Zwickler v. Koota

Earl Warren:

The next case is number 29, Sanford Zwickler, Appellant, versus Aaron E. Koota as District Attorney of the County of Kings.

Mr. Redfield.

Emanuel Redfield:

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.

Emanuel Redfield:

And, in any event, the statute covered ideas like the ones pertaining to amendments to the constitution.

And, the third reason he gave was that even if the statute were limited, the fault and scurrilous literature, as the Attorney General then urged as the proper interpretation of the statute, he said that this violated the Constitution because it was clearly an infringement of the right of free speech.

This statute had ever been construed by the Court of Appeals.

Emanuel Redfield:

No, sir.

No, sir, it hadn’t.

Earl Warren:

Do you happen to know how many states have statutes like this, Mr. Redfiedl?

Emanuel Redfield:

I — my guess is, if I recall from the decision of this Court in Talley, I think Judge — Justice Clark in his dissent, in a footnote, said that there were about 37 States.

Earl Warren:

37 states?

Emanuel Redfield:

I think he said that.

I may be wrong.

Earl Warren:

Yes.

Emanuel Redfield:

I haven’t look at the —

Earl Warren:

No, there are a great many of them.

Emanuel Redfield:

Yes.

I’d like to divest for just a minute, because I think this is very interesting, because at the time of the argument in the District Court the Attorney General stated that this statute pertains only to scurrilous and false statements.

And, you’ll find in the record on page 11 an affidavit by the Attorney General in which he stated that he participated in the enactment of the statute and that was the purpose of it.

But, in the brief in this Court, on page 11, you will find that the Attorney General takes a different position.

He states that the statute applies to all literature and by — that is anonymous and by “all,” I suppose he means — he includes the innocent or non-scurrilous literature.

Thurgood Marshall:

Mr. Redfield, who could better determine the purpose of this statute, the Court of Appeals of New York or this Court?

Emanuel Redfield:

Well, I see no reason why this Court cannot do it.

The language read very clearly that the text of it doesn’t provide any qualifications on it.

It’s written in perfectly clear English, and it’s very similar to other cases this Court has had like the Baggett case in which questions came up as to the validity of statutes of this —

Thurgood Marshall:

Well, why do you say that the government’s opinion that you could do just as well in the State Courts with the —

Emanuel Redfield:

Well, I —

Thurgood Marshall:

Declaratory judgment?

Emanuel Redfield:

I think Justice — Judge Kaufman was a little optimistic.

I’ll tell you why because I’ve had a lot of experience, which Your Honor knows, in this area and in the Pfister case that was cited — that is cited in the appellee’s brief, and which is relied on so much to point out that New York provides an expeditious remedy, I wish to say that there are no such things as expeditious remedies in free speech cases other than to resort to the Federal Courts.

And, even then, you still have to put up with the difficulties of litigation.

Now, I should pause here to say this.

Thurgood Marshall:

Do you want us to decide that you can get a faster remedy in the Federal Court than you can get in the State Court?

Emanuel Redfield:

Oh, much more so.

I mean, when —

Thurgood Marshall:

How did you want us to say?

Emanuel Redfield:

I don’t want you to say it explicitly, no.

I’m not saying that, but it’s — the implication is there by statute.

And, that is, if you – when — remember that this is a case where we are attacking the statute on its face.

There are no questions of fact open and who could determine whether or not this statute violates the federal constitution better than this Court by a direct appeal from the District Court, and by the convening of the three-judge Court to decide it at once.

We’re only talking here about a statute that’s being attacked on its face and, to put it in further, that we have no questions of fact involved.

If you had some of the other situations that have played in the Federal Courts in recent years, I’d say, yes, they shouldn’t come here directly because many of them are irresponsible and frivolous cases.

But, here, you have a serious issue of constitutionality and I would say that this Court is the best Court and the most expeditious Court in which to have such a determination made.

Thurgood Marshall:

Well —

Emanuel Redfield:

An expedition is a very important factor in speech.

Some of Your Honors might remember when I had a case, say, many years ago, Ellis against Dickson, where the question was that where the free speech involved with respect to the Korean War, and when those — that case worked its way through the Courts and back again and up again, five years out of that and the Korean War had gone into history.

So, I say there’s nothing that — since expedition is so necessary, what better remedy is there in this Court for the determination of the constitutionality of the statute on its face?

Thurgood Marshall:

Well, I take it, you misunderstood me.

I would assume that this Court would ultimately pass on in any of them unless the Court of Appeals of New York put on the — violated the New York Constitution.

Emanuel Redfield:

I — I don’t see how.

Thurgood Marshall:

I don’t either, but I need never to be the only one to agree with the Court, wouldn’t I?

My only point is, why not use a New York Court as the original Court of original jurisdiction rather than the Federal Court?

Emanuel Redfield:

Well, I think that’s a matter of prudence.

I think the Federal Courts are still in existence.

I think their jurisdiction has been delineated by Congress and there’s no reason why one should not take advantage of the opportunity.

William J. Brennan, Jr.:

Did you say a matter of prudence?

Emanuel Redfield:

Prudence —

William J. Brennan, Jr.:

I thought your argument —

Emanuel Redfield:

A judgment, I mean.

William J. Brennan, Jr.:

I thought your argument was that this is a federal question clearly in line for-

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

— federal courts to decide in which Congress has indicated the intended Federal Courts to decide.

Emanuel Redfield:

Yes, that’s what I —

William J. Brennan, Jr.:

And therefore — well, that’s not prudence.

Emanuel Redfield:

No, I meant prudence on part of the lawyer in choosing the floor on which to —

William J. Brennan, Jr.:

I beg your pardon.

