Warren E. Burger: Younger against Harris. Counsel, you may proceed whenever you’re ready.
Clifford K. Thompson, Jr.: Mr. Chief Justice and may it please the Court. This is an appeal by Los Angeles County District Attorney, Evelle Younger and the people of the State of California from a judgment and order of a three-judge District Court in the central District of California declaring unconstitutional on their face each Section of the California Criminal Syndicalism Act, Penal Code Sections 11400 to 11402 and enjoining appellant Younger from continuing with a pending prosecution against appellee, John Harris, Jr. On September 20, 1966, appellee Harris was indicted under Section 11401, Sub 3 for violations -- two violations of the Syndicalism Act for distributing literature advocating crime as a means of affecting political and economic change. Mr. Harris demurred to indictment and moved to quash it in the state courts. He sought a wrote -- writ of prohibition in the -- an intermediate appellate court and petitioned for a hearing in the State Supreme Court. As we will argue later in none of those cases that he adequately presented his constitutional issues to the state appellate courts nor did he get a determination even from the trial court that the statute was constitutional in a form in which it was approved here in Whitney. In the summer of 1967, Mr. Harris repaired to the federal courts having -- went forwarded in the state courts. He was joined here by three additional plaintiffs. A temporary restraining order issued in August of 1967, since that time, this case has languished in the federal courts, that is over three years. The District Court held that it had jurisdiction to pass on every Section of Act by reason of the presence of Mr. Harris and appellees Dan and Hirsh who is members of the Progressive Labor Party urged that they were inhibited in the peaceful advocacy of that party’s program by the Act and by the Harris prosecution. And by the presence of plaintiff Broslawsky who is a History teacher urged or alleged in his complaint that the presence of the Act inhibited him in his customary practice of teaching about the doctrines of Karl Marx. The court held that it had jurisdiction to review each Section of the Act. It held that Dombrowski versus Pfister mandated a declaratory judgment invalidating each and every Section of the Act. It further held that the appellant Younger should be enjoined from continuing with the prosecution which had been started in the state courts during the preceding year. Our contentions to this Court are these; first, that the District Court did not have jurisdiction to pass on all Sections of that statute that -- except for the Section under which Harris was charged, there was no case or controversy with respect to all other Sections of the statute. Secondly, that the District Court abused its discretion by refraining from abstaining and by declaring the statute unconstitutional on its face. Thirdly, that the Smith Act does not preempt the Syndicalism Act. We think that a self evident proposition which requires no elaboration here. Fourthly, that the federal anti-injunction statute, 28 U.S.C. 2283 bars the injunction issued here against the pending prosecution. Finally, we urge that the state statute is constitutional not in the form in which it was approved in Whitney or condemned in Brandenburg. We have never urged that that statute was constitutional as it appeared here in Whitney but that it is constitutional in light of narrowing state court decisions. It decided between Whitney and Brandenburg. And we would urge also that if the federal court disagreed with that that if it chooses to interpose itself voluntarily between state legislatures and state courts, there is an obligation to act like a state court and to uphold that statute in the manner in which the Federal District Court acted in the Mackell case. To proceed then into the jurisdictional point; our proposition that the Court lacked jurisdiction with all provisions except for 11401 Sub 3 rests on two propositions. The first is that the mere existence of a statute regulating free speech or association as opposed to its enforcement does not exude such a chilling effect as to give rise to a case or controversy under Article 3 Section 2. Now, the resembled thought that Dombroski held otherwise, but that notion should have been removed by this Court’s holding in Golden against Zwickler and subsequently in Mitchell against Donovan. That we had any other result of course, federal courts would spend a great deal of time even more than they now do rendering advisory opinions on rather troublesome questions of constitutional law, many of which in need and now will be litigated. Our second proposition is that the plaintiffs Dan, Hirsch and Broslawsky do not present a case or controversy. Now the standard as articulated as recently as Golden against Zwickler, it -- quoting of Maryland Casualty against Pacific Coal says the question is whether under all of the circumstances here, there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment. And we’re also mindful of Mr. Justice Frankfurter’s pronouncement in Communist Parties versus Subversive Activities Control Board that mere potential impairment of constitutional rights under a statute, does not create a justiciable controversy in which the nature and extent of