source: Caselaw Access Project

author:
      Per Curiam.
      Mr. Justice Brennan, Mr. Justice Douglas,

license: Public Domain

text:
    DYSON, CHIEF OF POLICE OF DALLAS, et al. v. STEIN
    No. 41.
    Argued April 30, 1970 Reargued November 16, 1970
    Decided February 23, 1971

      Lonny F. Zwiener, Assistant Attorney General of Texas, reargued the cause for appellants. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Pat Bailey, Executive Assistant Attorney General, Robert C. Flowers, Assistant Attorney General, Henry Wade, pro se, Wilson Johnston, N. Alex Bickley, Thomas B. Thorpe, and Preston Dial.

      David R. Richards reargued the cause for appellee. With him on the briefs was Melvin L. Wulf.

      Stanley Fleishman filed a brief pro se et al. as amici curiae urging affirmance.
   Per Curiam.

The appellee, Stein, published a bi-weekly newspaper, the Dallas Notes. Stein was charged with two violations of Art. 527, § 1, of the Texas Penal Code, which then prohibited, among other things, the possession of obscene materials. While these two cases were pending in state courts, Stein brought the present action in a federal district court under 42 U. S. C. §§ 1983, 1985, representing himself and a class consisting of present and future employees of and contributors to his newspaper. The defendants were the district attorney of Dallas County, and the Dallas chief of police. He sought:

“[PJermanent injunctive relief against the Dallas Police Department, requiring that , . . there be no arrest of plaintiff, nor seizure of his property on grounds of obscenity without a prior judicial determination of the obscene character of the material in question; . . .
“. . . That the Court adjudge, decree and declare the rights of the parties with respect to the application of Article 527 of the Texas Penal Code;
. . That the Court grant such other and further relief as is just and equitable.”

A three-judge court was convened. 28 U. S. C. § 2284. That court refused to require a hearing on the obscene character of the material before its seizure and the arrest of the plaintiff. It held that the request for such relief was “based on the alleged harassment and . . . not an attack upon the constitutionality of a statute.” The court went on to emphasize that its consideration did “not in any way involve an appraisal of the constitutionality of the application of Article 527 to Plaintiff. Our sole concern is the determination of whether the statute is constitutionally defective on its face.” The three-judge court then turned to the statute itself, and held that §§ 1 and 2 were unconstitutional, and that § 3 would be constitutional only if the definition of obscenity were changed somewhat. The court issued appropriate declaratory and injunctive relief effectuating its conclusions. 300 F. Supp. 602 (1969). Texas officials appealed, and we noted probable jurisdiction. 396 U. S. 954 (1969).

Today we have again stressed the rule that federal intervention affecting pending state criminal prosecutions, either by injunction or by declaratory judgment, is proper only where irreparable injury is threatened. Douglas v. City of Jeannette, 319 U. S. 157 (1943). The existence of such injury is a matter to be determined carefully under the facts of each case. In this case the District Court made no findings of any irreparable injury as defined by our decisions today; therefore, the judgment of the District Court is vacated and the case is remanded for reconsideration in light of Younger v. Harris, ante, p. 37, and Samuels v. Mackell, ante, p. 66. See also Boyle v. Landry, ante, p. 77.

It is so ordered.

Mr. Justice White concurs in the result.

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

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

concurring in the result.

My Brother Douglas’ dissenting opinion describes graphically the police conduct upon which appellee rested his allegations of bad faith and harassment. If proved, these allegations would justify federal intervention. The mass seizure of some two tons of the issues of the newspaper without a prior judicial determination of the alleged obscenity of the issues was unconstitutional. Marcus v. Search Warrant, 367 U. S. 717 (1961); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); A Quantity of Books v. Kansas, 378 U. S. 205 (1964). Similarly, the mass seizure of the tools and equipment required to prepare the newspaper- — insofar as it disabled appellee from publishing future issues — infringed the principle of Near v. Minnesota, 283 U. S. 697 (1931).

But these questions are not before us. The three-judge court below remanded to a single judge for determination all questions advanced by appellee except the contention that the Texas statute was unconstitutional on its face, and the appellee does not challenge this order of remand here. I, therefore, would reverse the judgment of the District Court, except for paragraph 4, for the reasons stated in my separate opinion in Perez v. Ledesma, ante, p. 93.

Mr. Justice Douglas,

dissenting.

I

The two raids in this case were search-and-destroy missions in the Vietnamese sense of the phrase. In each case the police came at night. The first search warrant authorized a search and seizure of “obscene articles and materials, to-wit: pictures, photographs, drawings and obscene literature” concealed at a given address. The seizures included: two tons of a newspaper (Dallas Notes), one photograph enlarger, two portable typewriters, two electric typewriters, one camera, “numerous obscene photographs,” and $5.43 in money. The second warrant was issued 16 days later, in response to a claim that marihuana was concealed on the premises. It authorized the officers “to search for and seize the said narcotic drug and dangerous drug in accordance with the law in such cases provided.” Not finding any marihuana on the premises, the sergeant asked instructions from his lieutenant. He was told to seize pornographic literature and any equipment used to make it. He “didn’t know what to seize and what not to seize so [he] just took everything.” “Everything” included a Polaroid camera, a Kodak Brownie, a Flocon camera, a Kodak lamp, a floating fixture lamp, a three-drawer desk containing printers’ supplies, a drafting square, a drafting table, two drawing boards, a mailing tube, two telephones, a stapler, five cardboard boxes containing documents, one electric typewriter, and one typewriter desk. A poster of Mao Tse-tung, credit cards, costume jewelry, cans of spices, a brown sweater, and a statue of a man and woman in an embrace were also seized. Thus the newspaper Dallas Notes, a bi-monthly, was effectively put out of business.