Emanuel Redfield:

That’s what I meant.

I — I could get this issues decided in the State Courts too, but if my experience dictated that the best way to get it done expeditiously was this way, I’d say that the prudence —

What’s the reason for gliding through the State Court?

Emanuel Redfield:

Well, Judge, it isn’t my fault.

I — I wish to state that much.

For example, the Ellis against Dickson case, with which Your Honors should be acquainted with because you wrote the opinion there, that was done most expeditiously but, because of litigation, you have the problems and delays.

Now, take this Pfister case, and I’d like to revert —

Byron R. White:

Well, do the dockets in New York — the New York Court just more crowded than the Federal Court?

Emanuel Redfield:

Well, it isn’t only the docket that’s involved.

It’s the manner of procedure.

It’s — you have to go through various Courts and it takes time.

If — if there should be a factual question involved, you have examination before trial, you have this and you have that, and trial waiting.

If I — if I took this case to the New York State Court and if there were an issue of fact involved, I’d have to wait a year-and-a half just to wait my turn on the calendar.

Byron R. White:

Well, yes, but in terms of —

Emanuel Redfield:

But I — I actually had a case like that of free speech —

Byron R. White:

How long would you have to wait in the Federal Court if there’s an issue of fact involved?

Emanuel Redfield:

If a — if the three-judge Court is convened as it was here, I’d say with the trial and everything, two months at the most.

With decision, I’d say two months at the most.

And, Congress has so provided for it for an expeditious determination.

Byron R. White:

Well, what if it had been on — been a one-judge Court?

Emanuel Redfield:

Well, there, I’d say it would be a question then whether I would use my judgment or not.

Byron R. White:

It would be a little longer, wouldn’t it?

Emanuel Redfield:

It would be a little longer if there were factual questions involved, yes.

Byron R. White:

Quite a bit longer.

Emanuel Redfield:

Yes, but of course I’m —

Abe Fortas:

Well, is there any great — is there any great rush here?

Emanuel Redfield:

I would say there is.

Abe Fortas:

Is your petitioners — your petitioner about to suffer a great peril because he can’t circulate some anonymous —

Emanuel Redfield:

Well, I —

Abe Fortas:

Leaflets or whatever anonymous stuff he wants to circulate?

Emanuel Redfield:

I would say yes to any question of the dissemination of ideas.

I — I think delay works to the detriment.

Abe Fortas:

Well, there’s such thing as a legal process though that just take time.

Emanuel Redfield:

But if the Court —

Abe Fortas:

The question is whether all —

Emanuel Redfield:

— but if the Courts exists and the doors are open for such a remedy —

Abe Fortas:

So far as your client is concerned, petitioner before us, there is no imminent injury that you can refer to that will result from proceeding through the State Court, is that right?

Emanuel Redfield:

I would say the delay would be an impairment of that right, yes.

Abe Fortas:

I’m not about right.

If that — will it injure your client?

Emanuel Redfield:

Yes, it would injure.

Abe Fortas:

Will it injure petitioner here?

Emanuel Redfield:

I would — I would say —

Abe Fortas:

Tell us, what you’d think if you said what — about what you say in what respect.

Emanuel Redfield:

It does because the — any obstacle that’s placed in a way of a man’s speaking or distributing literature is a denial of that right.

Abe Fortas:

Okay, I think I understand.

Emanuel Redfield:

Yes, well, that —

Abe Fortas:

I understand the abstract point.

That’s not what I’m asking you.

Sometimes, the readiness of Courts to afford extraordinary remedies depends upon the extent of the injury.

Now, what’s the injury to this man?

Emanuel Redfield:

The injury, I would say, is — I just have to repeat myself that he cannot act.

He said-

Abe Fortas:

What’s the a —

Emanuel Redfield:

He said —

Abe Fortas:

What’s the act you’re talking about?

Emanuel Redfield:

The distribution.

Abe Fortas:

The act of distribution —

Emanuel Redfield:

Of this literature.

Abe Fortas:

Of anonymous political pamphlets.

Emanuel Redfield:

Yes, sir.

Abe Fortas:

Is that right?

Emanuel Redfield:

Yes, sir.

And, I think that is a very important factor.

Maybe he’s trying to come out for the election again.

Emanuel Redfield:

He’s running for political office again this year.

William J. Brennan, Jr.:

He’s running for judgeship now, isn’t he?

Emanuel Redfield:

Well —

William J. Brennan, Jr.:

Isn’t he?

Emanuel Redfield:

I think so.

Abe Fortas:

Well, that’s not the only person who’s been the subject of your client’s literary efforts, is it?

Is he?

Emanuel Redfield:

In this case, you mean?

Abe Fortas:

In this case.

Emanuel Redfield:

I think that’s the only one.

Abe Fortas:

I’m assuming you’re here about Wagner, Former Mayor Wagner?

Emanuel Redfield:

No, that’s — no, the appellee-

Abe Fortas:

Well, what he says is —

Emanuel Redfield:

Yes, actually is referring to some other case.

Abe Fortas:

What he says is the he’s faced with the need for speedy judicial relief so that he can get out anonymous pamphlets attacking a member of Congress who’s running for some political office now.

That’s the —

Emanuel Redfield:

Yes, sir.

Abe Fortas:

That’s the major —

Emanuel Redfield:

That’s right.

Now, the — this case, Your Honors, is not one — it should be remembered it’s not one like that case of Stefanelli against Minard case where a prosecution has been pending at the time and it was sought to enjoin such a prosecution.

I know you had several cases in this Court recently involving Section 2254, but I’d like to emphasize that that — this is not that sort of a case.

