Warren E. Burger: We'll hear arguments number 41, Dyson against Stein. Mr. Zwiener.
Lonny F. Zwiener: Mr. Chief Justice, may it please the Court. This case is up for re-argument only the second time. We argued this matter last spring. The facts as I told the court then and Mr. Chief Justice I can confirm, I think at least as far as Texas is concerned, there has been a tremendous increase in three-judge federal courts. I think I handled all for the Attorney General's office, a couple of years ago and had two or three pending at a time. Now we have something like 30 and no longer can I do all the three-judge work. But, in all of the three-judge court cases that I have, I think I would trade the facts in anyone of the other case for the facts in this one which is before this Court. This began in Dallas, Texas. It involved the seizure and the filing of a complaint involving an underground newspaper, the Dallas Notes. In this situation the complaint for the violation of the Texas obscenity laws was filed and the police under search warrant went out and seized the Dallas Notes. They not only got the printed newspapers. They picked up any paper that was around that could have been use. They got the furniture, -- whatever they considered might have been the tools or the implements of the crime. As I say, I would trade these facts for almost any others. I don't particularly like the facts. But in any event, charges were filed, misdemeanor charges were filed in the Dallas courts. The defendants in those state criminal cases then went into the Federal District Court, asked that an injunction be issued against the pending prosecutions, against future prosecutions, ask that the Texas obscenity law be declared unconstitutional. And this was done prior to anything really happening in the state courts, I would say, but I don't really consider that that is significant at least in this particular situation. Now, the three-judge court was convened and that three-judge court held the Texas obscenity statute to be unconstitutional for two reasons. One, the statute in one of its Sections purportedly punished private possession of obscene materials, violating the injunction laid down by this Court in Stanley versus Georgia. The court refused to separate or savor that part of the statute out and says that they were not going to make that separation. The whole prohibition section is unconstitutional. They also found that the definition of obscenity in this Texas statute was lacking. This statute was passed shortly after this Court's decision in Roth and followed the definition laid down to the court in Roth. The three-judge court below here found that this Court had in Memoirs and in Jacobellis it lodged on or amplified or explained the Roth decision and that the Texas statute was fatality defective because it failed to have the redeeming social value feature in it. So for those two reasons, the court below felt that the statute was unconstitutional. They did not enjoin the pending prosecutions, but they enjoined all future prosecutions effectively stopping any prosecution at least at that time in Dallas County. I might say to the court that the Dallas statute has been amended since this decision and we now have the Memoirs type definition. We have read out of the statute a prohibition against private possession and as best we could try to comport with the decisions of this Court. But in any event, this was the old statute, we did argue that it was capable of constitutional interpretation that we didn't have to return indictments for mere private possession and that if no redeeming social value was a part of the test of obscenity, that this could have been taken care of by a court's choice to the jury and I think this Court in a number of cases has permitted state amendment to bring a state statute into constitutional interpretation. Several statutes in the abstinence (Inaudible). But, here we argue first off that the statute was constitutional and we secondly say that no injunction should have been issued against future prosecutions. We say that the injunctions should not have issued because of adapting of abstention, the doctrine that equity will not interfere in a criminal case. And we also say that 2283 of anti-injunction statute may very well apply to future prosecutions that are not pending as well as two pending prosecutions.
Potter Stewart: May I ask what has happened to the pending prosecutions in the Texas State Courts?
Lonny F. Zwiener: They are still pending so far as I know. I called the city attorney's office before coming up here. He said he thought they were pending, is that correct, one is pending, Mr. Richard's.
Potter Stewart: One I gather from the briefs has been dismissed.
Lonny F. Zwiener: Yes sir, one is the --
Potter Stewart: And at the time the brief was written, the one I read --
Lonny F. Zwiener: But one is --
Potter Stewart: -- last night. The one was still pending and I wondered what had happened to it (Voice Overlap)?
Lonny F. Zwiener: Yes sir, it is still --
Potter Stewart: Why? On what is that --
Lonny F. Zwiener: I'd hate to go this far because of the mootness, but of course, I don't think even if that prosecution were dismissed, it would make it moot as long as we have possible prosecutions under the old statute within the time of limitations. I think the case would still be timely enough. But this 2283, it was suggested (Voice Overlap) --
Potter Stewart: But is that normal for a prosecution in Dallas to take that long to be tried and then (Voice Overlap) --?
