Younger v. Harris – Oral Argument – April 01, 1969

Media for Younger v. Harris

Audio Transcription for Oral Reargument – April 29, 1970 in Younger v. Harris
Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Earl Warren:

Number 163, Evelle J. Younger, appellant versus John Harris Jr. et al.

Mr. Harris.

Albert W. Harris, Jr.:

Mr. Chief Justice, may it please the Court.

This is an appeal by the District Attorney of Los Angeles County in California from a judgment order of the District Court in Los Angeles, the three-judge District Court convene pursuant to a complaint filed by the appellees here holding the California Criminal Syndicalism Act void on its face in all of its provisions and particulars and regardless of how it might be applied.

In addition, the three-judge District Court issued an injunction against the District Attorney, Mr. Younger enjoining him from any further prosecution of John Harris who was then under indictment in the Superior Court of Los Angeles County.

In arriving at this conclusion one which has been appealed here by both the District Attorney who was the party below and the Attorney General of California, we contend that the District Court was wrong that the District Court should’ve dismissed the complaint to start with and if it did reach the question on the merits that the proper consideration of state law in California construing the Criminal Syndicalism Act would’ve required the Court to hold that the statute was constitutional and not unconstitutional.

And we ask this Court which ever it might choose to do it or send it back for purposes of being dismissed because we don’t think the proper case to start with or if you wish to reach the merits why we think you should hold it a valid statute in light of the California decisions.

Now, we say that the Court should’ve dismissed this complaint below without any further ado.

John Harris had been indicted in September 1967 or September of 1966 and charged in two counts for violation of the Criminal Syndicalism Act.

He was charged with passing up leaflets which advocated criminal means for bringing about changes in our society in California.

The leaflets were appended to the indictments as usual under California procedure.

He was furnished the transcript of all of the testimony at the grand jury which shows the facts underlying the prosecution.

None of that is before you and now that was before the District Court.

The — unlike the case you heard argued here earlier, there were not related counts involving the possession of weapons or such things.

In addition, the Criminal Syndicalism Act should not be confused where the criminal anarchy statute in New York.

They both stemmed from the same general idea and as does in Smith Act which of course you upheld.

But the California Act instead of simply stigmatizing the advocacy of the forcible overthrow, the overthrow by force or violence of the Government speaks quite differently and it addresses itself to the advocacy of particular means of bringing about social change.

And it lists those means and it lists some very specifically.

It refers to the commission of the criminal offense.

It refers to sabotage.

It refers to unlawful acts of force and violence.

And it is only the advocacy of these criminal means, criminal ways of change — bringing about changes in the society than as stigmatized.

The objective must be a change either in the political structure or a change economically.

The whole statute having been drafted at a time when the advocacy of economic change perhaps even disregard a political change was popular.

Your Honors have held recently without a case or controversy, the District Court has no jurisdiction — it has no jurisdiction constitutionally.

We think as to three of these plaintiffs it was clear that the Court had no jurisdiction.

Now, Harris filed this complaint and he was awaiting in the trial on his indictment.

He had attacked the indictment in the state court.

He had asked the District Court of Appeal our intermediate Appellate Court for writ of prohibition.

It was denied there and he applied for hearing of the state’s Supreme Court denied there.

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

Under our procedures the higher courts have discretion to rule on a matter of that kind or not as they see fit.

He certainly had he was not foreclosed from raising the constitutional question, later, if he was convicted in a normal appellate process but he went into the federal courts and perhaps sensing some problem under Section 2283.

He brought along some additional plaintiffs.

Two of them were members of the Progressive Labor Party.

Harris, I believe alleges and I think as some matter of fact was himself a number of the Progressive Labor Party.

And they said, they advocated some doctrine seeking change and industrial ownership and so forth and that they felt inhibited in attempting through peaceful none violent means to advocate their program.

And therefore, they wanted some relief.

Another plaintiff was brought in named Broslawsky who was a teacher at one of the state colleges out there and he said he taught about the doctrines of Karl Marx and he taught about the Communist Manifesto and even read from it.

By now, he was uncertain as to what he could say in light of this statute.

Now, these are the only plaintiffs before the Court.

The only action by the state that occurred is the indictment of Harris.

There have been no arrest, searches, no announcements, manifestos as you found in Dombrowski about what anybody is going to do to this group.

And as far as I know that any of these plaintiffs, they have never been with the exception of Harris of course.

They have never been charged with anything.

And indeed, the District Court after proceeding to find the California law unconstitutional on its face stated unequivocal that they were under no apprehension and that there was any danger whatever that these three people would be prosecuted.

Or that the courts in California would entertain a prosecution on the grounds that they stated under complaint.

Now, we say having said that they had no jurisdiction as far as these plaintiffs are concerned.

And we rely as were already mentioned here on your decision in Golden against Zwickler and we don’t think these people had presented any kind of a case or controversy to the Court.

William J. Brennan, Jr.:

Including the one under indictment?

Albert W. Harris, Jr.:

No.

I want to come to him, in just a moment Your Honor.

He does stand on a different foot and he was indicted.

Potter Stewart:

But for now you’re just been dealing with those other than Harris?

Albert W. Harris, Jr.:

Exactly.

Potter Stewart:

And with respect to Harris you’re going to argue the 2283?

Albert W. Harris, Jr.:

Exactly.

And we argue some other things that there was no irreparable injury other than his own prosecution.