those rights maybe litigated, that is a standard. The allegations are, as I have said, Dan and Hirsch, as members of the progressive labor party feel inhibited by the presence of the act. Mr. Broslawsky as a History teacher, somehow alleges that he is inhibited by the presence of the Act and the prosecution. We think these allegations are frivolous. We point out that are no overt acts by the State or no arrests, no searches, no seizures, no accusations, no threats of prosecution directed toward Dan, toward Hirsch, toward Browslawsky or toward any person who is engaged in the similar kind of conduct. And we invite the Court’s attention to in effect the finding of the District Court, who in their opinion did say, “We are under no apprehension that Dan, Hirsch, and Browslawsky stand in any danger of prosecution for reason of the activities ascribed to themselves in their complaint.” So we think that those allegations do not rise -- do not give rise to a justiciable controversy under Article 3, Section 2. Nor do we think the fact that the District Court has jurisdiction to pass on one Section entitled it to conduct a search and destroy mission in our penal code. But first, that statute contains a several authority clause. The legislature clearly said, that if it could not have all it wanted, it wanted all that it could have. Secondly, it condemns different kinds of acts, not all of the sub-provisions are free speech provisions. 11401 sub 1 is directed toward advocacy, Sub-section 3, towards circulation of literature, sub-section 4 towards organizing and membership and sub-Section 5 involves crimes. It’s nothing to do with speech, pure conduct statute. Yet the District Court felt that it was warranted on passing -- to pass on all of those statutes. What we’re asking the Court to do then is to take the section by section approach that was done in the Smith Act. We think that any contrary view that one -- to say that once the District Court has its foot in the door, it can pass on everything in site, just completely ignored the principles of justiciability which underlies the Article 3 requirement. And an informed decision can only result from a case, which is contested between people having real interest and what we have in this case is an uninformed decision by the District Court, when overlooking a host of state decisions, which are on point. Our second point is that the District Court abused its discretion in failing to abstain from declaring a statute unconstitutional. The fact is, the District Court in one sense didn’t exercise its discretion at all. It didn’t think it had any. It said, we may not abstain, because this is a statute, which is overbroad and regulates free speech and Nebraska tells us we must act. Our position is that -- where we can show the special circumstances present in this case, there are going to be no finding of a reparable injury necessary to issue an injunction and there is no one for declaring a state’s statute unconstitutional. Now, those factors are these: Number one the state statue is susceptible of a narrowing construction. Indeed, our position is that that the construction was placed on it as early as 1946, by a state stat -- by a state decision by Justice Treanor, which we think anticipate it, but it did not inspire the formulation of Brandenburg. Secondly, there is a pending vehicle, the Harris prosecution which that it is allowed to proceed in 1970, that can lead to the kind of determination which resulted in the Mackell case and which will provide a limiting construction for that statute. One which will permit this Court to avoid the very difficult substantive constitutional questions, namely: what are the federal limitations on state power? Thirdly, there was an absence of bad faith enforcement in this case. There were no allegations in the complaint, let alone a demonstration that the state proceeded against Mr. Harris, without hope of convicting him simply to discourage him from exercising his protected rights. The advantages of abstention, I think are many and familiar. First, if the state court invalidates a statute, we avoid a direct federal front to state sovereignty. Our state courts are quite capable of doing that if the constitution commands it. They did it as recently as Vogel against County of Los Angeles, cited by the District Court, where they -- on the authority of Elfbrandt and Keyishian invalidated a state employee loyalty oath, which was required by our state constitution. Alternatively, the state court may provide delimiting construction which allows this Court and other courts to avoid the substantive constitutional issues. It avoids the kind of delay we’ve experienced in this case or the cases remained here for years. And I recognize there are some exceptional circumstances, but this is not the first case like this to be in the federal system for three years. Bailey against Patterson is another example of such a delay. This Court’s calendar today I think illustrates the increased burden on the federal courts which result from an interventionist position. That burden should be transferred to the state courts, among other reasons, that will encourage them to assume a full responsibility for protecting federal rights and not to advocate the field on the assumption that we don’t handle it, we conduct it -- the federal courts will have to resolve it. And