Samuels v. Mackell – Oral Reargument – April 29, 1970

Media for Samuels v. Mackell

Audio Transcription for Oral Argument – April 01, 1969 in Samuels v. Mackell
Audio Transcription for Oral Reargument – November 16, 1970 in Samuels v. Mackell

Audio Transcription for Oral Reargument – April 29, 1970 in Samuels v. Mackell

Warren E. Burger:

We’ll hear arguments Number 11, Samuels against Mackell and Fernandez against Mackell.

Victor Rabinowitz:

Mr. Chief Justice —

Warren E. Burger:

Mr. Rabinowitz.

Victor Rabinowitz:

— and may it please the Court.

This is an appeal from a judgment of a three-judge court sitting on the Southern District of New York denying to the plaintiffs an injunction and declaratory judgment against the district attorney of Queens County and the Attorney General for the State of New York.

The plaintiffs seek to enjoin their prosecution under the New York State Criminal Anarchy Statute.

The eleven defendants and five others — the eleven plaintiffs, excuse me, and five others were indicted on charges of (1) advocacy of criminal anarchy, (2) conspiracy to commit advocacy of criminal anarchy and in the case of one of the plaintiffs permitting his premises to be used for assemblages of anarchists.

The indictment contained altogether 48 counts of which only six are under consideration here.

The other 42 counts related to offenses such the illegal possession of guns and the illegal possession of explosives and weapons and the conspiracy to commit arsony — arson and the — a whole series of other conventional crimes.

We are concerned here and we attack here only that much of the indictment as relates to the New York criminal anarchy law.

Now, that law as this Court will recall was passed in 1902 and was applied once in 1921 in the Gitlow case.

Was not used again until 1964 when it was used to convict Mr. Epton.

The indictment was handed down here a month after the New York Court of Appeals decision in Epton.

And it raised fears in the minds of not only the plaintiffs but many others who are entrusted in civil liberties issues of a widespread use of state sedition statutes which had long been considered nor bound but which had effectively stifled radical thought in the 20’s and like the Federal Act in the 50’s.

In addition to the possession of guns and the conspiracy to commit arson and the other as — but I prefer to as conventional crimes, two of the plaintiffs in this case were charged in a simultaneous indictment with conspiracy to commit murder.

They were convicted in that case as pending here on a writ of certiorari.

I mention this merely to indicate that to stress the point, to emphasize the point that there on the books of New York of course many statutes including those that are charged in this case to protect public order and to take care of people who collect guns in order to seek to overthrow the government or for any other purpose.

There are three principal points raised by the appellants here.

The first is that the New York criminal anarchy law on its face and as applied in this case violates the First and Fourteenth Amendments of the Constitution both with respect to freedom of press, speech and assembly and also with respect to due process of law.

Second, that the New York statute with respect to the selection of grand jurors has a monetary or had at that time a monetary qualification before he serves as a grand juror and that therefore the grand jury which indicted these defendants was illegally convened and finally that the Federal Government through the Smith Act has preempted the field of sedition including sedition against the state.

I shall argue only the first of these points here today and I’m not abandoning the other points.

I think they’re good.

Or we’re relying on them but they have been briefed and I know that those issues are not central to the concern of the Court here today and I shall just rely on my brief.

We are limited as the Court, this of course with the — by time limitations and I would prefer to use that time to address myself to the subject which I know concerns the Court most.

The first aspect, however, the New York criminal anarchy law and its unconstitutionality is of course a critical matter.

And this aspect of the case has also in its turn I think three aspects.

The first is whether Section 1983 of the Civil Rights Act of 1871 is an exception to 2283 of the judicial — judiciary code and I think that that issue must be met head on.

The second is assuming that we can meet that — cross that threshold, whether the Court should nevertheless abstain and I think that issue has to be met head on.

And finally, we get I hope to the merits of the case namely whether the Act on its face and as applied in this situation is unconstitutional.

Now, the first question of the interrelation of 1983 of the Act of 1871 and the Section 2283 of the Act of 1789 I guess it is, is a matter which of course has been discussed almost endlessly.

Victor Rabinowitz:

It’s hard to think of any question within the general area of procedural rights in a — in the federal — with respect to federal jurisdiction over criminal cases that has caused quite as much judicial and law review discussion in the last two or three years.

The issue was faced by the three-judge court in Cameron against Jackson.

It was argued in brief in that case in this Court but this Court never reached the problem and sent it back to the District Court for decision on the merits.

We have collected the cases or tried to collect the cases that are not completely up-to-date in footnote 11, page 24 of our brief on re-argument.

Since then other cases have been called to our attention including Sheridan against Garrison and Machesky against Bizzell both in the Fifth Circuit.

There have been extensive law review articles on the subject, 21 wrote this law review, an unsigned article and an article in 113 University of Pennsylvania Law Review signed I think by Professor Amsterdam.

Whatever I say here is — I fear going to be an echo of those law review articles and those court decisions which have decided this case in my favor.

It is our contention that Section 1983 of the Civil Rights Act of 1871 was intended by Congress as an exception to 2283 of the judiciary code.

Mr. Mackell in his brief points out that 2283 was enacted at a time in our history when the rights of the states were of primary concern.

That is quite true but 1983 was passed at a time in our history when Congress was primarily concerned with protecting the individual from injustices which they feared would be perpetrated upon them by the state courts as a result of the antagonisms, the tensions, the problems that had arisen out of the Civil War.

It was passed by the reconstruction congresses and to say that those congresses did not intend to interfere with.

Yes, to interfere with state prosecution in certain kinds of cases runs directly contrary to the legislative history of that statute.

It has been argued by the appellants here, by the appellees here and by persons in other cases that our interpretation of 1983 will impede the state courts in the normal operation of the criminal laws.

It will and that is exactly what was intended by Section 1983 of the Civil Rights Law.

And the legislative history makes it clear, not in all cases but in certain kinds of cases, cases coming within Section 1983 that it was the intent of Congress to protect persons whose rights were being interfered with by state officials including state courts to protect them by giving them resort to a federal court.

And I cannot see how it is possible to read the legislative history all of which is set forth in the Watkins Law Review Article at a considerable length.

And some of which is referred to also by Professor Amsterdam in his University of Pennsylvania Law Review Article, I do not see how and I could quote Professor Amsterdam, “It is impossible to read the debates without concluding that the federal legislatures were intensely aware of the hostility and antiunion” meaning, northern not trade union, “prejudice of the southern state courts and the use of state court proceedings to harass those whom the union had an obligation to protect.”

That is the law that we are talking about today.

It’s Section 1983 of the Civil Rights Act of 1871.

And to say that Congress intended that a person who is being improperly prosecuted, who is being harassed, whose rights are being taken away from him by a state official may not apply to a federal court for assistance under Section 1983 is to fly in the face of the direct intent of Congress in passing that law.

Thurgood Marshall:

Didn’t Professor Amsterdam also said that was the reason for the removal of the statute?

Victor Rabinowitz:

I think he did say that was the reason for the removal of statute.

Thurgood Marshall:


Do you think they are — you have two chances to get into federal court?

Victor Rabinowitz:

Well, this Court has held that —

Thurgood Marshall:

Well, not done by what Congress made?

Victor Rabinowitz:

Well, it may be that they were giving them two chances to get into the federal court, yes.

I think that Congress was much concerned with giving as much protection as possible to the persons to whom — whose problems it was addressing itself in these statutes.

Thurgood Marshall:

Well, that would leave it up to the choice if the person involved as to whether he wanted removal or whether he wanted an injunction?

Victor Rabinowitz:

Yes sir, I think that would be true.

Thurgood Marshall:

And if he had removal, it would just involve that one case?

Victor Rabinowitz:

If it had removal, it would just involve that one case.

If he had injunction, it might just involve that one case.

There is no particular reason to believe that every injunction —

Thurgood Marshall:

I can see a considerable reason between enjoining the prosecution willy-nilly and saying that we will try it at a different court.

One is, the man goes free.

Victor Rabinowitz:

That is true, there is a difference.

