National Association for the Advancement of Colored People v. Overstreet/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.

In The boy claimed that respondent, the owner of a market at which the boy was employed, had accused him of stealing merchandise and had thereafter slapped and kicked him. The truth of this charge remains disputed. The boy's mother, dissatisfied with the response of the local police, contacted the Savannah Branch of the National Association for the Advancement of Colored People. The Branch responded by organizing a campaign to withhold patronage from respondent. Pickets were established and customers were asked to refrain from shopping in the market. Although the record does not contain any evidence of misconduct on the part of the Branch's members or officers, the picketing apparently attracted substantial crowds. There were incidents involving the intimidation of customers, blocking of sidewalks, and scattered incidents of violence. The trial judge instructed the jury that it might hold the Branch responsible for the respondent's damages if it found that the picketing was the 'proximate cause' of the misconduct of others. The judge further instructed the jury that should it hold the Branch liable, it might also hold petitioner-the national NAACP-if the Branch were found to be its 'agent.' The jury held both the Branch and petitioner liable. Damages totaling $85,793 were assessed: this figure includes $50,000 in punitive damages. The Georgia Supreme Court affirmed, 221 Ga. 16, 142 S.E.2d 816, and we granted certiorari, limited to the question of whether holding petitioner, the national organization, liable 'for acts performed without its knowledge and by persons beyond its control' denied it rights secured by the Fourteenth Amendment. 382 U.S. 937, 86 S.Ct. 388, 15 L.Ed.2d 348.

Respondent has suffered economic loss as a result of the conduct of those who blocked his sidewalk and threatened his customers. I assume that nothing in the Constitution bars recovery for his injuries from those individuals. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. The courts below found that the Branch was responsible for these injuries, and no questions as to that aspect of the case are now before us. We have only the question whether, given the liability of the Branch, petitioner, the national NAACP, may be held responsible for respondent's loss-and for the punitive damages imposed.

The amended complaint alleged that W.W. Law, an officer of the Branch, 'in using such tactics, was acting in and for the services' of petitioner 'as its agent, employee, and servant, within the scope of said agency, employment and service.' That allegation was denied by petitioner and the record does not contain one iota of proof that petitioner controlled, authorized, or even knew of these activities.

Petitioner is a nonprofit corporation organized in New York for the purpose of promoting equality of treatment for Negro citizens. The Branch is concededly an affiliate of that national organization. A portion of the dues it collects is forwarded to the national, and members of the local branch are automatically members of the national organization. Members of the local association can and do attend the annual national convention at which they participate in workshops and discussions relating to NAACP activities. The Branch makes an annual report of its activities to the national NAACP.

That, for all the record shows, is the full extent of the relations between petitioner and the Branch. There is no evidence of any power on the part of petitioner to control the conduct of the Branch. There is no evidence of any effort in past years by petitioner to exercise such control. The Branch officers were not, for all the record shows, national officers. The petitioner did not order the demonstrations nor did it authorize them. The record affirmatively shows that petitioner had no knowledge of the demonstrations against respondent and did not learn of them until it was sent the restraining order that was served upon the Branch president. And nothing in the record suggests 'ratification'-even by inaction over a sustained period-of the local's activities against respondent or of similar activities.

The standards by which the trial court allowed this 'agency' to be measured were, to say the least, unclear. The trial judge instructed the jury that the petitioner was a New York corporation which could 'only be represented in Georgia by agents, and the agents must conduct themselves in a manner that is compatible with the purposes of that organization.' He then instructed as follows:

'Now did the National Association for the Advancement of     Colored People have an agent in Savannah? Who was that agent? Was it W.W. Law (the Branch's president)? * *  * Is the      National Association responsible for what this affiliate      does? * *  * Are they so connected that one is responsible for      the act of the other by reason of the agency; by reason of      their concerted activities as expressed in this conspiracy? As the Court sees it, you can't get agency and conspiracy     separated in this case. A corporation may be a member of a     conspiracy if its officers and agents take part in it and it      furthers the conspiracy. You look to the evidence and see if     it preponderates as to these organizations. Was there an     agency that bound the National Association *  *  * ? Did they     participate through their agents and members and people who      had a right to bind them in this conspiracy?' (Emphasis      added.) These instructions, to which the defendants excepted and assigned as error on appeal, gave the jury little guidance as to the circumstances in which it would be appropriate to hold liable the national NAACP. The remarks of the trial judge in considering petitioner's motion for a nonsuit are, in this respect, revealing: '(S)o far as the evidence is concerned, there (is) no evidence to the effect that any member (of the Branch) was the agent of the national corporation. In other words, they were just affiliated.' (Emphasis added.)

