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First Amendment Library:
Lloyd N. Cutler


The Federal Election Campaign Act of 1971, as amended in 1974, contained a large variety of restrictions on political campaign giving and spending. Various federal officeholders and candidates, supporting political organizations, and others brought suit against appellees (the Secretary of the Senate, Clerk of the House, Comptroller General, Attorney General, and the Commission) seeking declaratory and injunctive relief against several statutory provisions on various constitutional grounds.


The term "concerted action" encompasses unlawful conspiracies and constitutionally protected assemblies. The "looseness and pliability" of legal doctrine applicable to concerted action led Justice Jackson to note that certain joint activities have a "chameleon-like" character.[1] The boycott of white merchants in Claiborne County, Miss., that gave rise to this litigation had such a character; it included elements of criminality and elements of majesty. Evidence that fear of reprisals caused some black citizens to withhold their patronage from respondents' businesses convinced the Supreme Court of Mississippi that the entire boycott was unlawful and that each of the 92 petitioners was liable for all of its economic consequences. Evidence that persuasive rhetoric, determination to remedy past injustices, and a host of voluntary decisions by free citizens were the critical *889 factors in the boycott's success presents us with the question whether the state court's judgment is consistent with the Constitution of the United States.


The issue in this case is whether a clerical employee in a county Constable's office was properly discharged for remarking, *380 after hearing of an attempt on the life of the President, "If they go for him again, I hope they get him."


On January 12, 1981, respondent Ardith McPherson was appointed a deputy in the office of the Constable of Harris County, Texas. The Constable is an elected official who functions as a law enforcement officer.[1] At the time of her appointment, McPherson, a black woman, was 19 years old and had attended college for a year, studying secretarial science. Her appointment was conditional for a 90-day probationary period.