*1 ATTORNEY OF KOOTA, DISTRICT ZWICKLER KINGS COUNTY. Argued December
No. 29. October 1967. Decided *2 argued Emanuel the cause and a brief filed Redfield appellant. for Hirshowits, Attorney Gen- A. First Assistant
Samuel York, argued appellee. eral of New for cause With Lefkowits, Attorney him on the brief were Louis J. Gen- Rollins, Irving George L. Zuckerman and eral, D. SolojJ, Attorneys Brenda Assistant General. Greenberg, Melvyn Anthony Jack Zarr and G. Amster- for Legal dam filed brief the NAACP Defense and Fund, Inc., curiae, as amicus urging Educational reversal. Harry Raymond Brodbar and J. Scanlan filed a brief Attorneys for National District Association, as amicus curiae, urging affirmance. opinion
Mr. Justice Brennan delivered the of the Court. of the York
Section 781-b New Penal Law makes it a among crime to distribute quantity, any other things, any handbill for another which contains statement con- cerning any candidate in connection any with election public officers, also printing without thereon the name and post office address of printer thereof and of the person at whose instance such handbill is so distributed.1 (now superseded 1 N. Y. Penal Law 781-b language identical by N. Y. 1782-1783): Election Law see Laws c. at person print, publish, reproduce “No shall quan- or distribute tity, printed, nor published, reproduced order to be or distributed by dis- the statute violating convicted was Appellant of a record critical handbills tributing anonymous seeking re-election Congressman States United law state reversed, on conviction elections. Appellate Court, Supreme York by the New grounds, affirmed Appeals York Court the New Term,2 and post placard circular, card, pamphlet, any handbill, by any method notice, any statement, informa- another, which contains or for letter party, concerning any political allegation or other material tion, to the or person, proposition amendment candidate, committee, party, against political constitution, in favor of whether state proposition or amendment committee, person, candidate, officers, any public election constitution, in connection with party public office, for nomination party officials, candidates *3 without to the state constitution position, proposition or amendment English legibly and in the reproducing printing thereon or also printer thereof post-office of the address language and the name request such or at whose instance person committee of the or and printed, placard so post card, or letter is circular, handbill, pamphlet, person distributed, who ordered and of the reproduced published, or person distribution, reproduction or and printing, publishing, such or publish, reproduce or distribute print, shall so nor committee any such reproduced or published, distributed printed, to be order placard without post card, or letter circular, pamphlet, handbill, post- and reproducing or its his name publishing, or printing, also provisions of this section of the A violation thereon. office address misdemeanor. a shall constitute principal in section means the ‘printer’ used this as “The term responsible relationship is independent contractual by who or which request at whose instance directly or committee person printed, placard circular, post card, or letter handbill, pamphlet, a by principal, and does such reproduced or distributed published, principal.” employed working for or such person not include People defendant opinion, to establish that failed “In our of the quantity’ in literature ‘in violation anonymous distributed do not (b) of the Penal We Law. provisions of [sic] Section constitutionality involved.” question of the reach the 23, County, April App. Term, Kings Zwickler, Sup. Ct., People v. Supp. Koota, 261 F. quoted in (unreported), as Zwickler 985, 987. opinion,
without 16 N. Y. 2d 266 N. Y. S. 2d invoking N. E. 2d 467. Thereafter appellant, jurisdiction Rights District Court’s Act, under Civil Declaratory Judgment 28 U. S. C. and the Act, 28 2201,3 sought declaratory U. S. C. injunctive relief in the District Court for the Eastern District of New York on ground on that, its the statute face, repugnant guarantees to the expression free secured by the Federal Constitution. His contention, below and in this Court, is that the statute impermis- suffers from sible sweep “overbreadth” its anony- embraces mous handbills both within and protection outside the of the First Talley Cf. California, Amendment. U. S. 60. A three-judge court, judge one dissenting, applied the doctrine of abstention and dismissed the complaint,4 remitting appellant to the New York courts
