Samuels v. Mackell – Oral Reargument – November 16, 1970

Media for Samuels v. Mackell

Audio Transcription for Oral Argument – April 01, 1969 in Samuels v. Mackell
Audio Transcription for Oral Reargument – April 29, 1970 in Samuels v. Mackell

Audio Transcription for Oral Reargument – November 16, 1970 in Samuels v. Mackell

Warren E. Burger:

We’ll hear argument in number seven and number nine, Samuels against Mackell and Fernandez against Mackell.

Mr. Rabinowitz, you may proceed whenever you’re ready.

Victor Rabinowitz:

May it please the Court.

This case like the others on the calendar this week was here for the third time and like the other cases, it involves a common question concerning the propriety of a federal injunction, on some cases, a declaratory judgment against a pending state criminal prosecution.

I am going to address myself initially and perhaps exclusively to that problem.

The companion problem of a constitutionality of the state law has been briefed, it’s been argued twice and in the time of available to me, I may not get to it.

Nor will I restate the facts, except to call to the attention of the Court two things — two items which I think are of considerable importance.

In the first place, there is no abstention problem at all, in this case.

The state Court in the Epton case has passed upon the statute, has given an up-to-date reading of the statue and we therefore must assume that the state court will apply the same reading to this case.

There is no — nothing to abstain for.

We have already gone through the procedure of getting a state court interpretation of the statute and I do not understand that either the attorney general or the district attorney argues that we should abstain.

The second point that I would like to make is that this is a multi-count indictment.

In addition to several counts of the indictment, which are under attack here, there are a large other, number of other counts, some 15 or 20 of them which alleged substantive crimes and conspiracy to commit substantive crimes, crimes of arson, of riot, of the possession of guns, of the possession of explosives, conspiracy to commit arson.

All of those are in the indictment and in our opinion give the state all of the protection that it needs.

On each of the previous arguments, a question has been raised by the bench as to why these cases have not proceeded in view of the fact that there was no injunction issued by the three-judge court.

And it has been explained to the court that they have not proceeded because an assistant district attorney entered into a stipulation.

This is the explanation given by the district attorney.

An assistant district attorney entered into a stipulation in which he agreed that he would not proceed with the prosecution here until this case had been finally determined because then, no one thought it would take so long to finally determine it.

I would like to point and I might say that ethics on the part of the district attorney to relieve itself of that stipulation have thus far been unsuccessful although he has made efforts in the federal district court.

I might say that that stipulation has nothing to do with the substantive crimes here.

If the district attorney had wished to proceed on the substantive crimes, they could have been tried and the appeals concluded and probably the sentence is served if they had been found guilty before we had gotten to this point.

I think that it might be appropriate to just say a few words of history here, not at the moment the history of 1983, but the history of the power of the federal court to enjoin state criminal proceedings.

That is not an invention of Dombrowski.

For 75 years, at least the federal courts — 75 years prior to Dombrowski, the federal courts enjoined the threatened enforcement of state unconstitutional laws.

This was not a doctrine that was born in 1965.

I don’t know when it started.

But in 1897 in Smyth against Ames, the United States District Court enjoined the prosecution of a state criminal law.

In Ex parte Young1 of course, the same thing happened.

In Truax against Raich in 1950, Chief Justice, then Justice Hughes said, “While the Court of equity has no jurisdiction –”

Warren E. Burger:

Counsel —

Victor Rabinowitz:

Excuse me.

Warren E. Burger:

No, you can’t cover the microphone.

Victor Rabinowitz:


I am sorry.

“While the Court of equity generally speaking has no jurisdiction over the prosecution of crimes on misdemeanors, equitable jurisdiction exist to restrain criminal prosecutions under unconstitutional enactments, when the prevention of such prosecutions is essential to the safeguarding of the rights of property in the absence of inadequate remedy at law.”

And in Terrace against Thompson in 1923, this Court repeating in effect that language when on to say that the plaintiff’s “are not obliged” to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of their rights.

Then came Douglas against Jeannette, I suggest that Douglas against Jeannette was a support and it happened primarily because on the same day as we all know, the Court issued — this Court issued its declaratory judgment in the Murdock case holding the same statute unconstitutional and it appeared that in injunction under those circumstances would be unnecessary.

But the fact was that as of Douglas against Jeannette, we find this Court giving much more protection to property rights than it gave to First Amendment rights despite the contrary history of this Court through the famous footnote 4 in the Carolene Products and Thomas against Collins and that whole line of cases still consistently applied by this Court which has pointed to the fragile nature of First Amendment rights, which has pointed to the fact that they need more protection, quicker protection than property rights and which in fact has given that protection.

Except that somehow in this area between Douglas and Jeannette and Dombrowski, this rule was not observed in this specific problem of securing an injunction.

Then Dombrowski came along and I submit, it put Douglas against Jeannette in its proper place and I am not now referring to the abstention aspects of the Dombrowski case because as I say there is no abstention issues in this case but I am referring to the availability of injunctive relief to stop the enforcement of a state criminal prosecution.

In the period prior to Dombrowski while this problem of an injunction remedy was being worked out, a parallel development in terms of the substantive law was being developed which culminated in Baggett against Bullitt and it might be said that a combination of the old doctrine of Ex parte Young and the substantive rule of Baggett against Bullitt produced the Dombrowski decision.

And as I read Dombrowski, the court would have been unanimous on this case and that there is no abstention problem and as I read the dissent in the Dombrowski case, it is based exclusively on abstention.

The Dombrowski rule has turned out to be a very powerful weapon in protecting civil liberties and First Amendment Rights.

And it is ever so much more important now and has been for the past 15-20 years, that is the problem of first — protection of First Amendment rights much more important than it ever was in the Fifth and the last five or six years in which the Dombrowski remedy has been available.

The technique, the remedial device provided by Dombrowski has been of an estimable value in protecting First Amendment rights, which always in our country need and have continued and will probably continue to need full protection.

The issue here relates to the application of the doctrine, I think the Doctrine of Ex parte Young and the Doctrine of Dombrowski to pending criminal prosecutions as distinguished from criminal prosecutions that are not pending but are merely threatened.

Now in substantive terms, the distinction seems quite illogical.

The injury to the plaintiff is exactly the same.

The interference in a substantive sense with state processes is exactly the same.

It is often impossible for an individual to foresee a criminal prosecution.

And I think the remarks by Mr. Reed in the case that was just argued make it difficult for a potential defendant who has not yet been arrested to establish standing and if he has already been arrested, he is faced with the problem that we are all faced with here today.

