Long Island Vietnam Moratorium Committee v. Cahn

• Decision Date: 24 December 1970
• Docket Number: No. 328,Docket 35287.,328
• Citation: 437 F.2d 344
• Parties: LONG ISLAND VIETNAM MORATORIUM COMMITTEE, Nassau Council of Women Strike for Peace, Barbara Spadanuta, Mae Newburger, Rhoda Seidel, and Barbara Shack, Plaintiffs-Appellees, v. William CAHN, District Attorney, Nassau County, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

437 F.2d 344 (1970)

LONG ISLAND VIETNAM MORATORIUM COMMITTEE, Nassau Council of Women Strike for Peace, Barbara Spadanuta, Mae Newburger, Rhoda Seidel, and Barbara Shack, Plaintiffs-Appellees, v. William CAHN, District Attorney, Nassau County, Defendant-Appellant.

No. 328, Docket 35287.

United States Court of Appeals, Second Circuit.

Argued November 12, 1970.

Decided December 24, 1970.

Burt Neuborne, New York Civil Liberties Union, New York City (David Orlin and Wade Hooker, New York City, on the brief), for appellees.

Steven M. Hochberg, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York and Samuel A. Hirshowitz, on the brief), for appellant.

Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON, Circuit Judges.

LUMBARD, Chief Judge:

This is an appeal from a judgment of the Eastern District of New York, sitting as a three-judge court convened pursuant to 28 U.S.C. §§ 2281 and 2284 which declared § 136(a) of the General Business Law of New York constitutional as properly applied, but held that it did not apply to plaintiffs' emblem — a representation of the American flag on which is superimposed a symbol that resembles an inverted trident and is generally recognized as the traditional peace symbol.

Section 136(a) provides that it shall be a misdemeanor to display "any word, figure, mark, picture, design, drawing, or any advertisement" upon any "flag, standard, color, shield, or ensign of the United States of America."¹ The statute defines "flag," as used in this section to include

"any flag, standard, color, shield or ensign, or any picture or representation, of either thereof, made of any substance, or represented on any substance, and of any size, evidently purporting to be, either of, said flag, standard, color, shield or ensign, of the United States of America, or of the state of New York, or a picture or a representation of either thereof, upon which shall be shown the colors, the stars, and the stripes, in any number of either thereof, or by which the person seeing the same, without deliberation may believe the same to represent the flag, colors, standard, shield or ensign of the United States of America or of the state of New York."

We hold that § 136(a) is unconstitutional both on its face and as applied in this case.

On January 15, 1970, defendant William Cahn, the District Attorney of Nassau County, announced at a press conference that he would, on complaint of any person, prosecute under § 136(a) anyone displaying or distributing a representation of the American flag which has superimposed upon it any symbol, design, or word. He specifically mentioned as violative of the statute the emblem widely circulated by the plaintiff organizations and the individual plaintiffs in the form of a decal and a button. That emblem consists of a circular representation of the American flag, having seven stars in the upper lefthand corner and eleven stripes and colored red, white and blue, upon which the peace symbol is superimposed. (See Appendix.)

On January 19, plaintiffs obtained from Chief Judge Mishler of the Eastern District of New York an order directing D.A. Cahn to show cause why he should not be enjoined from carrying out his announced intention to prosecute those wearing plaintiffs' buttons and to show cause why a three-judge court should not be convened to determine plaintiffs' challenge to the constitutionality of § 136(a). The action was based on the Civil Rights Act, 42 U.S.C. § 1983. At this time Cahn promised that he would refrain from commencing prosecutions during the pendency of the federal proceedings. On January 27, Judge Bartels ordered the convocation of a three-judge court; that court consisted of Circuit Judge Moore, and District Judges Bartels and Travia.

