Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975). For example, we decide today in Ohralik v. Ohio State Bar Assn., post, p. 447, that the States may vindicate legitimate regulatory interests through proscription, in certain circumstances, of in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons.
Unlike the situation in Ohralik, however, appellant's act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain. Appellant was communicating an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery. And her actions were undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain. The question presented in this case is whether, in light of the values protected by the First and Fourteenth Amendments, these differences materially affect the scope of state regulation of the conduct of lawyers.
In NAACP v. Button, supra, the Supreme Court of Appeals of Virginia had held that the activities of members and staff attorneys of the National Association for the Advancement of Colored People (NAACP) and its affiliate, the Virginia State Conference of NAACP Branches (Conference), constituted
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"solicitation of legal business" in violation of state law. NAACP v. Harrison, 202 Va. 142, 116 S. E. 2d 55 (1960). Although the NAACP representatives and staff attorneys had "a right to peaceably assemble with the members of the branches and other groups to discuss with them and advise them relative to their legal rights in matters concerning racial segregation," the court found no constitutional protection for efforts to "solicit prospective litigants to authorize the filing of suits" by NAACP-compensated attorneys. Id., at 159, 116 S. E. 2d, at 68-69.
This Court reversed: "We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of [state law] and the Canons of Professional Ethics." 371 U.S., at 428-429. The solicitation of prospective litigants,*fn14 many of whom were not
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members of the NAACP or the Conference, for the purpose of furthering the civil-rights objectives of the organization and its members was held to come within the right "'to engage in association for the advancement of beliefs and ideas.'" Id., at 430, quoting NAACP v. Alabama, 357 U.S. 449, 460 (1958).
Since the Virginia statute sought to regulate expressive and associational conduct at the core of the First Amendment's protective ambit, the Button Court insisted that "government may regulate in the area only with narrow specificity." 371 U.S., at 433. The Attorney General of Virginia had argued that the law merely (i) proscribed control of the actual litigation by the NAACP after it was instituted, ibid., and (ii) sought to prevent the evils traditionally associated with common-law maintenance, champerty, and barratry, id., at 438.*fn15 The Court found inadequate the first justification because of an absence of evidence of NAACP interference with the actual conduct of litigation, or neglect or harassment of clients, and because the statute, as construed, was not drawn narrowly to advance the asserted goal. It rejected the analogy to the common-law offenses because of an absence of proof that malicious intent or the prospect of pecuniary gain inspired the NAACP-sponsored litigation. It also found a lack of proof that a serious danger of conflict of interest marked the relationship between the NAACP and its member and nonmember Negro litigants. The Court concluded that "although the [NAACP] has amply shown that its activities fall within the
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First Amendment's protections, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from [the NAACP's] activities, which can justify the broad prohibitions which it has imposed." Id., at 444.*fn16
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Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 (1971). See Bates v. State Bar of Arizona, 433 U.S. 350, 376 n. 32 (1977). The Court has held that the First and Fourteenth Amendments prevent state proscription of a range of solicitation activities by labor unions seeking to provide low-cost, effective legal representation to their members. See Railroad Trainmen v. Virginia Bar, 377 U.S. 1 (1964); Mine Workers v. Illinois Bar Assn., 389 U.S. 217 (1967); United Transportation Union v. Michigan Bar, supra. And "lawyers accepting employment under [such plans] have a like protection which the State cannot abridge." Railroad Trainmen, supra, at 8. Without denying the power of the State to take measures to correct the substantive evils of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, and lay interference that potentially are present in solicitation of prospective clients by lawyers, this Court has required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms." Mine Workers, supra, at 222.