There was no pattern of prosecution.

There’s not even any allegation that anybody else was bothered by this prosecution or was likely to be prosecuted or that anything — any of all of the facts that you alluded to in Dombrowski were present.

We think specifically as to the injunction in connection with the prosecution of Harris that that is barred by Section 2283 and that is developed in our brief.

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

I don’t want to go into that in much detail except to say this that this case presented a very excellent situation for the application of the abstention doctrine and for the — so you can see the value of 2283 in failing to restraint a state court prosecution.

There are two complaints basically about the California statute.

One is that, that it is vague.

They don’t know what it means.

The other one is that it’s overbroad and it prohibits things that they should be allowed to do.

At least to them the contention of the — of Harris and his fellow plaintiffs is that they don’t have state decisions that have clarified these points.

Now, had the federal District Court declined to act on this case and have Harris ever been convicted.

In the appeal, there’s no question but that the — any vagueness problem that there is, I’m not suggesting there is a vagueness problem — they think there is could’ve been resolve by the state courts and in defining the conduct the area of conduct proscribed perhaps have removed completely the overbreadth question and thus remove complete any necessity of a constitutional adjudication.

Throughout the statute doesn’t apply to what you might think is protected conduct and you‘ll have anything to decide.

This case was a perfect vehicle for this to be done and not for the federal District Court to show what we think in all, with all due respect was unseemly haste in declaring the California state law unconstitutional.

William J. Brennan, Jr.:

Well, now why — I expect Zwickler and Koota as bearing in this under declaratory judgment aspect not only the injunction aspect?

Albert W. Harris, Jr.:

Declaratory judgment aspect Your Honor we don’t think that Zwickler against Koota is controlling here that prosecution as I recall had been completed in that case, in the local — in the state courts.

Byron R. White:

Well, it was not a prosecution pending when the —

Albert W. Harris, Jr.:

Exactly.

There was no prosecution.

Byron R. White:

And you say there is one here and you —

Albert W. Harris, Jr.:

Certainly, yes.

Byron R. White:

— has a comity (Voice Overlap).

Albert W. Harris, Jr.:

Exactly.

Byron R. White:

— for the state rather than there’s a matter of jurisdiction.

Albert W. Harris, Jr.:

Well, as to I think as to the declaratory judgment and as to Harris I think that’s true.

I think it is a matter of comity, I don’t think that’s makes it unimportant or insignificant.

Byron R. White:

But don’t you think it’s significant here though that the matter that the — while the normal case that might be some force just to in their two proceedings going the same time involving the same questions that maybe the federal court although wait until the state gets done but in this case the states already rejected this constitutional point.

Albert W. Harris, Jr.:

Well, it’s —

Byron R. White:

So, it’s already been presented in the state courts, it’s been rejected.

Albert W. Harris, Jr.:

Your Honor, it was only presented by means of the interlocutory motions set aside the indictment.

Byron R. White:

It’s not the —

Albert W. Harris, Jr.:

And the attempt to invoke the discretionary review in the Appellate Court.

You have no right to go to the Appellate Courts at that point.

General proposition mean —

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Byron R. White:

I understand that that the trial courts are already rejected in any way.

Albert W. Harris, Jr.:

Oh!

The trial court did, certainly on the merits.

No question about it.

But I think in addition in Zwickler you had a very clear claim of simply overbreadth not of any really of any vagueness or only problem in vagueness in the statute that the contention was covered protected conduct and that was going to have to be reached.

In our case is quite different.

Now, I would like to turn if I might to what I think is the more important question here and that is the merits of the decision.

They say we think they should have dismissed it summarily but they didn’t.

The District Court of course recognized as we all recognized that the — in Whitney against California this very court unanimously had sustained the statute that was here being enforced.

But I think what they didn’t do was recognized what had happened in California since Whitney had been decided and I think what they did not do was recognize that some of the very issues that were decided here were decided in Whitney and if you go back and read Whitney again, so you think — may think of it as a discarded decision.

But the very same claim of vagueness that is raised here and which was the foundation for the judgment below was discussed at very great length in Whitney and that there was no division in the Court on that question — Holmes — Justices Holmes and Brandeis had no concern about the vagueness aspect of it.

They didn’t it was vague.

And indeed, the only problem they saw in the case was that the defendant had not — should’ve not an opportunity to show that there was no clear and present danger arising from her particular conduct.

And they felt there was evidence that would show there was such clear and present danger.

That is the — of some eminence of violence as I recall and so they joined in the opinion affirming the validity of the California Criminal Syndicalism Act or it has not been backed before the United States Supreme Court since that.

And it would be naive to suggest that their thinking about the First Amendment and about statute hasn’t changed somewhat.

Although, the same test — the same test that you used over and over again from the — it’s the Connolly decision about that people shouldn’t have to guess it at the meaning of words.

That test was used in Whitney and (Inaudible) basically still the same test.

All right, nevertheless, there has been a certainly of some changes in the approach and in the thinking.

Well, this was recognized in California, it was recognized no less than in 1946, in the Danskin case.

A case which construed the Criminal Syndicalism Act in the light of changes in the laws since Whitney had been decided.

Chief Justice Treanor who was then an associate justice recognized specifically that there has been a lot happening since Whitney was decided and we got look at this again in light of what is happened since then and he did.