3Appellee questions majority the statement of the below that complaint. alleges controversy “[t]he . . a case or which is within the adjudicatory power Douglas City of this Jeannette, court. 162.” Supp., 261 F. Notwithstanding at 989. this state ment, persuaded, we light are not abstain, its decision to majority that the below prerequisites considered the to a judgment or that these adjudicated. “Basically, issues were fact in each case is alleged, whether the facts under all the circumstances, show that there controversy, is a substantial between parties having legal interests, adverse immediacy of sufficient reality to warrant the declaratory judgment.” Mary issuance of a *4 land Cas. Co. v. Coal 270, & Oil 312 S.U. 273. It Pacific will be for the District Court on the remand to decide whether appellant’s allegations entitle him judgment to a on the question. constitutional 4It practice, raising is better in a case a federal constitutional statutory claim, jurisdiction, dismiss, to retain rather than to Note, Federal-Question see Abstention: Justice Doc Frankfurter’s Era, trine an (1967), Activist 80 Harv. L. Rev. 604 but other Compare courts have also ordered dismissal. Government & Civic Employees Organizing Committee, 364; Windsor, CIO v. 353 U. S. Shipman DuPre, 321, 339 U. S. with Stainback v. Mo Hock Ke Po, SSSB, Lok Local Div., United Long- Marine Int 'l
245 any in defense challenge his to assert violations any future for prosecution criminal action of “an institution to the this, short or, 5 261 declaratory judgment.” for a presents appeal appellant’s Because 993. 985, Supp. F. the discretion scope of the important an merits deciding the from abstain courts to the district face violates on its a state statute challenge that aof jurisdiction. probable noted we Constitution, the Federal 906. We reverse. 386 S.U. from abstention whether consider
We shall first would by appellant sought declaratory judgment injunc- request of his the absence appropriate been was abstention second, whether not, if relief, tive sought an also appellant because justified nevertheless for viola- prosecutions criminal against future injunction of 781-b. tion
I. Congress century, first of the Nation’s During most rights essential to vindicate courts on the state relied laws. the Constitution arising under Act Judiciary 25th section only exception was in this Court for review 85, providing 1 1789, Stat. a state court.6 denied right claim federal when a Va.), (D. Supp. E. D. Battle, 650 C. 101 F. Assn. v. shoremen’s Note, generally Judicial Absten- curiam, per S. 880. See aff’d 749, Jurisdiction, Rev. Col. L. of Federal the Exercise tion From (1959). 772-774 remedy, Y. Declaratory Judgment N. provides a York New Braisted, 2d App. Div. De Veau 3001. See Civ. Prac. § 183 N. Y. (2d Dept.), aff’d, 5 N. Y. 2d 2d 596 N. Y. S. 165, aff’d, E. 157 N. 2d 2d Ill, grant under Art. Congress not exercise did Thus extend to judicial shall “The Power 1, of the Constitution: cl. Constitution, arising Equity, under this Cases, in Law and all made, or which States, shall and Treaties of the United Laws “arising Original juris- under” Authority made, their under *5 246 policy
But
was completely altered after the Civil
War when nationalism
political
dominated
thought7 and
brought with it congressional investiture of the federal
judiciary with enormously
powers.
increased
ofAct
March 3, 1875,8 was the principal
. . measure of the
diction was
in
by
vested
the federal courts
11 of the Act of Feb-
§
ruary 13, 1801,
4,
92,
c.
2 Stat.
repealed
but it
only
year
later
1 of the Act of
8, 1802,
March
8,
§
c.
2 Stat. 132. An
Judiciary
earlier version of the
Act
1789,
which
in
died
“
com-
mittee, provided
jurisdiction
in the federal courts
all cases
‘of
jurisdiction, whether in
equity
or
law
above
of federal
the value
of five hundred
Warren,
Light
dollars’...”
New
History
on the
Judiciary
the Federal
Act of
Harv. L. Rev.
(1923).
generally
See
Frankfurter
Landis,
&
The Business of the
Supreme
Study
Court: A
in the Federal
System,
Judicial
c. 1.
history
“The
of the federal courts is
history
woven into the
times. The factors in our national life which
in
came with recon
struction are the same factors which increased the business of the
courts, enlarged
federal
jurisdiction,
their
expanded
modified and
their structure.”