Lonny F. Zwiener: But Your Honor, insofar as I know in the field of obscenity, there have been only one or two convictions in Texas, since the massive attack has been labeled on obscenity laws within the last couple of years. Prosecutors are not sure what to do. They don't know really when they get ready to try a case, what kind of proof they will need? Do they just submit the material to the jury and let the jury under instructions decide whether the material is offensive and obscene as the Federal Government, I understand is doing in some of their cases or do they need expert witnesses to testify as to the three prongs, prurient interest, no redeeming social value, repugnant to the community as far as matters of sexuality are concerned. So this concerned (Voice Overlap) --
Potter Stewart: Well, do you think you're going to get the answers to any of those questions in this case here? (Voice Overlap)
Lonny F. Zwiener: Your Honor, I --
Potter Stewart: What's causing the delay of the trial of that case in Dallas, Texas?
Lonny F. Zwiener: Well, I -- again, I think that they don't know what to do. They kind of hate to prosecute as long as the Federal District Court has said the statute is unconstitutional.
Thurgood Marshall: But they're still making arrests?
Lonny F. Zwiener: Well, now they have made arrest recently in Dallas under the new --
Thurgood Marshall: There's only one place in Texas a few days ago, they arrested everybody, including the man who's selling popcorn?
Lonny F. Zwiener: Well now, they made some arrests in Houston, Texas, a number of arrests involving some Fifth --
Thurgood Marshall: Did everybody out the theater including the man who's selling the popcorn?
Lonny F. Zwiener: I don't know about the man selling popcorn Your Honor, but they did make a number of arrests. They were movie theaters and in those cases they tried to comply with what may be the law. We're not sure yet on evidentiary seizures opposed to a mass seizure. They did not seize any movies, and they may have got the popcorn man. I think they had public relations so far as the prosecution is concerned but --
Thurgood Marshall: And all the people who were in there, all the patron?
Lonny F. Zwiener: I don't believe that that is correct sir. There may have been some talk in the newspaper about that. I think it did -- one or two of the theaters, they did hold them up. I was down in Houston at a three-judge court hearing on that particular situation. They had not arrest the patrons. But there is a Houston ordinance that says if you remain on the premises while a lewd or obscene performance is going on, you are also violating a law and may be picked up. I am not -- if something has to be found to be unconstitutional that seems to me a good place to start. I don't have -- I think this is a very problem matter of the type of ordinance and I think it's also bad relation to the police, but I don't believe they wouldn't -- the spectators would be picked up.
Potter Stewart: With respect to this particular case we have here of course the Texas Court have have had just about two years now to try this case in this prosecution in Dallas and to give what construction they may want to, to the state law and I wonder why that hadn't moved forward. It hasn't been enjoined.
Lonny F. Zwiener: Well, I --
Potter Stewart: And when you argue that a District Court should abstain or should not intervene, you argue on the basis that that should be left up to the state courts and the state courts in this very case have had two years, and have done nothing. I just wonder what the reason was --
Lonny F. Zwiener: Well, I don't know the answer to that although -- except as I have suggested -- this decision was on the books and still is on the books as far as the old statute is concerned. So, and as I say they -- I'm sure they hesitate to prosecute. Now, I would say there's another factor too, they're worried now that they've gotten into the field of obscenity about the case, they probably have against Dallas Notes. So many things have gotten worse in this area since this arrest was made almost two years ago that they probably would be perfectly frank, they don't like the looks of this case. They've got stag movies to go after now and this, the Dallas Notes was very tamed compared to what is being purveyed today. Probably poor answer but in any event I do say and would like to add to what was said this morning as to 2283 prohibiting pending prosecutions. I think this is a possibility, I don't think this Court has ever completely settled that in Dombrowski, of course they had suggested there was a difference between pending and future prosecutions but only for the purposes of that case. And I, like several others before me and it becomes kind of hard to find something that has not been said before in these cluster of cases. I do think it's just as harmful to state federal relations to enjoin future prosecutions as if it is pending prosecutions. I think as far as the declaratory judgment act is concerned which I have heard argued, I make this suggestion to the court. I don't understand Zwickler versus Koota. The last time I was here, I asked the court to decide this case not on the basis of the injunction and the impropriety of issue in itself of it, but on the basis of the obscenity statute. At that time, you told me I was asking for an advisory opinion and I had to kind of nod my head and smile sheepishly and concede perhaps that was true because if I won as far as the injunction, you might not have to decide obscenity but I suggest to this court, that anytime a federal court considers a state statute, the constitutionality of it and does not enter or issue an injunction but merely decides that the statute is unconstitutional, it has rendered an advisory opinion. It's decided the statute is unconstitutional and does not issue an injunction. I say the only reason that the federal court should be considered in the constitutionality of the state statute is to determine whether or not an injunction should issue.
