author: Mr. Justice Black Mr. Justice Stewart, Mr. Justice Brennan, Mr. Justice Douglas,

text:
    YOUNGER, DISTRICT ATTORNEY OF LOS ANGELES COUNTY v. HARRIS et al.
    No. 2.
    Argued April 1, 1969 Reargued April 29 and November 16, 1970
    Decided February 23, 1971

      Black, J., delivered the opinion of the Court, in which BurgeR, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Stewart, J., filed a concurring opinion, in which Harlan, J., joined, post, p. 54. Brennan, J., filed an opinion concurring in the result, in which White and Marshall, JJ., joined, post, p. 56. Douglas, J., filed a dissenting opinion, post, p. 58.

      Clifford K. Thompson, Jr., Deputy Attorney General of California, argued the cause for appellant on the second reargument. Albert W. Harris, Jr., Assistant Attorney General, argued the cause for appellant on the original argument and on the first reargument. With them on the briefs were Thomas C. Lynch, Attorney General, and Evelle J. Younger, pro se.

      A. L. Wirin argued the cause for appellees on the rearguments. With him on the briefs were Fred Okrand and Frank S. Pestaña. Sam Rosenwein argued the cause for appellees on the original argument. With him on the brief was Mr. Pestaña.

   Mr. Justice Black

delivered the opinion of the Court.

Appellee, John Harris, Jr., was indicted in a California state court, charged with violation of the California Penal Code §§ 11400 and 11401, known as the California Criminal Syndicalism Act, set out below. He then filed a complaint in the Federal District Court, asking that court to enjoin the appellant, Younger, the District Attorney of Los Angeles County, from prosecuting him, and alleging that the prosecution and even the presence of the Act inhibited him in the exercise of his rights of free speech and press, rights guaranteed him by the First and Fourteenth Amendments. Appellees Jim Dan and Diane Hirsch intervened as plaintiffs in the suit, claiming that the prosecution of Harris would inhibit them as members of the Progressive Labor Party from peacefully advocating the program of their party, which was to replace capitalism with socialism and to abolish the profit system of production in this country. Appellee Farrell Broslawsky, an instructor in history at Los Angeles Valley College, also intervened claiming that the prosecution of Harris made him uncertain as to whether he could teach about the doctrines of Karl Marx or read from the Communist Manifesto as part of his classwork. All claimed that unless the United States court restrained the state prosecution of Harris each would suffer immediate and irreparable injury. A three-judge Federal District Court, convened pursuant to 28 U. S. C. § 2284, held that it had jurisdiction and power to restrain the District Attorney from prosecuting, held that the State’s Criminal Syndicalism Act was void for vagueness and overbreadth in violation of the First and Fourteenth Amendments, and accordingly restrained the District Attorney from “further prosecution of the currently pending action against plaintiff Harris for alleged violation of the Act.” 281 F. Supp. 507, 517 (1968).

The case is before us on appeal by the State’s District Attorney Younger, pursuant to 28 U. S. C. § 1253. In his notice of appeal and his jurisdictional statement appellant presented two questions: (1) whether the decision of this Court in Whitney v. California, 274 U. S. 357, holding California’s law constitutional in 1927 was binding on the District Court and (2) whether the State’s law is constitutional on its face. In this Court the brief for the State of California, filed at our request, also argues that only Harris, who was indicted, has standing to challenge the State’s law, and that issuance of the injunction was a violation of a longstanding judicial policy and of 28 U. S. C. § 2283, which provides:

“A court of the United States may 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.”

See, e. g., Atlantic Coast Line R. Co. v. Engineers, 398 U. S. 281, 285-286 (1970). Without regard to the questions raised about Whitney v. California, supra, since overruled by Brandenburg v. Ohio, 395 U. S. 444 (1969), or the constitutionality of the state law, we have concluded that the judgment of the District Court, enjoining appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances. We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun.

I

Appellee Harris has been indicted, and was actually being prosecuted by California for a violation of its Criminal Syndicalism Act at the time this suit was filed. He thus has an acute, live controversy with the State and its prosecutor. But none of the other parties plaintiff in the District Court, Dan, Hirsch, or Broslawsky, has such a controversy. None has been indicted, arrested, or even threatened by the prosecutor. About these three the three-judge court said:

“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 advo-eating 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 Bros-lawsky 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.” 281 F. Supp., at 509.

Whatever right Harris, who is being prosecuted under the state syndicalism law may have, Dan, Hirsch, and Bros-lawsky cannot share it with him. If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true — either on the admission of the State’s district attorney or on any other evidence— then a genuine controversy might be said to exist. But here appellees Dan, Hirsch, and Broslawsky do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. They claim the right to bring this suit solely because, in the language of their complaint, they “feel inhibited.” We do not think this allegation, even if true, is sufficient to bring the equitable jurisdiction of the federal courts into play to enjoin a pending state prosecution. A federal lawsuit to stop a prosecution in a state court is a serious matter. And persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in such cases. See Golden v. Zwickler, 394 U. S. 103 (1969). Since Harris is actually being prosecuted under the challenged laws, however, we proceed with him as a proper party.

II

Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts. In 1793 an Act unconditionally provided: “[N]or shall a writ of injunction be granted to stay proceedings in any court of a state . . . 1 Stat. 335, c. 22, § 5. A comparison of the 1793 Act with 28 U. S. C. § 2283, its present-day successor, graphically illustrates how few and minor have been the exceptions granted from the flat, prohibitory language of the old Act. During all this lapse of years from 1793 to 1970 the statutory exceptions to the 1793 congressional enactment have been only three: (1) “except as expressly authorized by Act of Congress”; (2) “where necessary in aid of its jurisdiction”; and (3) “to protect or effectuate its judgments.” In addition, a judicial exception to the longstanding policy evidenced by the statute has been made where a person about to be prosecuted in a state court can show that he will, if the proceeding in the state court is not enjoined, suffer irreparable damages. See Ex parte Young, 209 U. S. 123 (1908).

The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution, in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by' an even more vital consideration, the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as “Our Federalism,” and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of “Our Federalism.” The concept does not mean blind deference to “States’ Rights” any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, “Our Federalism,” born in the early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its future.

This brief discussion should be enough to suggest some of the reasons why it has been perfectly natural for our cases to repeat time and time again that the normal thing to do when, federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions. In Fenner v. Boykin, 271 U. S. 240 (1926), suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances:

“Ex parte Young, 209 U. S. 123, and following cases have established the doctrine that when absolutely necessary for protection of constitutional rights courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.” Id., at 243-244.

