The United States Supreme Court’s decision in NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958) turns 50 this year. For those who value privacy it is a birthday worth remembering.
In NAACP v. Alabama, the Court affirmed that the constitutional rights of speech and assembly include a right of private group association. The idea that Americans are free to join private groups was not new in 1958. However, the Court’s decision to allow private groups to keep membership information confidential was an important constitutional milestone.
In 1956, the state of Alabama demanded a copy of the NAACP’s membership list, as part of its effort to expel the group from the state for allegedly violating a state business law. But the Supreme Court held that the civil rights group had a right to keep its members’ identities secret, whether or not a technical business law had been broken. Revealing the group’s membership, argued the Court, “is likely to affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.” NAACP at 462-63.
Whether handwritten on lined paper or stored electronically in a computer system, membership data is constitutionally protected from mandatory disclosure.
Individuals who join forces with others can sleep comfortably knowing they have a constitutional right to privacy that minimizes the risk of reprisal flowing from group membership. Any peaceful religious, social or political organization with a sensitive or unpopular mission can promise meaningful confidentiality and anonymity to members.
No
constitutional right is absolute, however. The right to maintain membership
data in secrecy is not perfectly guaranteed. But the Court reassuringly characterized official demands
for membership lists as substantial restraints on freedom of association. As such, courts must strike them down
unless they are narrowly tailored and necessary to further a compelling state
interest. NAACP at 463-66.
The National Association for the Advancement of Colored People—the NAACP-- was established about a hundred years ago. It began as a private membership non-profit, organized under the laws of New York. Its original mission was to advance racial justice for African Americans through activities coordinated from a central office and affiliates in towns across the country. The NAACP sought equality and an end to laws forcibly segregating schools, housing, transportation and places of public accommodation in the American south. Today the NAACP thrives as a mainstream civil rights group with numerous branches and more than a million members.
Guided by civil rights attorney and future Supreme Court justice Thurgood Marshall, the NAACP spawned the NAACP Legal Defense Fund (LDF) in 1940. Just as it did when it was an arm of the NAACP, the now independent LDF uses the courts to advance justice for people of all races and income groups. The contemporary LDF, like the contemporary NAACP, is a well-received, mainstream organization.
But things were once very different.
Back in the 1950s, the public associated the NAACP with bold, even radical efforts to force an end to legal segregation. Many welcomed the political and legal work of the NAACP. But many others did not. Especially in the South, letting go of traditions of racial discrimination was painfully hard. In 1954, the Supreme Court handed down its decision in Brown v. Board of Education officially ending state imposed public school segregation. Yet many southerners refused to send their children to desegregated public schools, let alone sit next to an African American on a bus or at a lunch counter.
Public resistance to integration efforts in the 1950’s explains why the state of Alabama became desperate to get rid of the NAACP. The NAACP had operated in Alabama since 1918, but it was not until 1956 that the state took definitive steps to oust the group. The NAACP’s mission to remove racial and color discrimination from American life was at variance with the state’s aim of maintaining an unequal caste system of racial segregation.
Alabama conceived a clever strategy to expel the NAACP, one that relied on the state’s foreign corporation qualification law. Alabama had a statute similar to other states’ requiring out-of-state (“foreign”) corporations to register or “qualify” prior to transacting business, Ala.Code, 1940, Tit. 10, §§ 192-198. To qualify, a corporation was supposed to file its charter with the secretary of state, designate a place of business, and name an agent to receive service of process. The penalty for transacting business without having first qualified included fines for the organization and criminal prosecution of its corporate officers. Alabama decided that the NAACP, which had been organized in New York, was a foreign corporation operating in Alabama.