We turn now to the question whether appellant's conduct implicates interests of free expression and association sufficient to justify the level of protection recognized in Button and subsequent cases.*fn17 The Supreme Court of South Carolina found appellant to have engaged in unethical conduct because
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she "'[solicited] a client for a non-profit organization, which, as its primary purpose, renders legal services, where respondent's associate is a staff counsel for the non-profit organization.'" 268 S. C., at 269, 233 S. E. 2d, at 306.*fn18 It rejected appellant's First Amendment defenses by distinguishing Button from the case before it. Whereas the NAACP in that case was primarily a "'political'" organization that used "'litigation as an adjunct to the overriding political aims of the organization,'" the ACLU "'has as one of its primary purposes the rendition of legal services.'" Id., at 268, 269, 233 S. E. 2d, at 305, 306. The court also intimated that the ACLU's policy of requesting an award of counsel fees indicated that the organization might "'benefit financially in the event of successful prosecution of the suit for money damages.'" Id., at 263, 233 S. E. 2d, at 303.
Although the disciplinary panel did not permit full factual development of the aims and practices of the ACLU, see n. 9, supra, the record does not support the state court's effort to draw a meaningful distinction between the ACLU and the NAACP. From all that appears, the ACLU and its local chapters, much like the NAACP and its local affiliates in Button, "[engage] in extensive educational and lobbying activities" and "also [devote] much of [their] funds and energies to an extensive program of assisting certain kinds of litigation on behalf of [their] declared purposes." 371 U.S., at 419-420. See App. 177-178; n. 2, supra. The court below acknowledged that "'the ACLU has only entered cases in which substantial civil liberties questions are involved . . . .'" 268 S. C., at 263, 233 S. E. 2d, at 303. See Button, 371 U.S., at 440 n. 19. It has engaged in the defense of unpopular
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causes and unpopular defendants*fn19 and has represented individuals in litigation that has defined the scope of constitutional protection in areas such as political dissent, juvenile rights, prisoners' rights, military law, amnesty, and privacy. See generally Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan. L. Rev. 207, 210-214 (1976). For the ACLU, as for the NAACP, "litigation is not a technique of resolving private differences"; it is "a form of political expression" and "political association." 371 U.S., at 429, 431.*fn20
We find equally unpersuasive any suggestion that the level of constitutional scrutiny in this case should be lowered because of a possible benefit to the ACLU. The discipline administered to appellant was premised solely on the possibility of financial benefit to the organization, rather than any possibility of pecuniary gain to herself, her associates, or the lawyers representing the plaintiffs in the Walker v. Pierce litigation.*fn21 It is conceded that appellant received no compensation
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for any of the activities in question. It is also undisputed that neither the ACLU nor any lawyer associated with it would have shared in any monetary recovery by the plaintiffs in Walker v. Pierce. If Williams had elected to bring suit, and had been represented by staff lawyers for the ACLU, the situation would have been similar to that in Button, where the lawyers for the NAACP were "organized as a staff and paid by" that organization. 371 U.S., at 434; see id., at 457 (Harlan, J., dissenting); Mine Workers v. Illinois Bar Assn., 389 U.S., at 222-223; n. 16, supra.*fn22
Contrary to appellee's suggestion, the ACLU's policy of requesting an award of counsel fees does not take this case outside of the protection of Button. Although the Court in Button did not consider whether the NAACP seeks counsel fees, such requests are often made both by that organization, see, e. g., NAACP v. Allen, 493 F.2d 614, 622 (CA5 1974); Boston Chapter, NAACP, Inc. v. Beecher, 371 F.Supp. 507, 523 (Mass.), aff'd, 504 F.2d 1017 (CA1 1974), cert. denied, 421 U.S. 910 (1975), and by the NAACP Legal Defense Fund, Inc., see, e. g., Bradley v. Richmond School Board, 416 U.S. 696 (1974); Reynolds v. Coomey, 567 F.2d 1166, 1167 (CA1 1978). In any event, in a case of this kind there are differences between counsel fees awarded by a court and traditional fee-paying arrangements which militate against a presumption