Last week, I argued a case in the Court of Appeals in the Second Circuit in which I argued in allege violation of the New York State flag statute.

I argued that man whose neighbors had been arrested and who had seen the rest surround him on all sides throughout New York State for a specific violation of the flag statute should be and who had a flag like that and wish to fly it should be entitled to an injunction.

And the Attorney General of the State of New York came in and said, “It’s too early.

He hasn’t been arrested yet.”

So that we have a situation in which either you are too early or too late.

Either you have no standing or you are barred by 2283.

Now of course there are cases where as a result of some sort of a peculiar procedure of situation as in Dombrowski itself that happens to be a moment in between the threat of prosecution and the actual arrest.

But that does not happen in the normal case and it’s really the extraordinary case in which it does happen.

And so we have the thing that all of us don’t like, namely the race to the courthouse door to see who can get in there first, whether we can come before the state prosecution or after the state prosecution and it seems to me that this results in a totally unsatisfactory situation.

Victor Rabinowitz:

Thank you.

[Lunch Recess]

Warren E. Burger:

Mr. Rabinowitz.

Victor Rabinowitz:

I recalled at lunch where I had intended to say in connection with that line of cases of Smyth against Ames and Ex parte Young and so forth, that I must point out in all candid that in some of those cases and perhaps all of them.

The Court did point out that it was not a pending proceeding and that under the provisions of 2283, they could not have enjoined a pending state proceeding.

So there is of course that difference.

I think that that difference does not apply here and that brings us to the next point on why not extend Ex parte Young and Dombrowski to pending criminal cases.

Isn’t this a pending proceeding, Mr. Rabinowitz?

Victor Rabinowitz:

Yes, this is a pending proceeding.



It presents that issue very squarely.

Warren E. Burger:

I do not recall the evidence or what the record shows on this but what essentially was the evidence on which the indictment was obtained?

Victor Rabinowitz:

Well, my associate, my friend, Mr. Ludwig will tell us that.

Warren E. Burger:

Just in a nutshell so get a —

Victor Rabinowitz:

I don’t of course know what the evidence was.

All I know was that there was an indictment.

I wasn’t present at the grand jury and what evidence was produced before the grand jury I don’t know nor except anything in the record.

Warren E. Burger:

Well, if he’s going to tell us then —

Victor Rabinowitz:

And I think he has the other two times.

I suppose he will this time also.

There was an indictment and there was a good deal of publicity at the time.

Victor Rabinowitz:


There was a great deal of publicity at the time.


Now when we get to the question of the extension of this doctrine to pending criminal cases, we’re confronted of course with this question of 2283.

I might say that the District Court in this case jumped right over the threshold.

They did not give any consideration to what we have referred to at the threshold problem they got right into the constitutionality of statute, felt that the statute was constitutional and thus avoided any necessity of considering this problem at all.

2283 of course presents a problem which we think is met by the fact that we argue that Section 1983 of the Civil Rights Law of 1870 or 71 specifically intended to provide an additional exception to 2283.

And the statute itself makes no distinction between pending cases and cases which are not yet pending and it seems hardly, likely that the Congress of 1871 was tremendously concerned over the problem of the federal government stepping in and interfering with state procedures.

Victor Rabinowitz:

As a matter of fact that legislative history of that Act which has been discussed in a number of Law Review articles which are cited in my brief Syracuse Law Review and Pennsylvania Law Review and elsewhere.

I can’t go into it now.

Of course, it seems to us makes it clear that what Congress was addressing itself to is the very specific problem of abuses by state court as well as by other state agencies and the suggestion that Congress intended to permit injunctions to be applied before state prosecution occurs rather than after state prosecution occurs.

There is certainly no way as suggested in the legislative history at all.

And I would like to point out and Mr. Justice Marshall mentioned this at the last document that in the series of laws that were passed after the civil war, Congress provided for another example of stepping in and gave the federal courts an opportunity to step into a state court proceeding right in the middle of a trial, not merely after an indictment but right in the middle of a trial in the removal situation and gave the federal courts under some circumstances which may be limited but nevertheless, they do exist.

Circumstances in which state court could — federal court could come in or at least a defendant in the criminal case could remove to the federal court thus stopping a criminal trial right smack in the middle of it, a position that we don’t have to go through so far as this case is concerned.

Now, of course as I say I cannot at this time and there’d be no point in oral argument anyhow in reviewing the legislative history of the Acts of 1870 and 1871.

There is an article by Professor Amsterdam in the University of Pennsylvania Law Review, one in the Syracuse Law Review and perhaps others which do discus the congressional debates at considerable length and come to the conclusion that 1983 was intended to provide and to carve out another exception to 2283.

So we believe and all I can do refer to that legislative history that there is no bar in 2283 to the relief that we are requesting here.

I would be blind and I suppose deaf also if I did — were not aware of the fact that there is a grave concern that the position which I am advocating here might lend itself to a great deal of abuse.

That at the drop of a hat, defendants in either anticipated or pending criminal court cases will go plunging into the federal courts at the drop of a hat and will seek and secure injunctions which will tie up state court proceedings.

I suppose that any doctrine that any court can apply under some circumstances is subject to what might be called abuse.

Lawyers representing defendants are ingenious, they are imaginative, many of them and they do think up or try to think up devices to protect their clients as vigorously and as well as they can and I have no doubt that any kind of a procedural device will give rise to certain cases where some people will say that the procedural devices are being abused and I think that is what the courts are for.

The courts are there to prevent such abuse if it be an abuse from taking place.

And I am not — well I was going to say, I’m not very much concerned but it isn’t my job to be concerned.

I don’t — I suggest that courts need not be excessively concerned over this problem.

By hypothesis, these cases come before three-judge courts and as was pointed out by I think Mr. Reed in the argument before, the three-judge court includes a court of the — judge of the Court of Appeals and the possibility that injunctions will be scattered far and wide on trivial pretext, I think is a relatively minor one.

Furthermore, I do think that much of the problem can be solved by a proper hammering out or proper abstention rules which will see to it that lawyers do not come into the federal courts prematurely and that the possibility of flooding the federal criminal courts every time somebody is arrested for disorderly conduct charged under statute that somebody claims is unconstitutional.

Again, it can be prevented by as I say proper abstention rules and proper use of discretion by the three-judge court.

Do you have in mind the statistics as to the increase in three-judge federal District Court cases over the last very few years?

Victor Rabinowitz:

No, I do not.

I have heard that there has been a substantial increase though.

I really don’t know what the statistics are.

I do know the —

The administrative office of the United States Courts would presume the answers.

Victor Rabinowitz:

I’m sure would have that and I really don’t know whether there has been an increase or what the increase has been.