These principles, made clear in the Fenner case, have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions. See, e. g., Spielman Motor Sales Co. v. Dodge, 295 U. S. 89 (1935); Beal v. Missouri Pac. R. Co., 312 U. S. 45 (1941); Watson v. Buck, 313 U. S. 387 (1941); Williams v. Miller, 317 U. S. 599 (1942); Douglas v. City of Jeannette, 319 U. S. 157 (1943).

In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is “both great and immediate.” Fenner, supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e. g., Ex parte Young, supra, at 145-147. Thus, in the Buck case, supra, at 400, we stressed:

“Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. ‘No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.’ Beal v. Missouri Pacific Railroad Corp., 312 U. S. 45, 49.”

And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:

“It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith . . . 319 U. S., at 164.

This is where the law stood when the Court decided Dombrowski v. Pfister, 380 U. S. 479 (1965), and held that an injunction against the enforcement of certain state criminal statutes could properly issue under the circumstances presented in that case. In Dombrowski, unlike many of the earlier cases denying injunctions, the complaint made substantial allegations that:

“the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.” 380 U. S., at 482.

The appellants in Dombrowski had offered to prove that their offices had been raided and all their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for lack of probable cause. They also offered to prove that despite the state court order quashing the warrants and suppressing the evidence seized, the prosecutor was continuing to threaten to initiate new prosecutions of appellants under the same statutes, was holding public hearings at which photostatic copies of the illegally seized documents were being used, and was threatening to use other copies of the illegally seized documents to obtain grand jury indictments against the appellants on charges of violating the same statutes. These circumstances, as viewed by the Court sufficiently establish the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention. See, e. g., Beal, supra, at 50. Indeed, after quoting the Court’s statement in Douglas concerning the very restricted circumstances under which an injunction could be justified, the Court in Dombrowski went on to say:

“But the allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.” 380 U. S., at 485-486.

And the Court made clear that even under these circumstances the District Court issuing the injunction would have continuing power to lift it at any time and remit the plaintiffs tp the state courts if circumstances warranted. 380 U. S., at 491, 492. Similarly, in Cameron v. Johnson, 390 U. S. 611 (1968), a divided Court denied an injunction after finding that the record did not establish the necessary bad faith and harassment; the dissenting Justices themselves stressed the very limited role to be allowed for federal injunctions against state criminal prosecutions and differed with the Court only on the question whether the particular facts of that case were sufficient to show that the prosecution was brought in bad faith.

It is against the background of these principles that we must judge the propriety of an injunction under the circumstances of the present case. Here a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional claims. There is no suggestion that this single prosecution against Harris is brought in bad faith or is only one of a series of repeated prosecutions to which he will be subjected. In other words, the injury that Harris faces is solely “that incidental to every criminal proceeding brought lawfully and in good faith,” Douglas, supra, and therefore under the settled doctrine we have already described he is not entitled to equitable relief “even if such statutes are unconstitutional,” Buck, supra.

The District Court, however, thought that the Dom-browski decision substantially broadened the availability of injunctions against state criminal prosecutions and that under that decision the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a state statute is found “on its face” to be vague or overly broad, in violation of the First Amendment. We recognize that there are some statements in the Dombrowski opinion that would seem to support this argument. But, as we have already seen, such statements were unnecessary to the decision of that case, because the Court found that the plaintiffs had alleged a basis for equitable relief under the long-established standards. In addition, we do not regard the reasons adduced to support this position as sufficient to justify such a substantial departure from the established doctrines regarding the availability of injunctive relief. It is undoubtedly true, as the Court stated in Dombrow-ski, that “[a] criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms.” 380 U. S., at 486. But this sort of “chilling effect,” as the Court called it, should not by itself justify federal intervention. In the first place, the chilling effect cannot be satisfactorily eliminated by federal injunctive relief. In Dombrowski itself the Court stated that the injunction to be issued there could be lifted if the State obtained an “acceptable limiting construction” from the state courts. The Court then made clear that once this was done, prosecutions could then be brought for conduct occurring before the narrowing construction was made, and proper convictions could stand so long as the defendants were not deprived of fair warning. 380 U. S., at 491 n. 7. The kind of relief granted in Dombrowski thus does not effectively eliminate uncertainty as to the coverage of the state statute and leaves most citizens with virtually the same doubts as before regarding the danger that their conduct might eventually be subjected to criminal sanctions. The chilling effect can, of course, be eliminated by an injunction that would prohibit any prosecution whatever for conduct occurring prior to a satisfactory rewriting of the statute. But the States would then be stripped of all power to prosecute even the socially dangerous and constitutionally unprotected conduct that had been covered by the statute, until a new statute could be passed by the state legislature and approved by the federal courts in potentially lengthy trial and appellate proceedings. Thus, in Dombrowski itself the Court carefully reaffirmed the principle that even in the direct prosecution in the State’s own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems.

Moreover, the existence of a “chilling effect,” even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action. Where a statute does not directly abridge free speech, but — while regulating a subject within the State’s power — tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967). Just as the incidental “chilling effect” of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.

Beyond all this is another, more basic consideration. Procedures for testing the constitutionality of a statute “on its face” in the manner apparently contemplated by Dombrowski, and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation it has been clear that, even when suits of this kind involve a “case or controversy” sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, see, e. g., Landry v. Daley, 280 F. Supp. 938 (ND Ill. 1968), rev’d sub nom. Boyle v. Landry, post, p. 77, ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process.

For these reasons, fundamental not only to our federal system but also to the basic functions of the Judicial Branch of the National Government under our Constitution, we hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute “on its face” abridges First Amendment rights. There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the Buck case, supra, we indicated:

“It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” 313 U. S., at 402.

Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be. It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute "on its face” does not in itself justify an injunction against good-faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. Because our holding rests on the absence of the factors necessary under equitable principles to justify federal intervention, we have no occasion to consider whether 28 U. S. C. § 2283, which prohibits an injunction against state court proceedings “except as expressly authorized by Act of Congress” would in and of itself be controlling under the circumstances of this case.

The judgment of the District Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed.

Mr. Justice Stewart,

with whom Mr. Justice Harlan joins, concurring

The questions the Court decides today are important ones. Perhaps as important, however, is a recognition of the areas into which today’s holdings do not necessarily extend. In all of these cases, the Court deals only with the proper policy to be followed by a federal court when asked to intervene by injunction or declaratory judgment in a criminal prosecution which is contemporaneously pending in a state court.