And he — it’s a long opinion and it discusses I think all of the cases that had intervened and all of the concerns that this Court has manifested over the years with the need for protecting free speech and drawing the line between free speech and illegal advocacy.

And he even in that opinion announced the test which is even stricter than your own Dennis Test.

He said that the danger arose by the speech had to be eminent and the danger had to be a danger that the state could properly prohibit.

And let me remind you again that the — what is prohibited here was the advocacy of means unlawful acts, criminal acts, violent acts.

Abe Fortas:

Which case is that I’m sorry?

Albert W. Harris, Jr.:

That is the Danskin decision Your Honor.

Danskin versus San Diego Unified School District —

Potter Stewart:

171 P.2d 885?

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

Yes sir, that’s it.

Potter Stewart:

That would be it.

Albert W. Harris, Jr.:

Now, it might be I suggested that this was not a criminal prosecution under the Criminal Syndicalism Act.

What is was, was a case reviewing the action of a local school board in applying the Civic Center Act in California.

That Act required a loyal deal in effect if you want to use a school room to hold a meeting and all that you did not or had not advocated the overthrow of the Government.

And it was argued in the state Supreme Court that the — that this Civic Center Act in its all of its requirement was a supplement to the Criminal Syndicalism Act and it was to carry out the purposes of that Act.

And so in order to appraise that argument, Justice Treanor addressed himself to a Criminal Syndicalism Act what it meant and what it prohibited and anybody who is in any doubt about what it prohibits can find in that opinion what it does prohibit.

He made it very clear that it did not prohibit the advocacy of abstract doctrines, the discussion of abstract theory was never intended to do that and it doesn’t do that and no one should be in any doubt in California about the reach of the Criminal Syndicalism law.

Potter Stewart:

The indictment doesn’t appear in the appendix here, does it?

Albert W. Harris, Jr.:

It does not Your Honor.

Potter Stewart:

But as I understand the — as I read the complaint that plaintiff Harris says that he was indicted for violating the Criminal Syndicalism Act for distributing and circulating leaflets bearing the imprint of Progressive Labor Party.

That’s all he was doing it’s pretty hard to see how he was violating the statute as you say It’s now been authoritatively construe?

Albert W. Harris, Jr.:

We don’t know Your Honor.

He’s never been tried.

Potter Stewart:

No.

Albert W. Harris, Jr.:

Maybe he was not in violation of the statute.

I wouldn’t — no one can say at this point, that’s the purpose of the whole trial system.

Potter Stewart:

Yes.

Albert W. Harris, Jr.:

But let me if I could just add this about it.

The indictments I think it’s fair to say and I suppose we all do and put the best cast on her activities in a complaint.

The indictment did contain the leaflets that he was handing out on these occasions.

That apparently is not part of the record below.

He didn’t handle the case.

The District Attorney handled it below.

If you explore the grand jury transcript which again is not part of the record as I understand it below and incidentally that is not a secret document in California.

The defendant gets a copy of it so everybody knows what’s in it.

What really happened here and I’m not going to say that this — I’m not even going to say that this can properly be prohibited.

I don’t think we’ve reached that point because the statute wasn’t applied to him and he has the all opportunity at the trial to explore all these issues.

But this whole incident occurred in April 1966 about six months after the great Watts Riots.

It grew out of the shooting and killing of a man named Leonard Deadwyler in Los Angeles.

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

He was a black man and it turned out he was taking his pregnant wife to hospital.

Some confusion of the police officer and he sped away as I recall and the police officer chased him and later he corners him, stopped him and later corners inquest determined that the officer approached the car with a weapon being fearful of the situation.

He leaned on the door, the weapon went off and killed Mr. Deadwyler.

Now, there was great fear about that in the Los Angeles community.

The District Attorney felt reviewing the case that that it was not a cause for an indictment but the people hadn’t know what it happened here.

And a corner’s inquest was held that which all witness testified to what happened.

I don’t want to go into that but they started it and then they had to stop because it was just too much disorder and unruly behavior so they moved it from where you would normally hold an inquest where you’d have three or four people to the biggest courtroom and of course County Courthouse in Los Angeles and that is in some courtroom.

It’s much bigger than this room and it holds several hundred people.

The place was completely embraced with the police.

The audience was about 90% black, there was some disruption when witnesses booing the witnesses that sort of thing.

This was the atmosphere at that courthouse.

People going in and out several hundred just to this room and Mr. Harris was out there handing these leaflets out in this setting and the leaflet — I’m not certainly would read the whole thing but it says, “Wanted for the murder of Leonard Deadwyler, Bova the cop.”

And that sort of —

Hugo L. Black:

Where is that published in the record?

Albert W. Harris, Jr.:

Pardon me?.

Hugo L. Black:

Where is that published in the record?

Albert W. Harris, Jr.:

Well, it’s not Your Honor I have the indictment here.

The gist of it was that Watts was a great concentration preempt, Bova was a guard and Deadwyler an inmate and we have to exterminate them before they exterminate us.

That was the gist of it.

That was the set —

Abe Fortas:

What’s your — how do you make that?

Do you say that that is advocating extermination of the police?

Albert W. Harris, Jr.:

Yes, we do.

Abe Fortas:

And do you say that he was calling on people to go ahead and immediately to rise and to attack the police?

Albert W. Harris, Jr.:

Well, I’m not — that is something for the Court — the trial court to determine and the jury to determine, I think.