On June 22, 1970, the district court issued its decision declaring § 136(a) constitutional as properly applied, but holding that it could not be applied to plaintiffs' emblem since that emblem did not constitute a flag. Judge Moore, writing for himself and Judge Bartels, stated that plaintiffs' emblem did not come within the proscription of § 136(a) because "it is the flag itself which the statute seeks to protect from physical alteration, and no attempt to alter an actual American flag is presented by the plaintiffs' buttons and decals." In reaching the decision, Judge Moore concluded that the New York Legislature in enacting § 136 could not possibly have intended that the statute should apply to the wearing or distribution of such emblems as those of the plaintiffs. Judge Travia, concurring in part and dissenting in part, agreed with the majority that the statute was constitutional, but believed that it clearly proscribed plaintiffs' emblem and that such a proscription was justified by the state's interest in protecting the integrity of the flag.

Since Cahn had pledged to respect the district court's decision pending appeal, that court issued no injunctive relief. Accordingly, Cahn appealed to us pursuant to the newly enunciated rule of Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), in which the Supreme Court held that an order granting or denying only a declaratory judgment must be appealed to the Court of Appeals rather than to the Supreme Court. We affirm the district court's decision on the ground that § 136(a) is unconstitutional.

The first contention which appellant Cahn urges is that the district court should have abstained from deciding the case since it found § 136(a) susceptible of an interpretation which avoids the constitutional question. According to this argument, since the constitutional question can be avoided and hence the only question is one of statutory interpretation, the state courts — which have not yet interpreted § 136(a) — should have the first opportunity to interpret their own statute. In support of this contention, Cahn relies on Harrison v. N. A. A. C. P., 360 U.S. 167, 176, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959), in which the Supreme Court observed that

"no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them."

Cahn also argues that giving the state courts the first chance to interpret § 136(a) would cause no irreparable harm to the plaintiffs since he has promised to refrain from instituting prosecutions during the pendency of this case and would surely do the same if the district court applied the abstention doctrine and the plaintiffs promptly instituted an action in the state courts.

We reject these contentions as did all three judges below. The principle of abstention does not involve the abdication of federal jurisdiction, but only the postponement of its exercise. Harrison v. N. A. A. C. P., supra, at 177, 79 S.Ct. 1025. However, in cases involving a challenge that the statute is on its face unconstitutional, the delay of state court proceedings might itself cause an impermissible chilling of the very constitutional rights which the plaintiff seeks to protect. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 483-485, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1964). The Supreme Court has stated that "due respect" must be afforded a civil rights plaintiff's choice of forum for the vindication of his First Amendment rights, Zwickler v. Koota, supra, 389 U.S. at 247-248, 88 S.Ct. 391; and we stated in Holmes v. New York City Housing Authority, 398 F.2d 262, 266 (2d Cir. 1968), that "where a district judge chooses to exercise his equitable discretion in favor of retaining a civil rights action, it will be unusual indeed when an appellate court refuses to uphold his discretion."

In the circumstances of this case, abstention could cause irreparable harm to the plaintiffs and to others similarly situated and could thus effectively nullify First Amendment rights. This danger is particularly grave since state proceedings often take many months before they are finished. Moreover, we were advised at oral argument that others are now being arrested frequently for various types of violations of § 136(a) similar to those in the instant case or are being threatened with arrest for such violations. For example, counsel for the plaintiffs advised us at argument that they represent over sixty persons who have been charged with displaying the emblem in question here, and that these prosecutions and District Attorney Cahn's threat have deterred many people from joining plaintiff organizations. Although Cahn has promised to refrain from prosecutions during the pendency of this litigation, his promise hardly affects prosecutions in parts of the state other than Nassau County. As Judge Moore observed in his opinion for the district court, "our citizens are entitled not to be threatened with prosecution because of a particular interpretation given to a somewhat ambiguous statute by a prosecutor whose views on public issues may differ from others." In view of these circumstances, there is no good reason why the federal courts should abstain in this § 1983 civil rights suit until the state courts have resolved the questions. In the First Amendment area where many persons are constrained to withhold action until their rights are clarified, it is particularly desirable that judicial action be expeditious.

In any event, § 136(a) cannot reasonably be interpreted to be inapplicable to the emblem in question here and thus to avoid the constitutional question.

The district court found that § 136(a), while constitutional, does not apply to plaintiffs' emblem. We cannot agree with this finding. Despite Judge Moore's attempt to look at the purpose of the statute, the language of § 136(a) clearly includes emblems such as those displayed by plaintiffs, as well as many others. Section 136(a) makes...