There are other differences also.

There is the fact for example that under the —

Thurgood Marshall:

But in this type of case if you win in the federal court the Government can — the state cannot try the man?

Victor Rabinowitz:

That is true but this kind — that kind of case would be available, that is a 1983 case, would be available to a plaintiff only in a case where he could come within the four corners of the Act, namely that his constitutional rights were being interfered with by state officers acting under color of law.

And that he would have to come within that kind of a case.

And if he came within that kind of a case, the federal — the Congress intended to give —

Thurgood Marshall:

I think 1983 says a little more than that because I would assume that every arrest is — by an officer acting under state law, I would assume.

Victor Rabinowitz:

Well, no, obviously every act, every arrest is certainly under color of a state law.

But the statute refers to a person who —

Thurgood Marshall:

He denied his federal rights (Voice Overlap) —

Victor Rabinowitz:

Who is denied his —

Thurgood Marshall:

— Constitution of the United States.

Victor Rabinowitz:

And deprived of any rights, privileges, or immunity secured by the Constitution and laws of the United States.

Thurgood Marshall:

I thought this was it.

Victor Rabinowitz:

And it is in that kind of a case not in a robbery case, not in a blackmail case to refer to some of the situations that have been referred to here in this morning.

But only in the case where a person has been deprived of his rights secured by the Constitution and laws of the United States.

Potter Stewart:

That could be.

That could be by a robbery indictment or a blackmail indictment, I mean, you could simply allege that I was exercising my right of free speech on the street corner and as a result of which this policeman came up and arrested me for blackmail or for robbery.

Victor Rabinowitz:

I assume that in order to secure an injunction from a federal court you would have to show more than a mere allegation.

You would have to present the situation in which either the statute involved was on its face unconstitutional because it deprived the petitioner or of a plaintiff in that situation of rights, privileges and immunity secured to him by the Constitution of the United States or some other action to come within the statute.

A mere allegation that I am being arrested for blackmail and this is a violation of my constitutional rights is not sufficient to come within the statute and I assume that any Federal District Court confronted by this problem will so hold.

Potter Stewart:

I don’t really see why.

I mean that could be very true.

Potter Stewart:

It could be an abuse of the black — criminal laws against blackmail in the particular jurisdiction.

A policeman might just get in a habit or any time he saw somebody making a speech on street corner to walk up to him and arrest him for blackmail.

Victor Rabinowitz:

If that is what happens and I think he may be entitled to federal protection.

Potter Stewart:

So it’s not — it does — it can come within this statute in your (Voice Overlap) —

Victor Rabinowitz:

It may very well and —

Potter Stewart:

— cannot?

Victor Rabinowitz:

— and I think it quite possible that in a setting of 1871, it may be that many offenses would normally have come within the purview of Congress which today we would not normally think as coming within the statute.

But I submit that that it seems is what Congress intended and if it’s too broad a jurisdiction then the remedy is a remedy to Congress.

Byron R. White:

What about the — what about an ordinary criminal prosecution, narcotics or anything else and the defendant comes to federal court saying that the pending prosecution against me rest on evidences that within constitutional search and seizure.

Victor Rabinowitz:

I believe that this Court has held that — I don’t know if it’s this Court or other federal court, have held that that is not within seven — within 1983.

Byron R. White:

Well, I know but how about — what about your position?

Victor Rabinowitz:

Well, I suppose a different argument could’ve been made.

We are not confronted with that case but I think that —

Byron R. White:

Well, I know, but why wouldn’t it be included in your argument?

The way you presented it, seems to me it would squarely fall under your argument.

Victor Rabinowitz:

Well, perhaps it would.

Warren E. Burger:

It’s a denial of a federal right, isn’t it?

Victor Rabinowitz:

It — perhaps it would, perhaps it would.

It doesn’t shock me Your Honor.

Potter Stewart:

No, no, I just wondered if —

Victor Rabinowitz:

Perhaps it would.

Potter Stewart:

I wondered if your argument — how you would react to —

Victor Rabinowitz:

Perhaps it might come to that point.

Warren E. Burger:

That would mean that virtually — well, the very large percentage of criminal prosecutions would be subject to a three-judge court scrutiny before they could get in to the —

Victor Rabinowitz:

If —

Warren E. Burger:

— regular stream.

Victor Rabinowitz:

If the Court felt that it was prepared to extend the statute to cover that kind of situation, now it may very well be and as I say, I believe that the courts have held that mere matters of evidence do not rise to the height required by the statute.

We are not concerned in our case with a mere matter of evidence.

We are concerned with the application of the statute which I submit is unconstitutional.

And it may be that on the outer reaches of the problem, there will be questions raised but we’re not at the outer reaches at the moment.

Victor Rabinowitz:

We are right at the center.

Now —

Byron R. White:

What’s been the division on the circuits on this point?

Victor Rabinowitz:

Well, the circuits have not only divided but within the circuits, there have been divisions.

And where there have been in many situations where there have been decisions as for example in the Fourth Circuit.

I believe the Fourth Circuit has held that 1983 is not an exception to 2283 but there is a very strong dissent by Chief Judge Sobeloff in — I think its Baines against Danville.

In several cases in the Fifth Circuit, the same conclusion is reached but again there have been dissents by Judges Reeves and Wisdom so that — although the court — in the Third Circuit in I think Cooper against Hutchison, the decision is the other way.

There are two very recent Fifth Circuit —

Byron R. White:

We held that — it held that was within the exception.

Victor Rabinowitz:

It held that 20 — 1983 was an exception to 2283.

There are two recent decisions in the Fifth Circuit.

One, a decision by Judge Thornberry and the other, a decision by Judge Bell, which holds that Section 1983 is an exception to 2283; both of them unanimous — unanimous decisions, and have — and has — he has held that those — those — that — those two courts have held that 2283 is not a jurisdictional statute at all.

But the 2283 is a discretionary statute and that it is I suppose equivalent to the co-question of abstention.

And I must get on if I may Your Honors, I know this is critical to the dissent, but on the question of abstention leaving the statute aside because I would assume that the general rules of Jeannette against — Douglas against Jeannette and so forth might cause a court to hold that it is going to abstain even if it has jurisdiction under 2283.

It still may abstain and I raise the question as to whether abstention has any justification at all in this case.

Incidentally, the right of a court to abstain this, Mr. Justice White is perhaps the answer to your question that where there are merely matters of evidence involved that the federal court out of considerations of comity and all of the considerations in Douglas against Jeannette will decide that it will abstain.

In this case, there is no reason for abstention at all.

We know as a matter of fact because it has decided it — the matter in the Epton case what the state court is going to decide with respect to this case.

We know what its interpretation of the law will be.

There is no reason to wait to find out.

This is exactly the situation in the Allegheny against Mashuda case except that the complicating circumstances which led to the dissent in that case are present here.

This is the situation in Koota against Zwickler.

This is a situation where a state law is clear, not on its face, of course, it’s very unclear on its face but it is clear because there has been a limiting construction.

We contend a limiting construcion and unconstitutional application.

It has given that limiting instruction and unconstitutional application in the Epton case.

Epton in effect has been running interference for us.

He has cleared away the ambiguities in the statute and there is no reason for further abstention by this Court because nothing will be gained by abstention.

We know what the New York Court of Appeals is going to hold and what it is going to hold is that it has amended the Gitlow statute so that it now has a limiting construction.

William J. Brennan, Jr.:

What do we do with Epton, Mr. Rabinowitz?

Victor Rabinowitz:

Epton was —

William J. Brennan, Jr.:

Came here I know but —

Victor Rabinowitz:

Yes, certiorari was denied because there was an independent state ground for the decision.

There had been concurrent sentences exactly the same thing, not only can but almost certainly will happen here so that we will be confronted once again with the situation where this Court may not accept certiorari because there is an independent state ground for the sentence and we will be faced with the possibility of still further conspiracy, criminal anarchy prosecutions in New York and as long as it is paired with the conventional state crime, we can never a juris — a decision from this Court as to the constitutionality of the state sedition law.