This is a case where the thread of the statute exists and has a dynamic prosecutor and what were the political personage involved in this case, I’m sure that my men has good cause for feeling as he does, that he will be prosecuted again.

Emanuel Redfield:

And, I am not humorous or facetious when I say that he is not merely chilled but he is actually frozen.

He is frozen in the sense that he cannot do what he wants to do.

He’s had his experience and —

William J. Brennan, Jr.:

Well, if there some way the statute can be construed to be constitutional?

Emanuel Redfield:

Is there anything here to be construed?

William J. Brennan, Jr.:

And you’re going to do —

Emanuel Redfield:

No, I don’t think so.

The Attorney General says there’s nothing to be construed here at all.

William J. Brennan, Jr.:

Well, even if there was to be abstention, why shouldn’t the — only the state question be reverted to State Court?

Emanuel Redfield:

Why should it be?

William J. Brennan, Jr.:

Why shouldn’t or — why shouldn’t that — why should the Federal Court dismiss the action?

Emanuel Redfield:

That’s what I say.

I said that at the beginning.

It dismissed the action.

It didn’t abstain in the true sense and say “go back to the State Court and wait for a ruling then come back again.”

It just dismissed the complaint.

That’s what I can’t understand about it.

Earl Warren:

What relief do you ask here, Mr. Redfield?

Emanuel Redfield:

Well, I’m asking for relief here because of the stipulation between counsel that this Court adjudicate the issue by declaring this statute to be repugnant to the Constitution of the United States and —

William J. Brennan, Jr.:

Well, let’s see if I get this.

You mean that you’re asking not really, as you say, the three-judge Court erred in abstaining but, instead, that we take and decide what this three-judge Court refused to decide.

Is that it?

Earl Warren:

Yes, sir.

The reason for it is because there are no questions of fact involved here.

There are no questions of fact.

The counsel conceded that there weren’t any and that the Court — the District Court should —

Byron R. White:

Well, why did they send these questions to the three-judge Courts then?

We don’t have any original jurisdiction.

You just can’t file a suit here.

Emanuel Redfield:

I know.

Emanuel Redfield:

That’s true, but what’s to be gained —

Byron R. White:

That actually —

Emanuel Redfield:

What’s to be gained by sending it back?

Byron R. White:

The judgment of the three-judge Court.

Emanuel Redfield:

Well, that would be pro forma.

William J. Brennan, Jr.:

You — you suggest —

Byron R. White:

What do you mean “pro forma?”

Emanuel Redfield:

Well —

Byron R. White:

You think that which way?

Emanuel Redfield:

I mean, if the Court will merely send it back like it did the Everest case, well, without saying much about the constitutionality of the statute, that’s one thing.

But, if the Court speaks or rules on the constitutionality of the statute, well, why should you?

Byron R. White:

Then the issue is whether this case is certainly dismissed in this Court.

Emanuel Redfield:

Well, that’s not the only issue involved here.

William J. Brennan, Jr.:

Well, it’s the only issue you brought up, but the only judgment we have before us is a dismissal.

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

And we — how can we do more than this if we agree with you?

You think that the three-judge Court was wrong in dismissal, how can we draw the lines except reverse the dismissal?

Then, you go back to the three-judge Court on merit there.

Emanuel Redfield:

Well, that would just be delaying the thing or I’m merely thinking in terms of expedition because counsel here have stipulated —

William J. Brennan, Jr.:

You said earlier that sometimes it’s quite faint to litigating.

Emanuel Redfield:

But, in this case, it’s a serious question.

Justice Bree in the Coolist case, he was a very good lawyer in connection with this type of litigation, exacerbation, and that’s putting it mildly.

Potter Stewart:

You’re relying mainly on Dombrowski against Pfister.

Emanuel Redfield:

And the Baggett case and — on the question of abstention, is that it?

Potter Stewart:

Yes, Dombrowski against Pfister.

Emanuel Redfield:

Yes but, in saying that, however, I should like to comment on what the appellee urged, and the District Court said — took a point of view that Dombrowski was different from Douglas against Jeannette only because there was violence involved.

It was a big mob situation and, therefore, this Court had to step in, but I submit that that isn’t the fair distinction.

I think this case is very similar to Dombrowski and that is that this man’s rights are being chilled and, unless some relief is afforded to him, he can’t act.

Potter Stewart:

Well, in Dombrowski, there was, was there not, at least there were allegations of harassment and so on.

I didn’t decide in that case.

Emanuel Redfield:

Yes, I —

Potter Stewart:

I don’t remember with the opinion.

Emanuel Redfield:

But I don’t think that that element is a big factor that takes the —

Potter Stewart:

Well, something is- was a factor that distinguished it from Douglas against Jeannette, doesn’t it?

How did the Court in Dombrowski distinguish —

Emanuel Redfield:

Well, I think, and as I read it with elation, was that the Court has reached a point of realizing what goes on in the real world and that what people — when people wish to speak what they’re up against.

Potter Stewart:

Well, how did the Court distinguish Dombrowski from Douglas against Jeannette, do you remember?

Emanuel Redfield:

Well, I — well, it isn’t all together clear because it’s quite an extensive opinion, but-

Potter Stewart:

Done with different sentences.

Emanuel Redfield:

And, how many?

Potter Stewart:

Well, I perhaps — we’re quite alike.

I thought the — it was done in a couple of sentences that were relevantly clear.

It distinguished it, I thought, on the basis that in the Dombrowski case there were allegations of no bonafide intention of a bonafide criminal trial, but rather an abuse by the state authorities of a criminal statute in order to harass this petitioner.

Wasn’t that it?

Emanuel Redfield:

Well, I didn’t think —

Potter Stewart:

Or am I wrong?