Abe Fortas:

Well, what’s your constitutional theory?

Albert W. Harris, Jr.:

That they won’t be convicted unless it rises to that level of advocacy.

Abe Fortas:

Why is that?

Albert W. Harris, Jr.:

Excitement under the Dennis case under our own Danskin case —

Abe Fortas:

Why is that, you simply are certain of the language of the statute that is broad enough to convict him just for advocacy or even for approval of it — just for approval of it, is that right?

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

Well, but that language doesn’t stand alone Your Honor.

That language has been construed.

It was construed in Danskin, it was construed if you please almost 50 years ago in the case called People against O’Malley that we cite which was a prosecution under this very section handing out leaflets and that sort of thing.

Abe Fortas:

By the way, when is the last term before this indictment was laid under the statute in California?

Albert W. Harris, Jr.:

Well, that was a long time ago.

Let’s say —

Abe Fortas:

Statute was enacted in 1919?

Albert W. Harris, Jr.:

That’s correct.

Abe Fortas:

And there were a lot of prosecutions then and then there was more prosecutions in the 30’s?

Albert W. Harris, Jr.:

I don’t think there are many in the 30’s, the great bulk of them I believe were in the 20’s.

Abe Fortas:

And now, the statute is a statute being used widely in California, do you know or not?

Albert W. Harris, Jr.:

I only know in addition to this prosecution one other prosecution and that is a group of American Nazis in San Mateo County.

We found some things in the course of that investigation that we thought the Court might be interested in and that kind of those to our brief.

There of course the terrorism; the only answer to terrorism when they burned our flag it’s time for violence.

All of these addressed toward violence toward Negroes and people who in the judgment of these people are advocating very bad causes.

I think Your Honor which we’ve tried to point out that there has been a change in our society.

It isn’t that somebody suddenly read the Criminal Syndicalism Act although I think in all honesty if you ask a thousand people about in California you wouldn’t get an answer from over one and two; maybe in the whole state.

It isn’t because somebody suddenly read it and said, let’s prosecute.

It’s because the advocacy of what is prohibited here, the advocacy of bombing, of killing of these things as means of social changes.

Not generally of doing let’s go away with the Government one way or the other.

The advocacy we seen in California and that this statute is directed to is the advocacy of bombing, the advocacy of shooting, killing the police, specific advocacy of specific acts and this renewal of this kind of activity maybe this is not what happened in the 20’s or the turn of the century but it’s said that that sort of thing happened then with the anarchist and syndicalist.

We see the same thing again happening in California and elsewhere and this statute has suddenly again become in one of the favorite words of some people, are they relevant?

Abe Fortas:

Well, let me see —

Albert W. Harris, Jr.:

— maybe it wasn’t for a long time but it is not.

Abe Fortas:

Let me see if I understand your position.

You are defending this statute on the grounds that it strikes at the advocacy of violence, is that right?

Albert W. Harris, Jr.:

That’s correct.

Well, that’s correct Your Honor.

The advocacy of violence and —

Abe Fortas:

And you’re not trying this defendant on the words that are in the statute by aiding and abetting?

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

Well, I have to defend the statute as it’s written and I do defend those words.

Abe Fortas:

Well, you defend the statute, does it written and you got — you got some other problems.

Albert W. Harris, Jr.:

Well, I think you have to read those words in light of the way they’ve been construed.

Not as if I made them up here, advocates has been —

Abe Fortas:

Well, that’s not my question —

Albert W. Harris, Jr.:

— over and over again.

Abe Fortas:

— my question is whether you are defending the statute in this litigation on the basis of the following language which appears in Section 11400.

It says, Criminal Syndicalism means, I’ll interpolate not only any doctrine or precept to advocating teaching or aiding advocating or teaching whether it also any doctrine aiding and abetting the commission of crime or sabotage?

What I’m trying to get at is whether your submission to us depends — relies to any material extended upon the use in this statute of the phrase commission of —

Albert W. Harris, Jr.:

Commission of?

Abe Fortas:

Yes.

11400.

Albert W. Harris, Jr.:

You mean in aiding and abetting the commission of?

Abe Fortas:

Yes.

Albert W. Harris, Jr.:

Is it the aiding and the abetting?

Abe Fortas:

And the commission as distinguished possibly arguably as distinguish to advocacy.

Albert W. Harris, Jr.:

Well, —

Abe Fortas:

I’m not trying to suggest an argument to you.

I’m just trying to clarify of what your position is.

Albert W. Harris, Jr.:

Alright, I think this is our position Your Honor that advocating and teaching of the keywords and their words of art and aiding and abetting is the customary expression in California to define an accomplished principle in a second class.

And it’s not even written in the most statutes, committing murder is proscribed but if you aid and abet the commission of murder, you’re punishable as principle for a murder.

We say those words are used here in connection with advocating and teaching and that refer to a subsidiary role in this activity with guilty knowledge and so forth just as if for any other crime.

Abe Fortas:

So, you’re defending this on planning basis of statute that makes it a crime to teach or advocate —

Albert W. Harris, Jr.:

Well, I think —

Abe Fortas:

— they described back?

Albert W. Harris, Jr.:

As those words are understood by all of us and have been explained by this Court many, many times.

Abe Fortas:

Right.

Albert W. Harris, Jr.:

And by the California courts.

I think I have to Your Honor.

Mr. Harris, what was the day, they asked?

