United States: NAACP v. Claiborne Hardware Co.

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ARTICLE 19

01 Jan 1982

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458 US 886 (1982) (United States Supreme Court)

The appellants had boycotted white businesses as a form of protest; the businesses had sued for injunctive relief and damages.

Theme: Public order
Sub-Issues: Right of free speech and assembly
Test:  
Penalty: Injunction, financial
Decision: Violation of the right to freedom of expression (First Amendment to the United States Constitution); unanimous
Jurisdiction: United States of America (Supreme Court)

Facts:

In 1966, a boycott of white merchants was launched at a meeting of a local branch of the National Association for the Advancement of Colored People (NAACP). The purpose of the boycott was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was largely supported by speeches and by non-violent picketing, but some acts and threats of violence did occur. In 1969, the respondent white merchants sued for injunctive relief and damages against petitioners. Holding petitioners liable for all of respondents' lost earnings during a 7-year period from 1966 to the end of 1972, the court imposed damages liability and issued a permanent injunction. On appeal to the state Supreme Court, the court held that the boycott had been unlawful and affirmed liability for all damages "resulting from the boycott" on the ground that petitioners had agreed to use force, violence, and "threats" to effectuate the boycott.

Held:

The Court recognised at the outset that the boycott was a form of expressive conduct protected under the right to freedom of expression:

Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the [right to freedom of expression]. The black citizens named as defendants in this action banded together and collectively expressed their dissatisfaction with a social structure that had denied them rights to equal treatment and respect. As we so recently acknowledged in Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, "the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process." We recognized that "by collective effort individuals can make their views known, when, individually, their voices would be faint or lost". (at 907-908; footnotes and references omitted)
[T]he boycott clearly involved constitutionally protected activity. The established elements of speech, assembly, association, and petition, "through not identical, are inseparable." ... Through exercise of these ... rights, petitioners sought to bring about political, social, and economic change. Through speech, assembly, and petition - rather than through riot or revolution - petitioners sought to change a social order that had consistently treated them as second-class citizens. (at 911-912)

While the Court recognised that there was evidence that some of the NAACP members had engaged in illegal conduct, this did not remove the group from the protection of the rights to freedom of speech and assembly:

The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected. (at 908)

While the petitioners did more than merely assemble peacefully and discuss matters of common political interest, the Court found that the other elements of the boycott - peaceful picketing, marching and speeches - all enjoyed protection under the right to freedom of expression. While the Court recognised that some of the speeches had sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism, it was still protected speech:

Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. (at 910)

However, although the boycott was protected under the right to freedom of expression, the Court considered that Governmental regulation that has an incidental effect on the right to freedom of expression may be justified in certain narrowly defined instances. However, while States have broad power to regulate economic activity, they may not prohibit peaceful political activity. The Court considered it important that while the petitioners had foreseen that the merchants would sustain economic injury as a result of their campaign, their ultimate purpose was not to destroy legitimate competition; the petitioners sought to vindicate their rights of equality and of freedom. Therefore, the non-violent elements of the boycott enjoyed full protection and could not be interfered with.

However, the Court considered that some acts and threats of violence occurred also, and that the lower courts had awarded damages partly on this basis. The court emphasised that:

The [right to freedom of expression] does not protect violence. (at 916)

Therefore, there was some basis to impose tort liability. However, the court made it clear that this should go no further than absolutely necessary, and should be limited to those damages that resulted from violent conduct:

[P]recision of regulation is demanded ... the presence of activity protected by the [right to freedom of expression] imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages ... While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity. Only those losses proximately caused by unlawful conduct may be recovered. (at 916-918, references omitted)

Furthermore, the Court observed that damages could not be imposed on an individual solely because of their association with another. The lower courts had imposed damages on, amongst others, the petitioners as a group. In order for this to be legitimate, the Court stated that:

[I]t is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims. In this sensitive field, the State may not employ means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. (at 920, references omitted)

The Court considered that not all business losses had been caused by violence and threats of violence; instead, it considered that many had participated in the boycott out of fear of social ostracism. This was not a valid basis on which to impose damages. In addition, the lower courts had imposed damages liability on the basis of attendance of NAACP meetings. This was also invalid; not only was it unconstitutional to ascribe 'guilt by association', there was no evidence that petitioner had illegal aims. Neither could damages liability be imposed simply because some individuals had picketed the stores; only where there was evidence of violence could a damages claim be sustained.

The Court also considered the role of one of the boycott leaders, E., who presided at the meeting at which the vote to begin the boycott was taken, delivering a rousing speech. In the speech, he had made reference to the possibility that "necks would be broken" and to the fact that the police "could not sleep with boycott violators at night", implicitly conveying a stern message. However, the Court considered that his words could not be considered as 'fighting words' inciting immediate violence, nor did immediate violence follow. In political rhetoric, it was sometimes necessary to use strong words:

Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open." (at 929, reference omitted)

Therefore, the damages judgment against him could not be sustained. The Court considered further that petitioner's liability had derived solely from the liability of E. Therefore, to the extent that E.'s acts were insufficient to impose liability upon him, they could not be used to impose liability on the petitioner.

The Court went on to explain that the judgment against petitioner could not be sustained in any event. It was clear that the national NAACP never authorised the boycott, and that it supplied no financial aid to it, and that it had not been involved in any other way. Therefore, the national organisation was not liable for action by the local branch.

In conclusion, the Court stated that the damages judgment constituted a violation of the right to freedom of expression. It again stressed the importance of political activism to a democratic society, and that the acts of some could not be used to take action against legitimate fellow protestors:

Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity. And yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means ... The taint of violence colored the conduct of some of the petitioners ... The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. A massive and prolonged effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts ... A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees. (at 932-934)

 


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