In basing its decisions on policy grounds, the Court does not reach any questions concerning the independent force of the federal anti-injunction statute, 28 U. S. C. § 2283. Thus we do not decide whether the word “injunction” in § 2283 should be interpreted to include a declaratory judgment, or whether an injunction to stay proceedings in a state court is “expressly authorized” by § 1 of the Civil Rights Act of 1871, now 42 U. S. C. § 1983. And since all these cases involve state criminal prosecutions, we do not deal with the considerations that should govern a federal court when it is asked to intervene in state civil proceedings, where, for various reasons, the balance might be struck differently. Finally, the Court today does not resolve the problems involved when a federal court is asked to give injunctive or declaratory relief from future state criminal prosecutions.

The Court confines itself to deciding the policy considerations that in our federal system must prevail when federal courts are asked to interfere with pending state prosecutions. Within this area, we hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. Such circumstances exist only when there is a threat of irreparable injury “both great and immediate.” A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face, ante, at 53-54; cf. Evers v. Dwyer, 358 U. S. 202, or if there has been bad faith and harassment — official lawlessness — in a statute’s enforcement, ante, at 47-49. In such circumstances the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights. Cf. Georgia v. Rachel, 384 U. S. 780.

Mr. Justice Brennan,

with whom Mr. Justice White and Mr. Justice Marshall join, concurring in the result.

I agree that the judgment of the District Court should be reversed. Appellee Harris had been indicted for violations of the California Criminal Syndicalism Act before he sued in federal court. He has not alleged that the prosecution was brought in bad faith to harass him. His constitutional contentions may be adequately adjudicated in the state criminal proceeding, and federal intervention at his instance was therefore improper.

Appellees Hirseh and Dan have alleged that they “feel inhibited” by the statute and the prosecution of Harris from advocating the program of the Progressive Labor Party. Appellee Broslawsky has alleged that he “is uncertain” whether as an instructor in college history he can under the statute give instruction relating to the Communist Manifesto and similar revolutionary works. None of these appellees has stated any ground for a reasonable expectation that he will actually be prosecuted under the statute for taking the actions contemplated. The court below expressly declined to rely on any finding “that . . . Dan, Hirseh or Broslawsky stand [s] in any danger of prosecution by the [State], because of the activities that they ascribed to themselves in the complaint . . . 281 F. Supp. 507, 516. It is true, as the court below pointed out, that “[w]ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law,” Baggett v. Bullitt, 377 U. S. 360, 373 (1964), but still there must be a live controversy under Art. III. No threats of prosecution of these appellees are alleged. Although Dan and Hirsch have alleged that they desire to advocate doctrines of the Progressive Labor Party, they have not asserted that their advocacy will be of the same genre as that which brought on the prosecution of Harris. In short, there is no reason to think that California has any ripe controversy with them. See Golden v. Zwickler, 394 U. S. 103 (1969); Perez v. Ledesma, post, p. 93 (Brennan, J., concurring and dissenting).

Mr. Justice Douglas,

dissenting.

The fact that we are in a period of history when enormous extrajudicial sanctions are imposed on those who assert their First Amendment rights in unpopular causes emphasizes the wisdom of Dombrowski v. Pfister, 380 U. S. 479. There we recognized that in times of repression, when interests with powerful spokesmen generate symbolic pogroms against nonconformists, the federal judiciary, charged by Congress with special vigilance for protection of civil rights, has special responsibilities to prevent an erosion of the individual’s constitutional rights.

Dombrowski represents an exception to the general rule that federal courts should not interfere with state criminal prosecutions. The exception does not arise merely because prosecutions are threatened to which the First Amendment will be the proffered defense. Dom-browski governs statutes which are a blunderbuss by themselves or when used en masse — those that have an “overbroad” sweep. “If the rule were otherwise, the contours of regulation would have to be hammered out case by case — and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.” Id., at 487. It was in the context of overbroad state statutes that we spoke of the “chilling effect upon the exercise of First Amendment rights” caused by state prosecutions. Ibid.

As respects overbroad statutes we said at least as early as 1940 that when dealing with First Amendment rights we would insist on statutes “narrowly drawn to prevent the supposed evil.” Cantwell v. Connecticut, 310 U. S. 296, 307.

The special circumstances when federal intervention in a state criminal proceeding is permissible are not restricted to bad faith on the part of state officials or the threat of multiple prosecutions. They also exist where for any reason the state statute being enforced is unconstitutional on its face. As Mr. Justice Butler, writing for the Court, said in Terrace v. Thompson, 263 U. S. 197, 214:

“Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contravenes the Federal Constitution wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irremediable; and in such a case a person, who as an officer of the State is clothed with the duty of enforcing its laws and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected, may be enjoined from such action by a federal court of equity.”

Our Dombrowski decision was only another facet of the same problem.

In Younger, “criminal syndicalism” is defined so broadly as to jeopardize “teaching” that socialism is preferable to free enterprise.

Harris’ “crime” was distributing leaflets advocating change in industrial ownership through political action. The statute under which he was indicted was the one involved in Whitney v. California, 274 U. S. 357, a decision we overruled in Brandenburg v. Ohio, 395 U. S. 444, 449.

If the “advocacy” which Harris used was an attempt at persuasion through the use of bullets, bombs, and arson, we would have a different case. But Harris is charged only with distributing leaflets advocating political action toward his objective. He tried unsuccessfully to have the state court dismiss the indictment on constitutional grounds. He resorted to the state appellate court for writs of prohibition to prevent the trial, but to no avail. He went to the federal court as a matter of last resort in an effort to keep this unconstitutional trial from being saddled on him.

The “anti-injunction” statute, 28 U. S. C. § 2283, is not a bar to a federal injunction under these circumstances. That statute was adopted in 1793, § 5, 1 Stat. 335, and reflected the early view of the proper role of the federal courts within American federalism.

Whatever the balance of the pressures of localism and nationalism prior to the Civil War, they were fundamentally altered by the war. The Civil War Amendments made civil rights a national concern. Those Amendments, especially § 5 of the Fourteenth Amendment, cemented the change in American federalism brought on by the war. Congress immediately commenced to use its new powers to pass legislation. Just as the first Judiciary Act, 1 Stat. 73, and the “anti-injunction” statute represented the early views of American federalism, the Reconstruction statutes, including the enlargement of federal jurisdiction, represent a later view of American federalism.