Now, my time is about up, I just would like to mention one thing and there are others mentioned in the brief but let me just get to this one thing because I think it’s decisive on the question of constitutionality and that is what I have referred to as the amendment of the Gitlow statute by the state court.

The state court at the very opening of its decision said, “We are thus presented with the statute which is unconstitutional as interpreted”, and they then go ahead to reinterpret.

Now, the difficulty with that when we pointed that out to the three-judge court, the three-judge court said, “Oh, well this is a matter for the state to decide if they want to give their Court of Appeals the right to amend the law, that’s their business.

It’s not a federal question.”

But it is a federal question because if the legislature had made this amendment, we would have an ex post facto situation here.

What — because the court amended the statute we have to ex post facto situation because this law was amended, reinterpreted, whatever you want to call it, by the state legislature after the acts complained of in this indictment.

This incidentally is the subject of the dissent, the very strong dissent by Judge Burke in our Court of Appeals in which he pointed out that there was no notice to the defendant that this statute was going to be reinterpreted.

The defendant if e had consulted any lawyer in New York would have told and there was no valid criminal anarchy law in New York because Gitlow was so clearly unconstitutional.

And no one could have had the clairvoyance to have seen that the New York Court of Appeals was going to amend the law.

Apart from the ex post facto against you, you would think that the reinterpretation of the whole statute is satisfied as constitutional requirement?

Victor Rabinowitz:

I think not, Your Honor.

You think not.

Victor Rabinowitz:


I have discussed the matter in my brief and I just don’t have the time to discuss it.


Warren E. Burger:

Mrs. Piel.

Eleanor Jackson Piel:

Mr. Chief Justice, if it please the Court.

My client in this case is Fred Fernandez.

He is one of the 15 subject to the indictment.

And I want to commence my argument sort of taking going on from Mr. Rabinowitz’s argument, on the theory that the issue of 2283 and 1983 I think can well be answered as Mr. Rabinowitz answered it.

But I’m not sure that that’s an adequate answer because after one says, “Yes, there is the power to enjoin.”

It’s obviously not a principle which is promotive of peace in the states to have the federal courts interfering whenever there is a claim of unfairness below.

And so I have called over some of the opinions of this Court and some of the writings of the American Law Institute with regard to their consideration of this subject and it seems to me that we can set up four reasons or four considerations which all obtained in this case which would persuade a court not to abstain from a decision with regard to a constitutional issue.

The general premise being that a federal court will abstain and permit a state court to decide the issues of constitutionality where they are raised.

Now, the first consideration has to do with the First Amendment.

And generally speaking this Court has been more sensitive to issues of First Amendment particularly when they arise in the states and for a number of reasons, in order to create the uniformity of law in the United States and in order to protect the First Amendment which sometimes in the heat of whatever — of the battle below state jurisdictions are not as sensitive to the issues.

Now that — I’m going to mention this four factors and then go back over them.

Eleanor Jackson Piel:

The second one ties in to the First Amendment and it has to do with — when the issue involving the First Amendment has to do with the public business and I’m referring to the language used by Mr. Justice White when — in the Red Lion case when he referred to the kind of — the kind of public business that Alexander Meiklejohn talks about when he’s talking about the FirstAmendment, talking about the right of people, to hear arguments, and the right of people to speak.

And when in you’re in the area of sedition, you are in the area of the public business because you’re talking about Government and some people’s ideas about what’s wrong with it.

Then the third factor has to do with — and it’s a very important question and that is can the constitutional issue even though it involves the First Amendment, even though it involves the public business, can it be solved by the state route?

Is the issue something that the state court has not yet had an opportunity to rule on?

Perhaps there is even an independent state ground as in the recent case that had to do with Alaskan fishing rights.

Your — this Court abstained.

Mr. Justice Douglas wrote the opinion.

This Court abstained because there might even have been a decision there based upon the Alaska Constitution.

So, that even though they were important issues, it’s not appropriate for this Court to interfere.

Then there’s a fourth ground which is that the prosecution itself is unfair and discriminatory.

And perhaps a law which is not ordinarily invoked against the defendant is used.

And that is a fourth basis.

And that fourth basis was mentioned in the AL, the American Law Institute series of reasons given when they decide it.

Of course, they are not the Supreme Court but there are number of judges sitting on it.

They decided that 1983 or there is an exception or there should be an exception in the law to the absolute caveat against the federal court issuing an injunction against the state court prosecution.

I thought that would be written then and constituted?

Eleanor Jackson Piel:

Well, it hasn’t been with regard to the Banking Act.

I believe that there is a whole line of opinion that shows that — well, as to other instances where it’s not written in.

Certainly the way 1983 is phrased which gives a litigant a right to relief equitable or otherwise would suggest the — it is an expressed exception.

Now, in all of these considerations, I think we started out with the fact that we are talking about equity.

So if any of these considerations do not obtain or are not persuasive, then it is something that should be perhaps sent back to the state court.

But in — Mr. Justice Marshall mentioned removal as though that might be an adequate remedy.

May I say that’s a very narrow remedy and although originally it may have been intended to overlap 1983, I think today a litigant would have a pretty hard time using it in one of these cases.

As a matter of fact —

Thurgood Marshall:

I didn’t say it was an alternate.

I wanted to know whether it was or not.

Eleanor Jackson Piel:

It’s written that way.

May I say it’s written that way but not interpreted.

Now, with regard to these consider —

Thurgood Marshall:

But our considerations a little changed — was on —

Eleanor Jackson Piel:

I’m sorry.

Thurgood Marshall:

Aren’t conditions change since when 1983 was adopted and today?

Eleanor Jackson Piel:

They are changed but I think in some ways there are challenges —

Thurgood Marshall:

I mean for example in this case, there’s a possibility that these people will be tried before a Negro judge and only Negro judge.

Eleanor Jackson Piel:

Not in Queens.

Thurgood Marshall:

It’s not possible?

Eleanor Jackson Piel:

Oh, I wouldn’t say that, Your Honor.

I couldn’t say that.

But I don’t think — I don’t want to make this an ad hominem argument, I think there are as compelling reasons today to be interested in the First Amendment and into — in the considerations of fairness and the four considerations I mentioned as there were during the Civil War period.

So, or — and the — and its aftermath.

Now, with regard to this application to the instant case, question was asked, was the Court of Appeals’ opinion in Epton the narrowing interpretation — is that narrowing interpretation constitutional?

And I submit that its not for the reason that the highest court of the State of New York in trying to read in to the — to 160 and 161 and presumably if that obtains, it would also be read into the new statute which supersedes 160 and 161 which had already been passed but which was not yet effective at the time the highest court of New York interpreted the statute.

That highest court left out of its language, language which appears in Brandenburg, which has to do with the requirement for the validity of a sedition statute that the danger of overthrow or of lawless action be immanent.

Now, that has been left out of the interpretation of the Epton’s of — in Epton and is left out of the statute — the statute’s interpretation and it also is missing from the indictment.

If you will read the indictment in this case, you will read that there is no — there are no consideration of clear and present danger in the indictment and all you have is the allegation that these defendants with regard to the anarchy counts advocated the overthrow of the Government by force and violence with intent that it take place but not any allegation as to the likelihood of it taking place or any allegation and this is another consideration which comes out of Yates and Dennis and Brandenburg.

That the — Brandenburg, not so much, that they — that the group doing the advocacy of the overthrow of the Government be of sufficient size and strenth to actually present such a threat.

Now, Epton did one more thing although the court said in Epton, that’s the Court of Appeals, that clear and present danger has to be read into the statute when it implied that doctrine to the — to Epton.

What it really said was that the clear and present danger did not have to be clear in present danger of the overthrow of the Government of the United States.

All it had to be was clear and present danger that the riots then rocking Harlem continued.

And I submit that that’s the meaning of Epton and looked at that way.

The State of New York has an unconstitutional statute which it is trying to apply to these defendants.

Now, when I speak of the public business, I think it’s very important that you know how this case fits into the public business, the — what the — we do allege in our complaint that this is a harassing action against these defendants.