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that ACLU sponsorship of litigation is motivated by considerations of pecuniary gain rather than by its widely recognized goal of vindicating civil liberties. Counsel fees are awarded in the discretion of the court; awards are not drawn from the plaintiff's recovery, and are usually premised on a successful outcome; and the amounts awarded often may not correspond to fees generally obtainable in private litigation. Moreover, under prevailing law during the events in question, an award of counsel fees in federal litigation was available only in limited circumstances.*fn23 And even if there had been an award during the period in question, it would have gone to the central fund of the ACLU.*fn24 Although such benefit to the organization
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may increase with the maintenance of successful litigation, the same situation obtains with voluntary contributions and foundation support, which also may rise with ACLU victories in important areas of the law. That possibility, standing alone, offers no basis for equating the work of lawyers associated with the ACLU or the NAACP with that of a group that exists for the primary purpose of financial gain through the recovery of counsel fees. See n. 20, supra.*fn25
Appellant's letter of August 30, 1973, to Mrs. Williams thus comes within the generous zone of First Amendment protection reserved for associational freedoms. The ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. See n. 32, infra ; cf. Bates v. State Bar of Arizona, 433 U.S., at 364; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 779-780 (1976) (STEWART, J., concurring). As Button indicates, and as appellant offered to prove at the disciplinary hearing, see n. 9, supra, the efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.
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"'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts." Thomas v. Collins, 323 U.S. 516, 537 (1945). The First and Fourteenth Amendments require a measure of protection for "advocating lawful means of vindicating legal rights," Button, 371 U.S., at 437, including "[advising] another that his legal rights have been infringed and [referring] him to a particular attorney or group of attorneys . . . for assistance," id., at 434.
South Carolina's action in punishing appellant for soliciting a prospective litigant by mail, on behalf of the ACLU, must withstand the "exacting scrutiny applicable to limitations on core First Amendment rights . . . ." Buckley v. Valeo, 424 U.S. 1, 44-45 (1976). South Carolina must demonstrate "a subordinating interest which is compelling," Bates v. Little Rock, 361 U.S. 516, 524 (1960), and that the means employed in furtherance of that interest are "closely drawn to avoid unnecessary abridgment of associational freedoms." Buckley, supra, at 25.
Appellee contends that the disciplinary action taken in this case is part of a regulatory program aimed at the prevention of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, lay interference, and other evils that are thought to inhere generally in solicitation by lawyers of prospective clients, and to be present on the record before us. Brief for Appellee 37-49. We do not dispute the importance of these interests. This Court's decision in Button makes clear, however, that "[broad] prophylactic rules in the area of free expression are suspect," and that "[precision] of regulation must be the touchstone in an area so closely touching our most precious freedoms." 371 U.S., at 438; see Mine Workers v. Illinois Bar Assn., 389 U.S., at 222-223. Because of the danger of censorship through selective enforcement of broad prohibitions, and "[because] First Amendment freedoms need breathing space to survive, government
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may regulate in [this] area only with narrow specificity." Button, supra, at 433.
The Disciplinary Rules in question sweep broadly. Under DR 2-103 (D)(5), a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he retain the organization's free services, and it would seem that one who merely assists or maintains a cooperative relationship with the organization also must suppress the giving of such advice if he or anyone associated with the organization will be involved in the ultimate litigation. See Tr. of Oral Arg. 32-34. Notwithstanding appellee's concession in this Court, it is far from clear that a lawyer may communicate the organization's offer of legal assistance at an informational gathering such as the July 1973 meeting in Aiken without breaching the literal terms of the Rule. Cf. Memorandum of Complainant, Apr. 8, 1975, p. 9.*fn26 Moreover, the Disciplinary Rules in question permit punishment for mere solicitation unaccompanied by proof of any of the substantive evils that appellee maintains were present in this case. In sum, the Rules in their present form have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra, at 438, as well as for permitting discretionary enforcement against unpopular causes.