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

Well, it was in 1946 — June 1946.

Some years before Dennis of course and there hasn’t been anything really since because there hasn’t been any prosecution.

This case had been tried in the state courts and appealed what are presented these issues.

Byron R. White:

How many statutes were brought in the lower court?

Albert W. Harris, Jr.:

Only one is prosecuted under the one that prohibits spreading and circulating, distributing, written matter.

Byron R. White:

And you — I take that you argue that none of the other sections should be reached by any court?

Albert W. Harris, Jr.:

Exactly.

There is been expressed severability clause in the statute and for there are cases and we have alluded to them in our brief holding that these do define separate crimes.

Byron R. White:

The court below defined the law unconstitutional?

Albert W. Harris, Jr.:

Everything, every part of it, every word in it and every application of it.

Thank you.

Earl Warren:

Mr. Rosenwein.

Sam Rosenwein:

May it please the Court.

The statute that was presented to the District Court was a pure speech statute.

It punishes advocacy, teaching, justifying, publishing, editing, circulating, assembly, joining; it was not a conduct statute.

Our brief outlines the (Inaudible) of the statutes that the state has.

I’m not going in the facts any more than counsel being but I simply would like to state that all that is involved in this case is a young man distributing in the Civic Center not in the black area and the Civic Center outside on the street while people were hawking newspapers and while men were distributing religious track such as customary in Los Angeles just the same this young man was distributing two leaflets and that is what he pays is 28 years in jail for.

Two counts for 28 years on each count.

Potter Stewart:

He hasn’t been tried yet?

Sam Rosenwein:

No.

Potter Stewart:

No.

Sam Rosenwein:

He hasn’t but he faces that and —

Potter Stewart:

Well, he faces the possibility —

Sam Rosenwein:

Possibility.

Now, then in addition as it has been pointed out, he raised the question of the constitutionality of the statute and raised it in appropriate manner in the state courts, 995 motion, petition for writ of prohibition, these are customary procedures, these are remedies in the state court are accepted, they are the test for constitutionality.

And then, petition for writ of hearing denied each time as a matter of fact state opposing consideration by the Court.

It was this record, — it’s on this basis that the court below, the three-judge court passed on two consideration of the statute.

This man, these petitioners or these appellees are not too often here for the appellees.

These appellees came to court claiming their rights on the Section 1983.

That’s the law of United States.

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Sam Rosenwein:

Those who were deprived of rights under that law are entitled to go to a federal forum.

So, they did and that court under the decisions of this Court was compelled, had no other way, it was his duty to undertake the consideration of the complaint that was presented.

A motion to dismiss was made by the state, an acceptance therefore of everything that was alleged in the complaint.

And that complaint alleged that Harris faced the indictment that he had raised these issues and the courts in the state had refused to consider them.

It raised the question of the validity of the statute on its face claiming that it violated the First Amendment.

Its most sensorial aspects, it was suppressive, it obviously was vague, it was obviously overbroad.

The cases that run from Fiske against Kansas not the more recent ones, there are cases that run from the Young against Oregon, the Thornhill against Alabama, Herndon against Lowry.

All of these cases including the decisions of this Court in (Inaudible) etcetera and Dombrowski all pointed to only one direction that this statute was unconstitutional on its face.

The Court therefore, felt it was obliged to reexamine Whitney in the light of the developing constitutional doctrine that had gone on since that time.

And it could only reach the conclusion that the statute on its face was clearly invalid.

And this is not really disputed and the briefs in this by the appellant because what the effects say are really two aspects.

One, that after all the state courts have interpreted the Criminal Syndicalism law and interpreted such a way as to satisfy First Amendment guarantees.

And that in any event some of the petitioners do not have standing and that the one Harris cannot obtain his injunctive relief because of Section 2283.

There is no and cannot be any serious claim that this statute today on its face is not unconstitutional.

And courts — three-judge courts in Kentucky, in Mississippi, in Georgia have all declared this statute — Criminal Syndicalism statute to be unconstitutional on their face.

And I might say that some of the judges in their opinions have indicated that they couldn’t concede of an argument that could today constitutionally support the validity of a Criminal Syndicalism statute.

And what is it therefore that the appellant really is arguing here?

The first, the argument is made that three of my appellees don’t have standing that a case of controversy is not presented.

Is that accurate on this record?

They accepted our allegations that a teacher in a state college is teaching the doctrines of Karl Marx is teaching about the communist manifesto is teaching revolutionary doctrine and in the light of the statute and in the light of the indictment of this young man who distributed two leaflets that this statute is going to be enforced they feel inhibited.

This teacher feels inhibited, uncertain as to what he can and cannot teach without defending this law.

The two members of the Progressive Labor Party and the leaflets for the impressive — Progressive Labor Party say that they and their organization advocates the replacement of capitalism by socialism.

It advocates the abolition.

They advocate the abolition of the profit system.

Under those circumstances although they say they advocated in peaceful times they asked and are uncertain and feeling inhibited as to what they can and cannot say without meeting some find of a prosecution.

Abe Fortas:

Well, your position then — your position is that the requirements of Dombrowski and Zwickler are satisfied if somebody merely alleges and proves let us say that he is engaging in some form of expression that a statute prohibits on its face, is that right?

Sam Rosenwein:

Yes, that is my position.

Abe Fortas:

In other words, that you don’t need any overt acts by the state.