Warren E. Burger: Not quite clear, I'm not quite clear counsel just to -- what your point is, do you mean we should say it's unconstitutional and we mean it --
Lonny F. Zwiener: Well, Your Honor --
Warren E. Burger: (Voice Overlap) an injunction?
Lonny F. Zwiener: If you do not issue, if the federal court does not issue an injunction, the federal -- the state court would be -- some might say would be free to go ahead and prosecute. Now, you see in this case, they did not enjoin the pending case but they did say the statute was unconstitutional, of course this is not an advisory opinion because they enjoined future prosecutions. But if I say the statute is unconstitutional, no injunction then the state would be free to go ahead and prosecute. Now, perhaps a state defendant would then go back in the federal court and say, “Look! Now look what they're doing to me.” And the thing that worries me, the second step is the lady from New York pointed out. This might make it a three -- one-judge court case, harassment, but I know what else it might make it, the second time around, it might make it a Dombrowski type of situation. Because here, a court, a distinguished court of three judges has said the statute is unconstitutional. No injunction. The state proceeds to prosecute so their argument, they could be made coming in to federal court, he has looked what the state is doing, lawless behavior, harassingly, after you, you the federal court has said the statute is unconstitutional, Dombrowski type of case, maybe. You seem would -- and by the way as far as Dombrowski is concerned I'd defer a little bit as far as what the gentleman from New York of the -- states' counsel for New York says, “I think Dombrowski seems to indicate that you must have a statute that's vague on its face and the special lawless type of circumstances before an injunction should issue in the future prosecution type of case.” In our case, I say they are not Dombrowski circumstances and so no pending, no -- the pending prosecutions should not have been enjoined.
Potter Stewart: The pending prosecutions were not enjoined?
Lonny F. Zwiener: I beg your pardon, future prosecutions.
Potter Stewart: And don't you think there are some significance to the fact that the pending prosecutions were not enjoined? Isn't there a negative implications there that (Voice Overlap) --
Lonny F. Zwiener: The Court I think --
Potter Stewart: -- future prosecutions were enjoined?
Lonny F. Zwiener: I think the court felt that the anti-injunction statute may have barred them from enjoining that pending prosecution. It also suggests that the court felt that they were not perhaps Dombrowski circumstances except that -- I do not know that they suggest that very clearly. And the circumstances here were bad. I think, I am not really pleased with them, I would like to hear some other facts but I would say that there are no Dombrowski circumstances here because the statute is not vague and unclear on its face and too broad.
William O. Douglas: How is that, a prurient, it was defined?
Lonny F. Zwiener: Let me see, Justice Douglas, you mean in the old statute, let's see now, obscene is defined as whether to the average -- it may not -- person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. Now that --
William O. Douglas: Yes, I've read that, I just wondered what the definition of prurient is.
Lonny F. Zwiener: Oh! There is none in the statute.
William O. Douglas: Do you think that is clear enough?
Lonny F. Zwiener: Your Honor, I don't think that --
William O. Douglas: I have heard people say that it could tell it when they saw it but they couldn't describe it.
Lonny F. Zwiener: I believe there is some of -- Your Honors have mentioned that in some opinions. I think it's a problem. I think all obscenity statutes are problems. I think any statute that seems to, that tries to circumscribe speech is a problem, although we have argued initially in this case. I believe it was Justice Harlan suggested in one of the cases that it's not -- when I really heard United States, the difference is in the enforcement of obscenity laws. If the people in Texas can't read the Tropic of Capricorn, it's really not going to make much difference in the glory and beauty of the federal system since you 50 laboratories to apply these situations. And I would suggest that really if the State of Texas or the State of Oklahoma or New York wants to pass this statute, it says you cannot use the word “damn” in any written material. I really don't find that particularly offensive because there are enough other words to convey the meaning. If you just want to take out one word like that and now I realize where we are going to draw the line, maybe “darn” will be the next word and they'd given the next one but nevertheless we do make the suggestions that this is an area where the states should --
William O. Douglas: My question really went to your observation that this statute was clear of ambiguities.
Lonny F. Zwiener: I think wherever we have words we do have differences of opinion but I do think that in most statutes you have this -- you have problems, perhaps more in this field, I think you're correct sir.
Warren E. Burger: When they amended the statute, they undertook to supply the deficiencies that Justice Douglas was addressing.
Lonny F. Zwiener: Sort of, yes sir. But again you have problems when you define something into words that you used to define it, are also subject to problems I think. But we did put no redeeming social value that that is now in our statute but I do suggest that the injunction here was --
Hugo L. Black: (Inaudible) all together?
Lonny F. Zwiener: I'm sorry sir.
Hugo L. Black: Do you think that term is all together clear?
Lonny F. Zwiener: What is that sir?