It would be difficult to find in our books a more lawless search-apd-destroy raid, unless it be the one in Kremen v. United States, 353 U. S. 346. If this search- and-destroy technique can be employed against this Dallas newspaper, then it can be done to the New York Times, the Washington Post, the Seattle Post Intelli-gencer, the Yakima Herald-Republic, the Sacramento Bee, and all the rest of our newspapers. Por, as I shall point out, the Texas statute governing “obscenity” is plainly unconstitutional.

Government certainly has no power to close down newspapers. Even censorship — whether for obscenity, for irresponsible reporting or editorials, or otherwise— is taboo. As Chief Justice Hughes said in Near v. Minnesota, 283 U. S. 697, decided in 1931:

“[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.” Id., at 719-720.

I agree with that view.

It is said, however, that these issues are not before us as the case has been remanded to a single judge to pass on them. But we deal with plain error, as the state statute is unconstitutional on its face and we should put an end to lawless raids under it.

II

The constitutional mandate that government “shall make no law . . . abridging the freedom of speech, or of the press" precludes in my view any form of censorship. Vicious, irresponsible, and depraved as the press often is, the constitutional remedy is not censorship. The antidote is education, pinning our faith to the Jeffersonian creed that by education we may in time become a mature people.

I have set forth my views over and over again as to why the First Amendment should be strictly construed; and they need not be repeated here. It is difficult— indeed impossible — to read the constitutional mandate that government “shall make no law” abridging freedom of the press to mean that government “may make some laws” abridging that freedom. Certainly a strict constructionist cannot so read it.

“The Court says it has been trying to balance the interests of society in protecting itself from the supposed evils of obscene material with the real interest in freedom of expression. There is ample evidence that the clear and definite language of the first amendment was intended to preclude the very problem of balancing assumed by the Court. The first amendment holds that the .interest of society in freedom of expression is more important than the harm that might flow from obscene material. The very interest in protection from injury from obscene material would be better served by allowing each individual to make a free appraisal of pornographic material. A hallmark of an immature and insecure society is the censorship of ideas. Censorship, which insulates all from what some suppose to be evil, merely magnifies that insecurity. If society does such a poor job of educating itself so that four letter words and explicit pictures are dangerous, the remedy is to improve the educational process, not to outlaw certain publications. While the first amendment does not mandate better education it does prohibit the censorship of ideas. This use of a balancing test evidences a misconception of the constitutional nature of society. There is nothing to balance. Society’s security flows directly and solely from the freedom and security of each individual.” 31 Albany L. Rev. 143, 151 (1967).

If I am correct in concluding that a State can make “no law” censoring the press because of obscenity, then a publisher threatened by such a law can go into a federal court to enjoin state officials from enforcing the law, as I made clear in my dissent in Younger v. Harris, ante, at 59. The special circumstances where such federal intervention is permissible are not restricted to bad faith on the part of state officials or the threat of multiple prosecutions. 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.”

And see Watson v. Buck, 313 U. S. 387, 402.

No possible construction of this state law can save it. This is not a situation where mere overbreadth of a state statute may have chilling or crippling effects on First Amendment rights. This is a case where Texas has entered a field which the Constitution bars all the States and the Federal Government from entering.

The Texas obscenity statute, as I view it, meets precisely the hypothetical statute we discussed in Watson v. Buck, 313 U. S. 387, 402:

“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.”

No clearer case justifying federal intervention to prevent a state criminal trial can be imagined.

No pending prosecutions are sought to be enjoined, only future ones. Such an injunction is not impermissible under 28 U. S. C. § 2283. See Dombrowski v. Pfister, 380 U. S. 479, 484 n. 2, and my dissent in Younger v. Harris, ante, at 65. Appellee also asked for declaratory relief. If Zwickler v. Koota, 389 U. S. 241, means anything, it means that such relief can also be granted.

Ill

If a publication deemed “obscene” is not under the umbrella of the First Amendment, then I do not see how it enjoys many constitutional safeguards. That which is out from under the First Amendment would normally be subject to the police power of the States. Yet the Constitution contains no standards or suggestions of standards respecting the vast array of subjects that various vocal groups would like to have suppressed— obscenity, sacrilege, un-Americanism, anti-clerical ideas, atheistic or anti-ecclesiastical ideas, Communism, racism, and so on. Under the Constitution as written there are no standards of “good” or “bad” for the press. Since there is no constitutional definition of obscenity, the definition must be largely, if not exclusively, for legislative determination. Absent a controlling constitutional standard, I would think that a legislature could treat literature as it treats sewage effluent or infectious disease. That is not a happy prospect, for some would put even the Song of Solomon under the ban. It is, I fear, where we end once we lose our First Amendment moorings. Administrative censorship, however, is one thing. Criminal punishment is quite another. Publishing “obscene” literature cannot, as I view it, be made a crime under our constitutional standards.

“Whatever ‘obscenity’ is, it is immeasurable as a crime and delineable only as a sin. As a sin, it is present only in the minds of some and not in the minds of others. It is entirely too subjective for legal sanction. There are as many different definitions of obscenity as there are men; and they are as unique to the individual as are his dreams.” Note, The Substantive Law of Obscenity: An Adventure in Quicksand, 13 N. Y. L. F. 81, 131 (1967).

What appeals to “prurient interests” describes sin to some but not to others and seems to me to be far too vague to pass muster as a criminal, as distinguished from an administrative, statute.

I see no help on the vagueness problem even if the test “utterly without redeeming social importance” were added to the criminal standard, as it was in Jacobellis v. Ohio, 378 U. S. 184, 191. That is a measurement which again is wholly subjective. It cannot be related to anything but the judge’s or jurors’ sophistication or stage of cultural development. Nor do I think the problem is helped by introducing the concept of “contemporary community standards” whether that refers to the public at large or a local county or town standard. Id., at 193.