And in the harassing we mentioned and it’s attached to the appelant’s brief and also filed with the court.

We attach a number of newspaper stories, all of which were released by the district attorney at the time that these people were indicted and it’s very clear from the language used in these press releases that the direction of this — of the action is against the thoughts of these defendants.

Now, quoting the district attorney on page 67 here in the press releases that appeared in the press, he said that Stokely Carmichael, a leading black power advocate had connections with RAM, that’s the Revolutionary Action Movement which was dedicated to the overthrow of the capitalist system in the U.S. by violence if necessary.

Now, parenthetically this is supposedly an anarchy or the attempt to overthrow the State of New York yet all of these press releases have to do with the overthrow of the Government of the United States.

Again, I read, Mackell said the arrested RAM members are followers of Chinese Premier Mao Tse Tung and are associated with another Negro organization called Black Americans Unite or Perish headed by Robert Williams.

And again, their intent was to spur Negro militancy across the nation, police said.

Following recent ghetto rioting in Atlanta, Tampa, Dayton, Cincinnati and Watts, and then finally, I think this really caps the First Amendment public business aspect of my argument.

In discussing the defendants, Mackell said that Fernandez who headed — that’s my client who headed a group of approximately 20 youths between the ages of fifth — 16 to 21 may well have tried to influence them with revolutionary action movement philosophy and finally, Queens’ District Attorney Thomas J. Mackell said that the 16 arrested on bearing charges were members of RAM, an anarchist group which federal authorities say is pro-communist China and pro-Cuba.

Eleanor Jackson Piel:

That wasn’t the final one, I wanted to — sorry, a bit of accumulativeness here.

The police investigation into this matter dates back two years, Mackell declared.

I have had Assistant District Attorney Thomas DeMakos of Jackson Heights on the case ever since we were informed about it.

He and Lieutenant James Murphy of my squad had been working together on it.

DeMakos had to do a tremendous amount of reading and had to digest hundreds of thousands of words before we felt we were ready to proceed.

Now this, I say, goes to the heart of the First Amendment.

This is an accusation against these defendants with regard to the anarchy charge that is squarely — that is squarely violative of First Amendment considerations.

Now, we cannot solve this case by the state rule because when it gets up to the State Court of Appeals, the State Court of Appeals is bound by its own decision.

And there’s another problem, by the time this case is tried there are as you have heard 48 counts in this indictment.

Only five of which involve my client.

Only four of which involve anarchy and the fifth involves conspiracy to commit arson in the third degree.

Now, by the time the jury has heard all of the — all of the testimony with regard to anarchy, I predict that my client will be convicted of arson in the third degree.

This is of course a distinction from Dombrowski where the contention was made that the char — criminal charges were brought against the defendants with no possibility of their being a conviction.

In this case, we say there is a strong possibility of a conviction and that the anarchy charges served to prejudice the case as a trial before the jury.

And in fact it is argued by the district attorney in his brief that he needs the anarchy charges in order to supply the factor of intent as to the illegal gun charges which he brings not against my client who is a casualty perhaps of the entire adventure but to attach intent to the gun charges against the other defendants.

Now, the other aspect of what can happen is what exactly what did happen in Epton.

In Epton there was a conspiracy to riot charge that was attached to the anarchy charges.

And when he was convicted, the judge gave him a sentence which was concurrent with — and it — which covered the conspiracy to riot charge and was one year and therefore it never appeared what part the anarchy charges which I can assure you played a great part in the trial.

It was never clear nor was it ever capable of being properly reviewed.

So you have a record where it will be impossible in this case for the defendants here, plaintiffs in the action in the federal court to secure a fair trial or absolution by the state method.

You have as I have indicated a discriminatory prosecution by a statute and I do think that it’s important for the court to consider this.

This is not a robbery statute, a — that is invoked how many times throughout the United States today.

This is not a burglary statute, this is a sedition statute and it’s used in New York — has only been three times at least in our recorded history.

It’s been used in Gitlow in 1920 and it was revived 6 — 44 year late — 44 years later in Epton.

And it was only upon the heels of the Court of Appeals’ opinion in Epton which came down May 16th, 1967 that these indictments were brought in — were brought against these 16 or 15 defendants.

So it’s clearly the — a discriminatory prosecution.

Now, it seems to me that this is — if there is — is ever a case for the kind of relief which is available for federal intervention, this is it.

There is a further argument that was made and I want to make it because I think it dramatizes the validity of the relief requested and that has to do with the grand jury point.

Since this case was argued, this Court has come down with two decisions which suggested that the 250 property limitation might well be invalid but another — in another decision you’ve said that the subjective standards which we claim here might be administered fairly so that the statute on its face would only be a little bit unconstitutional, when I say a little bit, advisedly.

I think that against the standards that I have just set up, the Strauss standards, that it’s a challenge to a statute on the basis of the First Amendment, the grand jury statute wouldn’t make that.

Eleanor Jackson Piel:

That it’s the public business.

I don’t think it would quite do that.

That it can’t be solved by the state route.

Well, a year ago when I was before you, I told you it couldn’t be solved by the state route be — and I cited a lot of cases in my brief showing that the state had not considered this issue.

But on the 22nd of April of this year, Chestnut against the People of the State of New York was argued in the Court of Appeals.

And these issues were presented to the Court of Appeals not as to Queens County, as to New York County.

But accordingly we can say that as to the grand jury issue that is something which perhaps can be solved by the state route.

But I’m going to make a suggestion here as to that.

Byron R. White:

That’s under submission now to the Court of Appeals?

Eleanor Jackson Piel:

Yes, yes, I’m —

Byron R. White:


Eleanor Jackson Piel:

Undecided, it was only argued on the 22nd of April.

Of course that case may come here to before we are through.

But I’m suggesting that one does not dismiss such a case out of hand but one can well send it back to the District Court with these instructions to await the decision of the New York court.

There is one problem and that’s another argument I think in support of not abstaining here and that is the right of a defendant in a criminal case and a plaintiff in an action such as this to finally get some kind of relief from the Court.

In other words, these actions pending over a long period of time do not result injustice to all.

I will reserve any time I have for rebuttal.

Well, I guess it isn’t probably collateral but what happens with this one?

Eleanor Jackson Piel:

Well, this case may come before Your Honors one day.

By the end of the —

Eleanor Jackson Piel:

He’s out on $25,000.00 bail pending another kind of relief which I did not mention.

There — that’s habeas corpus in the federal court and the habeas corpus action is awaiting the action of the Supreme — of the Court of Appeals of the State of New York in the Chestnut case because that’s the same grand jury which indicted him and also the action of this Court in this case.

Warren E. Burger:

I think you have consumed all your time, Mrs. Piel.

Eleanor Jackson Piel:

Thank you.

Frederick J. Ludwig:

May it please the Court.

Warren E. Burger:

Mr. Ludwig.

Frederick J. Ludwig:

My name is Ludwig, I’m the Chief Assistant District Attorney of Queens.

This is the second time this case is being argued.

The first time on April 1st, you Mr. Chief Justice and Justice Douglas weren’t on the bench.

I just like to say at the outset that the question of publicity in this case was brought to the attention of one of our best Supreme Court justices, Justice Shapiro in Queens and he in an exhaustive opinion which is appended to my brief went into all facets of the question and his conclusion was that by no stretch of the imagination could the District Attorney in this case be accused of issuing any inaccurate, unfair prejudicial statements regarding this matter and that any statement the District Attorney ever made or I ever made in connection with this case was proper, justified and something the public had right to know.

Frederick J. Ludwig:

Many of the quotations that were read by Mrs. Piel are not quotations of the District Attorney but of some newspaper reporter writing the story without quotations marks and I think in all candor this Court ought to know that.

Now, the defendant in this case is the District Attorney of Queens, actually the defendant should be a grand jury of 22 people in Queens who saw fit to accuse these defendants.

The District Attorney did not accuse them.

They were accused by the grand jury.