Landis,
Frankfurter &
59;
at
see also
Frankfurter, Distribution of Judicial Power Between United States
and State Courts,
Q.
13 Cornell
(1928).
L.
507-511
granted
The statute
“original
the district courts
cognizance, con
current with the courts of the
States,
several
of all suits of a civil
nature at common law or
equity,
dispute
where the
matter
ex
ceeds,
costs,
exclusive
sum
dollars,
value of five hundred
arising under the Constitution or laws
States,
United
or treaties
made, or which
made,
shall be
under
authority
their
...”
Act
3, 1875,
March
1, 18
generally
Stat. 470.
See
Hart & Wechsler,
The Federal Courts
System
and the
727-733;
Federal
Wright,
Federal Courts
Levin, Original
Chadboum &
Jurisdiction of
Questions,
Federal
90 U. Pa. L.
(1942);
Rev. 639
Forrester, Federal
Question
Jurisdiction and Section
18 Tulane L.
(1943);
Rev. 263
Forrester, The Nature of a “Federal Question,” 16 Tulane L. Rev.
(1942); Mishkin,
“Question”
The Federal
Courts,
the District
(1953).
Col. L. Rev. 157
development
“This
judiciary,
which in the ret-
rospect
seems revolutionary,
hardly
received
contemporary
comment.” Frankfurter
Landis, supra,
&
at 65. While there is
practically
legislative history
Act,
see id.,
65-69,
for a
summary
history
of what
available,
generally
commentators are
*6
individual
of
the area
in
domain
broadening federal
S.
Education, 373 v. Board
McNeese
rights,”
of
the federal
Congress gave
. .
statute
By that
673.
lain dormant
had
which
power
range
vast
the
courts
courts ceased to
These
1789.
since
the Constitution
of dif
citizens
dealing
fair
between
tribunals
restricted
reli-
powerful
primary
the
and
and became
ferent states
by the Constitu
every right given
vindicating
ances
(Em
States.”
of the Untied
and treaties
laws,
the
tion,
Business of
The
Landis,
Frankfurter &
added.)
phasis
Sys
Judicial
Study in the Federal
A
Court:
Supreme
the
Congress,
Act,
the 1875
even before
Indeed,
tem 65.
“[e]very
suit,
1871,9subjected
ofAct
Rights
the Civil
subjects, or
. .
.
any
under color
who,
person
States
of the United
any citizen
subjected,
to be
causes
. . .
any rights
deprivation
to the
...
person
or other
S.
,”
.
42 U. C.
laws .
.
and
Constitution
by the
secured
jurisdiction”
“original
courts
district
gave
§
color of
under
deprivation,
redress
of actions “[t]o
by the
secured
. . .
any right
...
law
State
any
(3).
§ 1343
C.
. .” 28 U. S.
. .
Constitution
g.,
See, e.
intended.
grant
jurisdiction
broad
agreed
L. Rev.
Question,” 16 Tulane
a “Federal
Nature of
Forrester, The
Mishkin,
Federal
“Question”
(1942);
362, 374-385
not
(1953).
This
157, 160
Courts,
L. Rev.
53 Col.
District
power
grant of
congressional
read
has
say
this Court
juris
potential
for federal
equated with
as
of 1875
Act
g.,
National
e.
See,
III
Constitution.
in Article
found
diction
582, 613-615
337 U.
Tidewater
Co. Ins.
Mut.
Transfer
Rutter, 177
Mining Co. J.); Shoshone
Rutledge,
(opinion of
505.
9
See
passed
1866 and
between
Rights Acts were
Civil
Five
(1871), 17
(1870),
Stat. 433
(1866), 16 Stat.
14 Stat.
Act of
Only
1 of the
(1875).
(1871),
18 Stat.
Stat.
42 U. S. C.
as
13, presently
codified
1871, 17
Stat.
April
Note, The
generally
years.
See
in later
success
measurable
achieved
Dame Law.
Vitality, 40 Notre
Continuing
of 1871:
Rights Act
Civil
(1964).