The two tests — this Court’s and that of Texas — seem to me to be substantially identical. I do not see how either can be held to be constitutional. The standard of guilt is wholly subjective. The jurors can convict or acquit according to their own personal tastes, their cultural standard, their literacy, and their tolerance for opposed ideas. And the same would be true of judges. It means that a book that is hailed as wholesome in one county may be the cause of punishment in another county of the same State.

The evidence in obscenity prosecutions is usually expert testimony. Analysts, English literature scholars, and others often have helpful and informed views, one way or the other. It seems impossible, if we continue to sanction the use of these vague standards in criminal prosecutions, that verdicts will be rendered which are based on the record and not on the emotional factors reflecting the prejudices of the judge or jurors.

Uncertainty, rather than certainty, is the standard. The book, play, poem, or movie is approved or condemned on the basis of the personal beliefs of the judge or jurors, not on the ban of a statute containing clear and objective standards.

The concept of “utterly without redeeming social importance” will divide even the experts. It is risky and perilous business to send men to prison on such provocative issues, which confuse people and create irreconcilable differences even among the judges who sentence them or approve their convictions.

In these criminal cases dealing with obscenity, we leave people confused and in the dark as to whether they are or are not criminals. Criminal laws must give fair warning; and a person receives no real warning when he crosses the line between the lawful and the unlawful, under the Texas statute or under the standard approved by the Court.

Where constitutional rights may be infringed, Winters v. New York, 333 U. S. 507, should be our guide. There an “obscene” magazine was defined to include those which “massed” stories of bloodshed and lust to incite crimes. Id., at 513. We held that standard to be too vague to satisfy constitutional standards.

“The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime ‘must be defined with appropriate definiteness.’ . . . 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.” Id., at 515-516.

And see Wright v. Georgia, 373 U. S. 284, 292; Smith v. California, 361 U. S. 147, 151; United States v. Harriss, 347 U. S. 612; Beauharnais v. Illinois, 343 U. S. 250, 264; Williams v. United States, 341 U. S. 97; Cantwell v. Connecticut, 310 U. S. 296.

My view, however, is that any regime of censorship over literature whether expressed in a criminal statute or an administrative procedure is unconstitutional by reason of the command of the First Amendment.

      Texas Penal Code, Art. 527, 1961 Tex. Gen. Laws, c. 461, § 1, provided:
      “Section 1. Whoever shall knowingly photograph, act in, pose for, model for, print, sell, offer for sale, give away, exhibit, televise, publish, or offer to publish, or have in his possession or under his control, or otherwise distribute, make, display, or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, pictures, photograph, motion picture film, image, cast, slide, figure, instrument, statue, drawing, phonograph record, mechanical recording, or presentation, or other article which is obscene, shall be fined not more than One Thousand Dollars ($1,000) nor imprisoned more than one (1) year in the county jail or both.
      “Sec. 2. Whoever shall knowingly offer for sale, sell, give away, exhibit, televise, or otherwise distribute, make, display, or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, pictures, photograph, motion picture film, image, cast, slide, figure, instrument, statue, drawing, phonograph record, mechanical recording, or presentation, or other article which is obscene, to a minor shall be fined not more than Two Thousand, Five Hundred Dollars ($2,500) nor imprisoned in the county jail more than two (2) years or both.
      “Sec. 3. For purposes of this article the word ‘obscene’ is defined as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided) further, for the purpose of this article, the term ‘contemporary community standards’ shall in no case involve a territory or geographic area less than the State of Texas.
      “Sec. 4. Whoever shall be convicted for the second time of a violation of this article shall be deemed guilty of a felony and shall be punished by confinement in the State penitentiary for not more than five (5) years or by a fine of not more than Ten Thousand Dollars ($10,000) or by both such fine and imprisonment.
      “Sec. 5. It shall be a defense to any charges brought hereunder if such prohibited matter or act shall be regularly in use in any bona fide, religious, educational or scientific institution or the subject of a bona fide scientific investigation.
      “The provisions of this Act shall not apply to any motion pictures produced or manufactured as commercial motion pictures which (1) have the seal under the Production Code of the Motion Picture Association of America, Inc.; or (2) legally move in interstate commerce under Federal Law; or (3) are legally imported from foreign countries into the United States and have been passed by a Customs Office of the United States Government at any port of entry.
      “The provisions of this Act shall not apply to any daily or weekly newspaper.
      “Sec. 6. The district courts of this State and the judges thereof shall have full power, authority, and jurisdiction, upon application by any district or county attorney within their respective jurisdictions, to issue any and all proper restraining orders, temporary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the provisions of this Act.”

      This indiscriminate seizure is hardly surprising since none of the officers knew what to seize, as the questioning of the lieutenant in charge of the raid shows:
      “Q. What instructions did you give the officers in effecting this search and seizure as to what they were to do ?
      “A. They were to search for any obscene material they could find. All of our officers know what obscene material is.
      “Q. What is obscene material?
      “A. Well, I wish you hadn’t ask [sic] that. I take that back. They don’t know, neither do I.
      “Q. What instructions had you given them in terms of what they were to do ?
      “A. To search for obscene material and seize it.
      “Q. What definition, if any, did you give them as to obscene material?
      “A. I didn’t.”