One of the jurisdiction-enlarging statutes passed during Reconstruction was the Act of April 20, 1871. 17 Stat. 13. Beyond its jurisdictional provision that statute, now codified as 42 U. S. C. § 1983, provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.)

A state law enforcement officer is someone acting under “color of law” even though he may be misusing his authority. Monroe v. Pape, 365 U. S. 167. And prosecution under a patently unconstitutional statute is a “deprivation of . . . rights, privileges, or immunities secured by the Constitution.” “Suit[s] in equity” obviously includes injunctions.

I hold to the view that § 1983 is included in the “expressly authorized” exception to § 2283, a point not raised or considered in the much-discussed Douglas v. City of Jeannette, 319 U. S. 157. There is no more good reason for allowing a general statute dealing with federalism passed at the end of the 18th century to control another statute also dealing with federalism, passed almost 80 years later, than to conclude that the early concepts of federalism were not changed by the Civil War.

That was the view of Judge Will in the Boyle case, Landry v. Daley, 288 F. Supp. 200, 223. In speaking of the Civil War Amendments as “a constitutional revolution in the nature of American federalism” he said:

“This revolution, in turn, represents a historical judgment. It emphasizes the overwhelming concern of the Reconstruction Congresses for the protection of the newly won rights of freedmen. By interposing the federal government between the states and their inhabitants, these Congresses sought to avoid the risk of nullification of these rights by the states. With the subsequent passage of the Act of 1871, Congress sought to implement this plan by expanding the federal judicial power. Section 1983 is, therefore, not only an expression of the importance of protecting federal rights from infringement by the states but also, where necessary, the desire to place the national government between the state and its citizens.” Ibid.

In Boyle the statute makes “intimidation” to “commit any criminal offense” an offense. The three-judge court said:

“It . . . makes criminal threats such as the following: (1) threats by dissentient groups to engage in disorderly conduct, threats by residents of a high-crime neighborhood to carry concealed weapons for their own protection, and threats by mothers to block a dangerous state highway to demonstrate the need for increased safety measures. Indeed, the phrase ‘commit any criminal offense’ is so broad as to include threats to commit misdemeanors punishable by fine only. These evils are not so substantial that the state’s interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion a wide berth.” Landry v. Daley, 280 F. Supp. 938, 964.

Landry and others brought a class action challenging the constitutional validity of five sections of the Illinois statutes. They alleged arrests under all but two of the challenged sections. Just before trial they abandoned their challenge of two of the five sections. The District Court held one of the remaining sections constitutional and the “mob action” and “intimidation” sections unconstitutional. Appellants have not appealed the determination that the “mob action” section of the Illinois statutes is unconstitutional.

The Court dismisses this case because there is no showing of irreparable injury on what it describes as “flimsy allegations.” Post, at 81. The Court states: “There is nothing contained in the allegations of the complaint from which one could infer that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner.” Ibid. Landry and his associates, however, allege that appellants are using the intimidation section along with several other sections to harass them, not to prosecute them in the normal manner. They allege that appellants are arresting them without warrants or probable cause, and detaining them on excessive bail. They allege that the arrests are made during peaceful demonstrations and without any expectation of securing valid convictions. In sum, Landry and his group allege that the “intimidation” section is one of several statutes which appellants are using en masse as part of a plan to harass them and discourage their exercise of their First Amendment rights. There is thus a lively and existing case or controversy concerning First Amendment rights. And I believe that the federal court acted in our finest tradition when it issued the stay.

As the standards of certainty in statutes containing criminal sanctions are higher than those in statutes containing civil sanctions, so are the standards of certainty touching on freedom of expression higher than those in other areas. Winters v. New York, 333 U. S. 507, 515-516. “There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act ... or in regard to the applicable tests to ascertain guilt.”

Where freedom of expression is at stake these requirements must be more sedulously enforced.

In Younger there is a prosecution under an unconstitutional statute and relief is denied. In Boyle there is harassment but as yet no prosecution. Allegations of a prosecution or harassment under facially unconstitutional statutes should be sufficient for the exercise of federal equity powers.

Dombrowski and 42 U. S. C. § 1983 indicate why in Boyle federal intervention against enforcement of the state laws is appropriate. The case of Younger is even stronger. There the state statute challenged is the prototype of the one we held unconstitutional in Brandenburg v. Ohio, supra.

The eternal temptation, of course, has been to arrest the speaker rather than to correct the conditions about which he complains. I see no reason why these ap-pellees should be made to walk the treacherous ground of these statutes. They, like other citizens, need the umbrella of the First Amendment as they study, analyze, discuss, and debate the troubles of these days. When criminal prosecutions can be leveled against them because they express unpopular views, the society of the dialogue is in danger.

       “§ 11400. Definition

        “ ‘Criminal syndicalism’ as used in this article means any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.”
      “§ 11401. Offense; punishment

      “Any person who:
      “1. By spoken or written words or personal conduct advocates, teaches or aids and abets criminal syndicalism or the duty, necessity or propriety of committing crime, sabotage, violence or any unlawful method of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change; or
      “2. Wilfully and deliberately by spoken or written words justifies or attempts to justify criminal syndicalism or the commission or attempt to commit crime, sabotage, violence or unlawful methods of terrorism with intent to approve, advocate or further the doctrine of criminal syndicalism; or
      “3. Prints, publishes, edits, issues or circulates or publicly displays any book, paper, pamphlet, document, poster or written or printed matter in any other form, containing or carrying written or printed advocacy, teaching, or aid and abetment of,, or advising, criminal syndicalism; or
      “4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism; or
      “5. Wilfully by personal act or conduct, practices or commits any act advised, advocated, taught or aided and abetted by the doctrine or precept of criminal syndicalism, with intent to accomplish a change in industrial ownership or control, or effecting any political change;
      “Is guilty of a felony and punishable by imprisonment in the state prison not less than one nor more than 14 years.”

       Appellees did not explicitly ask for a declaratory judgment in their complaint. They did, however, ask the District Court to grant “such other and further relief as to the Court may seem just and proper,” and the District Court in fact granted a declaratory judgment. For the reasons stated in our opinion today in Samuels v. Mackell, post, p. 66, we hold that declaratory relief is also improper when a prosecution involving the challenged statute is pending in state court at the time the federal suit is initiated.