Hugo L. Black: Criminal statute? No redeeming social value?
Lonny F. Zwiener: Oh, I don't think it is at all. As a matter of fact, I could make a very good argument why a stag movie should be permitted, because entertainment, saving on the leg, going to baseball games, it's pure entertainment, doesn't really profit anybody anything but I guess you'd say they have social value. Those that enjoy stag movies, I suppose are being entertained and in that respect they have redeeming social value. I suppose taken to the larger conclusion, your views and those of Justice Douglas might prevail as far as obscenity is concerned.
Hugo L. Black: But they haven't (Inaudible)
Lonny F. Zwiener: But I do hope that your views as far as injunction Justice Black do prevail in this case because I do suggest the injunction was improperly issued and that this case, the judgment below should be vacated.
Warren E. Burger: Mr. Richards.
David R. Richards: Yes Your Honor. Thank you. I have filed a supplemental brief on the reargument Your Honors. It's a small, thin, blue brief in which I attempted to address myself to the issue of declaratory judgment in a fashioned, slightly more, I hope slightly better than we did the first round. The opening thought that I'd like to convey about our case is that this was not a case in which the plaintiff sought to abort a state court criminal prosecution. Quite the contrary, we were prepared to try to litigate the pending criminal cases in the state court but we're frightened about future prosecutions which threatened the existence of this underground paper. This was not a resort -- this was not a raise to a forum but rather a resort to the federal court to seek protection for substantial federal rights that were threatened with extinction by the Dallas police, let me trace, if I may the evolution of our pleadings and partly in response to Mr. Zwiener's argument. Although when our initial complaint was filed, it did seek injunction against the pending prosecutions. This was stricken from our complaint and we restricted our complaint, our First Amendment amended complaint to simply a prayer for relief against police harassment. This appears on page 30 of our record and a declaration of the statute's unconstitutionality. We were content to litigate the matter in a single-judge court at that stage. The state then filed its response on March 20, 10 days later and urged at page 43 of the record, that this matter had to be resolved by a three-judge court that is urged that as I understand their pleading that even though we sought only declaratory relief that nevertheless required the convening of three-judge court. So as appears on the record on page 75, a three-judge court was convened in order to determine whether or not three-judge questions were presented and at that stage in order to take the jurisdictional issue out of the case, we re-instituted a demand for injunctive relief not against pending prosecutions but only against future prosecutions, thereby hoping to obviate some of the difficulties in the case but on hind side, I think we would have been very advised I suspect to leave our pleadings just for declaratory relief.
Hugo L. Black: Why didn't you file your faith on injunction?
David R. Richards: The complaint was filed in January Your Honor of 1969 --
Hugo L. Black: Where?
David R. Richards: I'm sorry, the Northern District of Texas, Dallas division.
Hugo L. Black: What court?
David R. Richards: Your Honor, United States District Court, in Northern District of Texas, before Sayre v. Hughes, at the time it was filed.
Hugo L. Black: Did you file any in the state court?
David R. Richards: Did not file any proceedings in a state court, we in the state court did seek to resist the criminal prosecutions. We filed motions to suppress the evidence and motions to dismiss.
Hugo L. Black: What's been done to that case?
David R. Richards: Well, in this court, the lower court opinion in this case came in June of 1969, in October of 1969. Four months later a motion, one of our motions to dismiss was granted by the trial court as to one of the criminal prosecutions. Arm --
Hugo L. Black: Which court--
David R. Richards: By the state court trial judge, yes Your Honor. The second criminal prosecution remains pending on our motion to dismiss and I surmise along with counsel that the state may not think -- can convict my client but they have a -- seem fit to dismiss the prosecution or proceed with it so if now had been pending for some two years, the state court criminal prosecution.
Potter Stewart: In the mean time, you long ago got all the material back to assist, didn't you?
David R. Richards: Yes, in that connection when we filed our suit in the federal court, were one of our principal concerns of course was to seek to return the material the police had confiscated, they had in raids on appearing two weeks time confiscated six typewriters, two desks, cameras, personal possessions, clothes, everything -- the kind of sweep that even by the -- well, the admission of the police officer on deposition was that they simply cleaned the house again. The return from the police search, the second search appears on pages 16 and 17 of the record on which they list the items confiscated. In this instance they got three cameras, a desk, 5 cardboard boxes containing personal records, this was a police's char a -- police characterization of what they took not what we characterize it. And two black Bell system telephones. There was never an adequate explanation of why they sought to seize the telephones but presumably they likened the telephones in as much as they were an adjunct to the publication of the newspaper as simply part of the contraband they were taking when they made their raid. The raid by the way, the two raids were made upon a two storey house that served as the residence of the plaintiff Stein, he lived upstairs and in the part of the lower floor they put out their underground newspaper. On the first, they not only arrested and charged the plaintiff Stein but they arrested and charged on both occasions everyone they found on the premises. During the first raid, they arrested two people, a husband and wife named DeLaine, Mr. and Ms. DeLaine, -- both raids were conducted at night, ten o'clock or so at night and during the first raid they came in and they found Mr. and Mrs. DeLaine had retired, gone to bed and a part of the house which they occupied is their own residence. When I asked the police officer why they were arrested the DeLaine's, his response was, they were arrested because they were there and the obscene material was found there, obviously they live there.