       Appellee Stein has since reached an agreement with the Dallas Police Department by which it returned most of the property to him in return for his execution of an Indemnity and Release Agreement. The binding effect of such an agreement, which required Stein to choose between the return of his property so that he could continue publishing, and assertion of his civil rights under such provisions as 42 U. S. C. § 1983, is not at issue here.
      The Dallas Police Department still holds “film negatives, eight or ten photographs, one movie advertisement poster, one litho copy of paper, and a representative number of back issues of paper entitled ‘Dallas Notes’ or ‘Notes from the Underground.’ ”

       Article 527 defined “obscene” as follows in § 3:
      “[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided, further, for the purpose of this article, the term ‘contemporary community standards’ shall in no case involve a territory or geographic area less than the State of Texas.”
      After the three-judge court decision, Art. 527 was amended to define “obscene” as “material (a) the dominant theme of which, taken as a whole, appeals to a prurient interest; (b) which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) which is utterly without redeeming social-value.”
      And “prurient interest” was defined as “a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience, the appeal of the subject matter shall be judged with reference to such audience.” Tex. Penal Code, Art. 527, §1 (Supp. 1970-1971).

       The appellee did not appeal from the decision of the District Court to remand the issue of harassment to a one-judge court, apparently since the ruling that the statute was unconstitutional made such further relief unnecessary, as all the harassment resulted from the enforcement of the statute. In this Court appellee has argued that his “constitutional rights [are] threatened by the existence of the Texas obscenity statute and the overhearing means chosen to enforce it.” He has raised the issue of harassment here and the documentary evidence in support of his claim is overwhelming.

       The First Amendment, originally applicable only to the Federal Government, was by virtue of the Fourteenth Amendment made applicable to the States in 1931 in Stromberg v. California, 283 U. S. 359.

       Thomas Jefferson wrote, “I deplore . . . the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. ... It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost.” Jefferson, Democracy, selected and arranged by S. Padover 150-151 (1939).

       Mr. Justice Brandeis, concurring in Whitney v. California, 274 U. S. 357, 375-376, said:
      “Those who won our independence . . . believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law— the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

       We deal with a large and considerable problem. There are those who believe that an “ethic of sexuality joined with an ethic of the wholeness of life” (F. Darling, Wilderness and Plenty 75 (1970)) has a close relation not only to population control but to a reverence for both the land and animal life.

       The amended complaint asked for an injunction only against future arrests and prosecutions under the Texas statute, Art. 527, and a declaration that the statute was unconstitutional. See n. 3, supra.

       This business of leveling the power of the Federal or State Government against a person in a criminal prosecution is an “awesome” power as Mr. Justice Blacic has stated:
      “Experience, and wisdom flowing out of that experience, long ago led to the belief that agents of government should not be vested with power and discretion to define and punish as criminal past conduct which had not been clearly defined as a crime in advance.” Ginzburg v. United States, 383 U. S. 463, 477 (dissenting opinion).

       See n. 3, supra.

       Even the police have no guidance as to the kind of books to be seized. See n. 1, supra.

       Even where First Amendment or other constitutional rights are not involved, no one may be required “to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U. S. 451, 453. Chief Justice Marshall said in United States v. Wiltberger, 5 Wheat. 76, 105, that in determining the certainty needed in a penal law for its validity the “probability” that the legislature may have desired to include a species of activity within an Act is not enough. And see United States v. Lacher, 134 U. S. 624, 628; Pierce v. United States, 314 U. S. 306.

       See Mr. Justice Black’s opinion in Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 690 (concurring).
      See my opinions in Roth v. United States, 354 U. S. 476, 508 (dissenting); Smith v. California, 361 U. S. 147, 167 (concurring); Ginzburg v. United States, 383 U. S. 463, 482 (dissenting).

       See Mr. Justice Black’s separate opinion in A Quantity of Books v. Kansas, 378 U. S. 205, 213.


author: Per Curiam. Mr. Justice Brennan,

text:
    BYRNE, DISTRICT ATTORNEY OF SUFFOLK COUNTY, et al. v. KARALEXIS et al.
    No. 83.
    Argued April 30, 1970 Reargued November 17, 1970
    Decided February 23, 1971

      Robert H. Quinn, Attorney General of Massachusetts, pro se, reargued the cause for appellants. With him on the brief were Joseph J. Hurley, First Assistant Attorney General, John J. Irwin, Jr., Ruth I. Abrams, and Lawrence P. Cohen, Assistant Attorneys General, Garrett H. Byrne, pro se, and Theodore A. Glynn, Jr.

      Nathan Lewin and Alan M. Dershowitz argued the cause for appellees on the reargument. Edward de Grazia and Mr. Lewin argued the cause for appellees on the original argument. With them on the brief was Herbert S. Swartz.

      Peter L. Strauss argued the cause for the United States on the reargument as amicus curiae urging reversal. Francis X. Beytagh, Jr., argued the cause for the United States on the original argument. With them on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Roger A. Pauley.

    Briefs of amici curiae urging affirmance were filed by Stanley Fleishman and Sam Rosenwein for National General Corp. et alv and by Thomas R. Asher, Michael Schneiderman, and Melvin L. Wulf for the American Civil Liberties Union et al.
   Per Curiam.

This is an appeal from the order of a three-judge court granting a preliminary injunction against any civil or criminal proceedings in state courts against the appellees. Appellant Byrne is the district attorney of Suffolk County, Massachusetts. The appellees own and operate a motion picture theater in Boston. As a result of exhibiting the film entitled “I am Curious (Yellow)” at their theater, appellees were charged by District Attorney Byrne with violating Massachusetts General Laws, Chapter 272, § 28A, which prohibits the possession of obscene films for the purpose of exhibition.