Emanuel Redfield:

— I didn’t think that that was a critical basis or a critical distinction.

To me, it seemed that the Court had arrived at a conclusion where that — the chilling effect of these statutes that invade one’s right of expression should be determined in advance of prosecution.

That’s —

Potter Stewart:

Another —

Emanuel Redfield:

— that’s a lie at Dombrowski.

Potter Stewart:

In other words, I gather that the implication of what you’re saying is that, in your view, we’d have to overrule Douglas against Jeannette in order dec — to decide in your favor in this case.

Emanuel Redfield:

Well, I — in my brief, I pointed out something which I’d often thought about.

I never had occasion to talk about it, that is, that I always thought Douglas against Jeannette, for what is being cited, is just a dictum because the decision of the Court went off on an entirely different basis from what was said.

In that case, they were sought to have the — an ordinance enjoined because of its invalidity and, that very same day, this Court-

Potter Stewart:

In the Murdock case, the Court held they —

Emanuel Redfield:

Yes, so that there was no sense in really passing upon it on the simple common law principle that equity doesn’t do silly things or useless things.

Thank you.

Earl Warren:

We’ll recess now.

Samuel A. Hirshowitz:

Mr. Chief Justice, may it please the Court.

Samuel A. Hirshowitz:

I’ve had some hearing impairment this morning.

I hope the Court will take that in consideration in using the amplifiers.

Thank you.

The Chief Justice asked how many states had statutes similar to New York.

According to our brief, there are 36 states having — 36 states having similar statutes and, in two states, the Supreme Court of each of the states of California and Pennsylvania have upheld the statutes against First Amendment challenges.

In addition, the prototype of all of these statutes as in the Federal Corrupt Practices Act, Section 612, which was upheld there a few years ago in US against Scott, a District Court case, involving literature circulate with respect to Senator Brady.

The origin of the statute goes back to the 1940 election when literature — anonymous literature of highly emotional content was circulate throughout the country as a result of which the then Attorney General Jackson appointed a special assistant and a special grand jury as a result and the culmination of that was a recommendation which, among other things, recommended a statute similar to the one in New York now.

It said in their report, “we recommend amending the Corrupt Practices Act to prohibit circulation through United States Mail of any and all literature, the purpose of which is to influence the election of candidates for federal office or presidential, advice presidential electors, or the enactment of the feet of measures before the Congress of the United States unless it is signed by the person or persons or committee or organization responsible for its circulation, together with their addresses.

We also suggest that all such printed matter contained the names and addresses of the person, persons, committee, or organization responsible for the printing.”

In addition to that, on the Floor of Congress, there was much discussion about this recommendation particularly by Senator Gillette on the Congressional record who has copious references to the need for the legislation.

In 19 — the original New York statute —

Byron R. White:

Are you arguing here that —

Samuel A. Hirshowitz:

No, I just wanted to give the Court — in approaching the question whether the District Court, the three-judge Court, properly decided the question of whether the appellant should be relegated to the State Court, I consider it important to set forth to this Court the nature of the statute that we’re dealing with.

Now, this statute does not, in any way, censor or prohibit the dissemination of any material at all.

It merely says, in substance, that if you’re going to distribute literature with respect to any candidate or any proposition on the ballot, that you must identify in some way a name or the name of the organization.

Now, during the course of this discussion about my inline adversary, he used the word which is being preempted, the word “chill” and he said his client was frozen.

Well, apparently, he forgot his client is not so frozen because, in connection with a very judicial convention for Congressman Molter, which Mr. Justice, I think, Brennan referred to, Mr. Zwickler issued literature on the date of August 25, 1967.

And, he has this name on it and it makes of course derogatory references to Congressman Molter, so that the —

William J. Brennan, Jr.:

Well, I take it, if he has his name on it, then —

Samuel A. Hirshowitz:

He has his name on it.

William J. Brennan, Jr.:

He can’t — he can’t get involved with the statute, can he?

Samuel A. Hirshowitz:

No, he’s not prohibiting the statute.

No, he is not acting in prohibition of the statute, but I just wanted to address myself a question he said — my adversary said that his client is frozen, that he can’t do anything and I’m saying he’s not so frozen that he can’t issue this literature.

Now, the District Court dismissed the complaint, following the language of this Court in the Dombrowski case that the principle of federalism should be respected where an injunction is sought against the threat in criminal prosecution.

And, in the Dombrowski case, the majority opinion said that there was special circumstances which justified the departure from the role of federalism, and the state maintains and maintained before the District Court that there was not a scintilla of any of these circumstances which justify the departure from the respect for federalism.

And, record —

Byron R. White:

Departure from what?

Samuel A. Hirshowitz:

From this respect for federalism which was set forth not only in Dombrowski case but in many prior cases.

They were all — while the District Court does have jurisdiction and is — has the authority by act of Congress to pass on federal questions, I think the principle set forth in Douglas against the Jeannette is that where an injunction is sought against threatened criminal prosecution, the plaintiff would be relegated to the State Courts unless he produces special circumstances.

In the Dombrowski case —

Byron R. White:

Well, why should that take with it the question of the constitutionality of the law?

The Court could say “we’re not going to enjoin a threatened prosecution or enforcement of the law” and still make a declaration.

Let’s assume for a moment that the action here had not been for an injunction, that it just been for declaratory judgment.

There would have been no three-judge Court.

Samuel A. Hirshowitz:

No.

Byron R. White:

But you would make the same argument —

Samuel A. Hirshowitz:

We’d make —

Byron R. White:

Wouldn’t you?