In 1956, Alabama officials accused the NAACP of violating the law requiring foreign corporations to register with the state. The state alleged that the NAACP had flagrantly violated the law by operating extensively in the state without taking the steps to qualify. Describing the NAACP’s alleged operations, the state maintained that the NAACP had opened a regional office, organized chapters and recruited members throughout Alabama; solicited contributions in Alabama; and provided both financial support and legal aid to black students attempting to gain admission to the white-only University of Alabama. The state also alleged that the unregistered civil rights group had instigated the famous Montgomery bus boycott that followed Rosa Park’s arrest for refusing to give her bus seat to a white passenger.
Although the Montgomery Bus boycott had not been the work of the NAACP and the NAACP had provided only legal support to African Americans seeking to attend the University of Alabama, it was true that the NAACP had failed to comply with the state’s corporate qualification law prior to setting up shop in Alabama in 1914. Based on this act of non-compliance, state officials successfully obtained a court order enjoining the NAACP from continuing to operate in the state. Injunctions are appropriately granted on evidence of irreparable harm. Alabama persuaded a court that the NAACP was "causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief." In addition to ordering that the NAACP cease all operations, the court also granted a remarkable request of the state that the NAACP not be permitted to comply with the state corporate qualification law even if it wanted to!
NAACP launched a series of legal maneuvers to fight ouster from Alabama. The group tendered the missing corporate qualification documents, but the state refused to accept them. The state fought back with a motion seeking the names and addresses of the organization’s agents and members. The sweeping motion was granted. The organization produced the identities only of its officers and directors. At a time when civil rights advocates faced death, injury and loss of property, the NAACP refused to reveal the identities of its general membership. For this refusal, the NAACP was held to be in contempt of court. The court fined the organization $100,000—an enormous sum of money.
The NAACP appealed the decision of the state courts to the U.S. Supreme Court, arguing that rights to freedom of speech and assembly guaranteed under the Fourteenth Amendment to the Constitution of the United States were at stake. The Court set a date for oral argument and when the day arrived, the NAACP was ready. Chief Justice Earl Warren presided over a full panel of nine justices—all men, all white, some southerners. Attorney Robert Carter made the case for the NAACP before the nine members of the Court. Carter never stammered or stumbled. He answered the justices’ probing questions with the ease and occasional irritated impatience of a man who believes the law is obviously on his side. Carter freely admitted that the NAACP was active in Alabama. Stressing that the NAACP was a known entity easily located for purpose of serving process, Carter then argued that the names and addresses of members could be kept private even if the state was right that the organization ought to have formally complied with the foreign corporation qualification law when it first arrived in Alabama in 1914.
Carter was effective. The Supreme Court soon rendered an opinion siding with the NAACP. Justice Harlan wrote the opinion of the unanimous Court: “The question presented is whether Alabama, consistently with the Due Process Clause of the Fourteenth Amendment, can compel petitioner to reveal to the State's Attorney General the names and addresses of all its Alabama members and agents, without regard to their positions or functions in the Association.” The answer of the Court was a resounding “no”. Alabama could not compel revelation of the names and addresses of NAACP members.
When Americans voluntarily join a private peaceful political, religious or social association, even an unpopular, controversial one, they are entitled to as much confidentiality as to their names and addresses as the association chooses to confer. The Court ruled that the Due Process Clause of the 14th Amendment confers to each individual, rights of free speech and free association. These are rights protected from federal violation by the First Amendment and from state violation by the First and Fourteenth Amendments.
NAACP
v. Alabama has left an indelible mark. It is
the centerpiece of the constitutional jurisprudence of information disclosure. Major
decisions of the Supreme Court have followed the authority of the NAACP case.
Bates v. City of Little Rock, 361 U.S. 516 (1960), upheld the NAACP's refusal to provide the names of its
members to city tax revenue officials. In Talley v. California, 362 U.S. 60 (1960), the Court invalidated a Los Angeles ordinance banning distribution
of leaflets that did not bear the names and addresses of the people responsible
for their distribution. In McIntyre
v. Ohio Elections Comm'n, 514 U.S. 334 (1995) the Court struck down an Ohio law prohibiting distribution
of anonymous campaign materials. Finally, in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), the court found that a Colorado statute requiring that
door-to-door solicitors wear identification badges violated the First
Amendment.