Warren E. Burger:

Well, for whatever bearing it may have, it has been an enormous increase.

Victor Rabinowitz:

Well as I say, I have the impression that there has been an increase in the number of three judge courts and how many of them are attributable to this kind of case, I also don’t know and I have never made such an analysis and I don’t know what the answer to that is.

As I say, I think that there are ways of handling that other than by throwing out the baby and that the rule of the Dombrowski case judiciously applied to pending criminal cases would have a great — a statutory effect in the protection of First Amendment rights.

I am not suggesting that this be extended to all kinds of cases and I don’t think anybody has suggested that, but we do have and have always recognized an exception in the area of First Amendment rights and I do think that the retreat and I would call it a retreat in this situation would be disadvantageous to a protection of those rights.

Victor Rabinowitz:

I might point out that their relegation the plaintiffs to the state court of remedies in this case would really be serious because —

It is — that’s a little bit of inaccurate wording isn’t it?

We are relegating plaintiffs to the state court remedies.

Your plaintiffs have been brought before state courts as defendants in criminal cases.

Victor Rabinowitz:

Well, —

This isn’t a matter of relegating a plaintiff to one court or another as a plaintiff.

Victor Rabinowitz:

Well, that maybe true.

Perhaps, let me say it that shutting off the remedy that we are appealing for or applying for in this situation may very well mean that there will never be an adjudication of the New York State criminal anarchy statute for the reason that I know the Court is familiar with and that Your Honor discussed in the Epton cases because there are along series of substantive crimes.

And if the defendant’s are to be — will be found guilty of any of the substantive crimes and they may be, then we may be confronted this time and the next time and the next time and the next time with repetitions of the Epton situation in which this Court refuses to grant certiorari because there is an independent state ground justifying the sentence with the result that the statute may remain on the books as an in terrorem device for a long period of time and that seems to us partly unjustified given the nature of the statute and if as we contend the statute is unconstitutional.

And I might say that it is rather difficult for me to imagine how a plaintiff could come into court and seek relief under this statute prior to indictment.

It seems to me and would be in the most unusual situation if a plaintiff came in and said, “I am intending to engage in conduct which may violate the state criminal anarchy law and I want an adjudication of which will violate the state from criminal anarchy law and I want an adjudication because the law is unconstitutional.”

I would say that that remedy which is open and perhaps some kind of situations would not be open to the plaintiffs in this case.

Warren E. Burger:

Mrs. Piel.

Eleanor Jackson Piel:

Mr. Chief Justice, if it please the Court.

My client in this case is Fred Fernandez.

Mr. Rabinowitz was speaking on behalf of 10 of the defendants, 10 out of 15 and I have one of the 15.

I say this because the particular circumstances of my defendant and the plaintiff in this case, I think point up some of the problems in this case.

My client is charged with three counts, the first three counts in a 48-count indictment with anarchy.

The substantive charge of anarchy and it goes down the statute.

The first charge is speaking anarchy.

The second charge is printing anarchy.

And the third count is assembling with anarchist.

The fourth count is a sort of a jumble, it is a lesser count, it’s a conspiracy count and it includes over at having to do with each of the first three.

Now the last time I was before Your Honors, I outlined what I believe to be the compelling reasons why this was an appropriate case for federal intervention.

I have never felt that it was necessary to gain relief in this case that the court grant an injunction against the state proceeding.

I have always thought that a declaratory judgment would be sufficient.

However, I naturally would not be against Your Honor taking injunctive relief if Your Honors felt that the situation merited.

Although, there are a number of allegations in the complaint which had to do with the unfairness of the prosecution, there are — that is appended to my brief.

The publicity that was issued which I think has to do with the very unfair prosecution and I don’t know whether Your Honors would rule on that without a hearing and I think that would delay matters further.

You of course asked for an injunction in the brief?

Eleanor Jackson Piel:



I asked for an injunction and perhaps it was timidity when I started checking through the law as to some of the difficulties involved in getting an injunction that I retreated to the declaratory judgment.

Had you asked only for a declaratory judgment —

Eleanor Jackson Piel:

I wouldn’t be here.

There would not have been a three-judge court, would there?

Eleanor Jackson Piel:



I think the minute —

Then there wouldn’t have been an appeal to the Court of Appeals.

Eleanor Jackson Piel:

That is correct and I believe that injunctive relief is appropriate and I believe that had my allegations been listened to, I should have had a hearing before that three-judge court as to those allegations, as to the unfairness of the proceeding.

And I understand you can have an injunction for a facially unconstitutional statute but you also can have an injunction at least under the language in Dombrowski where the fact shows that the prosecution has been unfair.

And I say that it is both that in this case.

I thought you are now saying that you really perhaps shouldn’t have asked for an injunction at all.

That’s pretty hard for a judge —

Eleanor Jackson Piel:


No, I am only saying that I would be pleased with one which is different with the declaratory judgment.

Well that is pretty long, far along the path if you’d really be pleased.

Eleanor Jackson Piel:

I think that the state court would respect it.

Now if the state court did not respect that declaratory judgment, I wouldn’t want to be in a position where I couldn’t come back.

But I do believe in the Committee of the relationship between federal and state and I believe that a state court would respect that injunction.

Now coming back to which — to a point that I believe is jugular and it has to do with the question asked me by Justice White at the first argument and I don’t know that I answered it very well.

That had to do with — in this case, we have the anarchy statute of the State of New York passed as you all know in 1902, interpreted by the Highest Court of the State of New York in 1922 that interpretation was affirmed by this Court in 1925, and then nothing was done about that statute until William Epton was charged with it in 1964.

The legislature went back to work on it deciding that since it was going to be used, they ought to make it constitutional and they tried to make it fit Pennsylvania against Nelson.

The legislature I am talking about in 1965.

But meanwhile, the prosecution of Epton went forward and the Court of appeals interpreted the statute as though the legislature had done nothing or as though the statute were written as though as though the legislature later rewrote it.

Now the question of Justice White was, was the statute or is the statute constitutional with the new gloss of the Court of Appeals?

I said that it was not and I’ve argued that in my brief but I want to read to you what that state court said because I think within this language, one can see the gross unconstitutionality of the new interpretation.

You will recall that the state court said, “Of course we were wrong in 1925, looked at in 1967.

So we are going to reinterpret the statute,” which this Court and we interpreted some years ago.

Eleanor Jackson Piel:

And we are going to interpret it consistent with constitutional requirements.

What are these constitutional requirements?

I am now reading which must now be read into our criminal anarchy statute to preserve its constitutionality.

