LOCATION: South Boston Court
DOCKET NO.: 29
DECIDED BY: Warren Court (1967-1969)
CITATION: 389 US 241 (1967)
ARGUED: Oct 12, 1967
DECIDED: Dec 05, 1967
Facts of the case
Media for Zwickler v. Koota
Audio Transcription for Oral Argument - October 12, 1967 in Zwickler v. Koota
The next case is number 29, Sanford Zwickler, Appellant, versus Aaron E. Koota as District Attorney of the County of Kings.
Mr. Chief Justice and may it please the Court.
This is an appeal from an order of the District Court of the Eastern District of New York in which a three-judge Court was convened, and the order denied the plaintiff's application for a temporary injunction and dismissed the complaint.
This case and this review raises questions whether Section 781 (b) of the Penal Law, which was only a few weeks ago renown that Section 457 of the Election Law without change of content, and the question is whether that law is a prior restraint on speech, in that it forbids distribution of anonymous literature reweighting to, I'm paraphrasing the statute, elections of public offices and also with respect to amendments to the State Constitution.
And, it also raises the question whether the three-judge Court abused its discretion in abstaining from deciding the issue and in dismissing the complaint.
The attack here by the appellant is on the face of the statute, and I should also mention that there are no issues of fact involved and, so much so, that at the hearing before the three-judge Court counsel stipulated that a final order might be entered in this case in view of the lack of dispute as to the facts.
I go back to the early beginnings of this case.
It had a history in the state of the art Courts.
A few days before the congressional elections in 1964, my client, Sanford Zwickler, stood in front of a democratic political club in Brooklyn New York, of which club the candidate then running for Congress was the leader and he distributed the leaflet which appears on page 6 of the record and -- which attacked this Congressional candidate's record with respect to his acts in Congress, and the leaflet bore no name or address and did not comply with a mandate of the statute.
He was prosecuted in the Criminal Courts of New York and the constitutionality of the statute was attacked as being an infringement of his rights of free speech and repugnant to the Constitution of the United States.
That objection was overruled and, since there has been no controversy about the facts, he was convicted.
An appeal was taken by his counsel to the Intermediate Appellate Courts and that Court reversed this conviction, did not pass upon the constitutionality of the law but merely said that there was not-- had not been sufficient proof of a quantity of literature having been distributed because the statute speaks of a distribution in quantity.
The district attorney who was the defendant in this action pursued the case further to the Court of Appeals of New York, our highest Court, and that Court affirmed the prior reversal of the appellate term.
That affirmance was in December 1, 1965.
But, my client who was anxious to make such distribution but was afraid of being prosecuted again, he's a very simple person but he is civic minded, he's not a professional agitator, he hasn't such attainments, he wanted to make this distribution again and he still wishes to make distribution but he knows what he went through in his prior experience in New York Court by his arrest which was a very traumatic affect upon him.
So, he started suit in the District Court of the Eastern District of New York in which he alleged in his complaint the facts which I've just stated of his prior conviction in the reversal.
He also alleged that he desires to distribute this literature again for the election of 1966, at which the same Congressman was going to be a candidate, and he wishes to distribute it at subsequent times.
And, he also alleged that he wishes to distribute it in quantities of 1,000 copies or more.
He also stated which we could well understand, his fears on the matter and that he does not wish to exercise these rights unless he is protected by a declaratory judgment.
While this came on before, it convenes three-judge Court and that Court by a 2-1 decision held that it should abstain in the matter and dismiss the complaint.
In othre words it's rather odd that it abstain but refuse to hear, terminated the whole thing.
It wrote three opinions.
Each judge wrote an opinion.
The majority held that there was a case and controversy involved but abstained for two reason, as I make it out.
One is that since the State Courts provided a remedy by way of declaratory judgment, why he should've gone to the State Courts and not to the Federal Courts and, secondly, held that Douglas against Jeannette for that -- or at least lasted to the Court's discretion not to.
It sort of mandated the Court not to grant relief under the circumstances.
Judge Grosling wrote in a dissenting opinion, he held that there should not have been any abstention because, to him, the statute was clearly unconstitutional.
He held it so be -- for three different reasons.
He said the statute was overbroad because, by its text, it covers all campaign literature not merely scurrilous and false.