Potter Stewart: Now all of these interesting facts, interesting and I may say outrageous facts are not in this lawsuit, they were not considered by this three-judge court.
David R. Richards: They were before --
Potter Stewart: All your allegations as to harassment were reserved for determination by a single-judge court as I understand Judge Hughes' opinion, am I mistaken.
David R. Richards: Well, I would not concede that --
Potter Stewart: She in her opinion, she says that what's before the Court is the constitutionality of the statute and at the end, in an order, it's found that the Section 1 and part of Section 3 of the statute are unconstitutional and the dependents are permanently enjoined from any future prosecutions and everything else having to do with the harassment and which would include this searches and so on are reserved for determination by a single judge. And I had assumed as I prepared for this case, invest the argument that those matters were not really before us at all in this case, am I mistaken?
David R. Richards: Well, I will certainly hope that I can bring them before you. Our motion -- the case blow it off on summary judgment. Our motion for summary judgment which appears at page 57 of the record states that plaintiff in making his motion for summary judgment relies upon the depositions a defendant police officers Snyder, Mulligan and Rogers and it was from those depositions which I just read. Now, we briefed and argued in the trial before the three-judge panel and I did quite extensively quote from the depositions in my brief to the three-judge panels.
Potter Stewart: Sure you did. But did the that three-judge court decided not to pass on that part of your case as a three-judge court and instead to direct that for a consideration by a single-judge court so far it appears in this record, the single judge has never yet acted on your claim of harassment.
David R. Richards: If I may say Your Honor, we were invoking the equity powers of our court below and I think necessarily saying to the court that the facts that have gone before, which are the facts I have recited here suggest quite strongly the threat of future prosecutions and future harassment under the statute and it was in this fact context, we would say that the court looked to the future with their declaratory judgment saying, “Having reviewed what's gone before, there is a reasonable.” Very recent on my mind, apprehension on the part of this plaintiff that he will be subjected to future prosecutions if he'd try in searches and seizures if he continues to publish his newspaper and in light of what the Dallas police have done in the past, there is a fair reason to think that they are not -- they have not abandoned their efforts with respect to the plaintiff and is --
Potter Stewart: I was simply suggesting that harassment by the police is not the same thing as a prosecution by a prosecutor.
David R. Richards: It's not the same thing, but right.
Potter Stewart: And the, insofar as your lawsuit, a complain of harassment by law enforcement officers, it was reserved for determination by a singrjudge District Court and the injunction of future prosecutions by the prosecutor even in all good faith by such prosecutor was -- that was based upon the -- unconstitutionality of the statute, am I wrong about that?
David R. Richards: Of course that --
Potter Stewart: And the probability that there might be future prosecutions, I would certainly agree with that.
David R. Richards: Well, as I may say, I know it's a -- it goes behind the court's opinion below somewhat. I know that Judge Hughes who sat on the state district bench in Dallas for a number of years, served the legislature from Dallas county before coming on the federal bench was deeply troubled by what to do, that is, was it more disruptive for her to issue an injunction that sought to compel or prohibit police conduct. Said, in judgment on the day to day activities of the police, was that more disruptive or was it more to the point to declare this statute which was on its face overbroad unconstitutional and in that fashion cure the underlying evil because it was the statute and it what -- the obscenity statute which was we say facially overbroad upon which the Dallas police relied in victimizing and vandalizing the plaintiff's residents.
Potter Stewart: I thought you (Voice Overlap) --
David R. Richards: Now, I cross -- I'm going behind her, our opinion but I already -- free judge court opinion. But I think quite right if she was troubled by how I deal with this problem which does prevent -- present federal questions and encouragement upon federal rights.
Warren E. Burger: What do you say she reserved?