In thus expanding judicial power, Congress
imposed
duty
upon all levels of the federal judiciary
to give due respect to a suitor’s choice of a federal forum
for the hearing and
decision
his federal constitutional
claims. Plainly, escape from
duty
is not permis-
sible merely because state courts also have the solemn
responsibility, equally with the federal courts, “. . . to
guard, enforce,
protect
every right granted or secured
by the Constitution of the United States .
,”
. . Robb v.
Connolly,
But we have here
of a construction of
§ 781-b that would
modify
“avoid or
the constitutional
question.” Appellant’s challenge is not
the stat-
ute is void for
it
“vagueness,”
is, that
is a statute
“which either forbids or requires
doing
of an act
vague
terms so
that men of common intelligence
necessarily
must
guess at meaning
its
and differ as to its
application
Connally
. . . .”
v. General Construction
Co., 269
S. 385, 391.12
Rather his constitutional
parties
when
are sent to
law,
state court for clarification of state
question may
the federal
reserved
decision
the district
England
court.
v. Louisiana State
Examiners,
Board Medical
attack is that
the statute,
although lacking neither
clarity nor
is void for
precision,
“overbreadth,”
is,
it offends the
principle
gov
that “a
purpose
ernmental
or prevent
control
activities con
stitutionally
subject
regulation
may not be
achieved
means which sweep unnecessarily broadly
thereby
invade the
of protected
area
freedoms.”
NAACP v. Alabama, 377
S. 288,
U.
307. See Aptheker
v. Secretary
State, 378
500, 508-509;
S.
NAACP
U.
v.
Button,
The in United States v. Livingston, 179 F. Supp. 9, 12-13, aff’d, Livingston v. States, United guide is the to decision here:
“Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate consti- tutional may issues require a federal District Court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construc- tion. Harrison v. N. A. A. C. P., 360 IT. decision Harrison, however, is not a encycli- broad cal commanding automatic remission to the state 13For the different constitutional *9 considerations involved in at tacks for “vagueness” and for “overbreadth” Keyishian v. Board see Regents, 603-604, 385 of 608-610.
251 arising questions constitutional all federal of courts v. A. C. P. N. A. of state statutes. application interpreted Though never S. Bennett, U. fairly sub- is not if a state statute court, by a state modify will avoid which interpretation ject an duty the it is question, federal when federal to decide the court federal impose would Any other course presented to it. without litigants upon the long delay expense and bearing of its fruit.” hope (per City S. Memphis, Turner v. U. In been which had vacated an abstention order we curiam), declaratory judgment ground that a granted on the sole court brought ought action to have been to consider upon court was called federal before the violative alleged to be constitutionality of Board In McNeese v. Amendment. of the Fourteenth Education, again emphasized S. we U. state courts simply give cannot be ordered abstention the federal claim.14 opportunity first to vindicate Rights examining Act, purposes After Civil we concluded brought, under which action was asser- purposes if we held that would defeat those “[w]e an in a await of a federal claim must tion in a same claim state court.” to vindicate the attempt “recognition For of the role at 672. S., 373 U. emphasized not to be frequently that abstention is We nature, uncertain the state statute is an ordered unless limiting Harman Fors obviously susceptible construction. v. of a 678, 690; Mann, senius, 528, 534; Davis 377 U. S. v. 360, 375-379; England Louisiana Baggett Bullitt, v. v. 377 U. S. Examiners, 415-416; McNeese Medical 375 U. S. State Board of Bennett, Education, 674; 668, 673, NAACP v. Board 373 U. S. Chicago Atchison, T. & S. F. R. 360 U. S. McLaughlin, Service, Spector Motor Inc. 77, 84; S.U. Rev., supra, 605; Note, 40 Notre Note, 101, 105; 80 Harv. L. Law., n. at 102. Dame
state courts as final expositors the of state law implies disregard no for the primacy federal judiciary the deciding questions England of federal law.” Louisiana Examiners, Board State Medical 415-416. principles
These
particular significance
when, as
in this case,
upon
the attack
the
on
its face is for
repugnancy to
First
In such
Amendment.
case to
plaintiff
force the
who has commenced a federal action
to suffer
delay
of state
proceedings might
itself
impermissible
effect the
chilling
very
constitu-
tional right he
protect.
seeks to
See Dombrowski v.