finally, well, not finally, and ultimately, state courts are -- now they are the ultimate arbiters of state law, they are the best arbiters. They are more familiar with it, they know what their doing. This opinion has to be a very cogent example of that principle. Finally, there is a -- perhaps a somewhat novel consideration that we urge. In our view, the abstention doctrine and the no rewriting maxim that is that this Court and federal courts do not have the obligation to construe states statutes to the extent they must construe federal statutes are doctrines which have to coexist or cannot exist at all, both were authored by Justice Frankfurter. The no rewriting maxim is a -- in a sense a luxury and it can only be enjoyed because of abstention. If you abandon the abstention doctrine, then you have to assume the responsibility for acting like a state court and doing what the state court would do to save its statute. We think that is implicit in the -- your Court’s language in Fox against Washington. So in a sense, the abstention then confers another benefit. It allows you to avoid that very difficult responsibility. We proceed then to the special circumstances which we think mandate abstention in this case. Now, as to the susceptibility of this statute to a saving construction, first, the guidelines for that construction have already been provided in this Court’s opinion, in Brandenburg against Ohio and in the Smith Act cases, Dennis, Yates, Scales and Noto. Secondly, there could be no doubt but what the California Courts would faithfully apply that guidance. The District Court recognized that when it said that California courts regularly have shown full alertness to the constitutional requirements and to the decisions of this Court. In effect, our statute comes before this Court in the same posture that the Smith Act did and that was susceptible of a limiting construction. However, we think that ours has even been more limited. As to the bad faith aspect, unquestionably a showing of bad faith enforcement is essential to demonstrate the irreparable injury necessary to warrant injunctive relief. Now, we have injunctive relief here and bad faith was not shown. But we think that it's also a circumstance to be considered on the question of the declaratory judgment. Where the statute is vague, it offers a possibility that state officials may take advantage of that vagueness so as to expand the scope of the statute, to include protective conduct, which they personally disfavor. When that occurs, abstention may be mandated. It did not happen here as it happened in Dombrowski. We do not have the arrest, search and seizures, the futile attempt to vindicate state rights -- federal rights in the state courts as occurred in Louisiana in our case, none of that is present here. We think this Court has recognized this, albeit somewhat cryptically in the affirmances in Brooks against Briley and Wells against Reynolds. Particularly, the Wells case; that involved the District Court’s determination not to declare unconstitutional the Georgia statute denouncing circulation of in-surrectionary papers on the grounds that the statute could be construed narrowly so as to save it from constitutional objection and because of an absence of bad faith. That holding was affirmed. Now, we recognize that this Court in Zwickler against Koota, to a sharp dichotomy between declaratory and injunctive relief and to a certain extent we’re urging and we do not hesitate to urge, the assimilation of a test for those two. We agree with the language of Mr. Justice Douglas in his dissent in Mitchell against Donovan. Ordinarily, a declaratory judgment of validating a state’s statute does in fact result in precisely the same quantum of interference and disruption of state proceedings as does as an injunction. If that is true, then the criteria for determining whether you have a declaratory judgment or an injunction ought to be the same and if that requires a reconsideration of Zwickler then that’s valid. We think that the --
Potter Stewart: Well, insofar as you're relying on the statute, Section 2283, it refers to an injunction, but not to a declaratory judgment. So you’re asking us to read the statute to --
Clifford K. Thompson, Jr.: No.
Potter Stewart: -- equate a declaratory judgment or injunction?
Clifford K. Thompson, Jr.: No Your Honor, I’m saying that the statute reflects a policy of non-interference with the states.
Potter Stewart: And that the policy should include declaratory judgment?
Clifford K. Thompson, Jr.: That’s right. Now to say that that the statute satisfies the relationship between the states and the Federal Government, because the Court only issues a declaratory judgment, instead of an injunction, it’s not that the final exultation of form over substance. We have been without the statute for all practical purposes for three years. There has been no injunction against future prosecutions, only against the prosecution of appellee Harris, but we haven’t got our statute. Now, we think if the --
Potter Stewart: (Inaudible) very much?[Laughter]
Clifford K. Thompson, Jr.: Well, I think Justice Stewart if you read the California papers and follow the almost daily bombings and police assassinations and other things and we’re familiar --
Potter Stewart: There are good many other statutes that cover that sort of conduct, I presume in California?