It is clear that proscription of mere advocacy of the violent overthrow of the Government would be an unconstitutional infringement upon free speech.

The advocacy of the overthrow of the Government by force and violence must in accompanied by intent to accomplish the overthrow and there must be a clear and present danger that the advocated overthrow may be attempted or accomplished.

Now that almost sounds constitutional.

But then, and mind you were talking about and this crucial to my argument.

We are talking about the overthrow of the Government of the State of New York.

We are not talking about the United States Government.

So now the court goes on having made that statement, there is no doubt this is applying the law to the facts.

There is no doubt that Epton intended to inflame the already intense passions of the troubled people of Harlem and to incite them to greater violence.

Furthermore, defendant’s exhortations calling for organized resistance to the police and the destruction of the state in the setting of Harlem during the week of July 18th formed a sufficient basis for the trial court and jury to conclude that his words and actions created a clear and present danger that the riots then rocking Harlem would be intensified or if they see subsided rekindled.

Now I submit that the gloss that the Court of Appeals put on the anarchy statute was gloss on a riot state and was not on an anarchy statute and because the evil that the legislature has a right to proscribe would be the overthrow of the Government of the State of New York if you follow their logic.

Now I say that Court of Appeals made this error for a historical reason because there can be no illegal act of the overthrow of state government.

There can’t be ever since 1789 when the Constitution was ratified.

And I want to go back in the history to remind, Your Honors of the fact that there was once a rebellion against the state government before the Constitution was ratified and during the period that the articles of confederation kept our country together.

And that rebellion was called Shay’s Rebellion and it came about when the soldiers came back from the revolutionary war and they found that creditors were making things very difficult, they were in debt and they did not like it and the next thing, there was a rebellion and it was lead by a man by the name of Daniel Shay and it was put down by a General Benjamin Lincoln who had to be paid for efforts from the coffers of the State of Massachusetts because there was no federal government.

And it was Shay’s Rebellion, the last rebellion against the state government that gave the impetus to the Constitution of the United States.

And so it is that Hamilton writing in 1787 in the minutes of the proceedings of the constitutional convention said, “How are all these evils to be avoided?”

And these evils of course are the evils of the Shays’ Rebellion.

Only by a complete sovereignty in the general government, the general power must swallow up the state powers.

Otherwise, it will be swallowed by them.

Two sovereignties — I should have learned.

Two sovereignties can not co-exist within the same limit.

Now General Washington also had occasion to comment on this problem and in a letter written in 1787, the same year that Hamilton was writing, he said, “You will long ere this have heard of the insurrection in the State of Massachusetts.”

These disorders are evident marks of defective government.

Indeed, the thinking part of the country, of the people of this country are now so well satisfied of this fact that most of the legislatures have appointed and the rest, it is said will appoint delegates to meet at Philadelphia on the second Monday in May next in a general convention of the states to revise and correct the defects of the federal system.

And then it was Thomas Jefferson who wrote in a letter to Madison the same year.

The late rebellion in Massachusetts has given more alarm than I think it should have done.

Calculate that one rebellion in 13 states in the course of 11 years, is but one for each state in a century and a half.

Eleanor Jackson Piel:

No country should be so long without one.

Nor will any degree of power in the hands of government prevent insurrection.

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular and what no just government shall refuse or rest or let rest on influence.

Now, why I am reading these quotations?

Because of course you can not have the overthrow of a state government and so that whole law itself is an absurdity.

There was argument in the case of Pennsylvania against Nelson which we have urged in out briefs with regard to unconstitutionality of this law, which underlines with the coming of the Smith Act, the supersedure of the sedition field by the federal government.

But I think a better argument than the argument made by this Court there is the fact that you really can not have — the overthrow of a state government because the minute that government is threatened with its overthrow, it is a matter of federal concern.

Now you can have acts, you can have acts proscribed which disturb the public peace which you can proscribe them to be of a greater degree if they impinge upon the state house or if — it seems to me that you can describe crimes in many ways, having to do with the imagination of the legislatures and of the prosecutors to meet the situation.

But that it is a travesty to go back to a law such as the anarchy statute of 1902 and to believe that by putting a gloss on it, taking out the general government and pretending that it isn’t there that you really talking about the Government of the State of New York, you can make that law constitutional.

Now the Bill of Rights aspect what Jefferson had to say also brings me back to the first amendment and to the importance of the first amendment in the considerations in this case.

My client is being charged with three felony counts of anarchy and one misdemeanor count of anarchy and one count of ars — conspiracy to commit arson in the third degree which in New York is a misdemeanor.

Now you will hear from Mr. Ludwig if, that is if he says what he has said on other occasions before you, why you have asked him, “Do you need this anarchy counts in an indictment which has serious gun possession charges and one arson count, conspiracy to commit arson in the third degree?”

And he will tell you as he did in his briefs that the anarchy is necessary to prove the illegal intent of the defendants.

Now following that logic as to my client, my client in order to prove his intent for one count of conspiracy in the third degree to commit arson which is a misdemeanor is being charged with three felony counts.

It seems to me that the tail is wagging the dog or there is something disproportionate about the state of affairs.

I have as I said outlined to you before the reasons I believe this is a most compelling case.

It involves the First Amendment in the sense of it being the public business.

In the complaint against my defendant, he is charged with disseminating pamphlets and their titles are mentioned in the indictment.

Those titles are total resistance.

This is in writing.

This is something that has been written called Total Resistance in Writing, Community Self Defense, and the Struggle for Black State Power in the United States.

Now, every charge in anarchy, except the first one mentions specifically the fact that he is supporting and disseminating these documents.

Now certainly a statute or a law which would permit someone being criminally prosecuted for the dissemination of these pamphlets is overbroad, and it goes to the heart of his rights under the First Amendment.

Warren E. Burger:

Is he charged with any other overt acts besides distributing pamphlets?

Eleanor Jackson Piel:

Yes, there are other overt acts having to do with suggesting violent activities.

Well, let’s see.

Act obtained and possessed in the County of Queens at indeterminate amount of gun powder for making explosive.

He is charge and as to any kind of — those are overt acts of course.

I do not know whether my defendant —

Warren E. Burger:

You are not arguing that that’s a First Amendment.

Warren E. Burger:

The question is it a possession of dynamite in large quantities?

Eleanor Jackson Piel:

No, but I believe that a law that would proscribe the possession of dynamite in large quantities would be perfectly constitutional.

But a law that includes in its ambit, the distribution of leaflets it seems to me is not.