Lower
courts have also followed the NAACP decision. Notably, in Wallace v.
Brewer, 315 F. Supp. 431 (M.D. Ala. 1970), Alabama lost its bid to obtain
the membership list of a group of Black Muslims who purchased land with the
intent to settle in the state. A
state law required the registration of “communists, Nazis and muslims.” The law required all Muslims who remain
in Alabama for more than one day to register with the department of public
safety and any Muslim organization to list all of its members. The federal district court declared the
law unconstitutional. The court cited NAACP v. Alabama and the “vital
relationship between freedom to associate and privacy in one’s
association.” NAACP at 462.
NAACP stands for the proposition that individuals have a strong, constitutional interest
in the protection of sensitive data. NAACP concerned compelled
membership information disclosure. But the case gets cited whenever questions arise about the right of
government to demand access to information obtained in confidence and deemed
sensitive. The case was thus cited
in Whalen v. Roe, 429 U.S. 589 (1977). The New York legislature passed
the New York State Controlled Substances Act in 1972, requiring that
pharmacists report the names of people who filled prescriptions for certain
dangerous medications. The law was
challenged before the Supreme Court. Although the Court did not find the law to be an unconstitutional violation
of the right to privacy on its face, it noted that there is a strong
constitutionally significant interest in the protection of regarded as
sensitive, such as medical data.
The NAACP decision has not always protected individuals seeking to remain
anonymous. The courts have
sometimes found that the state’s interest in the accountability of potential
wrong-doers outweighs the privacy interest in confidential group association or
individual expression.
In
1959 Court upheld the right of the state of New Hampshire to order a group with
ties to known communists to turn over a list of individuals who had been guests
at one of its camps. The case was Uphaus v. Wyman, 360 U.S. 72 (1959). The Court in Uphaus distinguished NAACP on several
grounds. It noted that the state
was seeking, not an organization’s membership list, but the names of person who
had registered for an activity open to the general public at which numerous
communists were scheduled to speak. It also observed that failure to comply with a bureaucratic state law
was the rationale Alabama gave for seeking the NAACP’s membership list, whereas
New Hampshire’s aim was a good faith investigation of subversives. The Court more assumed than argued that
the state of New Hampshire’s approach to investigating “subversive” activity
was narrowly tailored to further a compelling state interest.
In Church of the American Knights of
the Ku Klux Klan v. Kerik (2004) the Second Circuit Court of Appeals held
that hooded masks worn by KKK members did not constitute expressive conduct
entitled to First Amendment protection, and that New York's anti-mask statute
was not facially unconstitutional. The KKK is an infamous unincorporated
political group, sometimes styled a church, that advocates on behalf of white Christians. Its history has been
marred by vigilante violence against African Americans, Catholics, Asians, Jews
and other minority groups. Although the Court of Appeals cited NAACP, it found that KKK members’
interest in anonymity was not sufficiently strong to invalidate the New York
rule: "[T]he Supreme Court has never held that freedom of association or
the right to engage in anonymous speech entails a right to conceal one's
appearance in a public demonstration."
Less
predictably, the NAACP case has played a role in the Supreme Court’s
decisional privacy cases. It
was cited toward recognition of a free standing right to constitutional privacy
in Griswold v. Connecticut, 381 U.S. 459 (1965).
In Griswold Justice Douglas argued that a right to privacy is had been
implicit in great precedents of the Court interpreting the Bills of Rights and
the Fourteenth Amendment. One such
precedent was the NAACP case. On the surface, the right to access to birth control, at issue in Griswold,
and the right to private group membership, at issue in NAACP are very
different sorts of rights. But they
have in a common a basis in a broad and critical liberal ideal: every
autonomous citizen having an individual right of privacy to be free from
unwanted monitoring and interference by the government.