David R. Richards: In the opinion the court's opinion is a dead ball for a summary judgment addressed itself solely to the constitutional -- constitutionality statute and remanded to the single-judge my prayer for injunction, my injunctive prayer sought instructions to the Dallas police that they should not seize material and sought the kind -- the typical kinds of relief that one would seek I think in a -- of a case of several harassment even under a lawful statute. So I think what they did -- clearly what they did, they remanded that matter for further hearings disposed however of the constitutional question on hours, on summary judgment on which the facts I have recited to you were undisputed, that is --
William O. Douglas: I suppose if the statute to start off the -- the statute is unconstitutional, the case is no different from it would be if the New York times was being taken over by investigators and the police and press this clause to whatnot, could be a form of censorship I suppose like --
David R. Richards: Exactly.
William O. Douglas: -- Near versus Minnesota, wouldn't it?
David R. Richards: It was a clearance, the most -- clear prior restraint one can imagine of course that that what the Dallas police were engaged in doing it under a statute --
William O. Douglas: But not the whole that the statute is constitutional and you have a different question, I suppose?
David R. Richards: Quite different. But, and as I say I think the lower court below was con -- felt that conceivably by declaring a statute unconstitutional that might stay the hand of the police in the sense that they were relying upon its over breadth and swirling around my plaintiff's place of business. Parenthetically the injunction that issued -- the court's opinion issued on June 9, 1969, the lower court opinion declaring the statute unconstitutional, I believe. On June 10, 1969, the Texas legislature enacted its amended statute which Mr. Zwiener has alluded to. So for all parenthetically also, the injunction ran only to the plaintiff, it didn't run to a broad class of plaintiffs. It did not run to the world at large so the injunction that was issued here was a very narrow injunction, protected this plaintiff against prosecution under the old statute and declared that statute unconstitutional.
Hugo L. Black: And the statute had already been repealed?
David R. Richards: No. The court's opinion issued on June 9, 1969, June 9th, and on June 10th, the next day the legislature amended the statute. So --
Hugo L. Black: So what's been done with it since that -- by the court?
David R. Richards: The --
Hugo L. Black: What did the parties do when the legislature amended the old law?
David R. Richards: Well, the State of Texas appealed this case to this Court and we have --
Hugo L. Black: (Voice Overlap) Neither one of them asked the three-judge court to take any of that action?
David R. Richards: No Your Honor. As I say and we have continued to try to defend the criminal prosecutions in the state trial courts where they -- and successfully got one -- and attained a dismissal of one of them since that time.
Hugo L. Black: So the other one hadn't been filed? (Voice Overlap) --
David R. Richards: The other one has not been tried.
Hugo L. Black: It's your position Mr. Richard?
David R. Richards: Correct Your Honor. Collide -- anticipated some of what I intended to say but, when this case came as it did to them -- local chapter, the American Civil Liberties Union, there were -- then the problems they're confronted -- the lawyer assigned to the case were not -- how to abort the state criminal prosecutions but how somehow to protect this underground newspaper which seemed to be entitled to publish under the First Amendment and how to get the man's material back to him. That is again the great list of typewriters, desks and cameras. We made written demand upon the Dallas police for return of the material that they had been improperly seized. The demands were ignored. It was only at that time, only after demand. That suit was filed in the federal court seeking return of the material. Seeking relief against future harassment and finally, seeking declaratory judgment as to the constitutionality of the statute. Now, in our initial argument, Justice White asked me at least on one occasion, perhaps two, what was it that we couldn't accomplish in the state criminal prosecution that necessitated the filing of the federal court action. And I would say they were these things. They have may or may not have been available to some recovery of the property that had been seized. There was no possibility of relief against future harassment as an outgrowth of the state court criminal prosecution. There was little likelihood that the constitutionality of the statute would be spoken to in the state criminal prosecution as much as it has been previously upheld on both counts by the Texas Court of Criminal Appeals which is our highest Appellate Court from the criminal division. So all of these things could never have been answered in the state court prosecution, defense of the state court criminal prosecution was not adequate in anyway to secure our First Amendment rights.
Hugo L. Black: Did the Legislative Act contained any provision of making it operative?
David R. Richards: It became operative --
Hugo L. Black: -- of cases that were already pending?
David R. Richards: No Your Honor. There was an emergency clause that made it effective immediately but it did not -- there was not an ex post facto law, no Your Honor, did not operate as to pending cases.
Hugo L. Black: There is no provision to keep the pending cases on the docket and try them?
David R. Richards: Didn't -- insofar as I'm aware Your Honor it did not speak to that specifically at all as to what the effect was upon pending criminal prosecution. It was simply an amendment of the statute.
Hugo L. Black: Well, have you argued that point in your brief?
David R. Richards: To the lower court?
Hugo L. Black: To us or anybody else.
David R. Richards: Not to you, no Your Honor.
Hugo L. Black: What's the effect of that Act? What did it do to your case?
