WASHINGTON FREE COM. v. STATE'S ATTY. OF MONTGOMERY CO., MD.

• Decision Date: 05 February 1970
• Docket Number: Civ. No. 20610.
• Parties: The WASHINGTON FREE COMMUNITY v. The STATE'S ATTORNEY OF MONTGOMERY COUNTY, MARYLAND; Attorney General of Maryland; Special Assistant Attorney General in Charge of Subversive Activities.
• Court: U.S. District Court — District of Maryland

310 F. Supp. 436

The WASHINGTON FREE COMMUNITY v. The STATE'S ATTORNEY OF MONTGOMERY COUNTY, MARYLAND; Attorney General of Maryland; Special Assistant Attorney General in Charge of Subversive Activities.

Civ. No. 20610.

United States District Court, D. Maryland.

February 5, 1970.

COPYRIGHT MATERIAL OMITTED

Joseph Forer, Washington, D. C., and Harold Buchman, Baltimore, Md.. for plaintiff

Francis B. Burch, Atty. Gen., of the State of Maryland, Alfred J. O'Ferrall, III, Edward F. Borgerding and Robert A. DiCicco, Asst. Attys. Gen., Baltimore, Md., for defendants.

Before SOBELOFF, Circuit Judge, and THOMSEN and NORTHROP, District Judges.

THOMSEN, District Judge:

Plaintiff, which publishes an "underground" newspaper known as The Washington Free Press, seeks a judgment (1) declaring that §§ 2, 3, 5, 7, 8 and 9 and portions of § 6 of Article 85A of the Maryland Code (generally known as the Ober Act) are unconstitutional and may not validly be enforced; (2) enjoining defendants, the State's Attorney of Montgomery County, Maryland, the Attorney General of Maryland, and the Special Assistant Attorney General in Charge of Subversive Activities from enforcing any of those sections against the plaintiff, its officers, directors and employees, or The Washington Free Press, its editors, printers, distributors and circulators; and from otherwise interfering with the printing, distribution and circulation of The Washington Free Press under color of those sections; and (3) granting other and further relief.

Defendants have moved to dismiss the complaint and plaintiff has moved for a summary judgment. There appears to be little if any dispute about the facts.

The Washington Free Press appears every two weeks. Its principal circulation is in the greater Washington area, including Montgomery and Prince George's County, Maryland. The paper retails for 20¢ a copy in the District of Columbia and 25¢ a copy elsewhere. The last issue which appeared before March 3, 1969, had a paid circulation of approximately 16,000. Shortly thereafter the circulation increased to 23,000, where it remained until the hearing in July.¹

On March 3 Judge James H. Pugh, of the Circuit Court for Montgomery County, Maryland, in his charge to the grand jury for that County convened for the term March 3 — October 10, said:

"Article 85A of the Maryland Code deals with subversive persons and organizations and Section 9 thereof provides that the Judge of the Circuit Court, when in his discretion it appears appropriate, or when informed by the State's Attorney that there is information or evidence of the character described in this Article of the Code to be considered by the Grand Jury, shall charge the Grand Jury to inquire into violations of this article for the purpose of proper action.

"It has come to the attention of the Court that a certain newspaper is being printed and published in Montgomery County and is being circulated in the County, which advocates the destruction of the State and destruction between the schools of this County and the duly constituted law enforcement agencies thereof."

Judge Pugh read to the grand jury § 2 of Article 85A, which is among those sections set out in the margin,² and said:

"I have two copies of this newspaper which I hand herewith to your foreman. If you find that this law is being violated, it will be your duty to indict not only the individuals you find to have violated it, but the corporation who causes its publication and the printer who prints it."

Judge Pugh thereupon delivered to the foreman of the grand jury two copies of the February 1-14 issue of plaintiff's paper.

Prior to March 3 the paper had been printed in Maryland. Plaintiff alleges that as a result of Judge Pugh's instructions to the grand jury, which were the subject of news articles in Washington area newspapers, plaintiff was unable to find a printer in Maryland who would print the paper, that plaintiff was unable to publish a March 1-15 issue and was able to publish the March 16-31 issue only by obtaining at "great expense and inconvenience" a printer in New York state. According to the answer to interrogatories and exhibits the printing cost increased from $725 for the 20-page issue of February 16-28 (16,000 copies) to $1,080 for the 24-page issue of March 16-31 (22,000 copies).