Clifford K. Thompson, Jr.: Yeah, they punish it once it has occurred. The problem is that not only in California, but in the -- but in New York and other states, it’s quite obvious that statutes which punish conduct like that which has already occurred are not enough to do the job, there’s no question about that. If you -- I mean, if you’ve got to wait, you know, until the breach has occurred, then it’s hopeless and the enforcement is really helpless, we just have to weigh them out and accept whatever punishment is going to be dealt out which is going to be considerable. Now, the third factor is that in this case, unlike many of the cases, there is a pending vehicle in which the statute can be construed. That wasn’t true in Keyishian, it wasn’t true in Zwickler, and it wasn’t true in a lot of cases where abstention was deemed to be inappropriate. Now the appellee has taken a position that in fact this is not at all abstention case. But the state courts either did pass on the merits of the statute or had an opportunity and failed to do so and therefore, if the federal court refrained from declaring our statute unconstitutional, it would be abdication rather than abstention. I want to answer that because it is not in the briefs and it was not until re-argument last term that we understood that there had been a mutual misapprehension of the state law on that point. In this state trial court, Mr. Harris demurred the indictment and he moved to quash the indictment, under Penal Code Section 995. The state trial court said, “The motion quash is denied and the demur is overruled, the statute is constitutional.” But the state trial court had before it, memoranda referring to Scales, Dennis, Gates, and some California decisions, so its determination which obtained only to the one Section under which Harris was charged was not a finding that the statute was a constitutional as it appeared here on Whitney, but in light of it we think the constructions that could be placed on it. And when the state trial court if it ever gets to the point where it can issue instructions to the jury that is where we will find reflection of the judicial gloss. At all events, Mr. Harris then appealed to the intermediate, sought a writ of prohibition from the intermediate appellate court pursuant to Penal Code Section 99 (a). We have two writs of prohibition in California, one is a 99 -- 9 (a) writ, the other was a Civil Code, a procedure 1102 writ. The former is -- does nothing but give an accused an opportunity to have an appellate court review a superior court’s determination on the question of probable cause. Is there a sufficient quantum of evidence to make the man go to trial? That is all. It does not raise constitutional issues. Harris’ complaint reflects that he proceeded with that vehicle. So, what he is saying is the federal courts cannot abstain because I presented -- I selected, I elected the wrong remedy in the state courts, I wish to present my constitutional claims. He then proceeded to the California Supreme Court with a petition for a hearing, it was denied. That is discretionary, there is no question about that and if he had selected the correct remedy, the writ of prohibition provided for by 1102. Our position is that that also would have been discretionary. It is certainly clear that a ruling out of denial or a writ of prohibition is not a ruling on the merits in California. Now, the scope of discretion in a state court, on a writ of prohibition, under 1102 is something of a murky question. No one really is clear and I don’t know if the state courts are, but we think the obscurity of that question should demonstrate to this Court that for federal courts either to say abstention is proper or improper, according to whether the man is presented -- the constitutional claim in a pretrial setting is only to enmesh the federal courts and determinations are very difficult sometimes, very difficult, questions of state procedural law, they ought not to do it. That it’s not a proper basis at all. And finally, we arrive at the anti-injunction statute. After Atlantic Coastline, last term, they can no longer -- the federal district court no longer can enjoin a pending prosecution in spite of the statute on the theory that it's merely a legislative enactment of the comity principle. It must bring it within a specific exception. Now, here it’s clear that the District Court did not enter its injunction against Mr. Younger, in aid of its jurisdiction or effectuated judgment. In fact, it told us why it did, that was ensure that we would have an appeal to this Court under 1253. Of course, we could have done that by simply enjoying future prosecutions, which would be tolerable under Dombrowski and Camara, but it did not. So, the question then becomes whether or not this injunction could be justified, because a suit is under the Civil Rights Act and whether 1983, 42 U.S.C 1983 is a specific exception to 2283. Our position is that isn’t, but if it were, it will be such a massive exception, as to engulf the rule. And you have a situation where state court prosecutions could be interrupted while defendants head to the federal courts for almost any alleged violation of due process. It's hard to know where they would stop. So we think that the language of that statute which is rather plain means what it says and bars this injunction. As to the constitutionality of the Act itself, I would repeat, the Act is not before this Court in the form in which it appeared in the Whitney case. Brandenburg does not dispose of the merits of this case. Our position is that our statute has been construed by our state courts to conform to the requirements of Brandenburg. In 1946, Chief Justice Treanor said that Criminal Syndicalism Act can be applied only when there is imminent danger that the advocacy of the doctrines that seeks to prohibit will give rise to the evils that the state may prevent. We think that was the inspiration for the test in Brandenburg, certainly it satisfies it. Of course the words of Justice Treanor are as much a part of that statute as if our legislature had put them in there. This Court recognized that principle in Winters against New York and Albert against Mallard. In 1920, we had a decision in People versus Maryland. That case said that you had to intend the unlawful consequences, result from your advocacy. It was a literature case. In fact it involved the very section at issue in the District Court proceeding. It was of course not cited or referred to by the District Court. It did say that the person distributing literature has to know that content of a literature and he must intend the consequences, reasonably attributable to his act of distribution. Subsection 4 is the organization and membership section. These are discrete acts. You cannot organize and that’s construed now in California, it means you have to be on the ground floor. This Court recognized that in Yates, you cannot organize an organization without being active in it, and without having enough knowledge and intention that its unlawful purposes be fulfilled. By no stretch of imagination, is that a status crime? Requirements of active membership, it goes beyond requirements of active membership set down in Scales and similar statutes. Well we think that Section and the others are constitutional. And finally just to reiterate that if a federal court reaches those, if it chooses to interpose itself between the state court and the state legislature that it has responsibility to do to the statute what the state court thinks it would do. That responsibility was discharged by the New York court, it was not here. We do not -- we are just unable to reconcile those results. We don’t think that there’s sufficient discretion reposes in the District Courts to reach those opposite results and if their discretion is that wide then its discretion is simply a softer word for arbitrary. Thank you.