David R. Richards: I have not argued that and I have assumed that it did nothing to my case that might --
Hugo L. Black: Why did you assume that if it repealed the law and then (Voice Overlap) pending prosecution?
David R. Richards: I misspoke myself. I think I did not mean to say it repealed the law, it amended the statute. I do not think that it constituted a repeal of the statute in the sense that it would have voided any pending criminal cases. This has not been my view that it would have.
Hugo L. Black: They're simply amended -- it was pending --
David R. Richards: Yes Your Honor. Yes, exactly. Now we have – if I may say, I think the substance of the relief that obtained below was declaratory relief. Certainly, this was what we were seeking. We were seeking it as I say on behalf of a continuing enterprise, it was continuing as best it could under the circumstances of a paper that was going to be published every two weeks. At the point we came into court, the plaintiff had lost all its helpers, even they were afraid to come around to his address for fear. They would get hassled by the police and off the police station. He was putting out the paper by himself at that stage, borrowing typewriters and whatever else property was required.
Potter Stewart: And you said you didn't -- it wasn't you who asked for a three-judge court, was it?
David R. Richards: The state's response to us after we've deleted the declaratory relief in lieu of the injunctive prayer said that this was a matter for a three-judge court.
Potter Stewart: But you originally had asked for injunctive relief against harassment and for a declaratory judgment that the statute was unconstitutional at least as applied to your client, is that right?
David R. Richards: Yes. Well, I mean, be fair Your Honor. I had initially asked for the injunction against the prosecution. I had deleted that from my pleadings and restricted my pleadings to declaratory and harassment but at that stage --
Potter Stewart: Declaratory --
David R. Richards: It was at that stage the state still took the position of the three-judge court was required and at that point Chief judge Brown ordered the convening of the three-judge court and that we then amended our pleadings. Only at that time did we re-institute our prayer for injunction against (Voice Overlap) --
Potter Stewart: An injunction of future prosecution?
David R. Richards: Yes Your Honor. Now we have cited in our reply brief the Senate Report on declaratory judgments which seems to -- at the time the declaratory judgment statute was enacted, it seems to us in all fairness that this was the precise kind of case which declaratory judgment is envisioned. That is the Senate Report in its concluding paragraph with respect to the declaratory judgment procedure stated. Finally it may be said that the declaratory judgment procedure has been molded and settled by thousands of precedents so that the administration of the law has been definitely clarified. The Supreme Court mentioned one of its principal purposes in the Terrace versus Thompson when it said, “They are not obligated to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of their rights. We think here, we're not talking about a single shot proposition that is one act, is it a crime, is it not. We're talking about a continuing publishing enterprise, a newspaper being put out every two weeks in which on the basis of past conduct by the Dallas police and the Dallas District Attorney's Office, there was every reason to appear, that with each succeeding issue, we would be subjected to a new prosecution. In this context, declaratory relief as to the constitutionality of the statute was indeed, it seems the only swift and appropriate remedy that might assure us that as to the future, we could or could not proceed. It was in our view at least then a traditional form of declaratory judgment proceeding. The early cases of course did come out of business enterprise kinds of cases. In Terrace versus Thompson, as my memory serves me, it was whether an alien could farm land in some state in the Pacific Northwest. But other state court cases have dealt with the problem that is -- businesses that were declared unlawful by certain state enactments and the owners of those businesses going into the court to seek declaratory relief. Indeed, the Senate Report again cites as a prime example of the kind of relief they envisioned, the Senate Committee envisioned at least at the time it enacted the statute was a Tennessee case in which -- it's cited in our brief that where pool hall operators who thought they were having their rights infringed by a state enactment went in to the courts for a declaratory relief. We find ourselves, at least we think as well off as pool hall operators who felt that their rights were being concluded by a -- dependent by the existence of a state criminal enactment.
Hugo L. Black: Do you have a declaratory judgment law in Texas?
David R. Richards: We do Your Honor.
Hugo L. Black: Why did you not perceive that?
David R. Richards: My judgment is that attorney at the time was that I wasn't more likely to obtain swifter response to my prayer in the federal court. My second judgment was that I was pursuing federal rights, First Amendment rights, rights to be secured against unlawful search and seizure and rights to be secure against harassment in the traditional Hague versus CIO sort of context and that the federal forum was an appropriate forum and as I --
Hugo L. Black: It was going on the theater that the state -- federal court couldn't stay federal -- criminal proceedings in the state court, would you not?
David R. Richards: I did not seek to stay and did not think I could obtain a stay --
Hugo L. Black: You did lay them?
David R. Richards: No, I had never obtained a stay against pending criminal prosecutions.