       For an interesting discussion of the history of this congressional policy up to 1941, see Toucey v. New York Life Ins. Co., 314 U. S. 118 (1941).

       Neither the cases dealing with standing to raise claims of vagueness or overbreadth, e. g., Thornhill v. Alabama, 310 U. S. 88 (1940), nor the loyalty oath cases, e. g., Baggett v. Bullitt, 377 U. S. 360 (1964), changed the basic principles governing the propriety of injunctions against state criminal prosecutions. In the standing cases we allowed attacks on overly broad or vague statutes in the absence of any showing that the defendant’s conduct could not be regulated by some properly drawn statute. But in each of these cases the statute was not merely vague or overly broad “on its face”; the statute was held to be vague or overly broad as construed and applied to a particular defendant in a particular case. If the statute had been too vague as written but sufficiently narrow as applied, prosecutions and convictions under it would ordinarily have been permissible. See Dombrowski, supra, at 491 n. 7.
      In Baggett and similar cases we enjoined state officials from discharging employees who failed to take certain loyalty oaths. We held that the States were without power to exact the promises involved, with their vague and uncertain content concerning advocacy and political association, as a condition of employment. Apart from the fact that any plaintiff discharged for exercising his constitutional right to refuse to take the oath would have had no adequate remedy at law, the relief sought was of course the kind that raises no special problem — an injunction against allegedly unconstitutional state action (discharging the employees) that is not part of a criminal prosecution.

       See 1 The Records of the Federal Convention of 1787, p. 21 (Far-rand ed. 1911).

      [This opinion applies also to No. 7, Samuels et al. v. Mackell et al., and No. 9, Fernandez v. Mackell et al., post, p. 66; No. 41, Dyson et al. v. Stein, post, p. 200; and No. 83, Byrne et al. v. Karalexis et al., post, p. 216.]

       See also Cameron v. Johnson, 390 U. S. 611, 613-614, n. 3; Dombrowski v. Pfister, 380 U. S. 479, 484 n. 2.

       Courts of equity have traditionally shown greater reluctance to intervene in criminal prosecutions than in civil cases. See ante, at 43-44; Douglas v. City of Jeannette, 319 U. S. 157, 163-164. The offense to state interests is likely to be less in a civil proceeding. A State’s decision to classify conduct as criminal provides some indica-cation of the importance it has ascribed to prompt and unencumbered enforcement of its law. By contrast, the State might not even be a party in a proceeding under a civil statute.
      Cf. Law Students Civil Rights Research Council v. Wadmond, post, p. 154; Wisconsin v. Constantineau, 400 U. S. 433; Rosado v. Wyman, 397 U. S. 397.
      These considerations would not, to be sure, support any distinction between civil and criminal proceedings should the ban of 28 U. S. C. § 2283, which makes no such distinction, be held unaffected by 42 U. S. C. § 1983.

       The negative pregnant in this sentence — that a federal court may, as a matter of policy, intervene when such “exceptional and extremely limited circumstances” are found — is subject to any further limitations that may be placed on such intervention by 28 U. S. C. § 2283.

      The District Court erroneously interpreted Zwickler v. Koota, 389 U. S. 241 (1967), as.authorizing federal court consideration of a constitutional claim at issue in a pending state proceeding, whether or not the federal court plaintiff had presented his claim to the state court. It suffices here to note that in Zwickler no state proceeding was pending at the time jurisdiction attached in the federal court. The court below also thought it significant that appellee Harris had raised his constitutional claim in the state courts in a motion to dismiss the indictment and in petitions in the state appellate courts for a writ of prohibition. It was questioned at oral argument whether constitutional issues could properly be raised by the procedures invoked by Harris, and it was suggested that the denial of Harris’ motions did not necessarily involve rejection of his constitutional claims. However, even if the California courts had at that interlocutory stage rejected Harris’ constitutional arguments, that rejection would not have provided a justification for intervening by the District Court. Harris could have sought direct review of that rejection of his constitutional claims or he could have renewed the claims in requests for instructions, and on direct review of any conviction in the state courts and in this Court. These were the proper modes for presentation and these the proper forums for consideration of the constitutional issues.

      [This opinion also applies to No. 4, Boyle, Judge, et al. v. Landry et al., post, p. 77.]

       See Linde, “Clear and Present Danger” Reexamined: Dissonance in the Brandenburg Concerto, 22 Stan. L. Rev. 1163 (1970).

       “A court of the United States may 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.” (Emphasis added.)

       In its initial form the “anti-injunction” Act provided: “ [N] or shall a writ of injunction be granted [by any court of the United States] to stay proceedings in any court of a state.” There were no exceptions. In 1874 it was subsequently modified by an insertion of the Revisers to read: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Rev. Stat. § 720.
      In Toucey v. New York Life Ins. Co., 314 U. S. 118, 133-134, in discussing the statutory exceptions to the “anti-injunction” Act we noted that, while only bankruptcy was the explicit exception, there were others. (1) The “Removal Acts qualify pro tanto the Act of 1793.” (2) The Act of 1851 limiting shipowners’ liability “[b]eing a ‘subsequent statute’ to the Act of 1793 . . . operates as an implied legislative amendment to it.” We also added (3) the In-terpleader Act of 1926 and (4) the Frazier-Lemke Act, 47 Stat. 1473. Toucey limited a line of cases dealing with nonstatutory exceptions to the “anti-injunction” Act. Shortly thereafter the current language of § 2283 was written into the Judicial Code. The Reviser’s Note states: “[T]he revised section restores the basic law as generally understood and interpreted prior to the Toucey decision.” Both pr e-Toucey and post -Toucey decisions recognize implied legislative exceptions to the “anti-injunction” Act. See Porter v. Dicken, 328 U. S. 252; Leiter Minerals v. United States, 352 U. S. 220.

       What is now 28 U. S. C. § 1343 (3) was added in 1871, 17 Stat. 13, and the federal-question jurisdiction of 28 U. S. C. § 1331 was added in 1875. 18 Stat. 470.

       We have already held that § 1983 requires no exhaustion of state remedies. McNeese v. Board of Education, 373 U. S. 668.