Warren E. Burger: Mr. Wirin.
A.L. Wirin: Mr. Chief Justice, may it please the Court. First to deal quickly as far as I’m concerned, as far as my time is concerned, with the question put by Justice Stewart to Mr. Thompson. In the appellee’s opening brief we cite a gross or so of California statutes, which penalized not only acts of violence, but threats of violence. And in a brief which is a gray colored, called appellees supplemental brief on re-argument at page 17 in a footnote, I think it has been said that the heart of many of the opinions of this Court are in footnotes, but that’s not to -- and then its necessary aside, anyway, on page 17 in the footnote which begins on page 60, and footnote 17A, we cite a statute in California, which makes it a crime to incite to riot, there'd be no violence, there’d be no actual violence, merely an incitement to riot is of -- is a crime in California, as of course it is many states. Now secondly, with respect to another issue which I -- will which -- I think I can deal quickly, it be this true as Mr. Thompson has stated Your Honors that in the suit filed on the District Court in California, there were four plaintiffs, three in addition to the appellee Harris. As to none of the plaintiffs, with the exception of Harris, we admit there was no direct threat of prosecution.
Potter Stewart: One was a History teacher?
A.L. Wirin: One was a History teacher.
Potter Stewart: And the two, who were the two others?
A.L. Wirin: One was a member of the same -- of the party, Progressive Labor Party and --
Potter Stewart: Same party as Harris?
A.L. Wirin: Yes, but in any event Your Honor --
Potter Stewart: And who was the fourth?
A.L. Wirin: I forgot. In any event, the order which was made by the District Court, an order of preliminary injunction was made only for the benefit of and for and with respect to the appellee Harris. And we think the -- now, we are appellees, we think the -- all of the appellees except Harris are not proper appellees in this Court and we think that Your Honors so have said that because no injunction --
Potter Stewart: Because, I would think it was a declaratory judgment, is that correct?
A.L. Wirin: That’s right, because no injunction was issued after them and indeed no declaratory judgment really was issued because the court hadn’t taken jurisdiction of the merits of the case in order to declare their rights, though I will debate that later. In any event, it is our view that under the Gun case, decided by Your Honors last term and indeed as I say, we said this in our -- in one of our briefs prior to Your Honors ruling, they are not proper appellees and the question is to whether or not there is a judicable controversy between these other three plaintiffs and the appellant we think is not an issue which Your Honors need to reach in which certainly we do not press which brings me to discuss the issues which are before Your Honors and that is; first, I am going to try to avoid before Your Honors in this session to repeat the argument I made the last year which was bottomed largely on the First Amendment for I realize now more than I did then that there are issues before -- in this Court which need to be resolved favorable to the appellee Harris long before the First Amendment is reached by this Court. And this issues which I must -- with respect to which I must concede I gave a kind of summary at -- consideration in my argument, namely the applicability of Section 2283 and the problem of abstention of the core issues to which I want to address myself. I of course recalled though Justice Brennan, may not since he hears so many lawyers argue, his admonition to me that I better reach the problem of Section 2283 before long and then my time ran out before I gave it a kind of attention which I think I can give it this morning. Now, we agree of course that before we can prevail, I say “we”, I mean he, Harris can prevail, we have to successfully cross the threshold of 2283. And we think we have done it for the following reasons and incidentally, I am going to assume for the purpose of my argument that the exceptions to Section 2283 are not a broad charter of rights, the exceptions, to be narrowly construed, I needn't say that I have in mind the decision of Your Honors' the last term. We think the injunction issued in this case comes within the number of a -- within the exceptions specifically provided for by Congress in Section 2283. First, we think that the injunction, preliminary injunction in the special circumstances of the posture of the case as it presented itself before the three-judge court below that the injunction was in aid of the jurisdiction of the federal court and to borrow, and to use, and to accept the phrase of this Court was necessary in the aid of that jurisdiction and to effectuate its judgment and that is because of the following. The matter came on before the District Court on a motion to dismiss the indictment. I misstating myself, on a motion to dismiss the complaint, on a motion by the state --
Potter Stewart: There have been a demur to the indictment in the state court, but you’re not talking about that.
A.L. Wirin: Well, I’m not talking about that, I’m taking about the jurisdiction and the provident excise of jurisdiction by the District Court.