The February 1-14 issue is fairly typical of other issues offered in evidence. Among the contents are articles entitled "Wanted — Larry Eliot", which concerns identifying and terrorizing state undercover narcotics agents, "Counter-Inauguration: Rome Wasn't Destroyed In A Day", "Emergency Letter To My Brothers and Sisters In The Movement" by Jerry Rubin, "General Marsbars", a draft advice column, "Revolution In The High Schools" and "The Youth Made The Revolution And The Youth Will Keep It". It promotes the use of drugs by high school students and others. The following passage from an article entitled "You Can Be Arrested", under the subhead "Revolution in The High School" goes about as far as any articles in the February 1-14 issue or other issues submitted to the Court in advocating revolutionary changes:

"Now revolutionary youth must work to unite the political and cultural aspects of the revolution. We must proceed with the destruction of the state which is attempting to defeat us by regaining control of the drug supply, which can then be used in support of the established order (opiates for the materially poor; ups for the spiritually poor; hallucinogens for psychological warfare; and a tightly controlled grass market utilized as a safety valve.)

"Montgomery County high school students must now begin to prepare a counter-offensive aimed at destroying the connections between the schools and law enforcement agencies. Get stoned. Turn on your fellow students, especially those in the lower grades. Deal. Expand the supply as well as the demand. Drive the prices down. Sell it cheap. It's a worthwhile community service.

"* * * (sprinkled with four-letter words)

"We are the Revolution.

"We are the Forces of the American Liberation. * * *"

The grand jury has now been discharged. It filed no indictment nor presentment against The Washington Free Community or anyone connected with it. A police witness did appear before the grand jury, reportedly in connection with the investigation suggested by Judge Pugh. It does not appear that any of the defendants has ever threatened to have The Washington Free Community or anyone connected with it indicted under any section of Article 85A.

There has been other litigation in this Court and in Montgomery County with respect to allegedly obscene cartoons of Judge Pugh which appeared in the March 16-31 and the April 16-30 issues. See Washington Free Community v. State's Attorney, 300 F.Supp. 487 (D. Md.1969).

The sections of article 85A under attack in this case are set out in footnote 2. All sections of Article 85A were attacked in Whitehill v. Elkins, 258 F. Supp. 589 (D.Md.1966), reversed, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967), opinion on remand, 287 F.Supp. 61 (D.Md.1968).

The result of the Whitehill litigation was that this Court entered a decree declaring invalid the definitions of "subversive person", "subversive organization" and "foreign subversive organization" contained in § 1, declaring invalid all of §§ 11, 13 and 14 (the loyalty provisions), and enjoining enforcement of §§ 11, 13 and 14. The Supreme Court had considered only the provisions of Article 85A which related to the loyalty oath, and on remand this Court held that Whitehill was not entitled to a declaration that Article 85A is invalid in its entirety. This Court said:

"* * * Plaintiff has not alleged that he is a taxpayer. Even if he did, he has not shown any special interest in having declared invalid the portions of Article 85A beyond §§ 1, 11, 13 and 14, or that they have any direct application to him. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L. Ed.2d 947 (1968). Preemption may well have occurred in regard to those portions of Article 85A which relate to seditious activity against the government of the United States in the light of Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956), but plaintiff's relation to those provisions is not shown." 287 F.Supp. at 65.

The plaintiff herein claims to have such standing.

The first question to be decided is whether this Court should grant any injunctive relief. The general rule, embodied in 28 U.S.C. § 2283, is that a court of the United States should not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. The Supreme Court has added an exception to cover "special circumstances". Dombrowski v. Pfister, 380 U.S. 479, 484, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 253-254, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965) and 390 U.S. 611, 618 (1968). No special circumstances which would justify the exercise by a federal court of jurisdiction to grant injunctive relief are present in this case.

Moreover, the equitable grounds which would justify an injunction at this time do not appear from the facts. No prosecution under any provisions of Article 85A is pending or is now threatened by any of the defendants or anyone else. No irreparable injury has been shown.

The questions of abstention and of injunctive relief are not the same. The Supreme Court has stated that "a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute". Zwickler v. Koota, 389 U.S. 241, 254, 88 S.Ct. 391, 399 (1967).

In that case the Supreme Court indicated that courts of the United States should not abstain from...