       In accord with the view are Honey v. Goodman, 432 F. 2d 333 (CA6), and Cooper v. Hutchinson, 184 F. 2d 119 (CA3). Opposed are Goss v. Illinois, 312 F. 2d 257 (CA7), and Baines v. City of Danville, 337 F. 2d 579 (CA4).
      And see Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Tex. L. Rev. 535, 591 et seq. (1970).


source: Caselaw Access Project

author: Mr. Justice Black Mr. Justice Douglas, Mr. Justice Brennan,

license: Public Domain

text:
    SAMUELS et al. v. MACKELL, DISTRICT ATTORNEY OF QUEENS COUNTY, et al.
    No. 7.
    Argued April 1, 1969 Reargued April 29 and November 16, 1970
    Decided February 23, 1971

    Black, J., delivered the opinion of the Court, in which Burger, C. J., and HarlaN, Stewart, and BlackmuN, JJ., joined. Douglas, J., filed a concurring opinion, post, p. 74. Stewart, J., filed a concurring opinion, in which HarlaN, J., joined, ante, p. 54. BreNnan, J., filed an opinion concurring in the result, in which White and Marshall, JJ., joined, post, p. 75.

      Victor Rabinowitz argued the cause for appellants in No. 7 on the original argument and on the rearguments. With him on the briefs were Leonard B. Boudin, Michael Standard, and Dorian Bowman. Eleanor Jackson Piel
      argued the cause and filed briefs for appellant in No. 9 on the original argument and on the rearguments.

      Frederick J. Ludwig argued the cause for appellee Mackell in both cases on the original argument and on the rearguments. With him on the briefs was Thomas J. Mackell, pro se. Maria L. Marcus, Assistant Attorney General, argued the cause for appellee Attorney General of New York in both cases on the original argument and on the rearguments. With her on the briefs were Louis J. Lejkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Hillel Hoffman, Assistant Attorney General.

      Together with No. 9, Fernandez v. Mackell, District Attorney of Queens County, et al., also on appeal from the same court.

   Mr. Justice Black

delivered the opinion of the Court.

The appellants in these two cases were all indicted in a New York state court on charges of criminal anarchy, in violation of §§ 160, 161, 163, and 580 (1) of the New York Penal Law. They later filed these actions in federal district court, alleging (1) that the anarchy statute was void for vagueness in violation of due process, and an abridgment of free speech, press, and assembly, in violation of the First and Fourteenth Amendments; (2) that the anarchy statute had been pre-empted by federal law; and (3) that the New York laws under which the grand jury had been drawn violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment because they disqualified from jury service any member of the community who did not own real or personal property of the value of at least $250, and because the laws furnished no definite standards for determining how jurors were to be selected. Appellants charged that trial of these indictments in state courts would harass them, and cause them to suffer irreparable damages, and they therefore prayed that the state courts should be enjoined from further proceedings. In the alternative, appellants asked the District Court to enter a declaratory judgment to the effect that the challenged state laws were unconstitutional and void on the same grounds. The three-judge court, convened pursuant to 28 U. S. C. § 2284, held that the New York criminal anarchy law was constitutional as it had been construed by the New York courts and held that the complaints should therefore be dismissed. 288 F. Supp. 348 (SDNY 1968).

In No. 2, Younger v. Harris, ante, p. 37, we today decided on facts very similar to the facts in these cases that a United States District Court could not issue an injunction to stay proceedings pending in a state criminal court at the time the federal suit was begun. This was because it did not appear from the record that the plaintiffs would suffer immediate irreparable injury in accord with the rule set out in Douglas v. City of Jeannette, 319 U. S. 157 (1943), and many other cases. Since in the present case there is likewise no sufficient showing in the record that the plaintiffs have suffered or would suffer irreparable injury, our decision in the Younger case is dispositive of the prayers for injunctions here. The plaintiffs in the present cases also included in their complaints an alternative prayer for a declaratory judgment, but for the reasons indicated below, we hold that this alternative prayer does not require a different result, and that under the circumstances of these cases, the plaintiffs were not entitled to federal relief, declaratory or injunctive. Accordingly we affirm the judgment of the District Court, although not for the reasons given in that court’s opinion.

In our opinion in the Younger case, we set out in detail the historical and practical basis for the settled doctrine of equity that a federal court should not enjoin a state criminal prosecution begun prior to the institution of the federal suit except in very unusual situations, where necessary to prevent immediate irreparable injury. The question presented here is whether under ordinary circumstances the same considerations that require the withholding of injunctive relief will make declaratory relief equally inappropriate. The question is not, however, a novel one. It was presented and fully considered by this Court in Great Lakes Co. v. Huffman, 319 U. S. 293 (1943). We find the reasoning of this Court in the Great Lakes case fully persuasive and think that its holding is controlling here.

In the Great Lakes case several employers had brought suit against a Louisiana state official, seeking a declaratory judgment that the State’s unemployment compensation law, which required the employers to make contributions to a state compensation fund, was unconstitutional. The lower courts had dismissed the complaint on the ground that the challenged law was constitutional. This Court affirmed the dismissal, “but solely on the ground that, in the appropriate exercise of the court’s discretion, relief by way of a declaratory judgment should have been denied without consideration of the merits.” Id., at 301-302. The Court, in a unanimous opinion written by Mr. Chief Justice Stone, noted first that under long-settled principles of equity, the federal courts could not have enjoined the Louisiana official from collecting the state tax at issue there unless, as was not true in that case, there was no adequate remedy available in the courts of the State. This judicial doctrine had been approved by Congress in the then-recent Tax Injunction Act of 1937, 50 Stat. 738, now 28 U. S. C. § 1341. Although the declaratory judgment sought by the plaintiffs was a statutory remedy rather than a traditional form of equitable relief, the Court made clear that a suit for declaratory judgment was nevertheless “essentially an equitable cause of action,” and was “analogous to the equity jurisdiction in suits quia timet or for a decree quieting title.” 319 U. S., at 300. In addition, the legislative history of the Federal Declaratory Judgment Act of 1934, 48 Stat. 955, as amended, 28 U. S. C. § 2201, showed that Congress had explicitly contemplated that the courts would decide to grant or withhold declaratory relief on the basis of traditional equitable principles. Accordingly, the Court held that in an action for a declaratory judgment, “the district court was as free as in any other suit in equity to grant or withhold the relief prayed, upon equitable grounds.” 319 U. S., at 300. The Court’s application of these principles to the specific problem of declaratory judgments relating to the collection of state taxes is worth quoting in full, because it bears so directly on the problem before us in the present case:

“The earlier refusal of federal courts of equity to interfere with the collection of state taxes unless the threatened injury to the taxpayer is one for which the state courts afford no adequate remedy, and the confirmation of that practice by Congress, have an important bearing upon the appropriate use of the declaratory judgment procedure by the federal courts as a means of adjudicating the validity of state taxes.
“It is true that the Act of Congress speaks only of suits 'to enjoin, suspend, or restrain the assessment, levy, or collection of any tax’ imposed by state law, and that the declaratory judgment procedure may be, and in this case was, used only to procure a determination of the rights of the parties, without an injunction or other coercive relief. It is also true that that procedure may in every practical sense operate to suspend collection of the state taxes until the litigation is ended. But we find it unnecessary to inquire whether the words of the statute may be so construed as to prohibit a declaration by federal courts concerning the invalidity of a state tax. For we are of the opinion that those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure.” 319 U. S., at 299.