Samuel A. Hirshowitz:

— the same argument because, in essence, the —

Byron R. White:

Well, you don’t need to talk about —

Samuel A. Hirshowitz:

Whether you label the —

Byron R. White:

You don’t need to talk about an injunction then.

It’s just —

Samuel A. Hirshowitz:

Yes, well —

Byron R. White:

— deciding a federal question.

Samuel A. Hirshowitz:

Yes, whether you label it an injunction or not, it would be in a nature of a similar relief because he would be seeking a declaration that the statute was unconstitutional and that the District Attorney or the law offices of New York State could not properly prosecute him.

Now, the — this, actually, is a test case arranged by the appellant in this case for the expressed purpose of bringing this question before this Court.

My adversary pointed out that what this appellant did was not only seek to circulate this anonymous literature but, in a very hot emotional political contest, he planted himself right in front of the democratic headquarters of Congressman Molter and proceeded verbally and with the aid of this literature to assail the Congressman.

In addition to which, the arrest was not made by a police officer.

The appellant before he planted himself in front of the club, went to the police precinct to tell a policeman apparently, although the record doesn’t show it, that he was going to do what he subsequently did to make sure that the policeman came there and arrested him so he would have the test case, but the policeman did not arrest him and, so, he was in trouble.

Finally, a member of Congressman Molter’s organization accommodated the appellant and made a citizen’s arrest, and so, any statement by my adversary about the District Attorney being a zealous prosecutor to enforce this particular section and insinuating that because of the association between him and Congressman Molter he would vigorously prosecuted the appellant his nonsense.

In addition to which, when was there —

Thurgood Marshall:

Mr. Hirshowitz, did you in the three-judge court urged abstention?

Samuel A. Hirshowitz:

What the — what our office urged before the three-judge Court was that the statute was valid against the challenge made by the appellant.

Then, the question came up as to whether the statute could be narrowed and, now, the position of our office was that if you, the judges of the three-judge Court, think that the statute may be overbroad, then we suggest you send it back to the State Court under Harrison against National Association of Colored People for the State Court to pass on the statute.

That was the extent of our participation.

Now, the —

Thurgood Marshall:

You have no objection to the three-judge Court passing on the constitutionality, did you?

Samuel A. Hirshowitz:

The three-judge Court did not pass on the Constitution.

Thurgood Marshall:

My question was, did the Attorney General’s Office have any objection to this three-judge Court passing on the constitutionality of this statute —

Samuel A. Hirshowitz:

Yes, Your Honor.

Thurgood Marshall:

At that time?

Samuel A. Hirshowitz:

Yes, Mr. Justice Marshall, we did.

Thurgood Marshall:

Why?

Samuel A. Hirshowitz:

Because we urged the Court that, under the principle of the annunciated in the Dombrowski case to which I refer, under the respect for the State Courts, the principle of federalism should be maintained in this case and that the appellant should be relegated to the State Courts, that there were no special circumstances which justify —

Thurgood Marshall:

Do you agree that it’s — this is an important issue — the statute raised an important issue that should be decided, do you agree on that?

Samuel A. Hirshowitz:

Well, it’s important in the sense 36 states have the — have similar statutes, so has Congress pass such a statute, but it’s not important that we felt all the while and we feel today that this was the — this was an action where the appellant and his counsel simply decided they wanted a test case.

And, the reason they went through the Federal Court route was that if they went through the State Court route and that they got up to the Court of Appeals and if the Court of Appeals were to declare the statute unconstitutional, then it could only get to this Court by the Attorney General of the state appealing.

And, if they didn’t appeal, how could they get a ruling by the US Supreme Court.

Now, this is exactly what happened in the Pfister case.

In the Pfister case, the same lawyer started an action in the District Court challenging the vagrancy statutes.

He had a three-judge Court.

The three-judge Court dismissed the complaint.

He appealed to this Court.

This Court affirmed.

Then, he went back to the State Court, started an action, and we heard a lot from our adversary about the length of time it takes in the State Court.

Well, he started an action in the New York Supreme Court — New York County Supreme Court.

He got a decision which upheld the constitutionality of the statute.

He went directly to the New York Court of Appeals from that and in a space of four months, he got a decision from the New York Court of Appeals which held that the statute was unconstitutional, so that the process took four months.

Now, let’s see what happened in this case.

The decision by the Court of Appeals here and the criminal prosecution, to which my adversary referred, took place on December 1, 1965.

He did not start this action in the District Court until the later part of April 1966.

So, he waited six months.

Had he started the action in the New York Supreme Court, he would’ve had a decision by April 1966 because the New York Court of Appeals is up to date and there is no delay in New York State Courts on a motion for judgment.

It’s up to date.

You will notice it for a particular day and, if you’re ready on that day, the matter is argued and disposed of.

So, the trial delay doesn’t occur, unless there are questions of fact.

Earl Warren:

Is there any animation in what you said about the way the case was contrived that —

Samuel A. Hirshowitz:

No, sir.

Earl Warren:

That this is not an actual case for controversy?

Samuel A. Hirshowitz:

I don’t want any reflection on my adversary who is a distinguished friend of mine, but I believe that this is a contrived controversy in this sense that the appellant deliberately brought about his arrest in order to set up a test case.

And, when this case went into the Criminal Court, in the lower Criminal Court, the judge asked my adversary at the end of the people’s case, he said “you move to dismiss on the ground there’s no prima facie case,” and there wasn’t a prima facie case because all the evidence that was there was that one circular — the complainant one circular, no — no question of quantity, and Mr. Redfield said, “No, I don’t move to dismiss on that ground.

I move to dismiss on the ground that the statute is unconstitutional.”

And, when he got up to the Appellate Courts, he did the same thing, now, so that what he was trying to do was get a decision in the Criminal Court even though the case was insufficient factually to challenge the statute.