Potter Stewart: By the Federal District?
A.L. Wirin: I do and expect to reach the problems in the state court, if time permitting. But in the federal court, the posture of the case was, a complaint had been filed, and they think that the statute was unconstitutional, the Federal Civil Rights Act, and the defendant, the appellant here, Younger had filed a motion to dismiss. So, all that the District Court had before it was a motion to dismiss, and I say all, because I mean it did not have the case before it on the merits. The case wasn’t ready for an adjudication by way of declaratory judgment or otherwise on the merits, that motion to dismiss. The court determined to overrule the motion to dismiss. Therefore, the next steps in the case would be the filing of the some responsive pleading by the appellant here, to defendant there. A responsive pleading, which was never filed, was passed back. Now, it is our view that wholly aside from the juri -- from any authority which the District Court had to issue an injunction, it did have authority, particularly in the peculiar circumstances of this case, by way of declaratory judgment to pass upon the statute and to determine whether on its face it was overbroad. Therefore, it had jurisdiction over the cause and continued to have jurisdiction over the cause, until the merits of the cause were before the District Court. And until the merits of the cause, namely whether or not the court should by way of declaratory judgment, determine whether or not the statute was constitutional on its face until it reached that point, the court had authority under Section 2283 to issue interstitial, pendente lite, injunctive relief, which it did. So as to maintain a jurisdiction over the cause or if no preliminary injunction were issued, I’m assuming of course it had jurisdiction ultimately by way of declaratory judgment to decide the constitution under the statute. For the purpose of my present argument, if no preliminary injunction issued, the jurisdiction of the District Court, thereafter, after the defendant upon here filed a responsive pleading, to adjudicate the statute would have been aborted, would have been mooted, if the proceeding, setting aside the problem that the statutes, I’ll come to in a moment, if the proceeding were allowed to go forward in a state court. So in order to -- in our view to maintain a jurisdiction, in order to protect and effectuate any judgment, I’m now paraphrasing the language of Section 2283, which judgment it had jurisdiction to make thereafter, we think it had authority to issue this interstitial preliminary injunction until it could reach the merits. Moreover, there is the civil --
Speaker: Every body in state (Inaudible) the state prosecution?
A.L. Wirin: Well, that -- you know Your Honor that’s kind of a double-edged sword, but I’ll take this -- I’ll take up a sword nonetheless but --
Speaker: One at your time?
A.L. Wirin: One at your time, there was. In other words, the -- I may have run into the problems by the abstention. In answer to Your Honor’s question I did, but I do, that has to say the state said that it would go forward with the prosecution, unless the federal court issued an injunction. So that we felt there was -- we felt -- we feel now there was a necessity of some kind of interstitial injunctive relief under Section 2283. Now additionally, as Your Honors know of course, because of your concern with this problem and your -- the ruling of Your Honors, in the Atlantic case last term, we think you know of course that Section 2283 in addition to the exception which I’ve discussed, also makes it – tabs out of section where there was an act of Congress. Now we think here, Your Honor, there are two acts of Congress. I suppose one would be sufficient if it -- it was sufficient. One is the Civil Rights Act, which I do not propose to argue in oral argument because I know it will be argued fully in oral argument in the cases following, and as in the brief extensively that statute confers jurisdiction on a federal court to grant relief under Federal Civil Rights Act. At law, in equity, or in any other manner and I suppose injunction is equity and so we think it’s an exception. Moreover, we think it is not accidental, but on the contrary it is meaningful that Section 2283, of the 28 U.S. Code follows Section 2281, just precedes Section 2284 and those Sections expressly confer jurisdiction upon a federal court to adjudge a state statue to be unconstitutional and to issue an injunction against such statutes, where a federal court and I say did, that statute conferred jurisdiction on a federal court, to hold a state statute unconstitutional, to issue injunction, where that statute repugnant to the constitution. Now, the purpose of this suit, the thrust of the suit filed in the District Court was that this statute was repugnant to the constitution because it’s violating the First Amendment. And so, if Your Honors won't accept before, exception which I’ve indicated, I hope you’ll find one of these exceptions not wanting and therefore, there has been a compliance with Section 2283. But even if Section 2283 and as I say, I’m kind -- I’m giving in my argument, the exceptions are narrow rather than a broad or latitude in area of liberal construction. Assuming we can encounter and jump a hurdle of 2283, if we can't we are done so far as the injunction is concerned, but we think we’re not undone, it would've been a done undone part, but didn’t -- nonetheless, there was the problem of that abstention and I would do a disservice to the Court, as well as to Mr. Harris, if I stuck my hand, hid in the sand and didn’t recognize the importance of that question and the importance to which -- the importance which this Court has -- (Inaudible) this Court has treated that question.