In Dombrowski there were over acts, in Zwickler there were overt acts by the state.

But it’s your submission now that such overt acts are not necessary —

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Sam Rosenwein:

Well, I don’t —

Abe Fortas:

— provided only that a person in this case is engaged in the kind of teaching or advocacy that statute on its face prohibits but when — do you think that is the narrow holding that that is a holding of Dombrowski and in Zwickler?

Sam Rosenwein:

Well, I think the Dombrowski and Zwickler at least indicate that where statute is patently invalid on its face and where the party has indicated and it’s accepted for the purpose of this record that they are engaged in the area of speech and press that may come —

Abe Fortas:

But —

Sam Rosenwein:

— maybe interpreted but then of course that they have a right, they have a standing and I might say Your Honor speaks of overt act if you mean indictment to a threatened indictment, I would say that that hasn’t happened in this case.

That may be true but we were asking for declaratory judgment for these people.

Abe Fortas:

I just — I want ask you this one question; in Dombrowski and in Zwickler the state had taken certain types of action short of indictment in both case or in Dombrowski in a way.

But the state had taken certain types of action that made a record of harassment or interference with or abstraction to the exercise of First Amendment rights, do you agree that that is the reading of those cases?

Sam Rosenwein:

Yes, that record —

Abe Fortas:

And here with respect to these three persons other than Mr. Harris you have nothing of that sort?

Sam Rosenwein:

And we don’t have an exact replay of that but we do have overt acts.

Now, —

Abe Fortas:

What are the overt acts?

Sam Rosenwein:

I’d say this; one, Harris has been indicted.

There is a threat that this statute is going to be used and these persons have alleged it is accepted that they are precisely in the areas where this threat by the state against one person may flow to them.

This is not come off the street as some one who really has no interest.

These are persons who say, we advocate socialism, we are teaching marks.

We are teaching those revolutionary doctrines that might be swept within the ambit of the statute and that invalids it seems to me and if Your Honors will read this brief of the appellants and notice the pages devoted to documents and language, they have nothing to do with this case.

Apostles of violence are stuck in California.

California’s top link, it is absolutely essential that we have this law and you will see that they intend to enforce this to the hilt and the enforcement is to suppress speech and protest not conduct because they have a hundred statutes for that.

So, we think we have stand, we think all of us have standing.

Potter Stewart:

The writer of the opinion for the three-judge court rather disagree with your prediction.

Sam Rosenwein:

He said he didn’t think that they would be indicted.

But he couldn’t, I don’t think the writer would say that they are not inhibited.

Potter Stewart:

Let’s just say they stand — do not stand in any danger of prosecution by the respondent.

The present District Attorney of Los Angeles nor do we imply the existence of a livelihood that the courts of California would entertain such prosecutions if instituted.

That’s the language of this.

Sam Rosenwein:

I — it’s generous way of putting it but there is another aspect that we’re arguing and that is that our appellees are afraid to talk, are afraid to teach and that’s not denying.

It’s accepted for the purposes of this case.

Thurgood Marshall:

Would we have to extend Dombrowski to give you relief?

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Sam Rosenwein:

I don’t think so.

I think widely on the —

Thurgood Marshall:

What has the Government of California done to anybody other than Harris?

Sam Rosenwein:

With respect to Criminal Syndicalism law?

Thurgood Marshall:

What if anything has the Government or any government official done to anyone of the plaintiffs other than Harris?

Sam Rosenwein:

Well, they Your Honor — they have not done anything at this moment overtly.

They have not indicted (Voice Overlap) —

Thurgood Marshall:

Then, is it not true that we have to extend because there were over acts, right?

Sam Rosenwein:

I don’t want to put into Dombrowski —

Thurgood Marshall:

(Voice Overlap) but is there anybody has been searched?

Sam Rosenwein:

No, no.

Thurgood Marshall:

Any documents taken from them?

Sam Rosenwein:

No.

Thurgood Marshall:

Any threats against them?

Sam Rosenwein:

No, there hasn’t.

Thurgood Marshall:

Well, would we have to extend Dombrowski?

Sam Rosenwein:

I don’t think so and the reason I don’t think so because I read Dombrowski and here is why I hesitate to say to answer Your Honor as I read Dombrowski either it’s true that they were those harassing events in Dombrowski but there was also of the statement that if there is a patently invalid statute on its face abridging freedom speech, press assembly and the right to petition for grievance as this statute does.

Then, one who comes within the ambit and shows that he does come within the ambit would have a right to come in for declaratory relief or any injunctive relief if any were necessary.

Now, that is how I interpreted and that’s why I’m saying it might not be necessary to extend but if it is, if it is necessary to extend it, I ask the Court to extend it not because I think this will not and cause a whole flat of litigation to come in to the federal courts anymore than the habeas corpus situation which led the house in outcries and really had simmered down and much justice has been done in the light of decisions of this Court in Fay against Noia and Townsend against Burke.

I think that the federal courts can do the same screening individual judges can look and see whether claims are frivolous and refuse to have a three-judge court but if the statute is patently invalid on its face, the three-judge court should be convene and should give the relief that the plaintiff is entitled to under the laws of the United States.

Byron R. White:

Well, patently invalid on its face covers a lot of ground, doesn’t it?

And I suppose that’s one of your major arguments in this case that it is.

Sam Rosenwein:

No, sir.