And, in that way, we feel or we felt when this case was originally instituted that this was a situation arranged because they feel that the statute should be challenged and that the — Mr. Zwickler set himself up as the pigeon for the test.

Now, in the — in the Dombrowski case, the majority opinion points out that the statute was vague and it’s the vagueness that caused this so-called chill, but this statute — there’s no claim in this case, there is no issue that the statute is vague.

In this case, the amicus brief is hard — put to put in a suggestion of vagueness arising from the use of the word in the statute in connection with an election but the election, of course, is machinery — the election is machinery set out in detail in the election law of the State of New York.

In the federal statute, instead of “in connection with,” they used the words “relating to or concerning” which is about the same thing.

The claim by the amicus that the — that this phrase is vague is untenable and, finally, the amicus only, not the appellant, says that the words in quantity suggest vagueness but the word “in quantity” as construed in the very case in the Criminal Court means a substantial amount, that means not one or two.

It means a substantial amount.

At any rate, the appellant never tented that issue.

Now, Judge Roselyn, in his dissenting opinion which you will find very confusing, I believe, because he had to extract portions of that opinion which were contrary to the record before him but, in that opinion, he claims that the statute may be overbroad.

Overbroad in which way?

Overbroad for the reason that it should be limited to malicious false statements but we don’t claim that that’s the meaning of the statute.

We say it — if it’s to be construed that way, it should be construed by the State Court.

We claim that the statute, as it reads, which requires identification of person circulating literature as if they’re committees, any person who circulates literature in connection with the campaign thereby denominates himself a committee, whether it’s one or more than one, and is subject to the provisions of the state election law.

Byron R. White:

You say it — do you say that the statute is perfectly clear on its face —

Samuel A. Hirshowitz:

Yes, sir.

Byron R. White:

— perfectly straightforward, there’s not much room for construing the statute in any particular regard.

Samuel A. Hirshowitz:

We say it’s not necessary to construe the statute because we say, on its face, it is-

Byron R. White:

But the constitutional question —

Samuel A. Hirshowitz:

— it is constitutional.

Byron R. White:

Constitutional question is right — staring you right in the face then where-

Samuel A. Hirshowitz:

Yeah.

Byron R. White:

In whatever port you take it.

Samuel A. Hirshowitz:

That’s our position.

Now — however, if constitutional questions suggest themselves, we say that the question of whether the statute is overbroad and we don’t think its untenable intention should be referred to the State Court.

Byron R. White:

To rule — I gather, your rule on abstention would be that, automatically, in any case where the constitutionality in the state statute is questioned in a Federal Court, the Federal Court should abstain and let the State Court decide it unless there are some special circumstances which indicate that it ought to be decided in Federal Court.

You wouldn’t —

Samuel A. Hirshowitz:

Mr. Justice White, I think, as I read the cases, that’s the principle that’s annunciated.

Samuel A. Hirshowitz:

Of course, you can pull language out of every case for what’s made to be obscure, but if you read as they —

Byron R. White:

Do you — do you think this is — is this your reading of Dombrowski?

Samuel A. Hirshowitz:

Yes, sir.

That in —

Byron R. White:

Do you think that you — this applies not only to issuing the injunction but to deciding the basic question at all?

Samuel A. Hirshowitz:

Well, the case that we have — the issue was one in which the appellant is seeking an injunction against the — what he alleges as a threatened criminal prosecution.

That’s the case we are dealing with now.

The Baggett case dealt with a loyalty owed, not a criminal prosecution and, as I read that case, it’s a question of who you put the burden of proof on.

The — the opinion in that case said that the Federal Court retain it in that type of situation unless special circumstances are set forth.

But, in the Dombrowski case which involved a threatened criminal prosecution, the opinion very carefully says that there were special circumstances in the case which justified departure from the rule of federalism.

Now, in — the respect for the Douglas against Jeannette case — the Douglas case says there must be a showing of irreparable injury both great and immediate; I’m pulling a phrase out, and, another phrase, clear and imminent.

And, we say that the District Court, the three-judge Court, acted very properly in dismissing this complaint for the reason that there was no substantial proof that the danger to the appellant was clear and imminent or that there was great and immediate irreparable injury.

And, you have- I think you have very fine opinions both by the Chief Judge of that Court, the Eastern District, Judge Sovath and the Circuit Judge Kaufman.

I think that the analysis of Dombrowski case shows that their conclusion is proper and I haven’t heard anything today from my adversary which justifies any challenge to the correctness of that decision unless you start in with the assumption that anyone who alleges that there is a federal- that there is a state statute and, as a federal constitution of provision, the First amendment which he alleges is being violated and that gives him an absolute rights to have the matter heard in the Federal Court, but I haven’t heard such a rule annunciated and I think that this Court should uphold the disposition by the District Court, dismissing the complaint for the reasons which I’ve said following Douglas and Dombrowski.

Abe Fortas:

Can you satisfy this statute?

Can you satisfy the requirements of this statute merely by printing the name of the company that did the physical operation of printing the circular?

Samuel A. Hirshowitz:

I didn’t hear that, Your Honor.

Abe Fortas:

Can you satisfy this statute merely by printing the name of the company that did the physical act of printing up the circular?

Samuel A. Hirshowitz:

No.

You have to — the statute, as originally enacted in — following the 1940 election in New York, did not go as far as a federal statute.

It — it provided “the printer or the person publishing.”

Now, the statute has been amended to bring it in line with the federal statute and says “the printer and the person publishing, distributing, etcetera” so that you don’t satisfy the statute by merely putting in the name of the printer.