After the filing of the original state .indictments against them appellees brought the present action in federal court. They sought an injunction against both pending and future prosecutions under the Massachusetts obscenity law, and a declaration that the state obscenity law was unconstitutional on its face and as applied. The three-judge District Court held that appellees had a probability of success in having the statute declared unconstitutional, that abstention would be improper, and that appellees might suffer irreparable injury .if they were unable to show the film. The three-judge court, one judge dissenting, therefore granted a preliminary injunction, forbidding the initiation of any future prosecutions or the execution of the sentence imposed in the state proceedings then pending. 306 F. Supp. 1363 (1969). The district attorney appealed. We granted a stay of the district court order, 396 U. S. 976 (1969), and subsequently noted probable jurisdiction, 397 U. S. 985 (1970).

In discussing the subject of irreparable injury, the court said:

“We do not agree with defendant’s contention that there is no indication of irreparable injury. Even if money damages could be thought in some cases adequate compensation for delay, this defendant will presumably be immune. We agree with plaintiffs that the box office receipts, if there is a substantial delay, can be expected to be smaller. A moving picture may well be a diminishing asset. It has been said, also, that in assessing injury the chilling effect upon the freedom of expression of others is to be considered. See Dombrowski v. Pfister, 1965, 380 U. S. 479, 486-489.” 306 F. Supp., at 1367.

There was, however, no finding by the District Court that the threat to appellees’ federally protected rights is “one that cannot be eliminated by [their] defense against a single criminal prosecution.” Younger v. Harris, ante, p. 37, at 46. Because the District Court, in considering the propriety of injunctive and declaratory relief in this case, was without the guidance provided today by our decisions in Younger v. Harris, supra, and Samuels v. Mackell, ante, p. 66, we vacate the judgment below and remand for reconsideration in light of those decision

it is so ordered

Mr. Justice Douglas took no part in the consideration or decision of this appeal.

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

Mr. Justice Brennan,

with whom Mr. Justice White and Mr. Justice Marshall join,

dissenting.

The injunction appealed from issued December 6, 1969, after appellees’ convictions in state court on November 12, 1969, of exhibiting an obscene film in violation of state law. In the absence of any showing of bad faith or harassment, appellees were therefore obliged to pursue their constitutional defenses on appeal from the convictions to the state appellate court, and the Federal District Court erred in enjoining appellants from interfering with future showings of the film. Freedman v. Maryland, 380 U. S. 51, 60 (1965), limited to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of prompt, final, judicial determination of the question of the film’s alleged obscenity. See also Lee Art Theater v. Virginia, 392 U. S. 636 (1968). But there was no interference from July through November; appellant Byrne honored a stipulation made July 15 in federal court not to seize the film or interfere with its exhibition pending the outcome of the trial. Byrne withdrew from the stipulation and threatened to move against further exhibition of the film only after the convictions were obtained. Clearly, he was not required to continue to stay his hand pending the outcome of appeals from the convictions; Freedman was satisfied by a “prompt judicial decision by the trial court,” Teitel Film Corp. v. Cusack, 390 U. S. 139, 142 (1968) (emphasis supplied); Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676, 690 n. 22 (1968). Rather than remand I would therefore reverse the judgment of the District Court for the reasons stated in my opinion in Perez v. Ledesma, ante, p. 93.

       Mass. Gen. Laws, c. 272, §28A, provides:
      “Importing, printing, distributing or possessing obscene things.
      “Whoever imports, prints, publishes, sells or distributes a pamphlet, ballad, printed paper, phonographic record, or other thing which is obscene, indecent or impure, or an obscene, indecent or impure print, picture, figure, image or description, or buys, procures, receives or has in his possession any such pamphlet, ballad, printed paper, phonographic record, obscene, indecent or impure print, picture, figure, image or other thing, for the purpose of sale, exhibition, loan or circulation, shall be punished . . . .”

       While the federal action was pending those indictments were dismissed for defects under Massachusetts law and new state indictments were returned. Under these circumstances we treat the state prosecution as pending at the time the federal suit was initiated.

       The appellees’ prayer for relief, as amended, read as follows:
      “Wherefore, plaintiffs pray:
      “(1) That a preliminary injunction and a permanent injunction be granted prohibiting the defendant, his agents or servants, from any further seizures of prints of the motion picture ‘I Am Curious (Yellow)’ without a prior adversary proceeding in an appropriate court in Massachusetts as to the alleged obscenity of the motion picture.
      “(2) That the Court order the defendant to return to the plaintiffs herein the print of the motion picture ‘I Am Curious (Yellow)’ seized by the defendant, his agents or servants, on Thursday, May 29, 1969; that the Court order the suppression of its evidence in the cases now pending against the plaintiffs herein in Suffolk Superior Court as aforesaid; both for the reason that there was no prior adversary proceeding before seizure of the print, which was then exhibited to the Grand Jury and the basis upon which indictments were returned.
      “(3) That this Court order a preliminary injunction, and that following appropriate hearing, a permanent injunction, against the defendant, his agents or servants, from any further continuation of the prosecution of the plaintiffs herein in the said six actions now pending in the Suffolk Superior Court (Docket numbers 42587, through 42592) until such time as the said Sections 32 and 28A of Massachusetts General Laws, Chapter 272, have been appropriately altered and amended.
      “(4) Your plaintiffs further pray that an injunction issue restraining this prosecution of the motion picture T Am Curious (Yellow),’ or any further prosecution in this jurisdiction of the motion picture T Am Curious (Yellow)’ on the grounds that it is ‘allegedly obscene.’ Plaintiffs contend and pray herein on the basis that any such prosecution is 'without hope of success.’ . . .
      “(5) That this Court declare and say that Section 28A of Chapter 272 of the Massachusetts General Laws is unconstitutional of [sic] its face, and unconstitutional in its application to the plaintiffs herein, all in accordance with Title 28 U. S. C., Section 2201.
      “(6) That this Court declare and say that the motion picture ‘I Am Curious (Yellow)’ is not obscene within the constitutional definition of obscenity as set forth by the United States Supreme Court in Redrup v. New York, 386 U. S. 767 (1967). . . .
      “(7) That this Court restrain any future prosecutions of the motion picture ‘I Am Curious (Yellow)’ on the grounds that it is ‘allegedly obscene’ within the terms of Section 28A of Chapter 272, for the reason that there is no way that any future defendant in such prosecution could ‘know the work to be obscene.’
      “(8) That any further prosecutions of the motion picture T Am Curious (Yellow)’ on the grounds that it is ‘allegedly obscene’ and therefore violative of Section 28A of Chapter 272 of Massachusetts General Laws be restrained until such time as the Massachusetts courts affirm that the standards for finding a work obscene within the constitutional definition of obscenity as set forth in Redrup v. New York, supra, are that — (1) That the work was being shown to those under the age of 18; (2) Or that the work was an invasion of privacy; or (3) That the work was being advertised in a ‘pandering’ manner.
      “(9) That this Court issue an injunction restraining any further prosecutions of the plaintiffs herein for the showing of the motion picture ‘I Am Curious (Yellow)’ on the grounds that any prosecution is ‘without hope of success’ ....
      “(10) For such other and further relief as this Court shall deem essential or proper in accordance with Equity and Law.”