Even if we ignore the breadth of the Disciplinary Rules and the absence of findings in the decision below that support
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the justifications advanced by appellee in this Court,*fn27 we think it clear from the record -- which appellee does not suggest is inadequately developed -- that findings compatible with the First Amendment could not have been made in this case. As in New York Times Co. v. Sullivan, 376 U.S. 254, 284-285 (1964), "considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment [against appellant]. This Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles [can be] constitutionally applied." See Jenkins v. Georgia, 418 U.S. 153, 160-161 (1974); Pickering v. Board of Education, 391 U.S. 563, 574-575, 578-582, and n. 2 (1968); Edwards v. South Carolina, 372 U.S. 229, 235-236 (1963).
Where political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs. The approach we adopt today in Ohralik, post, p. 447, that the State may proscribe in-person solicitation for pecuniary gain under circumstances likely to result in adverse consequences, cannot be applied to appellant's activity on behalf of the ACLU. Although a showing of potential danger may suffice in the former context, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed.
The record does not support appellee's contention that
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undue influence, overreaching, misrepresentation, or invasion of privacy actually occurred in this case. Appellant's letter of August 30, 1973, followed up the earlier meeting -- one concededly protected by the First and Fourteenth Amendments -- by notifying Williams that the ACLU would be interested in supporting possible litigation. The letter imparted additional information material to making an informed decision about whether to authorize litigation, and permitted Williams an opportunity, which she exercised, for arriving at a deliberate decision. The letter was not facially misleading; indeed, it offered "to explain what is involved so you can understand what is going on." The transmittal of this letter -- as contrasted with in-person solicitation -- involved no appreciable invasion of privacy;*fn28 nor did it afford any significant opportunity for overreaching or coercion. Moreover, the fact that there was a written communication lessens substantially the
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difficulty of policing solicitation practices that do offend valid rules of professional conduct. See Ohralik, post, at 466-467. The manner of solicitation in this case certainly was no more likely to cause harmful consequences than the activity considered in Button, see n. 14, supra.
Nor does the record permit a finding of a serious likelihood of conflict of interest or injurious lay interference with the attorney-client relationship. Admittedly, there is some potential for such conflict or interference whenever a lay organization supports any litigation. That potential was present in Button, in the NAACP's solicitation of nonmembers and its disavowal of any relief short of full integration, see 371 U.S., at 420; id., at 460, 465 (Harlan, J., dissenting). But the Court found that potential insufficient in the absence of proof of a "serious danger" of conflict of interest, id., at 443, or of organizational interference with the actual conduct of the litigation, id., at 433, 444. As in Button, "[nothing] that this record shows as to the nature and purpose of [ACLU] activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application," id., at 444, of the Disciplinary Rules to appellant's activity.*fn29 A "very distant possibility of harm," Mine Workers v. Illinois Bar Assn., 389 U.S., at 223, cannot justify proscription of the activity of appellant revealed by this record. See id., at 223-224.*fn30
The State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization
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of the legal profession offer no further justification for the discipline administered in this case. The Button Court declined to accept the proffered analogy to the common-law offenses of maintenance, champerty, and barratry, where the record would not support a finding that the litigant was solicited for a malicious purpose or "for private gain, serving no public interest," 371 U.S., at 440; see id., at 439-444. The same result follows from the facts of this case. And considerations of undue commercialization of the legal profession are of marginal force where, as here, a nonprofit organization offers its services free of charge to individuals who may be in need of legal assistance and may lack the financial means and sophistication necessary to tap alternative sources of such aid.*fn31
At bottom, the case against appellant rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply "[proposes] a commercial transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973). See Ohralik, post, at 455-459. In the context
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of political expression and association, however, a State must regulate with significantly greater precision.*fn32
The State is free to fashion reasonable restrictions with respect to the time, place, and manner of solicitation by members of its Bar. See Bates v. State Bar of Arizona, 433 U.S., at 384; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771, and cases cited therein. The State's special interest in regulating members of a profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence.*fn33 As we decide today in
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footnote 33 explains that the Court also has refused to draw a line regarding misrepresentation:
"We have no occasion here to delineate the precise contours of permissible state regulation. Thus, for example, a different situation might be presented if an innocent or merely negligent misstatement were made by a lawyer on behalf of an organization engaged in furthering associational or political interests."