The District Attorney knew nothing of this investigation while it was going on for a year and a half or two years until approximately a month before the matter was produ — presented to the grand jury.

The evidence in this case was obtained by a — an undercover police office who had infiltrated this group, became a part of it, in fact was a vice president of it and who gained enough information about what was happening to enable — to present this case to the grand jury.

Now, this indictment is a — one that involves 15 defendants, 11 of them are appellants in this case.

The other four did not appeal.

The indictment contains 48 counts and deals with five crimes.

It’s a superseding inictment.

The first indictment was found on June 20th, 1967, the case was presented on June 20th, the foreman handed up the indictment that night.

It was a one day presentation in great confidence and secrecy before the grand jury.

The foreman handed it up on June 20th in — and the defendants were arrested pursuant to arrest warrants and these weapons and arms and arsenal were seized pursuant to search warrants signed by a Supreme Court justice particularly describing what was to be seized the following morning, June 21st.

Now, two indictments were handed up by this grand jury as a result of the testimony and their testimony consists of a 151 pages and I offered it to the Court on two occasions, the first time I argued here a year ago and no action was taken.

These minutes of the grand jury unlike Harris against Younger, the California and it cannot be printed in records and are not printed customarily in our state appellate courts, the judges asked the District Attorney to hand up a copy of the minutes because we have a very strict rule on indictments on the state court.

The rule is that there must be proof beyond the reasonable doubt in the grand jury minutes that the defendants are guilty if unexplained.

Other than the federal courts and elsewhere you don’t need that quantum of proof and we also have another —

Potter Stewart:

Is that true throughout the State of New York?

Frederick J. Ludwig:

That is true sir.

Potter Stewart:

That before a grand jury can bring an indictment, there has to be proof beyond a reasonable doubt at least prima — at least unexplained.

Frederick J. Ludwig:

Unexplained and further than that in People against Jackson and People against Pittsburgh, our State Court of Appeals has imposed another rule on us that if you have the proof beyond a reasonable doubt at the time of trial but you didn’t have it at the time of the accusation before the grand jury then that’s sufficient to justify reversal as a matter of law, Pittsburg and Jackson.

So —

Warren E. Burger:

Are these extraordinary?

Frederick J. Ludwig:


So, that is why —

Is that a statute or is that your court rule?

Frederick J. Ludwig:

Many of our — many motions are made attacking our indictments on the insufficiency of the evidence before the grand jury and I regret to report that they are dismissed because the judge reads the minutes and says, “I don’t think you’ve made a case up.”

Potter Stewart:

Well, now aren’t a good many prosecutions in your state initiated by way of information?

Frederick J. Ludwig:

None on the felony level.

The state —

Potter Stewart:

None of the (Voice Overlap) —

Frederick J. Ludwig:

— constitution requires for a felony indictment by a grand jury can even be waived by a defendant.

Potter Stewart:

Cannot be —

Frederick J. Ludwig:

Non-waivable by a defendant.

Got to be accused by a cross (Voice Overlap) —

Potter Stewart:

I mean, misdemeanors not information.

Frederick J. Ludwig:


Warren E. Burger:

I didn’t quite get clearly in your response to Justice Harlan’s question, is this by virtue a statute or by virtue of a decision —

Frederick J. Ludwig:

No, by decision —

Warren E. Burger:

— of the Court of Appeals?

Frederick J. Ludwig:

— of the State Court of Appeals interpreting the Constitution of the state that requires indictment by the grand jury and also a provision of the Code of Criminal Procedure of the State of New York that requires sufficient proof to convict at trial if unexplained.

That’s the words of the statute.

Now, I would like to go into these minutes are here if the Court will accept them, I’ll hand them to the marshall.

Warren E. Burger:

Well, let me ask you a further question — on that if I may, is —

Frederick J. Ludwig:


Warren E. Burger:

does that mean any more than what Justice Stewart suggested that they must make a prima facie case to the grand jury of the same kind of a case that would carry it to the jury if the defense put in no evidence?

Frederick J. Ludwig:

Yes, Your Honor, otherwise it will be reversed.

Warren E. Burger:

And that’s by decision of the Court of Appeals in your —

Frederick J. Ludwig:

That’s the highest court of the state in two cases, People against Jackson and People against Pittsburg.

Warren E. Burger:

Does the New York constitution fix the quantum of proof?

Frederick J. Ludwig:

It does not, Your Honor.

It merely is done by the legislature of New York in the current Code of Criminal Procedure.

But it has been there for many years.

Warren E. Burger:

Thank you.

Frederick J. Ludwig:

Now, in this indictment, we have a — we could’ve had a 131 indictments here if we were proceeding strictly according to the common law which required a single crime and a single defendant for each indictment.

But again, our Code of Criminal Procedure and those sections are set forth at page 8 and 9 of my brief on re-argument and also the original briefs, allows us to combine defendants and charges in one indictment provided we separately number each crime in account.

And that provision appears in Section 279 of the Code of Criminal Procedure and the reason I make mention of it is this at this stage, because we have combined here, in one indictment, the indictment now before the Court, 15 defendants and 48 counts.

We could’ve had 111 different indictments and then moved to consolidate them on the grounds that would come in issues.

The test for putting these counts in one indictment is there are four different circumstances in 279.

The one of the four that we selected is where the crimes charged are connected together and are part of a common scheme or plan.

Frederick J. Ludwig:

Now, by a motion before the appellate court, you can sever this indictment. But before the trial court, these indictments could be severed.

Now, these things then are by law, by the lore of pleading in criminal matters of our state interrelated charges.

I want to also say that in these 48 counts, the first four of them deal with criminal anarchy and charged all the defendants with the commission of that crime.

But the first three deals with criminal anarchy and the fourth is conspiracy to commit criminal action.

Now, the others — the other counts in the indictment have nothing to do with criminal anarchy but are there because they’re interrelated with the ultimate purpose of this indictment.

Count five is a conspiracy to commit arson in the third degree.

It does not — that count is not charged against everybody.

Many of the defendants are not charged with that missed case.

Count six permitting — the count seven dealing with — countsix and seven deal with permitting premises, misdemeanor, permitting premises to be used for anarchy.

The remaining counts, 41 and all deal with weapons.

Now, this may be a little but abstruse but it’s important to make this one point that four of these 41 counts that deal with weapons, deal with handguns and thirty seven deal with shoulder guns.

Under the weapons law of New York which I told this Court, I am the author of — last time, mere possession of a hand gun in four of these 41 counts is all the prosecution has to establish to convict of a crime but for shoulder guns, rifles, shotguns, carbines, you need proof of intent to use unlawfully against another.

And there’s a good reason for that.

A lot of people have rifles to hunt animals, but pistols and revolvers and automatic weapons normally are used only to hunt other human beings.

The only proof of intent to use unlawfully against another we have for this indictment and the only evidence that was before the grand jury at the time the case was presented was the intent to paralyze and overthrow local government.

Consequently, when counsel says that you can — you can’t when irreparable injury is done, grave and immediate because of the possibility of concurrent sentences in this case.

That is not so and I will demonstrate why its not because there are first of all four defendants in this case who are not charged with possession of weapon, I amend that there were five who are not charged with possession of weapons, Harriet Knoll, Raymond Smith, Fernandez, Ms. West, and Stan — Max Stanford.

Those five are not charged with any possession of weapons in this indictment, it isn’t because they didn’t posses weapons but because when these search warrants were executed, they were not found in possession of the weapons.

Therefore, these five people, of these five people three of them are charged with no anarchy crimes at all.

So in these five cases that are charged, pardon me, with no non-anarchy crimes.

So in these — three of these five cases, we have persons who could be convicted only of anarchy connected crimes and not of any correlative crimes and the doctrine of concurrent sentences would not apply.

I — if I am not mistaken, if I — as I read Benton against Maryland, this Court last term abandoned the concurrent sentence doctrine anyway so that the reason for this position of Epton no longer holds.

But many can — in any case we have three persons that could be convicted solely of this anarchy connected crimes under this indictment and would have full opportunity to bring the question of the validity of the New York statute before this Court.