Speaker: Did you say you had filed a brief recently?
A.L. Wirin: Your Honor, depends what recently means, not this term, we filed two briefs, the last term and in that connection, if Your Honor will permit me, I want to say something about the length of this case and I know Your Honors will -- hope Your Honors will not take umbrageous what I say. This case has been in the courts a long time, but it has been literally three years in this Court and it's not a question of placing blame on any one but we hope you won’t -- I’ll go to say, take it out on the appellee because of the delay. There have been delays in this case due to the fact that this Court has not been complete and there was also delay in the District Court, I will concede because at the time the District Court had the matter, this Court had not yet decided Brandenburg. This Court was confront -- the District Court was confronted with the problem, of the kind of anticipating what the present law was and it ruled that Whitney was no longer viable in view of other decisions of this Court made that ruling prior to Brandenburg. Now I view with the problem of abstention and it's -- and if I may say so, it seems to me that this Court in declaring or adjudging judicial policy as it does, can control the improvident issues and issues of injunctions or even declaratory judgments by the District Courts through their judicial formula of abstention and that matter is of course entirely in Your Honors' hands. Now for the purposes of my argument, I’m going to assume that it is the law, I’m not talking about abstention as distinguished from injunction that there should be abstention only in unusual cases because I think I -- or as I try to recognize that under our system, the federal district courts should intervene or intercede albeit the right which are at stake are in the First Amendment and hence, some consider the most important of rights, not in – certainly not in every case and so I’m saying in the unusual case. And if that is the -- if that is the proper standard, and I think it's a narrower standard that this Court has been imposing on the issue of abstention. We think it was proper for the District Court in the special circumstances of this case and as I read the decisions of this Court, whenever this Court comes to grips with the problem of abstention, it considers the special circumstances of the case. Under the special circumstances of this case, the District Court did not abuse its discretion, I think it is a matter of discretion subject of course to review in this Court, to review in this Court in retaining jurisdiction until it had an opportunity to decide the matter on the merits and to determine the constitutionality of the statute. Now, I suggest that the following circumstances in this case are the special circumstances which warranted the District Court in not abstaining in view of the special circumstances. First, the statute involved here, I'll interpret myself, I cannot see or understand the argument of the Attorney General that the statute applies to act unless the word act encompasses just speech. On its face, the statute applies to doctrines and presets. As applied, it applies to a person who distributed two leaflets. But passing that, it is urged by the Attorney General in his briefs as it was before Your Honors in oral argument that the District Court should not have attempted to pass upon provisions in the statute other than those -- other than that under which the appellee Harris was prosecuted. It seems to me that that is implicitly a confession that this statute is aimed only at speech, is not capable of clarification or construction in one criminal prosecution. And as I understand the decisions of this Court, Baggett versus Bullitt and the dissent in Cameron versus Johnson, the first Cameron versus Johnson where a statute which affects speech, it effects pure speech as we say is not capable of being hammered out in one prosecution. And where it expects -- effects speech in contradistinction to a statute which effects conduct, that’s the kind of a statute with respect to which, there may be no abstention as there was no abstention in Baggett versus Bullitt. And I’m not going to talk about Dombrowski because I just I don’t know and I suppose no human being knows what a majority of this Court thinks about Dombrowski, except that I think that it is a great decision and -- but my thoughts needn't be expressed. Incidentally, there was one matter with respect to injunction which I didn’t say that I must say that is with -- and that is that in connection with the matter of the propriety of the federal court issuing an injunction, I share the views of Justice Harlan, thought it may not make any difference to any one but to him that I do that the rule ought not to be dependent as to who gets to what court first. In other words, concededly in this case, there was a prosecution in the state court before there was a proceeding in the federal court and in that respect I concur for what it is worth with the dissenting views of Justice Harlan in the Dombrowski case. And I was talking about the special circumstances of -- in this case. The other special circumstance is that the statute is sweeping on its face, it is an old statute, it has been on the statute books of California over 50 years. We have cited to Your Honors in our briefs, studies which have made about this statute and its enforcement none of which argument has been challenged by the prosecution, Professor (Inaudible), Professor (Inaudible) of the Columbia Law School, Professor Whitney who was cited by Your Honors as an authority in Brandenburg, all have come to the view that this statute was aimed against the industrial workers of the world, that it had been a statute which an