It may well be that the State is able to proscribe such solicitation. The resolution of that issue, however, requires a balancing of the State's interests against the important First Amendment values that may lurk in even a negligent misstatement. The Court wisely has postponed this task until an appropriate case is presented and full arguments are carefully considered.
MR. JUSTICE REHNQUIST, dissenting.
In this case and the companion case of Ohralik v. Ohio State Bar Assn., post, p. 447, the Court tells its own tale of two lawyers: One tale ends happily for the lawyer and one does not. If we were given the latitude of novelists in deciding between happy and unhappy endings for the heroes and villains of our tales, I might well join in the Court's disposition of both cases. But under our federal system it is for the States to decide which lawyers shall be admitted to the Bar and remain there; this Court may interfere only if the State's decision is rendered impermissible by the United States Constitution. We can, of course, develop a jurisprudence of epithets and slogans in this area, in which "ambulance chasers" suffer one fate and "civil liberties lawyers" another. But I remain unpersuaded by the Court's opinions in these two cases that there is a principled basis for concluding that the First and Fourteenth Amendments forbid South Carolina from disciplining Primus here, but permit Ohio to discipline Ohralik
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in the companion case. I believe that both South Carolina and Ohio acted within the limits prescribed by those Amendments, and I would therefore affirm the judgment in each case.
This Court said in United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 (1971): "The common thread running through our decisions in NAACP v. Button, [371 U.S. 415 (1963),] Trainmen [v. Virginia Bar, 377 U.S. 1 (1964),] and United Mine Workers [v. Illinois Bar Assn., 389 U.S. 217 (1967),] is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." The Court today ignores the absence of this common thread from the fabric of this case, and decides that South Carolina may not constitutionally discipline a member of its Bar for badgering a lay citizen to take part in "collective activity" which she has never desired to join.
Neither Button nor any other decision of this Court compels a State to permit an attorney to engage in uninvited solicitation on an individual basis. Further, I agree with the Court's statement in the companion case that the State has a strong interest in forestalling the evils that result "when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. " Ohralik, post, at 465. The reversal of the judgment of the Supreme Court of South Carolina thus seems to me quite unsupported by previous decisions or by any principle which may be abstracted from them.
In distinguishing between Primus' protected solicitation and Ohralik's unprotected solicitation, the Court lamely declares: "We have not discarded the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Post, at 455-456. Yet to the extent that this "common-sense" distinction focuses on the content of the speech, it is at least suspect under many of
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this Court's First Amendment cases, see, e. g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96-98 (1972), and to the extent it focuses upon the motive of the speaker, it is subject to manipulation by clever practitioners. If Albert Ohralik, like Edna Primus, viewed litigation "'not [as] a technique of resolving private differences,'" but as "'a form of political expression' and 'political association,'" ante, at 428, quoting Button, supra, at 429, 431, for all that appears he would be restored to his right to practice. And we may be sure that the next lawyer in Ohralik's shoes who is disciplined for similar conduct will come here cloaked in the prescribed mantle of "political association" to assure that insurance companies do not take unfair advantage of policyholders.
This absence of any principled distinction between the two cases is made all the more unfortunate by the radical difference in scrutiny brought to bear upon state regulation in each area. Where solicitation proposes merely a commercial transaction, the Court recognizes "the need for prophylactic regulation in furtherance of the State's interest in protecting the lay public." Ohralik, post, at 468. On the other hand, in some circumstances (at least in those identical to the instant case)*fn1 "[where] political expression or association is at
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issue," a member of the Bar "may not be disciplined unless her activity in fact [involves] the type of misconduct at which South Carolina's broad prohibition is said to be directed." Ante, at 434.