Pfister,
It follows that appellant’s unless addition of a prayer for injunctive relief supplies one, “special circum stance” prerequisite to application of the doctrine of abstention present is Baggett here, Bullitt, 360, 375-379, and it was error to pass refuse to on appel lant’s claim for a declaratory judgment.15
HHI—I In support of prayer his for an injunction against further prosecutions for violation of § 781-b, appellant’s amended complaint alleges he desires to continue to distribute anonymous handbills quantity “in con nection any with election of party officials, nomination public for office and party position may occur sub sequent to said election campaign of 1966.” He further appellant Of course must establish the governing elements issuance of a judgment. supra. See n. 16Appellant urges allegations these appellee’s refute sug gestion in his Motion to Dismiss that political “[s]ince literature appellant intended to distribute all related to congressional the 1966 prosecution previous alleges that “[b]ecause . of the leaflet . . making the distribution plaintiff make dis right exercising his in fear of plaintiff is being again danger aforesaid and is tribution as expression right of unless his therefor, prosecuted submitting himself by this without court, declared penalties of the statute.” *11 light that, view was of the majority The below deciding from prayer, this abstention made had appellant because justified issue was judgment an entitling him to showing “special circumstances” sup Appellee prosecution. against criminal injunction a maxim upon the holding by reliance ports this its act “where should be slow to district court injunction with by interfere are invoked to powers court.” in a state prosecutions criminal threatened Jeannette, 157, 162. We Douglas validity of that continuing recently recognized the Pfister, 479, Dombrowski v. U. pronouncement. not, as did the here did However, appellant 483-485. 159, solely to Douglas, 319 at seek S., plaintiffs prosecution criminal threatened [him] “restrain requested he also declar Rather, . . courts . .” underlying the the state statute atory judgment unconstitutional. prosecution criminal apprehended Douglas recognizing that although majority below, The Supp., 990, 261 F. at case, this inapposite to might be abstention from requiring as Dombrowski read v. Pfister declaratory judg- considering appellant’s request showing by appellant “spe- of a in the absence ment might prop- , matter now be candidacy Abraham Multer . . . this dispute part of the issues erly This will for mootness.” dismissed supra. 3,n. District Court on the remand. See decided to be Supreme Court of New York elected to the Multer has since been Times, January p. York on 1968. New will take office 8, 1967. 2, November col.
cial circumstances to justify the exercise of federal jurisdiction . . .” to grant injunctive relief. 261 F. at Supp., 991. Since the majority “special found no cir- cumstances” justifying that relief, majority concluded that it was also required to abstain from considering the request for declaratory relief.
This conclusion was error. Dombrowski teaches that the questions of abstention injunctive and of relief are not the same.17 of the propriety of the action of the District Court in abstaining was discussed as an independent governed issue by different considera- tions. squarely We held that “the abstention doctrine is inappropriate for cases such as present one where .. . statutes are justifiably attacked on their face as abridging free expression . . . .” S., 380 U. 489-490. This view was reaffirmed in Keyishian v. Board Regents, 385 601, n. when a statute was attacked as unconstitutional on its face said, and we citing Dombrowski Baggett Bullitt, supra, “[t]his *12 is a not case where abstention pending inter- state court pretation would be appropriate . . . .” follows
It that the District Court’s views on ques- the tion of injunctive relief are irrelevant to the of abstention here. For a request for a declaratory judg- ment state a statute is overbroad on its face must be considered independently any request for injunctive relief against the enforcement We statute. hold that a federal district has duty the to decide the appropriateness the merits of the declaratory re- quest irrespective of its conclusion as to the propriety of the issuance of injunction. the Douglas v. City of Jeannette, is not contrary. That case involved only request the for injunctive relief. The Court re- 17Our of the injunctive discussion issue of relief in Dombrowski is S., at 380 483-489, U. and our discussion of the issue absten tion is at 489-492. declared under an ordinance enjoin prosecution fused to Penn in Murdock v. day the same unconstitutional federal Comity between the sylvania, S. 105. reason sufficient courts was deemed Pennsylvania decision holding “in the view justify to for ground find no today in Murdock ... we rendered court, the intervention of supposing that rights, will be petitioners’ constitutional order secure to at 165. It necessary appropriate.” S., or 319 U. either on remand of the District Court will task “necessary an will be injunction whether to decide declaratory for appellant’s prayer should appropriate” express no whatever with prevail. relief We view relief in the appropriateness to the respect validity case or the constitutional circumstances this of the law. Court is reversed and judgment the District consistent proceedings
the case is remanded further opinion. with this „.dered, * s0 Harlan, concurring judgment. Mr. Justice case, I of this agree that, the circumstances adjudicate not declined to District Court should con- however, I appellant’s am, constitutional claims. implications of uncertainty as to by my strained my views opinion portions certain Court’s separately. repeatedly indicated that “abstention”
This
has
Court
parties
repair
“where the order to the
appropriate
clearly
impor-
one of
court would
serve
two
to the state
countervailing
either the avoidance of
interests:
tant
*13
unnecessary decision of a
perhaps
serious
premature
or the
question,
avoidance
area
unsettling
delicate balance
of
some
hazard
Light
Power
relationships.” Louisiana
&
of federal-state
Thibodaux,
(dissenting
Co. v.