Byron R. White:

And do you also argue that even if the statute should be read as having been narrowed by some past decisions or even it — or even if we should assume that the California courts would narrow it to some extent, do you contend that in this narrowed form that the state was to present it unconstitutional?

Sam Rosenwein:

Yes, there are number aspects to that.

My answer is yes with this explanation.

First, if I have review very carefully the decisions of the California courts since 1919 up to the time the last time they spoke on the California — on the Criminal Syndicalism law.

And the construction there is broad and is not restricted and does not follow the constitutional doctrines enunciated by this Court interpreting the Constitution.

I might say following Danskin, counsel has pointed out that Danskin came, the issue was not directly presented and all the courts were simply saying if you’re trying to implement this Criminal Syndicalism law, of course there got to be a clear and present danger and of course the American Civil Liberties Union and wants to use this school auditorium does not express in present danger and that was it.

But if you read all of the decisions as I read it in 22 and 23 of my brief and read the decision that followed almost by 10 years the decision in Danskin and that is Black against Cutter Laboratories where Mrs. Walker and I quote from it on page 22, “was a member of the Communist Party whereupon the Supreme Court of California said that constitutes a violation of the California Criminal Syndicalism Act per se”.

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Sam Rosenwein:

So, that you — from the constructions they are not limited and of course the Court refused to pass on it when we asked them to.

Potter Stewart:

What’s this Vogel case about, Mr. Rosenwein?

Sam Rosenwein:

Vogel.

Potter Stewart:

The one cited by the three-judge District Court by Judge Gray in his opinion —

Sam Rosenwein:

I think —

Potter Stewart:

Vogel versus the County of Los Angeles?

Sam Rosenwein:

My recollection is —

Potter Stewart:

But he says as an excellent example of the California Supreme Court’s correct constitutional views and he says that decision has particular relevance to the issue here at hand.

Sam Rosenwein:

Yes.

Potter Stewart:

What’s that about?

Sam Rosenwein:

It wasn’t on Criminal Syndicalism or anything of that kind but it has some First Amendment aspects of my recollection is that I think it had to do something with political activities of employees.

They were given the right of some infringement along that line, excellent opinion and the court felt indicated that Supreme Court was of course concerned about the First Amendment Rights but again the District Court down below said counsel — the plaintiff here went to the courts all the way through and we are bound not to wait and validation that may take a year —

Potter Stewart:

(Voice Overlap) — Mr. Rosenwein, I didn’t understand that there was any decision on the merits of that motion beyond the trial court.

Sam Rosenwein:

No, no.

It went up.

Potter Stewart:

I thought it was a declination they’re considering.

Sam Rosenwein:

Not a decision but a petition writ of prohibition was filed and the District Court of Appeals was denied.

Potter Stewart:

But not on the —

Sam Rosenwein:

Not —

Potter Stewart:

— as I understood.

Sam Rosenwein:

Well, we have no way of knowing no opinion.

Byron R. White:

But even —

Sam Rosenwein:

Petition for hearing.

Byron R. White:

— even in the trial court it was just a motion to dismiss the indictment, wasn’t it?

Sam Rosenwein:

Yes under Section 9 but there, the court held the statute was constitutional.

Byron R. White:

In what form?

Sam Rosenwein:

He wrote — not wrote.

He issued a oral opinion.

He said, I think it’s constitutional.

Byron R. White:

Is that in the record?

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Sam Rosenwein:

Not in the record here.

Byron R. White:

But did he understand the statute to mean what you say it means —

Sam Rosenwein:

Oh!

Yes.

The documents were —

Byron R. White:

–or did he assume that the statute should be considered in there over forum?

Sam Rosenwein:

No, he — the arguments were made as to the invalidity and at length and same arguments made or I will say down below great line is placed on Whitney by the District Attorney.

Constantly, asserting that Whitney governed and that should be the end of it.

And the Court said, “I think it’s constitutional.”

I think we have to go try it.

And that’s somewhat we saw at review.

And now, as to 2283, I subscribe to the view —

Byron R. White:

Would you really need the injunction?

Sam Rosenwein:

Well, —

Potter Stewart:

To get a direct appeal here.

Sam Rosenwein:

No, that was the point —

Byron R. White:

Well, I know but do you really need to — need in the lower court?

Sam Rosenwein:

I think you would probably get insurances from the state that if the judgment was affirmed that they would not prosecuted — I assume you would get those but down below it was the injunction was issued to assure the state the right to appeal.

I would say that I stand for the position whether I needed it or not.

I stand for the position that 2283 is not about to the grant of an injunction even on appending case where there’s appending indictment.

I think where there is a declaratory judgment for example that statute is unconstitutional on its face then to effectuate the judgment where irreparable injury is done by the face of the statute then to effectuate the judgment which is another exception of the 2283.

We should have a right to get whatever injunctive relief we need.

In addition, I think history and law would indicate that those who passed the Act of 1871 the predecessor to 1983 must have intended even if they didn’t say so that the federal courts should have the power to issue an injunction staying in court — state court proceedings to protect civil rights when those situations arose.

Byron R. White:

The District Court said anything at all on this?

Sam Rosenwein:

No, it wasn’t raised by the (Voice Overlap).

Byron R. White:

Why can’t it say anything?

Sam Rosenwein:

It wasn’t raised by the other side.

They have raised it.

They didn’t raise it actually in a jurisdictional statement either.

