Harris v. Younger

• Citation: 281 F. Supp. 507
• Decision Date: 11 March 1968
• Docket Number: No. 67-1041-WPG.,67-1041-WPG.
• Court: U.S. District Court — Central District of California
• Parties: John HARRIS, Jr., Jim Dan, Diane Hirsch, and Farrel Broslawsky, Plaintiffs, v. Evelle J. YOUNGER, Defendant.

281 F. Supp. 507

John HARRIS, Jr., Jim Dan, Diane Hirsch, and Farrel Broslawsky, Plaintiffs, v. Evelle J. YOUNGER, Defendant.

No. 67-1041-WPG.

United States District Court C. D. California.

March 11, 1968.

Frank S. Pestana, Hollywood, Cal., A. L. Wirin, Fred Okrand, Los Angeles, Cal., for plaintiffs.

Evelle J. Younger, Dist. Atty., Patrick T. McCormick, Deputy Dist. Atty., Los Angeles, Cal., for defendant.

Before JERTBERG, Circuit Judge, and GRAY and FERGUSON, District Judges.

WILLIAM P. GRAY, District Judge.

The plaintiffs in this action challenge California's Criminal Syndicalism Act (the Act), which was first adopted by the legislature in 1919 and constitutes sections 11400-11402 of the Penal Code of that state.¹ It is urged in the complaint that the Act is unconstitutional on its face as being in violation of the First and Fourteenth Amendments of the United States Constitution, and this three judge court is asked to enjoin its enforcement.

As the previously indicated footnote discloses, section 11400 defines criminal syndicalism as meaning "* * * any doctrine * * * teaching or aiding and abetting the commission of crime * * * or unlawful acts of force and violence or * * * terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change."

Section 11401 provides that any person who teaches or aids or publicizes or justifies or commits any act of criminal syndicalism is guilty of a felony. The specific provisions of the five subdivisions of section 11401 will be discussed later in this opinion.

According to the complaint, plaintiff Harris has been indicted for having distributed certain leaflets in violation of the Act, and his prosecution is pending in the Los Angeles County Superior Court. Plaintiffs Dan and Hirsch allege that they are members of the Progressive Labor Party, which advocates change in industrial ownership and political change, and that they feel inhibited in advocating the program of their political party through peaceful, non-violent means, because of the presence of the Act "on the books", and because of the pending criminal prosecution against Harris. Plaintiff Broslawsky is a history instructor, and he alleges that he is uncertain as to whether his normal practice of teaching his students about the doctrines of Karl Marx and reading from the Communist Manifesto and other revolutionary works may subject him to prosecution for violation of the Act.

It is the contention of the plaintiffs that the pending prosecution and the prospect of future enforcement of the Act constitute their being subjected to deprivation of constitutional rights under color of that statute, within the meaning of 42 U.S.C. § 1983.

The respondent, who is the District Attorney of Los Angeles County, acknowledges that the prosecution of plaintiff Harris is pending; but he denies that the Act is unconstitutional on its face, or at all, and he therefore moves that the plaintiffs' petition for injunction be dismissed.

This case inherently involves the question of whether the Act does unconstitutionally abridge free expression or tend to discourage activities in which a person should be free to engage. Under such circumstances, it becomes the duty of this court to undertake to resolve these questions. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

We think that it would be preferable for the California courts to have the first opportunity to consider how the challenged statute squares with the First and Fourteenth Amendments. Those courts are just as able to perform this task as are we, and they regularly have shown full alertness to accept and be governed by the constitutional interpretations that are enunciated by the Supreme Court. An excellent example of this is the recent decision of the California Supreme Court in Vogel v. County of Los Angeles, 68 A.C. 12, 64 Cal.Rptr. 409, 434 P.2d 961 (1967), which has particular relevance to the issue here at hand.

However, it appears from the pleadings that plaintiff Harris sought unsuccessfully in the California Superior Court a dismissal of the indictment against him on the ground of the unconstitutionality of the Act. He then petitioned for writs of prohibition in the California Court of Appeal and the California Supreme Court to prevent the trial of the pending criminal action; such petitions were denied without opinion and without hearing, respectively. Certainly, it cannot be said that the plaintiffs ignored the state courts in seeking to assert their constitutional claims, although they presumably would have had a right to do so and come directly here. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

Of course, the unconstitutionality of the Act might be challenged as a defense by Harris at his trial, and on appeal if conviction ensues. And it has been held that, under normal circumstances, a federal court should not interfere with state criminal proceedings, even though constitutional issues may be involved therein, inasmuch as such questions may be reviewed by the United States Supreme Court on appeal. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Cf. Beal v. Missouri Pac. R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941).

However, in recent years, exceptions to this rule have been applied when the criminal statute inherently has a limiting effect upon free expression and when, as here, it is susceptible to unduly broad application. Thus in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), the Supreme Court reversed the decision of a three judge court that it should abstain from entertaining an action to enjoin certain state criminal prosecutions. In the course of the opinion of the Court, Mr. Justice Brennan stated:

"A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. People of the State of California, 361 U.S. 147. 80 S.Ct. 215, 4 L.Ed.2d 205. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra 377 U.S., at 379 84 S.Ct., at 1326, 12 L.Ed.2d, at 389. For `the threat of sanctions may deter * * * almost as potently as the actual application of sanctions. * * *' NAACP v. Button, 371 U.S. 415, 433 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser." (380 U.S. at 486, 85 S.Ct. at 1120.)

The opinion then went on to state the rule that "We hold the abstention doctrine is inappropriate for cases such as the present one where * * * statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities." (380 U.S. at 489-490, 85 S.Ct. at 1122).

The same rule is reasserted in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). The opinion of the Court, by Mr. Justice Brennan, observed that when a plaintiff has filed a federal action claiming relief under the First Amendment, to require him "* * * to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect." (389 U.S. at 252, 88 S.Ct. at 397.)

It follows that in the present case we may not abstain if the challenged statute unconstitutionally abridges free expression. We believe that it does, and our reasons are set forth in the balance of this opinion.

We are confronted at the outset with the facts that in Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), the Act was specifically upheld as not being repugnant to the First and Fourteenth Amendments, and that Whitney never has been specifically overruled. It is the respondent's principal contention that we therefore are bound by that decision.

Certainly, we are obliged to follow a square holding by the Supreme Court, so long as it appears to constitute an expression of the Court's current interpretation of the law. But a decision may be overruled simply by being bypassed and ignored, as well as by being denounced specifically, and we are mindful that, under the leadership of the Supreme Court, constitutional concepts of freedom of expression have been refined and broadened a great deal since 1927, when Whitney was decided. We therefore have found it necessary to consider how the provisions of the Act and the opinion in Whitney square with the more recent holdings by the Supreme Court and expressions from its opinions. The results of our study convince us that neither the Act nor Whitney survives this test.

The opinion in Whitney ruled that the Act was not unduly vague and uncertain as to its application. In arriving at such conclusion, the Court, speaking through Mr. Justice Sanford, tested the provisions of the Act by comparing them with other statutes that involved economic regulation, and which had survived constitutional attack. However, since Whitney we have learned that statutes seeking to regulate in the area of the First Amendment are held to a more stringent standard of clarity and precision than is required of statutes that undertake to lay down rules for the market place. See Ware v. Nichols, 266 F. Supp. 564, 568 (N.D.Miss.1967). "Because First Amendment...