And we have a time in the period of our country when dissent in raising its voice and when people are dissatisfied and when the black people are dissatisfied and when they are —

Warren E. Burger:

If this case goes to trial Mrs. Piel, he might be found — there might be a dismissal of the charges relating to the distribution of pamphlets and papers, but conceivably a guilty verdict could come if the jury was satisfied on the possession of dynamite and guns and the other things.

Eleanor Jackson Piel:

But maybe the jury would be affected in his judgment as to what — whether it might be a fact issue on the dynamite and guns and maybe the jury would be affected by hearing what his thoughts are with regard to community self-defense.

Warren E. Burger:

You are asking to try to decide that kind of an issue before the case ever goes to trial in the state court, aren’t you?

Eleanor Jackson Piel:

Well only because my client is being charged with advocating the doctrine of the overthrow of the Government of the State of New York and I am saying that that kind of a charge against my client is inappropriate and is prejudicial and further more invades a very, very basic right under the first amendment.

And that when the things are jumbled up and put together, it may well be that the prejudice of the anarchy charge will lead to a conviction on the other charges.

The other charge, its arson in the third degree is the only other charge my client is charged with.

I think that this case has an overwhelming compulsion and I urge, Your Honors to read the four points that I made in a very brief, brief which I have just filed with the Court having to do with the peculiar situation as to why relief is requested here and I also wish to urge upon you that if I can not get all I want, meaning I want in injunction as Judge Friendly paraphrased a description of the legislature in 19 — the legislature passing the anarchy law in 1902, I want all I can get.

Thank you.

Warren E. Burger:

Mrs. Piel.

Mr. Ludwig.

Frederick J. Ludwig:

Mr. Chief Justice, may it please the Court.

This proceeding in the state court, State of New York, County of Queens, Queens is one of 62 counties in New York State, its part of New York City, has a population of about five — two million.

It’s the fifth largest county in the United States.

It began so far as I know with an investigation by the police of the City of New York in October of 1965 that was two years — a year and several months before we were in office in the District Attorney of Queens County.

It stemmed from activity of the FLQ, a Quebec Revolutionary Organization which attempted to blowup the Statue of Liberty and resulted in three convictions.

For some reason, the police continued their investigation with this group in Queens and this investigation went into the Black Brother Improvement Society.

Several undercover men from New York City police were assigned.

One of them became a member, a member of the board of directors, vice-president and was in on all high conspiracies.

Nobody came to the district attorney from the police until April of 1967, and at that time they indicated how things had progressed.

They have progressed beyond the mere advocacy, the naked advocacy of overthrowing of local establishment.

They had reached the point where they had accumulated weapons, cans of gasoline, cans of oil, black powder to explode, blueprints, and had designated areas that were to be blown up.

They had even devised a timetable, they had engaged in training programs for the use of these things.

Even then, the District Attorney did not move until they held a dry run that wasn’t so dry because four shots were fired in the Jamaica Section of Queens on June 16, 1967.

Furthermore, they had now formulated and made definite a second conspiracy that involved only three people, Ferguson, Harris, and this undercover policeman and this conspiracy was to kill two moderate civil rights leaders, Whitney Young and Roy Wilkins, they had gone quite far, they had already acquired the weapons, they had devised the plan, they had cased Roy Wilkins house who unfortunately lived in a sort of cul-de-sac about a mile from the courthouse in Queens.

Now we then proceeded and presented this case to a grand jury.

Warren E. Burger:

Well what you have told us now is that —

Frederick J. Ludwig:

This —

Warren E. Burger:

Are you telling us that that was presented to the grand jury?

Frederick J. Ludwig:

This was presented to the grand jury on June 20, 1967 and we have nothing in the record on these facts.

This Court is forced to rely on my say-so and that’s because of this anticipatory nature of reveal with one exception.

We presented the matter to the grand jury and it was no special grand jury.

It was an ordinary grand jury.

I just happened to be sitting that day on June 20th and they returned two indictments.

And I’ll dispose of one of those indictments because this Court has already done so on June 29th of this year.

And that was the indictment of Ferguson and Harris who are two of the appellants here.

Ferguson and Harris were charged with conspiracy to commit murder in the first degree against Whitney Young and Roy Wilkins.

They were brought to trial on a superseded indictment that was returned in February of 1968 on this judge before a judge and jury.

They were convicted in June of 1968.

They went through two appellate courts and unanimously 12 appellate judges in New York, 5 from the appellate division and 7 from the Court of Appeals found there was proof and sufficient proof all the way through, beyond a unreasonable doubt there were some dissents over whether a continuance shouldn’t have been granted in that trial.

They applied for certiorari to this Court and there you did have trial record to review and this Court denied certiorari on June 29th.

There is just this minor appendix.

Justice Holly continued these two on bail until this Court dispose off their application for review.

They have not surrendered since June 29th.

They have been indicted for jumping bail in the first degree.

They may be in Algeria right now.

And yet we have counsel here asking this Court to review an equitable determination below when two of the persons they represent in a single petition are coming in to say the least with unclean hands.

The questions now before this Court, is not an accusation by the District Attorney Mackell or the Attorney General of the State of New York.

The Attorney General of the State of New York had nothing.

Whatever they do with this case, Mr. Mackell did not present it to the grand jury.

What they are complaining about is an indictment by a grand jury in New York and that grand jury consisted of 22 persons on June 20 of 1967.

It was the same grand jury that superseded its first indictment on June 15, 1968.

Now what does an indictment mean in New York?

In New York, an indictment means that you must — the New York State Constitution, Article I, Section 6 has the identical words of its opening clause of the Fifth Amendment of the Federal Constitution that “Nobody is going to stand trial except on indictment or presentment of a Grand Jury”.

But the New York legislature has been much stricter about that requirement than has Congress or the federal rules of criminal procedure.

The New York legislature says that no indictment can be amended and that even if a person when he is first arrested comes in and pleads guilty his plea is a nullity because he can not plead to a felony unless he has been indicted and accused by a grand jury.

Moreover, his lawyer cannot come in and say, “We’ll waive the indictment.

Frederick J. Ludwig:

Let’s plead out to something else.”

Not permitted in New York and I don’t have this in my brief, I just make the brief reference to People ex rel.

Wachowicz against Martin, 293 N.Y. 361.

This is the procedure in New York.

Now what quantum of proof is required before a grand jury in New York?

We have Costello against the United States, a case decided by this Court 10, 12 years ago where they said a grand jury — a federal grand jury can indict on hearsay, pure 100% hearsay.

The testimony of an accountant in an income tax rebate investigation, 100% hearsay that’s a sufficient indictment in the federal court.