The continuing validity of the Court’s holding in the Great Lakes case has been repeatedly recognized and reaffirmed by this Court. See, e. g., Macauley v. Waterman S. S. Corp., 327 U. S. 540, 545 n. 4 (1946); Ott v. Mississippi Barge Line, 336 U. S. 169, 175 (1949); Public Serv. Comm’n v. Wycoff Co., 344 U. S. 237, 253 (1952) (Douglas, J., dissenting); Allegheny County v. Mashuda Co., 360 U. S. 185, 189 (1959); Enochs v. Williams Packing Co., 370 U. S. 1, 8 (1962). Although we have found no case in this Court dealing with the application of this doctrine to cases in which the relief sought affects state criminal prosecutions rather than state tax collections, we can perceive no relevant difference between the two situations with respect to the limited question whether, in cases where the criminal proceeding was begun prior to the federal civil suit, the propriety of declaratory and injunctive relief should be judged by essentially the same standards. In both situations deeply rooted and long-settled principles of equity have narrowly restricted the scope for federal intervention, and ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid. This is true for at least two reasons. In the first place, the Declaratory Judgment Act provides that after a declaratory judgment is issued the district court may enforce it by granting “[fjurther necessary or proper relief,” 28 U. S. C. § 2202, and therefore a declaratory judgment issued while state proceedings are pending might serve as the basis for a subsequent injunction against those proceedings to “protect or effectuate” the declaratory judgment, 28 U. S. C. § 2283, and thus result in a clearly improper interference with the state proceedings. Secondly, even if the declaratory judgment is not used as a basis for actually issuing an injunction, the declaratory relief alone has virtually the same practical impact as a formal injunction would. As we said in the Wycoff case, 344 U. S., at 247:

“Is the declaration contemplated here to be res judicata, so that the [state court] cannot hear evidence and decide any matter for itself? If so, the federal court has virtually lifted the case out of the State [court] before it could be heard. If not, the federal judgment serves no useful purpose as a final determination of rights.”

See also H. J. Heinsz Co. v. Owens, 189 F. 2d 505, 508-509 (CA9 1951). We therefore hold that, in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.

We do not mean to suggest that a declaratory judgment should never be issued in cases of this type if it has been concluded that injunctive relief would be improper. There may be unusual circumstances in which an injunction might be withheld because, despite a plaintiff’s strong claim for relief under the established standards, the injunctive remedy seemed particularly intrusive or offensive; in such a situation, a declaratory judgment might be appropriate and might not be contrary to the basic equitable doctrines governing the availability of relief. Ordinarily, however, the practical effect of the two forms of relief will be virtually identical, and the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction.

For the reasons we have stated, we hold that the court below erred in proceeding to a consideration of the merits of the New York criminal anarchy law. Here, as in the Great Lakes case, the judgment dismissing the complaint was based on an adjudication that the statutes challenged here are constitutional and is thus in effect a declaratory judgment. We affirm the judgment dismissing the complaint, but solely on the ground that, in the appropriate exercise of the court’s discretion, relief by way of declaratory judgment should have been denied without consideration of the merits. We, of course, express no views on the propriety of declaratory relief when no state proceeding is pending at the time the federal suit is begun.

Affirmed.

[For concurring opinion of Mr. Justice Stewart, see ante, p. 54.]

Mr. Justice Douglas,

concurring.

The same New York statutes on anarchy that were sustained in Gitlow v. New York, 268 U. S. 652, are involved in these cases. It was in that case that Mr. Justice Holmes, with whom Mr. Justice Brandéis concurred, said in dissent:

“It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

In Gitlow the only overt acts were advocacy of overthrow and publication of the writings that contained the advocacy. Id., at 655. Gitlow and its progeny, including Whitney v. California, 274 U. S. 357, went into the discard with our decision in Brandenburg v. Ohio, 395 U. S. 444. In that case the indictment charged advocating terrorism “by word of mouth” as a method of political reform and assembly for the purpose of such advocacy. We held that neither advocacy nor assembly in order to advocate political action may be made punishable.

Brandenburg, however, is of no help to these appellants. For while some of the counts embrace only advocacy or acts which fall within its penumbra, still others are in the field of activities far removed from the protection of the First Amendment. There is a question concerning some of the overt acts — whether, as I asked in my dissent in Epton v. New York, 390 U. S. 29, 30, a constitutionally protected right such as speech or assembly may be used as an overt act in furtherance of a conspiracy. But other overt acts relate to the acquisition of weapons, gunpowder, and the like, and the storing of gasoline to start fires. Persuasion by such means plainly has no First Amendment protection.

It therefore cannot be said that the cases against Samuels and Fernandez are palpably unconstitutional. It is for the state courts by sifting out the chaff from the charges through motions to strike, instructions to the jury, and other procedural devices to preserve such First Amendment rights as may be involved here. Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of “advocacy.”

Mr. Justice Brennan,

with whom Mr. Justice White and Mr. Justice Marshall join, concurring in the result.

I agree that the judgment of the District Court should be affirmed. All the appellants had been indicted for violation of the New York Criminal Anarchy Law before their suit in federal court was filed. They have not alleged facts amounting to bad-faith harassment. Therefore, neither a declaratory judgment nor an injunction would be proper. Perez v. Ledesma, post, p. 93 (separate opinion of Brennan, J.).

       These provisions were repealed effective September 1, 1967, and a new criminal anarchy statute, in somewhat different form, took effect on the same date.

       The complaint in No. 7 was filed in the Southern District of New York. The complaint in No. 9 was originally filed in the Eastern District, but was later transferred to the Southern District by consent.