Hugo L. Black: But didn't you later amend your complaint and asked for an injunction?
David R. Richards: Only against future prosecutions, not against the pending prosecutions. There was never and that's quite clear in the court's opinion in my prayer --
Hugo L. Black: Of course if you had gotten a declaratory judgment, I assume you would then gone into any court, to all courts in order to enjoin that proceeding if you'd held it unconstitutional.
David R. Richards: I don't think so at all. I don't think a declaratory judgment is a final judgment until there -- if at the point the state did not appeal and the judgment became final, I think that's quite right, I would've relied upon it for injunctive relief but not at least until it became final and its not final till this day in terms of the declaratory relief. I do not consider declaratory relief to be a simply the other side of the coin from injunctive relief. I think it does speak to the future, it does clarify rights and this was precisely the problem that my client faced. He needed to know, can I continue to publish this newspaper in Dallas, Texas under or am I going to be victimized by the statute each time an issue comes out. And it was through this looking to the future that we've spoken our declaratory judgment proceeding. And the pendency of the criminal prosecutions to me at least were simply evidentiary of the threat. We were prepared to leave them alone but their pendency, the fact that the police had carried out the searches that they had, it seems to us where clear evidence, and I think to the court below that unless some declaration of rights were -- was issued, that unless the court used its equity powers, that Stein and the Dallas Notes, and the underground was going to be effectively suppressed by simply the technique of taking an overbroad statute using it or misusing it as the case may be to put him out of business. And so again, we did not speak to the pending cases and we're prepared to litigate them and still are prepared to litigate them. I think at this stage, it's a state who's indicated the reluctance to go to trial on the pending criminal case not as at all.
Hugo L. Black: Do you have any evidence that was that purpose?
David R. Richards: Well --
Hugo L. Black: That one case has a purpose to go on after?
David R. Richards: Well, we have here two --
Hugo L. Black: (Voice Overlap) it was unconstitutional?
David R. Richards: Alright. Excuse, I mean. I'm not sure-- I'm not sure -- I understand there were two arrests, two searches and seizures, two pending criminal prosecutions from the time we went to the federal courts. We did not move on the first case, we did not go to the federal courts until there had been a repetition, the clearest kind of repetition that they were going to engage any conduct necessary that we thought to suppress our paper. It was only then that we went to the federal court. And after going to the federal court, after getting a return of the material that had been seized, there were no further arrests under the statute, no, but they were not restrained.
Hugo L. Black: (Voice Overlap) as soon as they get brought to you within the ex parte Young doctrine?
David R. Richards: In what respect Your Honor?
Hugo L. Black: Ex parte Young doctrine, about how you can enjoin a safeguard in the federal court, by harassment?
David R. Richards: We felt we were entitled to seek and obtain injunction against harassment. The case happened to go off on summary judgment and of course that they were disputed fact issues with respect to harassment that were resolved by the trial court. I assume there was a denial of harassment, a denial of a evil intent on the part of the police and this were fact issues that will never resolve. Thank you Your Honor.
Lonny F. Zwiener: May I take the last two minutes of this Court's (Voice Overlap).
Warren E. Burger: Very well.
Lonny F. Zwiener: (Voice Overlap) only two things I would like to say, first, as far as the police activity in this particular case, I'd like to say something about that. I'm not part of the facts in this case. Have I told the court several times? But the minute that this situation came to the attention of the city attorney's office in Dallas, they no longer -- police can't get search warrants for First Amendment printed material without conferring with the city attorney's office. This also precipitated the amendment of the obscenity statute and this was done not after the court decision. The wheels began to turn much before this Court below held a statute unconstitutional but it does sometime, the police perhaps do not act properly but I do think when it gets to thee district attorney or the county attorney, the city attorney, in their office, the brakes can be put on and really I think they can do it pretty well without the federal court intervention. I would say something about this declaratory judgment. Apparently the plaintiffs here or a number of people here are asking declaratory judgment doctrine be extended to encompass just everything, one judge, declaratory judgment can pass on any state statute that somebody's worried about and the ridiculousness of this thing is that we've had a attack on sodomy statute, a couple came in and said, “We would like to practice sodomy in the bedroom but this statute is bothering us, the existence of it.” And that they -- that was a case of controversy, there were several other parties to this but this can -- I think show the extent that this thing can lead to. Again, I suggest really and I don't -- I apologize to the court in a sense for saying this but Zwickler versus Koota which tells the lower federal courts that they should consider the constitutionality of the state statutes even where no injunction is proper, I think is authorizing advisory opinions. Thank you. If there are no other questions -- sir?
Warren E. Burger: Thank you. Thank you gentlemen. The case is submitted.