By statute, Section 249 of our code of criminal procedure provides that the grand jury can receive none but legal evidence.

Section 251 of the same code says that the grand jury cannot indict unless the evidence before it if unexplained or uncontradicted would be sufficient to warrant a trial jury to convict.

Finally, Section 389 of the same code by statute proscribes the standard of proof for a trial jury and it provides that the defendant is presumed to be innocent and if there is any reasonable doubt about whether he is guilt is satisfactory shown, he is entitled to an acquittal.

Those are the standards that apply to the grand jury.

Beyond that, 22 people on the grand jury found this proof beyond unreasonable doubt in coming down with this 48-count indictment.

Now beyond that, you are entitled to judicial review with the trial court level about what the grand jury does.

And here apparently, the legislature has been very liberal in conferring upon one Supreme Court, State Supreme Court justice enormous power over the grand jury.

In Section 671, it says that regardless of whether the defendant makes a motion or not, if the judge thinks in furtherance of justice this indictment should be set aside.

He has the power to do it.

Now these applications had been made under the superseded indictment and they have been denied by several judges on the state court level.

Now that’s how far this case has proceeded in the state courts.

This case was in the state courts from June 20, 1967 until March 12, 1968 when application was made to the three-judge court.

Now it has been in the federal courts for 979 days counting today, 979 days.

Now there are two facets to this case and I think they stand from Ex parte Young and Justice Brennan’s opinion in Dombrowski and as Dombrowski laid down.

First of all, this is anticipatory federal relief, expediting federal relief. Judge Brennan, I think says, if you have a statute that’s overbroad or vague on its face or if there is bad faith in applying a statute that might otherwise be valid on either of those grounds in Dombrowski.

Justice Brennan said the federal courts may grant anticipatory relief as they did in Ex parte Young on a question of economic due process.

Later Justice Brennan in Cameron 2 in 1968 seemed to say that Dombrowski rested primarily on the second of those two horns and he said that I think — and he referred to the facts in Dombrowski, where there had been arrest where there had been raids, where had been seizure of materials under some communist control act, and these has all been quashed by the state courts in Louisiana.

And not withstanding that, the state legislative committee under Pfister and other people continued the investigation and that was the sign of bad faith so far as state action was concerned.

Now in this case, I don’t think you can come in on the first of the two grounds in Dombrowski for several reasons.

First of all in Epton, which was decided on May 16, 1967, this indictment, June 20, 1967, a month and five days later.

Epton qualified narrowing the construction of the old criminal anarchy statute in New York that had been upheld by the way in Gitlow against New York.

There had been a prior prosecution on writ 1922.

In upholding it, they said, “First of all, the mere advocacy of criminal anarchy is out.”

Frederick J. Ludwig:

The Court of Appeals said.

Second, they said, “You not only have to advocate the overthrow of Government but you have to have an impact to overthrow the Government that must accompany that advocacy.”

And third, they said, “There has to be clear and present danger.”

Everywhere in this indictment that we talked about, those first four counts, criminal anarchy, everywhere we talked about that in this indictment, we shrink it down to the very narrowest possible dimensions.

We identified the general targets as the State of New York or the political subdivisions of the state or the executive officials of the state.

We identified particular targets in there as publicly-owned and operated transportation facilities in the City of New York and publicly and streets, manholes of the City of New York with plans, detailed blueprints to pour gasoline had already been made and we identified the means.

Every time we allege these things in this pleading before the Court, we identified the means as force and violence to wit the use of bombs, shotguns, rifles, gasoline, gunpowder, etcetera, all the way through.

Consequently, I don’t see how when this Court considered People against Epton, I believe in January of 1968, both appeal and certiorari and this Court denied review of People against Epton.

Justice Douglas if I can remember, I have to remember back in writing a rather lucid dissent.

His only objection if I can recall was to what the trial judge did in the Epton case.

He said the trial judge had submitted a great many overt acts to the jury and some of those overt acts were in the area of protected speech, if I recall Justice Douglas’s dissent from the denial of certiorari.

So the Epton case has already been narrowly — the Epton case has narrowly construed the statute.

Now, you asked, well, what about the bad faith in this case?

We did not accuse anybody in this case.

None of the 15 defendants were accused by the district, neither were they accused by this grand jury.

And if there is any bad faith, the bad faith lies on the part of that cross-section of the community, those 22 persons.

But there is no bad faith in this case.

Any question about publicity has been reviewed fully by the state courts bellow with lengthy opinions written.

One of them is appended in my brief by one of the justices on the state court.

And besides, if the only complaint is about some publicity, remedies lie for change of venue with the time of trial not by anticipatory federal relief.

We are asked why we have to have these four counts relating to criminal anarchy, three substantive criminal anarchy, and one on the conspiracy to commit criminal anarchy, which is a misdemeanor.

And I have previously told the Court on two occasions that the Weapons Law of New York differentiates between handguns and shoulder guns.

For handguns, mere possession is alone enough.

For shoulder guns, you must prove both possession and intent to use unlawful guns to another.

37 of 41 of the counts of these 48 count indictment deal with that.

There’s a second reason and a very important reason.

And this reason goes back to a unanimous opinion of this Court written by Justice Black, Cole against Arkansas where he said, that you have to give notice in advance a track of anything you intend to prove at that trial.

We would necessarily have to bring in this conspiracy to overthrow local government in the trial for the possession of 37 of the 41 weapons in this case.

If you remember in Cole against Arkansas, the defendant was charged under one section of a state statute.

That was the accusation.

Frederick J. Ludwig:

He was tried and not convicted on that but the Highest Court of Arkansas affirmed this conviction another section of the statute.

They found there was sufficient evidence and this Court objected and the opening words of the quote that I have in mind from Justice Black was that there is nothing more fundamental to due process of law and this goes back to (Inaudible), then that person who is entitled to be accused in advance.

We had a case in Queens about a year ago where three murders occurred.

It was a division of spoils of a robbery that was committed on July 1, 1968.

On July 4, 1968, these three murders among the thieves had occurred and there were indictments for murders, but no indictment for robbery.

And in the course of trying this case, it would have been necessary to refer to the fact that the defendant was one of the participants in this robbery and that there was a dispute over the spoils.

The gasoline station owner claimed that $11,000.00 have been taken from his safe.

The man — the bad man among the robbers had only $6,000.00.

So, that lead to the murder of three of the robbers.

But because it was necessary to refer to that robbery and to the participation of these persons in it, an indictment was filed for robbery and during the course of the trial, many references were made to the robbery but defense counsel could not stand up and scream that they had never been accused of a robbery.