actual enforcement has been cruel with respect to which California and the entire nation ought to be thoroughly ashamed because it was used solely for the purpose of suppressing opinion. So, it is not a current statute, adopted by the legislature of California to need a current danger or need in California. It is an old statute for which I have heard no favorable comment from any source except from the Attorney General of California in the briefs in this case. Even in this case in order to enforce the statute, the Attorney General of California has annexed as exhibits to his opening brief, circulars published by George Lincoln Rockwell in the American Nazi Party and other groups in San Francisco to show the great dangers which California faces from militant groups, groups with whom -- with which no claim was made that Harris had any connection of any kind. So it is the kind of a statute which lends itself to unfair in a harsh and cruel prosecution. Now, I conceded in the argument last time that the issue as to the constitutionality of the statute could still be adjudicated by the courts of California in the event of trial. But we think in this case it was proper for the District Court to have granted the relief and to have begun to declare the statute unconstitutional though, of course it didn’t do so definitively because of the historic cruelties and evils accompanying every sedition of prosecution with some of them Your Honors are familiar. Your Honors summarized them in the New York Times case and we think therefore that if a statute is sweeping on its face, has in the past been oppressively used is on its face capable of oppression, that one need not wait to go through all the state courts where he has under a particular procedure in a state court attempted to secure a ruling from the state court with respect to the constitutionality of the statute which this appellee did before he repaired to the federal court. Hence we think that under these special circumstances, there is no prohibition so far as the anti-injunction statute is concerned, 2283 and so far as the declaratory judgment statute, it was proper, the appellee having attempted to secure a redress under California procedure to have repaired to the federal district court for relief under the Federal Civil Rights Act.
Warren E. Burger: Thank you Mr. Wirin. Mr. Thompson you have a few minutes left.
Clifford K. Thompson, Jr.: If I may Mr. Chief Justice, I’d like to make two points. I think there is an illuminating passage in the District Court’s opinion. It’s the last whole paragraph. The District Court tells us, “we believe that our declaration that the Act is unconstitutional on its face, is all the relief that is necessary to be accorded to plaintiffs, that’s plural, at this time in as much as we are confident that while this decision stands, the defendant would adhere to it and would refrain from further prosecutions under the Act.” In the preceding paragraph, the court says, “Nor do we imply the existence of a likelihood that the courts of California would entertain such prosecutions if instituted.” I think we should take the District Court’s word for it that they did not need to enter that injunction in order to protect either their jurisdiction or to effectuate their judgment. They were quite clear about that and they were equally clear about how many plaintiffs they had before them. They referred to plaintiffs in the plural in their injunctive order which on its face tells us that the state statute is unconstitutional, the order appeals from. Now I --
Potter Stewart: But the order, I don’t have it right here, but the order only enjoins the prosecution of Harris, does it not?
Clifford K. Thompson, Jr.: That’s correct Your Honor.
Potter Stewart: Your point is that the opinion is tantamount to a declaratory judgment for the benefit of all of the plaintiffs as to the unconstitutionality of this Act as a whole?
Clifford K. Thompson, Jr.: Precisely.
Potter Stewart: The injunction itself is considerably narrower, is it not and that it refers only to Harris?
Clifford K. Thompson, Jr.: Yes it is. I think that -- however, the District Court would be quite surprised if they found that they had given inadequate relief to all of the plaintiffs before them. And I think they felt that there was no way to separate the two questions of propriety of injunctive relief and declaratory relief because under Dombrowski, in order to determine the procedural question or whether or not to intervene, you must first pass on a substantive question. The determine -- determination of intervention or abstention is the road of judgment which is an extraordinary --
Potter Stewart: So I think it was the point Mr. Wirin was making, one of his points at least was simply that the other three plaintiffs were not proper appellees because at the most all they got was a declaratory judgment and if you'd wanted to appeal that, you should have gone to the Court of Appeals then they would've been appellees there, that’s how I understood him, perhaps I misunderstood him.
Clifford K. Thompson, Jr.: I understand Your Honor. On -- or it may -- well, I hope that we haven’t wasted three years here.
Potter Stewart: You're right -- you're rightly here with respect to Mr. Harris.
Clifford K. Thompson, Jr.: I understand but I would reiterate that it really -- that the -- unless we have relief on the declaratory aspect, then what happens -- we think on the injunctive aspect as it is quite moot. Thank you, Your Honors.
A.L. Wirin: Your Honor, may I have a second to tell Justice Stewart where the order is in the record?
Warren E. Burger: By all means.
A.L. Wirin: Thank you. I hope I’m not -- it’s at -- its in the appendix at page 16.
Potter Stewart: Thank you very much.
Warren E. Burger: Thank you.