To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit. We have not been slow to recognize that the protection of the First Amendment bars subtle as well as obvious devices by which political association might be stifled. See Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480. Thus we have held that forced disclosure of one's political associations is, at least in the absence of a compelling state interest, inconsistent with the First Amendment's guaranty of associational privacy. E.g., DeGregory v. Attorney General of State of New Hampshire, 383 U.S. 825, 86 S.Ct. 1148; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543 546, 83 S.Ct. 889, 892-894, 9 L.Ed.2d 929; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 462-463, 78 S.Ct. 1163, 1171-1172. Recognizing that guilt by association is a philosophy alien to the traditions of a free society (see Schware v. Board of Bar Examiners, 353 U.S. 232, 245-246, 77 S.Ct. 752, 759-760, 1 L.Ed.2d 796) and the First Amendment itself, we have held that civil or criminal disabilities may not be imposed on one who joins an organization which has among its purposes the violent overthrow of the Government, unless the individual joins knowing of the organization's illegal purposes (Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216) and with the specific intention to further those purposes. See Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992.

The present case contains no less a threat to political association. That the threat comes in the form of civil suits for damages rather than that of direct governmental restraints is of no consequence as we noted in New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686. Today a judgment of more than $80,000 is fastened on the national NAACP. Juries hostile to the aims of an organization in the educational or political field, unless carefully confined by meticulous instructions and judicial supervision, can deliver crushing verdicts that may stifle organized dissent from the views and policies accepted by the majority.

This case thus carries us into territory in which principles of state law must be accommodated with overriding federal precepts. The law of agency which a State chooses to follow functions, for the most part, free of constitutional restraint; in our federal system, each State may regulate the relations between principal, agent, and third parties according to its own standards of fairness and sound policy. But when a state policy thwarts interests which the Federal Constitution affords special protection, that state policy must yield. For example, though state law customarily determines whether a particular contract is enforceable, notwithstanding the applicable commercial law a state court may not enforce covenants restricting sale of real property to non-whites. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. While the States may preserve order on the public streets and punish conduct constituting a 'breach of the peace' as defined by local law, peaceful expression may not, regardless of the label put upon it, be punished. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. And see Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Questions of legislative apportionment, though primarily matters of state law, must be resolved in compliance with the Federal Equal Protection Clause. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. The same is true of voter registration, Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079. State regulation of the practice of law more specifically, the rules regarding solicitation of legal business-must yield in favor of the First Amendment right to join together in a common effort to assert legal rights. N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89.

In N.A.A.C.P. v. Button, supra, we rejected the State's claim that 'solicitation' of legal business is outside the area of freedoms protected by the First Amendment. We said that 'a State cannot foreclose the exercise of constitutional rights by mere labels.' 371 U.S., at 429, 83 S.Ct., at 336. So it should be in this case. Terms such as 'agency' and 'affiliation' have no talismanic significance. In the context of this case, they obscure rather than promote sound analysis. The question we must answer is whether a national political association can be held responsible for wrongs committed by those beyond its control in a constitutional system where freedom of expression and association is treasured.

The threats which political organizations of this kind today face were once a great burden on labor unions. Congress acted to relieve that burden by enacting § 6 of the Norris-LaGuardia Act:

'No officer or member of any association or organization, and     no association or organization participating or interested in      a labor dispute, shall be held responsible or liable in any      court of the United States for the unlawful acts of individual officers, members, or      agents, except upon clear proof of actual participation in,      or actual authorization of, such acts, or of ratification of      such acts after actual knowledge thereof.' 47 Stat. 71.

See United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973. We recently held in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, that an international union could not be held liable for the tortious conduct of a local in the absence of 'clear proof' of 'participation, authorization, or ratification' by the international union.

We have of course no like statute here. But the First Amendment, which commands vigilance lest the rights it assures be denied the 'breathing space' (N.A.A.C.P. v. Button, supra, 371 U.S. 433, 83 S.Ct. 338) necessary for survival, provides guidance. In my view, it forbids the imposition of liability on a national political association on account of the misconduct of a local branch without proof that the national organization specifically authorized or ratified the conduct for which liability is sought to be imposed. A general finding of 'agency' or 'affiliation' is not enough. In the present case, the record discloses at most a loose relationship between petitioner and this independently controlled Branch. This record discloses no specific authorization or ratification by petitioner of the acts which the Georgia courts found tortious. Nor is there any evidence of any participation by petitioner in such conduct. The trial judge himself stated that there was no 'agency' shown, but only an 'affiliation' between petitioner and the local Branch. So weak a link cannot, for the reasons I have stated, warrant holding the national NAACP responsible for the damages sustained.

I would reverse this judgment.