The reason that the statute couldn’t be enforced was they were printing the union label bug on the literature in a very obscure way.

Now, if you don’t get the number of the — it’s a union label ally trait, counsel or whatever the name is, and then it says, say, 34 and if you got the name 34, you know which printer printed it, but if that 34 was not visible, you couldn’t know the name of the printer so it was a useless thing and you have the report of the Fair Practices Committee, which is attached to our brief, which indicates the process by which the 1962 amendment was passed by the legislature.

There was full legislative history by a respectable source and it was endorsed by all of the political parties, by the Citizens Union, by the Association of the Bar.

At that time, there was no question as to its desirability and validity.

Earl Warren:

Mr. Hirshowitz, on the question of relief, I understood Mr. Redfield to say that, in the event, we believe that the Court below should not have abstained, that the constitutional question is here and we should decide it here.

What do you have to say to that?

Samuel A. Hirshowitz:

Well, of course, under the fundamental principles, if the District Court was wrong, and we believe the contention that it was wrong is not tenable then the thing this Court should do is send it back to the District Court as it has done in a numerable other cases, like the reapportionment cases, for it to make the decision.

Earl Warren:

You don’t believe the issue is here before us now.

Samuel A. Hirshowitz:

No, sir.

Hugo L. Black:

Is there any issue here of any kind except the constitutionality of the statute when the — if the case should be put to trial?

Is that all?

In other words, suppose the case is put to trial, what is at issue, just one thing?

Samuel A. Hirshowitz:

Well, as I say, it — if the judge — Circuit Judge Kaufman and Judge Sovath didn’t pass on the merits at all, I —

Hugo L. Black:

What — what issue would they have to pass on?

Samuel A. Hirshowitz:

They would have to pass on the question of whether the — in an action for an injunction against threatened criminal prosecution, under the principles annunciated in the Dombrowski case and some prior cases, whether the Federal Court should dismiss the complaint and relegate the plaintiff, the appellant is —

Byron R. White:

Assume that that judgment is reversed, the dismissal is reversed, and it is sent back for trial.

What question does the judge have —

Samuel A. Hirshowitz:

The —

Byron R. White:

The three-judge — the constitutionality is —

Samuel A. Hirshowitz:

The Court would pass on the — I assume, the Court would pass on the question of whether the statute is unconstitutional on its face.

That’s number one.

Secondly, whether we would urge as an alternative, I assume that if the statute is criticized as being overly broad, the District Court should itself, and as much as this Court would upheld that the Court should pass on it, should itself, if it requires a narrowing to sustain the constitutionality, narrow the statute there might be other questions which suggest themselves as to whether there is in fact a justifiable controversy.

That — that question was suggested before Judge Roselyn before he ordered the three-judge court and he said he was passing only on the complaint.

And, the compliant says “I was prosecuted.

What happened?”

And “I want to do this, and this prosecutor, the District Attorney of Kings County, is stopping me from doing that.”

But, if you read the statute, he says there’s no vagueness in there because he says in there — he says “I come.”

He proclaims, “I come within the statute.

I’m a violator of the statute if I distribute this literature and I want the Court to say that I can do it despite the existence of that statute.”

Now, it may very well be that the District Court may decide that, in a contrive situation like that, the complaint should be dismissed.

On top of which is the recent circulation of this circular letter with the name of the appellant on it indicating certainly that, under the rule — the language of the Douglas case, there’s certainly no clear and imminent danger that’s involved in this action.

Hugo L. Black:

But your question is basic, is the Act constitutional, isn’t it?

Samuel A. Hirshowitz:

Well, that’s the —

Hugo L. Black:

That’s the basic issue.

Samuel A. Hirshowitz:

But the statute — Mr. Justice Black, the statute has been on the books —

Hugo L. Black:

I didn’t ask you that.

It is not your basic issue whether this statute is constitutional that holds that a man could be convicted of a crime for distributing anonymous information in an election?

Samuel A. Hirshowitz:

But, before that, you have the preliminary question of procedure it’s-

Hugo L. Black:

Well I — forget procedure for a moment.

Isn’t that all there is to it?

Samuel A. Hirshowitz:

Well, if you eliminate the question of procedure and assume that the appellant has- that there’s a justifiable controversy and that he’s entitled to relief if the statute is unconstitutional, then, sure, the —

Hugo L. Black:

That’s the basic issue in question.

Samuel A. Hirshowitz:

Sure, that’s the question.

Hugo L. Black:

And that’s all?

Samuel A. Hirshowitz:

Yes, that would be the issue, and I’m not —

Hugo L. Black:

Why should there be effort made by procedural devices or anything else to prevent the trial of that issue so that that issue could be determined?

Samuel A. Hirshowitz:

Well, as I understand it, Mr. Justice Black, there this is a question that has been engaged in discussion in this Court in a number of cases that I have read and, as I gather in my humble way and as the two judges of the three-judge Court concluded, this Court has held that it will respect the principle of federalism in the type of action that we have before us unless there are special circumstances which dictate otherwise and —

Hugo L. Black:

But the real basic question here is the constitutionality under the federal constitution of this Act.

That’s right, isn’t it?

Samuel A. Hirshowitz:

That would be —

Hugo L. Black:

Under the federal constitution?

Samuel A. Hirshowitz:

Yes, sir, Your Honor.

But — but you only reach that if you pass all the other procedural points.

Hugo L. Black:

That’s right.

Samuel A. Hirshowitz:

And — and —

Hugo L. Black:

The procedure’s suggestion has been made from time to time.

