National Association for the Advancement of Colored People v. Button

Justice Harlan, joined by Justices Clark and Stewart, dissented. The dissent began with an acknowledgment:

No member of this Court would disagree that the validity of state action claimed to infringe rights assured by the Fourteenth Amendment is to be judged by the same basic constitutional standards whether or not racial problems are involved. No worse setback could befall the great principles established by Brown v. Board of Education . . . than to give fair-minded persons reason to think otherwise.

Having said that, Harlan went on to say that state regulation of the NAACP's practice was probably constitutional (though not wise).

He critically reviewed the organization's activities: The NAACP did aggressively seek out cases, a practice that often resulted in abnormal attorney-client relationships. The organization identified potential litigants, and NAACP attorneys attended meetings bearing blank forms for these target litigants to sign. In some cases clients did not personally interact with the attorneys representing them.

NAACP attorneys were also likely to maintain an agenda not necessarily set by their clients' own goals. For example, staff attorneys were directed by the NAACP to always fight for desegregated education, even if their clients preferred equal facilities. The result, White charged, was a distorted relationship to which the state could reasonably object.

In response to the majority's arguments, the dissent pointed out that even if litigation is a form of political expression, it may still be regulated. Furthermore, the state has a legitimate interest in regulation, and plentiful legal precedent to support its regulations. Finally, the dissent argued, the statute was not as vague as the Court had claimed. Even if it were, the proper course would be to resolve the ambiguity, rather than reject the entire statute.