The
ideal of decisional privacy was further developed in constitutional law in two
familiar cases of lasting significance. The two cases are Roe v. Wade, 410 U.S. 113 (1973), the landmark case
striking down laws categorically criminalizing abortion; and Lawrence v. Texas, 539 U.S. 558 (2003), the more
recent landmark in which the Court struck down laws criminalizing homosexual
sodomy. Heirs of Griswold,
these cases, too, owe a debt to NAACP v. Alabama’s vigorous defense of
freedom from state interference.
NAACP is likely to have a long and rich future in the law, if recent data-protection
and information privacy scholarship is any indication. Legal commentators are using the NAACP
decision creatively, to make the case for everything from litigation anonymity
to limiting the use of new surveillance technologies.
Anil
Kalhan cited the NAACP case in a recent law review article defending
informational privacy rights in the immigration law enforcement context. See Anil Kalhan, The Fourth Amendment and Privacy:
Implications of Interior Immigration Enforcement, 41 U.C. Davis L. Rev.
1137 (2008). Kalhan argued that
“as a result of being compelled to disclose immigration and citizenship status,
both unauthorized and lawfully present noncitizens may become more vulnerable
to discrimination or harassment based on that revealed status itself.” In this respect, maintained Kalhan citing
the NAACP case, “the individual interest in maintaining some measure of
privacy in one's status is analogous to the associational privacy and anonymous
speech interests that the Supreme Court has recognized and protected under the
First Amendment, where the Court has also been concerned with the vulnerability
that members of disfavored groups may face if forced to disclose their group membership or identities as
speakers.” Kalhan at 1183. Kalhan
stressed a recent Pennsylvania court’s decision in Lozano v. City of
Hazleton (2007) “to permit plaintiffs with ‘uncertain immigration status’
to proceed anonymously with litigation. … because of “potential for harassment
and intimidation of the plaintiffs on the basis of their race, immigration
status, and involvement with the ‘highly publicized and controversial lawsuit’…”. Kalhan at 1183. The Lozano litigation initiated
by public interest organizations challenging city of Hazleton, Pennsylvania’s
ordinance penalizing residents who rent to or employ undocumented immigrants--loudly
echos NAACP.
In
an altogether different vein, a second law review article, Rights “Chipped”
Away: RFID and Identification Documents, 2008 Stan. Tech. L. Rev. 1 (2008),
author Nicole A. Ozer cited the NAACP case
in support of the case she sought to build against expanding the use of
insecure RFID technology. This
technology in identification
documents “not only impacts our fundamental rights to privacy afforded both by
the U.S. Constitution and some state constitutions, but also chills our ability
to exercise our rights to free expression by preventing people from remaining
anonymous.” Ozer at 35. Ozer argued that “[f]orcing people to
carry a government ID with insecure RFID technology is tantamount to requiring
people to potentially identify themselves whenever they walk, speak, or meet in
public…since “it would be practically impossible to be in a public place
without wondering whether the government was monitoring and recording who you
were, where you were, and what you were doing.” Ozer at 35.
Thanks
to NAACP v. Alabama, government may not force even a controversial group
to identify its members, absent establishing a compelling state interest in
disclosure. The right of private
free association belongs to all who respect the rights of others. It belongs to those who are for racial
equality or against it. It belongs
to Muslims, Jews, Christians, Hindus and Buddhists. It belongs to communist, socialist or liberal
ideologues. And it belongs to the
native born and the immigrant American.
The
fact that technology has made it easier to collect, store and share data
revealing individuals’ group memberships should be of no consequence. The principles of expressive private
association, confidentiality and anonymity embodied in the NAACP case should
have an abiding place in the jurisprudence of every enlightened democracy.
Supreme Court Oral Arguments NAACP v. Alabama
NAACP . Alabama Ex Rel Patterson (1958)
Findlaw NAACP v. Alabama, 377 U.S. 288 (1964)
Marc Rotenberg, "Technology and Privacy: Old Problems and New Challenges," Human Rights Magazine (Winter 2007)
Last modified:
June 27, 2008