By the way the New York statute that we’re talking about has then repealed by Section — by action of the legislature on July 20th, 1965, that’s five years, almost five years ago.

The repeal was to take effect on September 1st, 1967.

This was in connection with an entire revision of the New York penal law.

Now, and a new anarchy section was substituted on July 20th, 1965.

Now, so far as this indictment is concerned, it was handed down we say originally in — on June 20th, 1967.

The Court of Appeals — the Epton case began in July of 1964.

Epton was tried in June of 1965 and convicted.

Frederick J. Ludwig:

The — he didn’t get through with the first intermediate appellate court until December of 1966.

And the highest court of the state came down with their decision in Epton on May 16th, 1967, one month and four days before the grand jury indicted the persons in this case.

Now, it is true that some of the acts for which these people are accused took place prior to the announcement of the decision in Epton.

But there is one other unusual feature of our weapons law in New York and that is the amnesty features.

And under the amnesty feature, any person at that time if they had read Epton, when it come down on May 16th and were following the law as closely as counsel seems to suppose they would come into a police station during the month of June, today they can come in during any month and hand over these guns with amnesty and immunity given by the legislature.

That is Section 1900, subdivision (a) (1) of the former New York penal law enforced in effect at the time this indictment came down.

This is a defense of recantation and amnesty given by New York.

So if these people were being guided by what the highest court of this — of the state said on May 16th, they could have recant it, turned in thereof with impunity.

And believe me there would be no indictment in this case if all we had is what appears in the appendix in Harris against Younger namely statements or pamphlets or speeches or abstract advocacy of the doctrine of anarchy.

What we’re concerned with was in this case, the amassing of an arsenal for the purpose of paralyzing and overthrowing government.

Now, this Court in its most recent pronouncement on the question of free speech, Brandenburg at the last term on June 9th say that you may punish a person for advocacy, for words provided it’s accompanied by inciting and producing lawless action and there is probable cause that that lawless action would occur.

Now, the minutes of the grand jury which are here before this Court show that they assembled 9000 rounds of ammunition.

They assembled cans of gasoline, cans of oil, intending to burn the subways, the power plant, the lumber yards, the tire factories, public communications facilities in Queens County and they had a detailed blue print and a timetable for the execution of this plan.

The speech involved in this case, the advocacy only the — is the mortise and tenon, the cement, the binding quality to put these acts for overthrow together.

As a matter of fact on 16th, there was a dry run in which these weapons were used against some stores in the Jamaica section of Queens, the testimony before the grand jury so revealed.

And it’s set forth in my brief.

Bazookas —

What’s happened — the District Court or the federal court refused to enjoin this prosecution and you brought them to trial?

Frederick J. Ludwig:

We did not yet bring them to trial out of deference to this Court, Your Honor.

Why not?

Frederick J. Ludwig:

We wanted to give this tribunal a chance also for the trial — for the guidance of the trial judge.

May I say this, —

Potter Stewart:

It’s been in — there’s been no stay issued by (Voice Overlap) —

Frederick J. Ludwig:

No stay has ever been issued for —

Potter Stewart:

Or that it was —

Frederick J. Ludwig:

— but it was agreed that if there is a question, let the federal tribunals dispose of it.

We have in a second indictment convicted two of these appellants in this case, Ferguson and Harris.

They were convicted of conspiring to murder Whitney Young and Roy Wilkins.

They had other people on the list as well but they were the first two.

They had a trial before a jury.

Frederick J. Ludwig:

The intermediate appellate court, five judges found unanimously that there was sufficient evidence to convict but three judge — two judges dissented of the five on the grounds that because Senator Robert Kennedy whose name was also on the list to be killed was mentioned at a time when he was lying between life and death that a new trial should be granted or the judge should’ve granted a continuance.

The highest court of our state, seven judges found identically, unanimously that there was sufficient evidence to convict them of conspiracy to commit murder in the first degree and — but they also agreed, three of them agreed that maybe the trial judge should’ve granted a continuance of that — on the count of the circumstance of the assassination of President Kennedy.

I’d like to say this in connection with the question of the Section 2291 — the 2283.

For 177 years, we’ve had that statute on the books.

March 2nd, 1793 and never once has this Court in anyway said that a lower court, that’s a creature of Congress, must not observe that statute.

For 99 years since 1781, we had the provisions of Section 1983, the so-called Civil Rights Act which gives a person a cause of action, an action at law, a suit and equity or other problem, means of redress if any rights, privileges or immunities guaranteed to him by the Constitution of the United States are taken away from him under color of state law, never in 99 years has this Court ever held that that constitutes the word, the three words suit in equity constitutes and exception to 1983.

Now, recently this Court has taken up this question, they took it up in Dombrowski against Pfister ad very carefully Justice Brennan in writing that opinion observe the restrictions of the Act of 1793.

And Justice Harlan in his first footnote in his dissenting opinion also called the attention of the Court that if there had been an action pending at the time of application to the federal court then of course this Court could not reverse any — could not just authorize intervention below.

Again it came up in several other cases, Cameron against Johnson is a good illustration from Mississippi, came up from Mississippi and were sent back by this Court to the District Court in the Southern District of Mississippi to have them determine whether 2283 was a bar and the District Court of Mississippi, three-judge District Court came back and said yes, we think the suit is barred by 2283 and this Court affirmed.

But there was a footnote by Justice Douglas where he said, “Well, we don’t have to decide the question of 2283.”

But still this Court did affirm the determination of the District Court of Mississippi.

Again in Brooks against Briley from Tennessee, same thing, District Court there, three-judge District Court said, “You can’t get by here with 2283.”

Can’t get by — “No, can you get by on the companion declaratory judgment.”

A case came up to the Supreme Court affirmed.

This are all very recent cases all involving 1983 as an exception to 2283.

Again in Zwickler against Boll coming from Wisconsin, same result, this Court’s affirming, the District Court’s denying.

So the most recent authority in this Court is that 2283 is hurdle.

Now you have two hurdles to surmount before we can get to the question of free speech.

You have two hurdles to surmount.

One, you got to get by this historic barrier of Congress since 1793, you’ve got to surmount that hurdle before you can go anywhere else.

The 26 words that were put in amending the parent statute, the Judiciary Act of 1789, 26 words have to be observed.

Now, this Court has repeatedly said in 1941, they said in the Natuzzi case, we must be scrupulous, must be scrupulous about the bound — the meets and bounds that Congress sets for courts of their own creation, must be scrupulous.

Then in 1948, when Congress codified three exceptions, in 1951, this Court revisited once again the statute of 1793 and at that time they said, you got to go by those three exceptions of Congress and you can’t go any further.

Now, there’s another consideration involved here, it interrupted and stayed in the federal prosecution.

And that is that this tribunal which is a constitutional tribunal, is not a circuit court or a (Audio Static) Constitution yet Congress in fixing which they have the power to do in Article 3, Section 2, the appellate jurisdiction of this Court carefully requires that there’d be a final judgment of a state tribunal and a decision by the highest court in which a decision can be had before state action may be reviewed by this, a constitutional tribunal.

How can we then say that this Court is going by statutory interpretation, this isn’t a constitutional question, if to lower federal courts, a power it does not even arrogate to its self?

Why Congress has the power unless this Court wants to overrule Ex parte McCarthy.

Congress has the power to take this case right away from this Court now by taking away appellate jurisdiction over any questions, let’s say of denial of injunctions by three-judge courts below.

Unless we overrule Ex parte McCarthy which involves free speech, which involve free speech that would be the result.

Now, I believe as far as speech is concerned —

Thurgood Marshall:

Would you agree that in order for Congress to do that, they’d have to repeal 1983?

Frederick J. Ludwig:

To take away jurisdiction from this Court, Your Honor?

Thurgood Marshall:


Frederick J. Ludwig:

It would be a —

Thurgood Marshall:

Since the (Voice Overlap) —

Frederick J. Ludwig:

It would be — I don’t advocate it by any means, I’m not advocating that the appellate jurisdiction of this constitutional court ever be tampered with Congress but I see —

Thurgood Marshall:

(Voice Overlap) at law —

Frederick J. Ludwig:

— this Court has sustained in the past.

