In re Primus, 436 U.S. 412 (1978), stands for the principle that the First Amendment limits the ability of state authorities to sanction attorneys with nonprofit groups for political activities associated with garnering potential clients.The Supreme Court reasoned that such attorneys with nonprofit organizations are entitled to more constitutional protection than attorneys seeking clients for purely financial motives.

Edna Smith Primus, an attorney in Columbia, South Carolina, had contacted a woman in Aiken County, South Carolina, about challenging an alleged practice in the area of sterilizing women as a condition of continued receipt of Medicaid benefits. In her capacity as a cooperating attorney with the American Civil Liberties Union, Primus had written a letter to a woman who had been sterilized by a local doctor and who had attended an ACLU informational meeting. Primus offered the woman free legal representation, an offer that was eventually rejected. For her efforts, the disciplinary board of the Supreme Court of South Carolina issued Primus a private reprimand for engaging in improper solicitation. The state Supreme Court increased the punishment to a public reprimand.

Primus then appealed to the U.S. Supreme Court, which reversed on First Amendment grounds by a 7-1 (Justice William J. Brennan Jr. did not participate) vote. Writing for the majority, Justice Lewis F. Powell Jr. distinguished Primus’s soliciting from that of Ohio attorney Albert Ohralik, who engaged in direct, face-to-face solicitation with two young women in a hospital.The Court decided Ohralik v. Ohio State Bar Association (1978) and the Primus decision on the same day.

According to Powell, the First Amendment protected Primus, unlike Ohralik, because her action was “not in-person solicitation for pecuniary gain.” He noted that Primus’s actions “were undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU.” Powell believed that Primus’s actions were entitled to similar protection as the NAACP received from the Court in NAACP v. Button (1963), when the Court protected the civil rights organization and its attorneys for soliciting prospective litigants. The state had argued that Primus could be disciplined because the state had a strong interest in preventing undue influence, invasion of privacy, and other evils associated with solicitation. Powell rejected the arguments, writing: “In the context of political expression and association, however, a State must regulate with significantly greater precision.”

The Court’s lone dissenter, Justice William H. Rehnquist, criticized the different results in Ohralik and Primus. He saw no “principled basis” for distinguishing between “ambulance chasers” and “civil liberties lawyers.”

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