Zwickler v. Koota

Decision Date05 December 1967
Docket NumberNo. 29,29
PartiesSanford ZWICKLER, Appellant, v. Aaron E. KOOTA, as District Attorney of the County of Kings
CourtU.S. Supreme Court

Emanuel Redfield, New York City, for appellant.

Samuel A. Hirshowitz, New York City, for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

Section 781—b of the New York Penal Law makes it a crime to distribute in quantity, among other things, any handbill for another which contains any statement concerning any candidate in connection with any election of public officers, without also printing thereon the name and post office address of the printer thereof and of the person at whose instance such handbill is so distributed.1 Appellant was convicted of violating the statute by distributing anonymous handbills critical of the record of a United States Congressman seeking re-election at the 1964 elections. The conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term, 2 and the New York Court of Appeals affirmed without opinion, People v. Zwickler, 16 N.Y.2d 1069, 266 N.Y.S.2d 140, 213 N.E.2d 467. Thereafter appellant, invoking the District Court's jurisdiction under the Civil Rights Act, 28 U.S.C. § 1343, and the Declaratory Judgment Act, 28 U.S.C. § 2201,3 sought declaratory and injunctive relief in the District Court for the Eastern District of New York on the ground that, on its face, the statute was repugnant to the guarantees of free expression secured by the Federal Constitution. His contention, below and in this Court, is that the statute suffers from impermissible 'overbreadth' in that its sweep embraces anonymous handbills both within and outside the protection of the First Amendment. Cf. Talley v. State of California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559. A three-judge court, one judge dissenting, applied the doctrine of abstention and dismissed the complaint,4 remitting appellant to the New York courts to assert his constitutional challenge in defense of any criminal prosecution for any future violations of the statute or, short of this, to the institution of 'an action in the state court for a declaratory judgment.'5 261 F.Supp. 985, 993. Because appellant's appeal presents an important question of the scope of the discretion of the district courts to abstain from deciding the merits of a challenge that a state statute on its face violates the Federal Constitution, we noted probable jurisdiction. 386 U.S. 906, 87 S.Ct. 854, 17 L.Ed.2d 781. We reverse.

We shall consider first whether abstention from the declaratory judgment sought by appellant would have been appropriate in the absence of his request for injunctive relief, and second, if not, whether abstention was nevertheless justified because appellant also sought an injunction against future criminal prosecutions for violation of § 781—b.


During most of the Nation's first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. The only exception was the 25th section of the Judiciary Act of 1789, 1 Stat. 85, providing for review in this Court when a claim of federal right was denied by a state court.6 But that policy was completely altered after the Civil War when nationalism dominated political thought7 and brought with it congressional investiture of the federal judiciary with enormously increased powers. The Act of March 3, 1875,8 was the principal '* * * measure of the broadening federal domain in the area of individual rights,' McNeese v. Board of Education, etc., 373 U.S. 668, 673, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622. By that statute '* * * Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789. These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.' (Emphasis added.) Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System, 65. Indeed, even before the 1875 Act, Congress, in the Civil Rights Act of 1871,9 subjected to suit, '(e)very person who, under color of any statute * * * subjects, or causes to be subjected, any citizen of the United States or other person * * * to the deprivation of any rights * * * secured by the Constitution and laws * * *,' 42 U.S.C. § 1983; and gave the district courts 'original jurisdiction' of actions '(t)o redress the deprivation, under color of any State law * * * of any right * * * secured by the Constitution * * *.' 28 U.S.C. § 1343(3).

In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '* * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * * *.' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542. 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.' Stapleton v. Mitchell, D.C., 60 F.Supp. 51, 55; see McNeese v. Board of Education, etc., 373 U.S. at 674, 83 S.Ct., at 1437, n. 6. Cf. Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257. The judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, sanctions such escape only in narrowly limited 'special circumstances.' Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480.10 One of the 'special circumstances'—that thought by the District Court to be present in this case—is the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question. Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. Compare Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377.11

But we have here no question of a construction of § 781—b that would 'avoid or modify the constitutional question.' Appellant's challenge is not that the statute is void for 'vagueness,' that is, that it is a statute 'which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.12 Rather his constitutional attack is that the statute, although lacking neither clarity nor precision, is void for 'overbreadth,' that is, that it offends the constitutional principle that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325. See Aptheker v. Secretary of State, 378 U.S. 500, 508 509, 84 S.Ct. 1659, 1665, 12 L.Ed.2d 992; NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231; Schware v. Board of Bar Examiners, 353 U.S. 232, 246, 77 S.Ct. 752, 760, 1 L.Ed.2d 796; Martin v. City of Struthers, 319 U.S. 141, 146—149, 63 S.Ct. 862, 864—866, 87 L.Ed. 1313; Cantwell v. State of Connecticut, 310 U.S. 296, 304—307, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Schneider v. State of New Jersey, 308 U.S. 147, 161, 165, 60 S.Ct. 146, 152, 84 L.Ed. 155.13 Appellee does not contest appellant's suggestion that § 781—b is both clear and precise; indeed, appellee concedes that state court construction cannot narrow its allegedly indiscriminate cast and render unnecessary a decision of appellant's constitutional challenge. See Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659.

The analysis in United States v. Livingston, D.C., 179 F.Supp. 9, 12—13, aff'd, Livingston v. United States, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719, is the guide to decision here:

'Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction. Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. The decision in Harrison, however, is not a broad encyclical commanding automatic remission to the state courts of all federal constitutional questions arising in the application of state statutes. N.A.A.C.P. v. Bennett, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375. Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit.'

In Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762, (per curiam), we vacated an abstention order which had been granted on the sole ground that a declaratory judgment action ought to have been brought in the state court before the federal court was called upon to consider the constitutionality of a...

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