In re Primus

This decision upheld the First Amendment protections for nonprofit organizations with political aims, allowing such groups to approach potential litigants to offer legal advice, explain the rights of individuals, and to encourage the use of litigation as a political action.

In 1973, Edna Smith Primus was working as a paid legal consultant for the South Carolina Council on Human Relations, and was a cooperating lawyer for the American Civil Liberties Union (ACLU), for which she received no pay. During that summer, newspapers began reporting that pregnant mothers receiving Medicaid in Aiken County, South Carolina were being sterilized or threatened with sterilization, in order to continue receiving care under the Medicaid program. Primus was sent as a representative of the council to speak to a group of the women who had been sterilized, to advise them concerning their legal rights. In August of 1973, the ACLU told Primus that free legal representation could be offered to the women who had been sterilized. Primus then wrote a letter to Mary Etta Williams, a woman who had been sterilized, and who had expressed interest in bringing a suit against the doctor who had sterilized her. Williams gave a copy of this letter to her doctor after she had decided not to sue. The letter became the basis of a formal complaint against Edna Smith Primus, filed with the Board of Commissioners on Grievances and Discipline of the South Carolina Supreme Court.

Primus was accused of improper solicitation on the behalf of the ACLU, which the board claimed would have benefited financially if the potential client had sued and won money damages. Codes of ethics for lawyers and various state regulations prohibit direct solicitation which would result in gain by lawyers, with the aim of protecting the public from pressure. Primus claimed that her actions did not represent improper solicitation, but were protected by both the First and Fourteenth Amendments as she would not gain from representing Williams, but would be advancing a civil liberties political agenda. The South Carolina Supreme Court rejected these arguments and issued a public reprimand.

The primary question in this case was over the nature of the activities of the appellant and the ACLU. While the state supreme court claimed that Primus was soliciting for the ACLU with the intention of financial gain, the ACLU and the appellant claimed that her solicitation was protected, based on the decision in National Association for the Advancement of Colored People v. Button (1963). In that case, the U.S. Supreme Court decided that the NAACP, "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.'" While the Court did not deny the rights of states to create legislation which protects the public from "undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, and lay interference that potentially are present in solicitation of prospective clients by lawyers," it clearly protected the freedom of nonprofit groups, such as labor unions, to freely associate. This was upheld in cases such as United Transportation Union v. Michigan Bar (1971) and Mine Workers v. Illinois Bar Association (1994). If the ACLU's intention was primarily to provide legal counsel, and to profit accordingly, Primus's action would probably be worthy of a reprimand. But the Court found that the ACLU was an organization with political interests, as are the NAACP and labor unions. The ACLU only becomes involved in litigation concerning civil liberties, and the Court acknowledged that "it has engaged in the defense of unpopular causes and unpopular defendants 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." The ACLU is a "bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public."

The Court, by rejecting the South Carolina Supreme Court's decision to reprimand Primus, took a strong stand against limiting freedom of speech and association. By protecting these rights, not just for individuals but also for active nonprofit organizations, the Court was protecting the free discussion of politics, and open public debate. The case also indicated that potentially troubling or unpopular opinions, such as those expressed by the ACLU, the NAACP, or labor groups, could not be suppressed by the states.