opinion). See generally Harrison
NAACP,
v.
S.U.
167; County
Allegheny v. Frank
Co.,
Mashuda
188-189. The first of these
has
interests
been
found in cases in which the federal constitutional
issue
might be mooted
"presented
in a
posture”1
different
by a state court determination of pertinent
state law.
g.,
e.
See,
Chicago v. Fieldcrest Dairies, Inc., 316
S.U.
168; Spector Motor Service, Inc. v. McLaughlin, 323
S.U.
101; Alabama State Federation
Labor McAdory,
v.
I agree that present situation is within none these categories, and that the District Court should therefore not have dismissed, proceeded but to judgment on the issues in the case.2 In I particular, can find this statute no room for a state construction which might obviate the need for a decision on the constitutional
1 County Allegheny v. Frank Co., supra, Mashuda at 189. 2Unlike Court, I obtain no assistance for this conclusion ubiquitous from the slippery “chilling effect” doctrine. Appel might lant sought in the state courts relief he now asks. N. Y. Civ. Prac. 3001. Given the state courts’ disposition appellant’s earlier prosecution, scarcely he can main tain that those courts would not promptly provide any relief to he which is entitled. Absent allegations, such it is difficult to see how that doctrine can slightest have the relevance. See Dombrow ski Pfister, 380 (dissenting opinion). In these cir cumstances, apply amorphous chilling-effect doctrine would only serve to chill the sought interests be maintained abstention. *14 in- is of the Court opinion the however, If, issue. principal, a or even central, the suggest tended to is whether abstention deciding issue in propriety “vague- only or “overbreadth,” alleged has complaint question, York to the New respect with ness,” First, neither are three. reasons My agree. I cannot this by delimited definitively been has ever principle supposed differences upon their built a Court; doctrine a foundation. lack of for founder likely to would Doctrine Yoid-for-Vagueness Note, generally, See Second, L. Pa. Rev. Court, Supreme in the involving case a suppose reason to is no there inap- inevitably be would allegations overbreadth none- might court the federal abstention; propriate of jurisdiction exercise its consider that reasonably theless officials, with state friction” “needless create would Thibodaux, Light Co. v. Power & Louisiana a conclude that reasonably might it supra, “in issues the federal present would determination Frank Allegheny v. County posture.” a different Third, a standard such at 189. Mashuda to doctrine abstention reduce the in effect might by the served interests fundamental pleader’s option; complainant had whenever jettisoned would be doctrine allega- an pleading into his insert foresight to sufficient alternative proper I can see tion of overbreadth. served of the interests light examination, a careful case. of each circumstances abstention, for the reasons substantially Court, with the I agree relief injunctive or not that whether opinion, in its given instance this appropriate ultimately prove might matter. of the stage at this pertinent not a Court, judgment accordingly concur I Court, like that, emphasize doing so wish but in merits upon the whatever no view intimate I statute. challenge to this