Thurgood Marshall:

At law or in equity, a pretty precise, I don’t think you can get much broader.

Frederick J. Ludwig:


Well, I’d say that this suit in equity in 1983 is just those words, there were three phrases, action at lawsuit and equity or rather a proper proceeding for redress.

Thurgood Marshall:

Well, let’s not get involved in the other.

Frederick J. Ludwig:

Yes, but the cases which this Court says are exceptions where the federal court can enjoin are there are a quite a number.

In 1851, a ship owner who deposits a money equal to the debt can relieve a lien against this ship.

In 1875, a bankruptcy exception was allowed namely that all proceedings in state as well as federal courts will be stayed.

Several other exceptions have been allowed by Congress to the state.

They allow it in connection with the Frazier-Lemke Farm Mortgage Act during the depression in 1930’s.

The state collection proceeding.

They have allowed it in the famous habeas of our immemorial habeas corpus act, Federal Habeas Corpus Act, they can stop all proceedings in a state court.

They allow it and the Interpleader Act.

But in all of these cases as this Court said in Amalgamated Clothing Workers against Richman in 1951 after the amendment, in all of these cases, the language that Congress used is pretty explicit.

It doesn’t have to refer to 1983 by number.

But it has to be pretty explicit and stay — say that proceedings may be stayed either in a state court or in any court or it may say that all proceedings shall cease wherever they are.

They use a collocation of words quite different than merely a suit in equity.

Now a suit in equity can be brought for a lot of things as Your Honors well knows, a bill quia timet, an action for recession of a contract, a lot of suits in equity can be brought without resorting to a stay or an injunction.

Injunction isn’t the only type of equitable remedy.

Second, a suit in equity can be brought in a state court and the state court could grant a stay without running into the federal court.

And third and this is important, the suit in equity can be brought even to stay, a threatened procedure proceeding in the state court.

And in that respect, our case, this is the most restrictive interpretation, the most limiting interpretation on 19 — on 2283, Ex parte Young of course tells us that the — the memorial — the memorable congressional statute requires that the proceeding be in a state court and if it is not in a state court then of course its possible to get an injunction against a threatened prosecution.

Now, this Court has seven related cases involving injunctions by three — either denial or granting of injunctions by the three-judge District Courts below.

Frederick J. Ludwig:

The first case, Number 4, Harris against Younger, in that case the court — the three-judge court did grant an injunction and one of the three applicants for the injunction, Harris, had an indictment pending against him.

There you have a question of a clear cut violation of the provisions of 2283 in connection with the other two applicants, Broslawsky, Dan and Hirsch, nobody indicted them.

And our interpretation of 2283 is that so far as enjoining the District Attorney if Los Angeles County from commencing a prosecution against Professor Broslawsky or the labor union leaders, Dan and Hirsch, that 2283 doesn’t effect because there was no proceeding in a state court.

Boyle against Landry as I understand it, there was no pending case in the state court so I’m question — I question whether 2283 has any application there.

In our case we had indictments, this indictment pending in a state court for 265 days with 58, 59, 60 motions made before application was made to the federal tribunal.

Next case after this gone —

When will these indictments return?

Frederick J. Ludwig:

These indictments were returned on June 20th, 1967 Your Honor.

That’s — and application was made — the first indictments —

Well, (Voice Overlap) —

Frederick J. Ludwig:

— the superseding indictment January 20th, 1968, March 12th, 1968, application first made for the first time to a Federal District Court.

What was the date of the three-judge court decision?

Frederick J. Ludwig:

About June, I don’t have the exact date at the moment, June 1968, Your Honor, June 1968.

This case was ordered, reargued that may account for it.

The next case Gunn against University Committee is not yet argued yet.

Again, there you had no pending prosecution because the state tribunal had dismissed it.

Dyson against Bachelor (ph) —

Hugo L. Black:

You explained to Justice Harlan awhile ago but I didn’t quite understand you.

How long ago was that judgment rendered?

Frederick J. Ludwig:

About June of 1968 and this case —

Hugo L. Black:

And there was no injunction?

Frederick J. Ludwig:

No, injunction was denied.

Hugo L. Black:

You explain that I think why the state hadn’t prosecuted it, I didn’t get it?

Frederick J. Ludwig:

I — we did prosecute two of these men and —

Hugo L. Black:

Why didn’t you prosecute them all?

Frederick J. Ludwig:

The reason is that they — it was agreed that the gist — well, to be very honest, an Assistant District Attorney in our office agreed with other side without my knowing about it and without District Attorney Mackell who is here in Court knowing about it.

That he would await the outcome of the decision from this tribunal.

That’s why.

Potter Stewart:

And the prosecution of the two was on — were on — it was (Voice Overlap) —

Frederick J. Ludwig:

When it had —

Potter Stewart:

— the charges?

Frederick J. Ludwig:

— and was —

Potter Stewart:

Different charges?

Frederick J. Ludwig:

On the conspiracy to commit murder in a separate — the second, the separate indictment.

Potter Stewart:


Frederick J. Ludwig:

And they were convicted in June, the month that —

Potter Stewart:


Frederick J. Ludwig:

— that Senator Kennedy was assassinated.

Hugo L. Black:

What are the charges against the others?

Frederick J. Ludwig:

Conspiracy to commit murder.

They’re also involved in this —

Hugo L. Black:

Conspiracy to commit murder in the —

Frederick J. Ludwig:

Of two named persons.

Hugo L. Black:

And there has been no injunction and yet the state has held it up without any prosecution, is that right?

Warren E. Burger:

I think your — counsel, you have responded to the wrong question.

Would you state again which were the ones which — on which the prosecution proceeded and which were the prosecutions which were postponed?

Frederick J. Ludwig:

We had two indictments based on the same grand jury managed Mr. Chief Justice.

One was the present indictment involving the 15 defendants.

The other was against two defendants who are also included in these 15.

The second indictment was to conspiracy to commit murder in the first degree.

Warren E. Burger:

And you proceeded with both?

Frederick J. Ludwig:

We proceeded and tried them because no application was made to a federal tribunal.

They were convicted and they — that case is now pending in this Court for certiorari under 1668 miscellaneous.

It’s on your docket.

Hugo L. Black:

What were the other charges?

Frederick J. Ludwig:

The charges in the first indictment where the possession of these weapons and 41 of its 48 counts conspiracy to commit arson in one of the 48 counts —

Hugo L. Black:

How many weapons were there?

Frederick J. Ludwig:

There were 41 separate weapons.

Hugo L. Black:

41 weapons.

Frederick J. Ludwig:

That’s right.

Hugo L. Black:

They were charged with having them in contrary to the law?

Frederick J. Ludwig:

Yes, Your Honor.

Under the law of the State of New York.

Warren E. Burger:

For how many people?

Frederick J. Ludwig:

For 10 of the 15 appellants in this case.

Hugo L. Black:

I do not fully understand why they were not prosecuted.

Frederick J. Ludwig:

I can’t in one indictment proceed against you under certain counts and let the rest hang in advance.

I can’t sever it.

Our state courts will —

Hugo L. Black:

Why would you have to separate them?

Frederick J. Ludwig:

Because they’ll regard that as double jeopardy, they’ll say jeopardy attaches if you go ahead with one count in an indictment and dispose of it by conviction, you can never prosecute for the others.

Hugo L. Black:

Well, you could’ve gotten more indictments, couldn’t you, if that’s your trouble?

Frederick J. Ludwig:

We did not anticipate at the time this indictment was returned that there will be any resort to the federal court.

This is a supers —

Hugo L. Black:

But there has been a resource and you don’t think it was illegal.

Frederick J. Ludwig:

I wouldn’t want to amend — to put this case in before a grand jury again while it’s pending in a federal tribunal.

I think that would be a little unfair.

Hugo L. Black:

But why?