They have raised it for the first time here.

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Sam Rosenwein:

Well, for all those reasons, I would urge the affirmance of the judgment below and I think that the Act — the Criminal Syndicalism laws I might say in the criminality laws ought to be entered with the seditious liable laws and Bad Tendency Test and other relics of that kind.

Thank you.

Earl Warren:

Mr. Harris.

Albert W. Harris, Jr.:

I only like to suggest this that anybody who has lived in California and reads about California and the things that there is any chilling of free speech and it was free expression of ideas and the teaching of almost anything under the sun with all due respect to anyone who believes that I have to say I can’t believe it.

We have the, I think the broadest free speech in California in any place I know.

Fifty years ago, the District Court of Appeal in Maley (ph) and I think it was the District Court held that it wasn’t enough to just talk about revolution or something, you had to have the intent to bring about what should the illegal means that you were advocating.

In Danskin it was made very clear that this statute had nothing to do with abstract theories and that would suggest that anybody is afraid to talk about Karl Marx —

Abe Fortas:

Well, Danskin —

Albert W. Harris, Jr.:

— because the statute is just isn’t true.

Abe Fortas:

Danskin is quite another matter isn’t it and that case Judge Treanor was trying to get out of the box that he was in because of Whitney and this discussion of the Criminal Syndicalism statute was dictum and it was made necessary by the fact that the statute they had before them was considering to be an addition to the Criminal Syndicalism statute.

And that addition was held to be unconstitutional as directed to pure speech.

And in order to distinguish the Whitney and the Criminal Syndicalism statute, Judge Treanor says that the Criminal Syndicalism Act can be applied only when there is eminent danger that the advocacy it seeks to prohibit will give rise to evils that the state might prevent.

I was quoting from his opinion.

But it’s really not, would you — are you suggesting to us that Danskin is an authoritative interpretation by the California courts of the Criminal Syndicalism Act?

Albert W. Harris, Jr.:

Yes, sir.

Yes, I am Your Honor.

I think it is.

I think he felt he had to reach that and I don’t think that this statute should fall because of some debate about whether it was if there were holding under that particular situation.

I think it’s very clear from the opinion even if it weren’t clear Your Honor I would suggest that this Court has a duty to construe the statute in light of your own decisions.

That regard to what California has decided.

And you decided Dennis and Scales and Yates and these words are not new and you get them very limited meanings and I think you have a duty to construe them in order to sustain the statute and not an order to destroy it.

Byron R. White:

Mr. Harris, have you got any examples of federal court in a declaratory judgment action like this attacking a state statute of declaring the statute to be unconstitutional insofar as it reaches some things that it shouldn’t reach but leaving it but saying it is constitutional in other respects.

For example, if the claim is that this statute is overbroad and reaches some kinds of teaching that it shouldn’t which I gather is essentially the claims, isn’t it?

And the federal statute, can the federal court say, yes, we agree that the federal statute is — that the state statute is unconstitutionally overbroad and insofar as that reaches these forbidden areas that it is unconstitutional and stop vague.

Normally, I — as I understand it to the federal court has said that it finds it overbroad if it strikes down the statute.

Albert W. Harris, Jr.:

Well, that certainly what it did here.

Byron R. White:

But do you see any barrier or you’re just saying it’s over — it’s unconstitutional and so far as it’s overbroad which would leave the state in the position that you suggest that was enforcing the statute within the narrow valid area?

Albert W. Harris, Jr.:

No, I don’t think it’s a matter so much of application of the statute.

That’s, I think what’s you’re suggesting in ruling on the various applications that might be made that you can make soundly you can make other (Voice Overlap) —

Byron R. White:

You can’t get on its face, it says that it reaches and that it reaches some kinds of teaching that it shouldn’t reach, isn’t that right?

Audio Transcription for Oral Reargument – November 16, 1970 in Younger v. Harris

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Albert W. Harris, Jr.:

Well, that’s quite is too vague any how even if — that’s a little different concept.

Byron R. White:

That’s right.

Albert W. Harris, Jr.:

They say — they make both contentions and it was so held below.

Byron R. White:

Well, if it’s a vagueness thing I think I can understand it.

Albert W. Harris, Jr.:

Well, I think the District Court has a duty to construe those words.

They don’t just read them as if you never seen them at all.

Byron R. White:

And they should act like a state court and say this is what the statute means?

Albert W. Harris, Jr.:

Well, no but no — they are the state court and I don’t think they should in that sense try to be one but no lawyer that I know of picks up a statute and looks at it and says, “Well, here’s the word “teach.”

So, it’s going to have something to do with teaching in a classroom.”

None of these construes statutes like that.

First thing we do is look at the statute.

We start to look at the cases and I suggest what the District Court didn’t do.

Here, had it done that I think I would’ve concluded that as construed and as narrowed in the state construction this statute is perfectly valid.

I say it’s a valid on its face as has been construed.

But even if you weren’t satisfied and you thought Danskin was devoted to something else and the other cases are old and so forth, still and all I think that court has a duty to construe the statute to uphold it and not to strike it down.

And this Court said so in Fox against Washington.

And these are words, we may use the same words that you’ve upheld time and time and time again.

And now, I think to turn around, you can say the two vague or overbroad we don’t understand them would be contrary to your own decisions absolutely unnecessary for the protection of anybody’s rules.

Thank you.