I do not believe that any State will be able to determine with confidence the area in which it may regulate prophylactically and the area in which it may regulate only upon a specific showing of harm. Despite the Court's assertion to the contrary, ante, at 438 n. 32, the difficulty of drawing distinctions on the basis of the content of the speech or the motive of the speaker is a valid reason for avoiding the undertaking where a more objective standard is readily available. I believe that constitutional inquiry must focus on the character of the conduct which the State seeks to regulate, and not on the motives of the individual lawyers or the nature of the particular litigation involved. The State is empowered to discipline for conduct which it deems detrimental to the public interest unless foreclosed from doing so by our cases construing the First and Fourteenth Amendments.
In Button this Court recognized the right of the National Association for the Advancement of Colored People to engage in collective activity, including the solicitation of potential plaintiffs from outside its ranks, for the purpose of instituting and maintaining litigation to achieve the desegregation of public schools. The NAACP utilized letters, bulletins, and petition drives, 371 U.S., at 422, apparently directed toward both members and nonmembers of the organization, id., at 433,*fn2 to organize public meetings for the purpose of soliciting
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plaintiffs. As described in Button, lawyers played only a limited role in this solicitation:
"Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting, authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation." Id., at 421.
The Court held that the organization could not be punished by the Commonwealth of Virginia for solicitation on the basis of its role in instituting desegregation litigation.*fn3
Here, South Carolina has not attempted to punish the ACLU or any laymen associated with it. Gary Allen, who was the instigator of the effort to sue Dr. Pierce, remains as free as before to solicit potential plaintiffs for future litigation. Likewise, Primus remains as free as before to address gatherings of the sort described in Button to advise potential plaintiffs of their legal rights. Primus' first contact with Williams took place at such a gathering, and South Carolina, evidently in response to Button, has not attempted to discipline
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her for her part in that meeting. It has disciplined her for initiating further contact on an individual basis with Williams, who had not expressed any desire to become involved in the collective activity being organized by the ACLU. While Button appears to permit such individual solicitation for political purposes by lay members of the organization, id., at 422, it nowhere explicitly permits such activity on the part of lawyers.
As the Court understands the Disciplinary Rule enforced by South Carolina, "a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he or she retain the organization's free services." Ante, at 433. That prohibition seems to me entirely reasonable. A State may rightly fear that members of its Bar have powers of persuasion not possessed by laymen, see Ohralik, post, at 464-465, and it may also fear that such persuasion may be as potent in writing as it is in person. Such persuasion may draw an unsophisticated layman into litigation contrary to his own best interests, compare ante, at 434-438, with Ohralik, post, at 464-467, and it may force other citizens of South Carolina to defend against baseless litigation which would not otherwise have been brought. I cannot agree that a State must prove such harmful consequences in each case simply because an organization such as the ACLU or the NAACP is involved.
I cannot share the Court's confidence that the danger of such consequences is minimized simply because a lawyer proceeds from political conviction rather than for pecuniary gain. A State may reasonably fear that a lawyer's desire to resolve "substantial civil liberties questions," 268 S. C. 259, 263, 233 S. E. 2d 301, 303 (1977), may occasionally take precedence over his duty to advance the interests of his client. It is even more reasonable to fear that a lawyer in such circumstances will be inclined to pursue both culpable and blameless defendants to the last ditch in order to achieve his
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ideological goals.*fn4 Although individual litigants, including the ACLU, may be free to use the courts for such purposes, South Carolina is likewise free to restrict the activities of the members of its Bar who attempt to persuade them to do so.
I can only conclude that the discipline imposed upon Primus does not violate the Constitution, and I would affirm the judgment of the Supreme Court of South Carolina.
* Briefs of amici curiae were filed by Herbert M. Rosenthal and Stuart A. Forsyth for the State Bar of California, and by Girardeau A. Spann and Alan B. Morrison for Public Citizen et al.