       The court also said that even if its view on the merits was wrong, relief should be withheld because the statutes being challenged were no longer in effect. With respect to the plaintiffs’ challenge to the selection of the grand jury, the District Court held, in reliance on Douglas v. City of Jeannette, 319 U. S. 157 (1943), that this claim could be effectively presented to the New York courts and therefore did not call for federal intervention at this stage.


author: Mr. Justice Black

text:
    BOYLE, JUDGE, et al. v. LANDRY et al.
    No. 4.
    Argued March 24, 1969 Reargued April 29 and November 16, 1970
    Decided February 23, 1971
    Blace, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Brennan, White, and Marshall, JJ., concurred in the result. Douglas, J., filed a dissenting opinion, ante, p. 58.

      Thomas E. Brannigan argued the cause for appellants on the second reargument. . Dean H. Bilton argued the cause for appellants on the first reargument. Ronald Butler argued the cause for appellants on the original argument. With Messrs. Butler and Bilton on the brief were Daniel P. Coman and Daniel W. Weil.

      Ellis E. Reid argued the cause for appellees on the original argument and on the rearguments. With him on the brief were Robert L. Tucker and Stanley A. Bass.

   Mr. Justice Black

delivered the opinion of the Court.

This action was brought in federal court by seven groups of Negro residents of Chicago, Illinois, seeking a declaratory judgment and an injunction against the enforcement of a number of Illinois statutes and Chicago ordinances on the grounds that they violated various provisions of the Federal Constitution. The complaint named as defendants and sought relief against a number of officials of Cook County and the City of Chicago: the Mayor, the Chief Judge, and two Magistrates of the Circuit Court, the State’s Attorney for the county, the Sheriff, the Superintendent of Police, the city’s Corporation Counsel and his assistant, and three city police officers. Their complaint challenged as invalid the Illinois statutes prohibiting mob action, resisting arrest, aggravated assault, aggravated battery, and intimidation. They alleged that some of the plaintiffs had been arrested under some of these statutes and that those prosecutions were currently pending in Illinois state courts, and that Negroes were being intimidated in the exercise of their First Amendment rights (1) through the wholesale use of all the statutes alleged to be unconstitutional to prosecute members of the Negro community and (2) through the use of arrests without probable cause, coupled with the setting of exorbitant bail. The complaint contended that the defendants had threatened to enforce all of the named statutes for the sole purpose of harassing and intimidating the plaintiffs. They requested the convening of a three-judge federal court under 28 U. S. C. §§ 2281 and 2284, a declaration that the challenged statutes were unconstitutional, and temporary and permanent injunctions prohibiting the pending and any possible future prosecutions under the statutes in question.

The defendants answered by opposing the convening of a three-judge court and the issuance of a temporary injunction, and moved to dismiss the complaint on the grounds, among others, that (1) as to those plaintiffs against whom prosecutions were then pending, there was an adequate remedy at law in that they would be able to present their constitutional challenges to the statutes involved in the pending criminal proceedings, and that as to such plaintiffs the court was barred by 28 U. S. C. § 2283 from issuing an injunction against state court proceedings, and that (2) as to those plaintiffs without matters pending in the state courts, there were no facts alleged in the complaint showing that any of those plaintiffs were threatened with prosecution under any of the challenged statutes, or that they would suffer any irreparable injury if they were required to defend any prosecution that might be brought against them in state court.

The single Federal District Judge denied the defendants’ motion to' dismiss and convened the three-judge court. The three-judge court upheld all of the challenged statutes except for one subsection of the mob-action statute which prohibited “[t]he assembly of 2 or more persons to do an unlawful act . . . ,” and one subsection of the intimidation statute which prohibited intimidating a person by threats to “[cjommit any criminal offense. ...” These last two subsections were declared invalid on the grounds that they were overly broad and might sweep within their scope conduct that could not constitutionally be made criminal. The court decreed that the defendants — city and county officials — • “be and they are hereby perpetually enjoined and restrained from the enforcement of or the prosecution under” the two statutory subsections it declared unconstitutional. The defendant officials did not appeal the three-judge court’s declaration and injunction invalidating the challenged subsection of the mob-action statute and that holding is therefore not before us. We have before us only the court’s declaration of the unconstitutionality and injunction against the enforcement of one subsection of the intimidation statute.

It is obvious that the allegations of the complaint in this case fall far short of showing any irreparable injury from threats or actual prosecutions under the intimidation statute or from any other conduct by state or city officials. Not a single one of the citizens who brought this action had ever been prosecuted, charged, or even arrested under the particular intimidation statute which the court below held unconstitutional. All the charges of the complaint deal broadly and generally with all the state statutes and city ordinances that the appellees originally challenged. In fact, the complaint contains no mention of any specific threat by any officer or official of Chicago, Cook County, or the State of Illinois to arrest or prosecute any one or more of the plaintiffs under that statute either one time or many times. Rather, it appears from the allegations that those who originally brought this suit made a search of state statutes and city ordinances with a view to picking out certain ones that they thought might possibly be used by the authorities as devices for bad-faith prosecutions against them. There is nothing contained in the allegations of the complaint from which one could infer that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner. As our holdings today in Younger v. Harris, ante, p. 37, and Samuels v. Mackell, ante, p. 66, show, the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future. The policy of a century and a half against interference by the federal courts with state law enforcement is not to be set aside on such flimsy allegations as those relied upon here.

For the reasons set out above and for those set out at greater length today in Younger and Samuels, we reverse.

Reversed and remanded.

Me. Justice Beennan, Me. Justice White, and Me. Justice Maeshall concur in the result.

[For dissenting opinion of Me. Justice Douglas, see ante, p. 68.]

       Ill. Rev. Stat., c. 38, § 25-1 (1967).

       Ill. Rev. Stat., c. 38, § 31-1.

       Ill. Rev. Stat., c. 38, § 12-2.

       Ill. Rev. Stat., c. 38, § 12-4.

       Ill. Rev. Stat., c. 38, § 12-6.

       28 U. S. C. §2283 provides that:
      “A court of the United States may 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 District Judge found that the challenges to various city ordinances were not appropriate for determination by a three-judge court and these claims were not certified to the three-judge court. In addition, the plaintiffs abandoned their challenge to the constitutionality of the Illinois aggravated assault and aggravated battery statutes.

       Ill. Rev. Stat., c. 38, § 25-1, provides that:
      “(a) Mob action consists of any of the following:
      “(2) The assembly of 2 or more persons to do an unlawful act . . .

       Ill. Rev. Stat., c. 38, § 12-6, provides that:
      “(a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:
      “(3) Commit any criminal offense . . . .”