Nobody had ever accused them of robbery and that is the reason we have to have these other counts in the indictment.

We do not concede as Mr. Rabinowitz supposes that the doctrine of abstention ought not to be applied here.

We do not concede that at all.

We think our position is completely consistent with Dombrowski, with Ex parte Young and no grounds have been out why there should be no abstention in this case.

The major point we would like to make is that the statute that’s alleged to be unconstitutional in New York as part of the comprehensive reorganization of our penal law in New York was repealed on July 20, 1965.

That repealed to take effect on September 1, 1967.

That’s the criminal anarchy statute we are talking about.

So its future chilling effect has stopped and ceased on September 1, 1967.

It had to be applied to these defendants because the conduct we allege to be criminal on their part occurred between October 1965 and June 20, 1967, sometime before September 1, 1967.

So the future emanations so far as potential offenders of this law are concerned, it no longer exist and have not existed and did not exist at the time the application was made for the federal court on March 12, 1968.

There had been no more criminal anarchy statute that’s complained about enforced in effect in New York.

So the potential harm, the chilling effect that might emanate from this statute ceased long before in the application was made for federal relief in this case.

I should like to point out that apart from abstention, we have of course 2283 and this is the historic of Act 1793 that Congress enacted as an amendment to the fundamental judiciary law of 7089.

And the three words in 1983 of Title 42 “suit in equity” do not really constitute and can not arguably be made as a question of statutory interpretation and exception to the expressly authorized by Congress.

That’s what Congress required in 1948 when they re-codified 2283.

They want an expressly authorized exception.

Now I have kept notes for many years and what I think or expressly authorized exceptions to 2283.

This would be the second title.

The first title is the Doctrine of Abstention.

Even if you get by abstention, this case unlike Dombrowski involves a pending proceeding in the state court that was pending from June 20, 1967 until March 12, 1968.

Frederick J. Ludwig:

Here are the kinds of exceptions that I think this Court has allowed has expressly authorized.

Where you have in the statute an authorization to state any state court proceeding.

You have that in the Habeas Corpus Act and you have that in the Interpleader Act of 1926.

It says that the District Court Congress says gives them the power to state any state court proceeding or any federal court proceeding, both in the Habeas Corpus Act and the Interpleader Act of 1926.

Another formula is a provision that they can state any court proceeding but without reference the state court and that appears in the Bankruptcy Act and the Frazier-Lemke Act, Farm-Mortgage Act.

Thirdly, — third says that all proceedings shall cease.

This appears in the old Shipowners’ Liability Act of 1851.

A fourth proceeding is that the state court shall proceed no further and that appears in the federal removal statute.

I would like to add two more.

These four, I have motioned in my brief.

I would like to add two more that my research has turned up since.

I have worked on the brief and that is the Federal Civil Rights Act of 1964 has a prohibition with respect to use of public accommodations.

It has a prohibition to punish or attempt to punish any person from exercising any right or privilege secured by that public accommodation Civil Rights Act of 1964.

And it couples this with authorization for injunctive relief to see that this is carried out.

Now that is what I mean expressly authorized by Congress.

That appears in the Civil Rights Act of 1964, Title 42 of the United States Code, Section 2000 (a) subdivision 2 (c) and (a) subdivision 3 (a).

And the Fifth Circuit in Dilworth against Riner, 343 F. 2d 226 has sustained that as an authorized exception.

Finally, you have an exception that’s also, I think ought to be added and even half dozen.

You have an exception in the right to vote act when the federal government moves into the federal district court and asked for an injunction against state officials or state proceedings that interfere with a person’s right to vote.

This comes from 48 United States Code 1971 (c).

Those I think are what we mean by expressly authorized exceptions.

Now the American Law Institute is not Congress but they have been studying this question of division of jurisdiction between state and federal courts.

And it has been represented to this Court that they are in favor of the Dombrowski type of intervention at the District Court level.

But I find that the American Law Institute reading that draft on Sections 1371 and 1372 do not favor, do not feel that Dombrowski authorizes this injunctions and quite the contrary in their have proposed Section 1371 (c).

They go back to Ashwander against the TVA and all of those cases that support abstention of the federal district court.

Finally, on this point of the Bar of Section 2283, we might look at what Congress has said in other situations so far as anticipatory relief is concerned in the federal courts vis-à-vis state court proceedings.

The power of a federal district court to abort, to prevent the natural fruition, the natural development of a state court proceeding.

One, we have the removal statute and this Court has been very strict on removal statute, most recent determination in City of Greenwood against Peacock.

They indicate how strict they are before you can remove a case that’s already in the federal court.

That removal would be under 1443 subdivision 1.

Frederick J. Ludwig:

On the other hand, this Court has been willing to allow removal where in it is very clear that the basis is strictly and solely one of color, not general civil rights but color and this Court carefully pointed that out in Rachel against Georgia in Volume 384 in 1966.

So we do not have the power to abort any state proceedings from the removal act.

One of two different remedies that this Court has in addition to the injunction and declaratory judgment asked here.

Next is the question of habeas corpus, there is you examine that very carefully, you would find that habeas corpus is permitted only — the exhaustion of state remedies requirement in the statute which appears in Section 2254 of Title 28 appears only explicitly by the wording of Congress to apply to post-conviction, post-state conviction for a remedy.

But this Court many years ago in Ex parte Royal in 1886 extended it to pre-conviction and this Court has never interfered with that interpretation on the restriction of federal habeas corpus to get relief for defendant in the toils of the state criminal process.

Finally, this Court itself is a constitutional tribunal but its jurisdiction over appellate matters is fixed by Congress under Article 3 of the Constitution.

And if you examine the requirements in this Court in order to review state determinations, one thing above everything else stands up and that is that the state court, the state judgment must be a final judgment.

This Court has used this terms.

The statute provides that in Section 1257.

It must be the final word of a final court.

Otherwise, this Court has no power to interfere with anything a state tribunal does below.

And this is a constitutional tribunal, the federal district courts are creatures of Congress that Congress tomorrow could abolish the federal district courts without any need of constitutional amendment.

Under those circumstances, I would suggest that this Court called upon as they are to make an exception for Section 2283 in the light of the existence of all our federal statute and also and especially because of the delay that will attend state criminal proceedings as is evidence by this case, 979 days till today this case has been in the federal court.

Thank you.

Warren E. Burger:

Thank you Mr. Ludwig.

Mrs. Marcus.

Maria L. Marcus:

Mr. Chief Justice, and may I please the Court.

This Court recently had occasion to examine and analyze Section 2283, the anti-injunction statute in Atlanta Coast Line Railroad versus Brotherhood of Locomotive Engineers.