Frederick J. Ludwig:

Because I think it would frustrate —

Hugo L. Black:

Those were serious crimes that they are guilty?

Frederick J. Ludwig:

They are, there’s no question about it but — may I add also but I do not want to prejudice any of these appellants.

Some of these appellants in matters did — not connected with criminal anarchy, are under pending indictments in our county alone.

So we have a rope around them.

I may add this too if I may that this type of interruption of a state criminal proceeding does not give the state the opportunity to refine the charges in the indictment.

Now, in the most re — Brandenburg case, this Court pointed out that there was no refinement of the charge in that case either by the trial judge or by the highest court of the State of Ohio.

In our case there are many more stages of refinement that this proceeding has interrupted.

For example, at page 89 of the appendix to my brief, Section 295, I think it is (g) of the code of criminal procedure, says mandatorily in the form of the indictment that we used which is a short form indictment, mandatorily the District Attorney shall deliver a bill of particulars to the defendant provided he applies to the judge for one.

The first stage of refinement is that we would have to particularize what we rely on to convict this defendant and we must do so mandatorily.

It’s not in the discretion of a judge, state court judge to deny a bill of particulars.

Second, at the trial of this case, the trial judge will have to give instructions to the jury.

Frederick J. Ludwig:

At that time he can clearly state and incorporate anything that has been laid down by this Court in Brandenburg and by the highest court of our state in Epton.

Third, the highest court of the state will reveal this conviction and we’re reminded in — that 1947 case coming from New York County against New York, the opinion by Justice Reed, the name, it forgets me, I worked on the case myself.

That if the highest court of a state amends a statute by construing it then those words of the highest court of the state must be taken to be part of the state statute itself.

Thank you.

Hugo L. Black:

May I add just one thing Your Honor, one of my assistants, I have no reason to know why a greater privilege to use force is allowed when political dissent is involved then for example in self-defense or defense of another or defense of your habitation.

Frederick J. Ludwig:

Just because you’re attempting to overthrow the Government, it seems to me does not give you a broader privilege to use force than if you’re committing an ordinary crime of robbery.

Now, as between robbery and criminal anarchy, there is this distinction, if a robber sets out and succeeds in getting the loot, taking it from a crime, he is not home free because he may later be apprehended and put in jail.

But if an anarchist overthrows the local government, sets out to do it and succeeds, then he is home free.

There’s an epigram from Sir John Harington in the 17th Century, it’s just two lines, he says, “Treason doth never succeed.

What’s the reason?

For if treason succeed, none dare call it treason.”

In other words, the person who succeeds in overthrowing the Government has bought themselves amnesty and immunity.

Warren E. Burger:

Mrs. Marcus.

Maria L. Marcus:

Mr. Chief Justice and may it please the Court.

Counsel for appellant Samuels in his brief has asked that the clear and present danger test which this Court approved in Dennis be overruled.

He has not suggested any substitute test.

It is apparently his position that advocating the overthrow of the Government must always be a form of protected speech regardless of its intent, regardless of the context, regardless of the circumstances.

This interpretation of the First Amendment is erroneous because it totally ignores the physical danger that can be created by a speech.

As in an analogous situation of a man shouting fire in a crowded theater, we must look to the intent and possible consequences of speech in order to determine whether it is within the protected area.

In the case at bar, the entire fabric of the answered question was the intent to use force to immobilize state and local authority.

Aside from the non-speech elements which have already been described, the act of speech were very far from intellectual discussion of doctrine but instead sent it around, organizing youth for acts of violence in Queens County, how to use pipes and gunpowder for the making of bombs and proficiency in terror tactics.

Without the anarchy statute, only the weapons counts not requiring intent and the arson counts would proceed and the indictment would have to be dismissed against approximately ten defendants even though there actions created a clear and present danger.

It is not difficult to apply the clear and present danger test and the required showing of incitement to action to these charges.

There are reasonable grounds to believe that the threat to the state’s functioning was immanent and about to commence.

This Court made clear in Dennis that even where an attempt to overthrow the Government is likely to fall short of complete achievement, it presents a sufficient evil for the state to prevent.

The Court said and I quote, “The damage with such attempts create both physically and politically to a nationmakes it impossible to measure the validity in terms of the probability of success.”

These words are particularly significant in the light of the indictment here.

In New York City, the cutting off of electrical power by sabotage combined with arson in subway and transportation lines would not only paralyze the central governmental services but would create the kind of chaos which would prevent the state from organizing and governing effectively.

New York has a right to prevent advocacy which is one step before the explosion.

Counsel for appellant Fernandez pointed out that the clear and present danger test and the requirement of the incitement is not cons — contained on the face of the statute but this Court made clear in Dennis that it does not have to be in high clear view in the statute but that it is a test of judicial applicability that it can be read in and the New York Court of Appeals has already done so.

Maria L. Marcus:

Appellants claim that the statute at issue will have a deterrent effect upon activities such as advocacy of unpopular ideas.

And I also indicate that there can be no such deterrence in this case.

Prosecutions under both the old and the new statutes must be governed by Epton’s requirements.

This interpretation places mere advocacy outside the ambit of the statute thus the only group whose rights might not be affected by the Epton decision would be a hypothetical group who are deterred be — by the statute prior to May 1967 but who cannot be prosecuted for any of their activities as the present law forbids penalizing advocacy which creates no clear and present danger.

Thus this hypothetical group cannot even be identified and if they were deterred it was by a statute which is no longer in existence.

The hypothetical rights of this hypothetical group most certainly do not present any actual controversy and under this Court’s rationale in Golden versus Zwickler, decision rendered on such facts would be advisory and therefore inappropriate.

Appellants say that they were not given notice that their conduct was included in the statute.

The statute was made narrower by the Epton interpretation therefore there’d be no question, the statute as written provided warning of its applicability to the conduct here involved.

Furthermore, the hardcore activities at issue here as the court below pointed on at the very center of the statute’s circumference.

As indicated by this Court on the procedural issue, Congress has constitutional power to provide that all federal issues be tried in the federal courts, that all be tried in the state courts or that the jurisdiction of such issues be shared.

Congress is constitutionally free to establish the conditions under which civil or criminal proceedings involving federal issues may be removed from one court to another.

While the right to free speech and the right to due process are conferred by the Constitution, the question of proper forum is statutory.

Section 2283 has plainly precluded injunctive relief in the pending prosecution.

Counsel for appellant Fernandez argues that declaratory relief would not violate the statute and will forward essentially the same remedy.

However, the rendering of such relief would frustrate the purposes of Section 2283 and destroy the principles of comity between state and federal courts.

And that in inevitable disruption of state prosecutions would occur.

State courts have the same duty and power to rule upon federal constitutional issues in the same way as the federal courts and in most cases where a prosecution is already pending, less delay would adhere in resolving the issues in the state courts.

If a statute is overbroad, the state courts have the same power as the federal courts to strike it down, to prevent any chilling effect upon First Amendment rights.

I think the federal removal statute which was referred to earlier by Mr. Justice Marshall provides evidence of congressional intent to keep cases in the state courts where there are pending prosecutions already commenced.

The removal statute allows determination of state proceedings only in very narrow circumstances and this provides congressional guidance on the issue of declaratory judgment.

As the clear and present test is one of judicial applicability as this Court found in Dennis versus United States, the application of this statute to appellants can only be determined upon a full record in the state courts.

The need for such a record supplies a further ground for non-intervention in this case.

Warren E. Burger:

Thank you Mrs. Marcus.

I think your time is fully used, Mr. Rabinowitz.

Thank you for your submissions.

The case is submitted.

Victor Rabinowitz:

May it please the Court, if the Court would relieve the District Attorney of Queens of the stipulation that was entered in too long ago about delaying this prosecution pending disposition by this Court, we will immediately prosecute them tomorrow morning.

Warren E. Burger:

Well, I think that at the moment at least we have no power to get into that question.

Victor Rabinowitz:

Thank you, Your Honor.

Warren E. Burger:

We’ve heard what you’ve had to say about it.

Warren E. Burger:

Thank you.