author: Mr. Chief Justice Burger Mr. Justice Brennan,

text:
    HARRIS v. NEW YORK
    No. 206.
    Argued December 17, 1970
    Decided February 24, 1971
    Burger, C. J., delivered the opinion of the Court, in which HarlaN, Stewart, White, and BlacKMUN, JJ., joined. Black, J., dissented. BreNNAN, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 226.

      Joel Martin Aurnou argued the cause and filed a brief for petitioner.

      James J. Duggan argued the cause for respondent. With him on the brief was Carl A. Vergari.

      Sybil H. Landau argued the cause for the District Attorney of New York County as amicus curiae urging affirmance. With her on the brief were Frank S. Hogan, pro se, and Michael B. Juviler.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted the writ in this case to consider petitioner’s claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution’s case in chief under Miranda v. Arizona, 384 U. S. 436 (1966), may not be used to impeach his credibility.

The State of New York charged petitioner in a two-count indictment with twice selling heroin to an undercover police officer. At a subsequent jury trial the officer was the State’s chief witness, and he testified as to details of the two sales. A second officer verified collateral details of the sales, and a third offered testimony about the chemical analysis of the heroin.

Petitioner took the stand in his own defense. He admitted knowing the undercover police officer but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6 but claimed it was baking powder and part of a scheme to defraud the purchaser.

On cross-examination petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7 — statements that partially contradicted petitioner’s direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually any of the questions or answers recited by the prosecutor. At the request of petitioner’s counsel the written statement from which the prosecutor had read questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury.

The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner’s credibility and not as evidence of guilt. In closing summations both counsel argued the substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment. The New York Court of Appeals affirmed in a per curiam opinion, 25 N. Y. 2d 175, 250 N. E. 2d 349 (1969).

At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, conceding that they were inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966). The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary.

Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

In Walder v. United States, 347 U. S. 62 (1954), the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes.

“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.
“[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” 347 U. S., at 65.

It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner's testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.

Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U. S. 77 (1969); cf. Dennis v. United States, 384 U. S. 855 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.

The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.

Affirmed.

Me. Justice Black dissents.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting.

It is conceded that the question-and-answer statement used to impeach petitioner’s direct testimony was, under Miranda v. Arizona, 384 U. S. 436 (1966), constitutionally inadmissible as part of the State’s direct case against petitioner. I think that the Constitution also denied the State the use of the statement on cross-examination to impeach the credibility of petitioner’s testimony given in his own defense. The decision in Walder v. United States, 347 U. S. 62 (1954), is not, as the Court today holds, dispositive to the contrary. Rather, that case supports my conclusion.

The State’s case against Harris depended upon the jury’s belief of the testimony of the undercover agent that petitioner “sold” the officer heroin on January 4 and again on January 6. Petitioner took the stand and flatly denied having sold anything to the officer on January 4. He countered the officer’s testimony as to the January 6 sale with testimony that he had sold the officer two glassine bags containing what appeared to be heroin, but that actually the bags contained only baking powder intended to deceive the officer in order to obtain $12. The statement contradicted petitioner’s direct testimony as to the events of both days. The statement’s version of the events on January 4 was that the officer had used petitioner as a middleman to buy some heroin from a third person with money furnished by the officer. The version of the events on January 6 was that petitioner had again acted for the officer in buying two bags of heroin from a third person for which petitioner received $12 and a part of the heroin. Thus, it is clear that the statement was used to impeach petitioner’s direct testimony not on collateral matters but on matters directly related to the crimes for which he was on trial.

Walder v. United States was not a case where tainted evidence was used to impeach an accused’s direct testimony on matters directly related to the case against him. In Walder the evidence was used to impeach the accused’s testimony on matters collateral to the crime charged. Walder had been indicted in 1950 for purchasing and possessing heroin. When his motion to suppress use of the narcotics as illegally seized was granted, the Government dismissed the prosecution. Two years later Walder was indicted for another narcotics violation completely unrelated to the 1950 one. Testifying in his own defense, he said on direct examination that he had never in his life possessed narcotics. On cross-examination he denied that law enforcement officers had seized narcotics from his home two years earlier. The Government was then permitted to introduce the testimony of one of the officers involved in the 1950 seizure, that when he had raided Walder’s home at that time he had seized narcotics there. The Court held that on facts where “the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics,” 347 U. S., at 65, the exclusionary rule of Weeks v. United States, 232 U. S. 383 (1914), would not extend to bar the Government from rebutting this testimony with evidence, although tainted, that petitioner had in fact possessed narcotics two years before. The Court was careful, however, to distinguish the situation of an accused whose testimony, as in the instant case, was- a “denial of complicity in the crimes of which he was charged,” that is, where illegally obtained evidence was used to impeach the accused’s direct testimony on matters directly related to the case against him. As to that situation, the Court said:

“Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.” 347 U. S., at 65.