And although this Court was dealing there with the necessary and effectuation of jurisdiction clause rather than a authorized statutory exception clause, the courts general comments on the statute are very pertinent to the case here today.

This Court said that 2283 is not merely a rule of committee.

It is a biding rule on the power of the federal courts and that even if general equitable principles as interventions are satisfied which are clearly not in this case, the federal courts may not intervene in a pending case unless one of the statutory exceptions is involved.

And Mr. Justice Black further commented that these statutory exceptions should not be enlarged by loose construction.

It has already been shown that Section 1983 can not be an expressly authorized exception to 2283.

In fact, not only is there nothing in the statute that so indicate, but the Section creates no substantive rights, it merely refers to rights already granted by other statutes and by the Constitution.

Thus, it is clear that suits under 1983 can not result in injunctions against state Court proceedings.

Now appellant Fernandez argues that declaratory judgment may still issue.

There is an irony in this argument because what it really means is that if a state official is conscientious and he wishes to abide by a federal court declaration, then a state a state proceeding will be disrupted, a statutory scheme nullified.

However, if a state official is not conscientious, he may continue with the state proceeding through the usual appellate review and finally to this Court.

Now this kind of penalty can not possibly have been a congressional intent in enacting 2383.

Quite the contrary, its intent was very clearly to prevent this kind of disruption of state court proceedings.

Maria L. Marcus:

Now appellant — one of the appellants stated that it is illogical to distinguish between pending proceedings and future proceedings.

But this is precisely what Congress did in enacting the anti-junction law.

It made that distinction because it wanted to avoid disruption of proceedings already commenced.

This morning, it was suggested by Counsel Warren that once a court had jurisdiction, it could issue a declaratory judgment and if that were not obeyed, an injunction could issue to effectuate the judgment.

In other words, what he was suggesting was that a two step procedure could be used instead of one step.

Now this obviously would make unnecessary the list of exceptions in 2283 and in fact it would make a joke of 2283 because it would merely mean that you could accomplish in two steps what the statute on its face says you may not accomplish in one step.

It should be pointed out that state courts have both the power and the duty to rule upon federal constitutional issues in the same way as a federal court.

And if a statute is overbroad, state courts have the same power to strike it down to prevent any chilling effect on First Amendment rights.

There would be no reason therefore to deprive the state courts of jurisdiction over such pending proceedings and absolutely no basis for any a priori assumption that such state courts would be less willing or less able to protect rights originating in the Constitution.

Congress has provided in the federal removal statute for the narrow class of cases in which such judicial protection can not be expected.

Now the cases at Bar furthermore, would be unlikely candidates for the articulation of any new rule respecting declaratory intervention since they did not involve any raise to the courthouse door.

There was obviously no evidence of any bad faith prosecution and no effect upon First Amendment rights.

Counsel for appellants has said that there is no abstention problem here.

As Mr. Justice Stewart earlier pointed out, this Court has differentiated non-intervention from abstention and for this reason in Zwickler versus Koota said that it gave continuing validity to the principle of non-intervention.

There is a difference between a plaintiff having his choice of forum and a defendant in a state proceeding when the tide is turned against him wishing to come in to the federal court to disrupt that proceeding.

Now counsel for appellant Samuels in his brief suggest on the merits of his case that the clear and present danger test which this Court approved in Dennis be overruled.

He hasn’t suggested any substitute test and apparently it’s position that speech can not create the kind of danger which the state has a right to prevent no matter what the context or circumstances of that speech is.

But this Court has repeatedly noted using the example of the man shutting fire in a crowded theater that something which is pure speech can create a physical danger.

And so the question is the circumstances and the context of that speech.

Now counsel for appellant Fernandez referred to pamphlets and writings.

But even looking at these writings, they are far from abstract intellectual discussion of doctrine, but instead they sent it around organizing youth for acts of violence, how to put together gun powder and other materials for the making of bombs and proficiency in terror tactics.

These were the writings that were involved.

Another point was made that the kind of riots which you saw described in the Epton case do not constitute overthrow of the Government.

I think this is very unrealistic and naive theory because there are many ways to overthrow Government and only one of them is a replacement of one group of government officials by another group of government officials.

That is one kind of overthrow.

But another kind of overthrow very clearly is the paralysis of a government system and in New York City for example, the cutting off of electrical power, the sabotage of transportation lines, attacks on the police make it impossible for the Government to render essential government services.

And this is as much an overthrow as is the replacement of particular people, and in fact it also creates a kind of chaos which prevents government from operating effectively.

Appellants also claim that the statute at issue will have a deterrent effect upon the advocacy of unpopular ideas, but analysis indicate there can be no such deterrents in this case.

Prosecutions under both the old and the new statutes which are called the criminal anarchy statute here must be governed by the rules set down in Epton and that decision made it very clear that mere abstract advocacy of doctrine is outside the ambit of the statute.

And therefore, outside the ambit of any prosecution both this one and future prosecutions Therefore, the only ground whose rights might be affected — might not be affected by the Epton decision would be a hypothetical group which was deterred before the Epton decision.

Maria L. Marcus:

However, this group can not be prosecuted for their activities because the prosecution places the advocation of unpopular ideas and such the mere advocation of unpopular ideas outside the statutes ambit.

And therefore this hypothetical group can not be prosecuted and for that matter can not even be identified.

And this kind of controversy with an unidentified group of these type which can not be prosecuted obviously presents no live grievance under this Courts decision in Golden versus Zwickler.

So, that we have here a pending prosecution and obviously no possible effect upon appellant’s First Amendment rights.

Thank you.

Warren E. Burger:

Thank you Mrs. Marcus.

Mrs. Piel, you have three minutes left.

Eleanor Jackson Piel:

I’m not sure I will take all my time.

I do wish to disabuse the Court of a thought which came across my mind as I sat down and that was the — I sought the enjoining of the entire prosecution in this case.

It is true that when I commenced, I challenged the grand jury statutes of the State of New York, which of course were right to prevail would have invalidated the entire prosecution.

Setting up the challenge to the grand jury statutes although we maintain they were unconstitutional because that challenge did not meet the test of the First Amendment.

I would prove that position and I do not feel that the entire prosecution should be invalidated.

In fact, and I wish to underline it, the only challenge in the plaintiff and appellant Fernandez’ case is to the anarchy statutes of the State of New York.

Now this prosecution with regard to arson in the third degree in so far as these pleadings are concerned is perfectly appropriate and should proceed.

Thank you.

Warren E. Burger:

Thank you Mrs. Piel.

Thank you.

The case is submitted.