Samuel A. Hirshowitz:

The — the point at which the appellant is trying to push this Court is that, following Dembrowski which said the special circumstances, they’re trying to push this Court to say what you have suggested, Mr. Justice Black, that there should not be any limitations at all, that if you present the matter to the Court showing a — as you said, a federal constitution or provision or state statute, a challenge on the ground of the First Amendment, that the Federal Court should take jurisdiction without —

Hugo L. Black:

There must be many occasions, many occasions.

There are many state issues.

I’m not talking about procedure.

I’m talking about on the merit.

There might be many cases where there are many state procedures.

It would be wise to have — not procedures but, state questions, it better be wise to have the Court stand on it and send it to the State Court.

Do you have any of those here?

Samuel A. Hirshowitz:

No.

I would say no, there are no state issues except this, that the-

Hugo L. Black:

Constitutionality under the Act.

Samuel A. Hirshowitz:

There’s — there’s an elemen t- this is a highly emotional issue, the literature issued in the campaign on the eve of a presidential election —

Hugo L. Black:

Well, that’s the merit.

Samuel A. Hirshowitz:

Yes.

Well, I — I just wanted to suggest that, Mr. Justice Black, and I don’t know any election — i don’t know any election that’s —

Hugo L. Black:

Is that a state question or a federal question?

Samuel A. Hirshowitz:

Well, the State Courts may have —

Hugo L. Black:

Is that a state question or a federal question?

Samuel A. Hirshowitz:

It’s a federal question.

Hugo L. Black:

You have to basically decide.

Samuel A. Hirshowitz:

It’s a federal question, but the State Courts may have a better awareness of the nuances because the —

Hugo L. Black:

What nuances?

Samuel A. Hirshowitz:

The legislative history was developed in the state.

Then the state would have a better appreciation of the nuances and the situation in the community.

If we had a — the congressional law in the Federal Corrupt Practices Act, that would take in the whole country.

But, here, as the report of Attorney General Jackson’s grand jury said, the state — the federal legislation would deal only with national offices and leaving it to the states to do the same thing with respect to local offices, and the states would have a better appreciation of the local situation like this man planting himself in front of Congressman Molter’s headquarters there and saying “please arrest me.”

Hugo L. Black:

Does it have anything to do with the constitutionality of the Act?

Samuel A. Hirshowitz:

It may not but the result, as I understand it, in constitutional law, the result many times is determined by the background and in the Talley case, Mr. Justice Black, which I think you wrote the opinion you pointed out, that there was no legislative history which justify the particular identification requirement in the circulars, but I think the states would have a better appreciation of all that —

Hugo L. Black:

What did that case hold?

Samuel A. Hirshowitz:

What?

Hugo L. Black:

What did that case hold?

Samuel A. Hirshowitz:

The Talley case, I think against California, was a case in which the city ordinance was enacted which forbid the distribution of any circulars or pamphlets there without any restriction of any kind and —

Hugo L. Black:

Well, what about — anonymous?

Samuel A. Hirshowitz:

Anonymous, yes.

And, as I understand it, as appears from the opinion, in this Court, the legal officer defending that ordinance defended on the ground that it was enacted to prevent fraud or chicanery and, in the opinion which you wrote, Mr. Justice Black, you said that there was no legislative histories to support the exposition that was made in this Court by the legal representative.

And we say, of course, that, in this case, we have ample legislative history both national and federal.

Earl Warren:

Mr. Redfield.

Emanuel Redfield:

I just want to take a few minutes to controvert some remarks made here, Your Honor.

If you please, as to what —

Earl Warren:

Is that very few?

Emanuel Redfield:

Very few, I have about four.

As to it being a case in controversy, that issue was tended and decided by the District Court and the Court clearly held that there was a case in controversy involved here.

Emanuel Redfield:

The case is very similar to the Evans against Wyeth case that this Court decided some years ago.

If you recall, that was the case where some Negro boy down south tried to sit in the part of a bus reserved for White people and who was threatened with arrest, and he got off the bus rather than being arrested but he entered suit in the District Court for an injunction and declaration of the invalidity of the ordinance that required him to sit in that part of the bus.

And, this Court sent the case back and held that there was a controversy that should be decided.

So, this case is analogous on all fours with that Even against Wyeth case.

Now, another thing I’d like to refer to is something that was personal that was tended here.

And to which, I wish to draw your attention.

That is as to whether or not that this case was a genuine case.

I — I say to Your Honors here that, in the 34 years I’ve been meddling about this Court, appeared here in numerable times, I — this is the first time I’ve ever heard a remark made that this Mr. Zwickler sought out a test case or sought to be arrested so he could have a case.

On the contrary, knowing this case from its inception, I represent to you that this was a traumatic experience to this young man, an experience which he has sought to avoid by declaratory relief.

And, I would also like to say to Your Honors this that you’ve seen the demonstration of pamphlet waiving in front of you reminiscent to some not so long ago experiences.

I’d like Your Honors to see that pamphlet to see how silly it all is and how silly the representation made to you.

Hugo L. Black:

Where is the pamphlet?

Emanuel Redfield:

That he — he has it.

I’m tal — I’m not talking about that.

He said there’s a pamphlet now in which he signed his name and it has nothing to do with Mr. Zwickler other than somebody in somebody’s letter mentioned Mr. Zwickler among tens of other people down at the bottom of it.

William J. Brennan, Jr.:

You mean that’s not — he did not sign it?

Emanuel Redfield:

No, he didn’t sign it.

I’d like you to see it.

It’s signed by a Mr. — somebody else, a David Cohn referring to a — in support of a Mel Doblin — Dubin for Congress.

And then at the end of it, he enumerates various organizations who were supporting the candidacy in which he mentions Zwickler as one of them.

That’s all.

Thank you very much.

Earl Warren:

Very well.