From this recital of facts it is clear that the evidence used for impeachment in Walder was related to the earlier 1950 prosecution and had no direct bearing on “the elements of the case” being tried in 1952. The evidence tended solely to impeach the credibility of the defendant’s direct testimony that he had never in his life possessed heroin. But that evidence was completely unrelated to the indictment on trial and did not in any way interfere with his freedom to deny all elements of that case against him. In contrast, here, the evidence used for impeachment, a statement concerning the details of the very sales alleged in the indictment, was directly related to the case against petitioner.

While Walder did not identify the constitutional specifics that guarantee “a defendant the fullest opportunity to meet the accusation against him . . . [and permit him to] be free to deny all the elements of the case against him,” in my view Miranda v. Arizona, 384 U. S. 436 (1966), identified the Fifth Amendment’s privilege against self-incrimination as one of those specifics. That privilege has been extended against the States. Malloy v. Hogan, 378 U. S. 1 (1964). It is fulfilled only when an accused is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will,” id., at 8 (emphasis added). The choice of whether to testify in one’s own defense must therefore be “unfettered,” since that choice is an exercise of the constitutional privilege, Griffin v. California, 380 U. S. 609 (1965). Griffin held that comment by the prosecution upon the accused’s failure to take the stand or a court instruction that such silence is evidence of guilt is impermissible because it “fetters” that choice — “[i]t cuts down on the privilege by making its assertion costly.” Id., at 614. For precisely the same reason the constitutional guarantee forbids the prosecution to use a tainted statement to impeach the accused who takes the stand: The prosecution’s use of the tainted statement “cuts down on the privilege by making its assertion costly.” Ibid. Thus, the accused is denied an “unfettered” choice when the decision whether to take the stand is burdened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testimony denying complicity in the crime charged against him. We settled this proposition in Miranda where we said:

“The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner .... [Statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial . . . . These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.” 384 U. S., at 476-477 (emphasis added).

This language completely disposes of any distinction between statements used on direct as opposed to cross-examination. “An incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn.” People v. Kulis, 18 N. Y. 2d 318, 324, 221 N. E. 2d 541, 543 (1966.) (dissenting opinion).

The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The “essential mainstay” of that system, Miranda v. Arizona, 384 U. S., at 460, is the privilege against self-incrimination, which for that reason has occupied a central place in our jurisprudence since before the Nation’s birth. Moreover, “we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. . . . All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government . . . must accord to the dignity and integrity of its citizens.” Ibid. These values are plainly jeopardized if an exception against admission of tainted statements is made for those used for impeachment purposes. Moreover, it is monstrous that courts should aid or abet the law-breaking police officer. It is abiding truth that “[njothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U. S. 643, 659 (1961). Thus, even to the extent that Miranda was aimed at deterring police practices in disregard of the Constitution, I fear that today’s holding will seriously undermine the achievement of that objective. The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State’s direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent.

       No agreement was reached as to the first count. That count was later dropped by the State.

       If, for example, an accused confessed fully to a homicide and led the police to the body of the victim under circumstances making his confession inadmissible, the petitioner would have us allow that accused to take the stand and blandly deny every fact disclosed to the police or discovered as a “fruit” of his confession, free from confrontation with his prior statements and acts. The voluntariness of the confession would, on this thesis, be totally irrelevant. We reject such an extravagant extension of the Constitution. Compare Killough v. United States, 114 U. S. App. D. C. 305, 315 F. 2d 241 (1962).

       The trial transcript shows that petitioner testified that he remembered making a statement on January 7; that he remembered a few of the questions and answers; but that he did not “remember giving too many answers.” When asked about his bad memory, petitioner, who had testified that he was a heroin addict, stated that “my joints was down and I needed drugs.”

       Three of the five judges of the Appellate Division in this case agreed that the State’s use of petitioner’s illegally obtained statement was an error of constitutional dimension. People v. Harris, 31 App.Div. 2d 828, 298 N. Y. S. 2d 245 (1969). However, one of the three held that the error did not play a meaningful role in the case and was therefore harmless under our decision in Chapman v. California, 386 U. S. 18 (1967). He therefore joined in affirming the conviction with the two judges who were of the view that there was no constitutional question involved. 31 App. Div. 2d, at 830, 298 N. Y. S. 2d, at 249. I disagree that the error was harmless and subscribe to the reasoning of the dissenting judges, id., at 831-832, 298 N. Y. S. 2d at 250:
      “Under the circumstances outlined above, I cannot agree that this error of constitutional dimension was ‘harmless beyond a reasonable doubt’ (Chapman v. California, 386 U. S. 18, 24). An error is not harmless if ‘there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ (Fahy v. Connecticut, 375 U. S. 85, 86-87). The burden of showing that a constitutional error is harmless rests with the People who, in this case, have not even attempted to assume that demonstration (Chapman v. California, supra). Surely it cannot be said with any certainty that the improper use of defendant’s statement did not tip the scales against him, especially when his conviction rests on the testimony of the same undercover agent whose testimony was apparently less than convincing on the January 4 charge (cf. Anderson v. Nelson, 390 U. S. 523, 525). On the contrary, it is difficult to see how defendant could not have been damaged severely by use of the inconsistent statement in a case which, in the final analysis, pitted his word against the officer’s. The judgment should be reversed and a new trial granted.”
      The Court of Appeals affirmed per curiam on the authority of its earlier opinion in People v. Kulis, 18 N. Y. 2d 318, 221 N. E. 2d 541 (1966). Chief Judge Fuld and Judge Keating dissented in Kulis on the ground that Miranda precluded use of the statement for impeachment purposes, 18 N. Y. 2d, at 323, 221 N. E. 2d, at 542.

       It is therefore unnecessary for me to consider petitioner’s argument that Miranda has overruled the narrow exception of Walder admitting impeaching evidence on collateral matters.

       Six federal courts of appeals and appellate courts of 14 States have reached the same result. United States v. Fox, 403 F. 2d 97 (CA2 1968); United States v. Pinto, 394 F. 2d 470 (CA3 1968); Breedlove v. Beto, 404 F. 2d 1019 (CA5 1968); Groshart v. United States, 392 F. 2d 172 (CA9 1968); Blair v. United States, 130 U. S. App. D. C. 322, 401 F. 2d 387 (1968); Wheeler v. United States, 382 F. 2d 998 (CA10 1967); People v. Barry, 237 Cal. App. 2d 154, 46 Cal. Rptr. 727 (1965), cert. denied, 386 U. S. 1024 (1967); Velarde v. People, 171 Colo. 261, 466 P. 2d 919 (1970); State v. Galasso, 217 So. 2d 326 (Fla. 1968); People v. Luna, 37 Ill. 2d 299, 226 N. E. 2d 586 (1967); Franklin v. State, 6 Md. App. 572, 252 A. 2d 487 (1969); People v. Wilson, 20 Mich. App. 410, 174 N. W. 2d 79 (1969); State v. Turnbow, 67 N. M. 241, 354 P. 2d 533 (1960); State v. Catrett, 276 N. C. 86, 171 S. E. 2d 398 (1970); State v. Brewton, 247 Ore. 241, 422 P. 2d 581, cert. denied, 387 U. S. 943 (1967); Commonwealth v. Padgett, 428 Pa. 229, 237 A. 2d 209 (1968); Spann v. State, 448 S. W. 2d 128 (Tex. Cr. App. 1969); Cardwell v. Commonwealth, 209 Va. 412, 164 S. E. 2d 699 (1968); Gaertner v. State, 35 Wis. 2d 159, 150 N. W. 2d 370 (1967); see also Kelly v. King, 196 So. 2d 525 (Miss. 1967). Only three state appellate courts have agreed with New York. State v. Kimbrough, 109 N. J. Super. 57, 262 A. 2d 232 (1970); State v. Butler, 19 Ohio St. 2d 55, 249 N. E. 2d 818 (1969); State v. Grant, 77 Wash. 2d 47, 459 P. 2d 639 (1969).


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

text:
    INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO v. HARDEMAN
    No. 123.
    Argued December 16, 1970
    Decided February 24, 1971

      BreNNAN, J., delivered the opinion of the Court, in which Burger, C. J., and BlacK, HarlaN, Stewart, White, Marshall, and Blacicmun, JJ., joined. White, J., filed a concurring opinion, post, p. 247. Douglas, J., filed a dissenting opinion, post, p. 247.

      Louis Sherman argued the cause for petitioner. With him on the brief were Blihu I. Leifer and Bernard Cushman.

      Robert E. McDonald, Jr., argued the cause and filed a brief for respondent.

      J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, AFL-CIO, as amicus curiae urging reversal.
   Mr. Justice Brennan

delivered the opinion of the Court.

Section 102 of the Labor-Management Reporting and Disclosure Act (hereafter LMRDA) provides that a union member who charges that his union violated his rights under Title I of the Act may bring a civil action against the union in a district court of the United States for appropriate relief. Respondent was expelled from membership in petitioner union and brought this action under § 102 in the District Court for the Southern District of Alabama. He alleged that in expelling him the petitioner violated § 101 (a) (5) of the Act, 73 Stat. 523, 29 U. S. C. § 411 (a) (5) which provides: “No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.” A jury awarded respondent damages of $152,150. The Court of Appeals for the Fifth Circuit affirmed. 420 F. 2d 485 (1969). We granted certiorari limited to the questions whether the subject matter of the suit was pre-empted because exclusively within the competence of the National Labor Relations Board and, if not pre-empted, whether the courts below had applied the proper standard of review to the union proceedings, 398 U. S. 926 (1970). We reverse.

The case arises out of events in the early part of October 1960. Respondent, George Hardeman, is a boilermaker. He was then a member of petitioner’s Local Lodge 112. On October 3, he went to the union hiring hall to see Herman Wise, business manager of the Local Lodge and the official responsible for referring workmen for jobs. Hardeman had talked to a friend of his, an employer who had promised to ask for him by name for a job in the vicinity. He sought assurance from Wise that he would be referred for the job. When Wise refused to make a definite commitment, Hardeman threatened violence if no work was forthcoming in the next few days.

On October 4, Hardeman returned to the hiring hall and waited for a referral. None was forthcoming. The next day, in his words, he “went to the hall . . . and waited from the time the hall opened until we had the trouble. I tried to make up my mind what to do, whether to sue the Local or Wise or beat hell out of Wise, and then I made up my mind.” When Wise came out of his office to go to a local jobsite, as required by his duties as business manager, Hardeman handed him a copy of a telegram asking for Hardeman by name. As Wise was reading the telegram, Hardeman began punching him in the face.

Hardeman was tried for this conduct on charges of creating dissension and working against the interest and harmony of the Local Lodge, and of threatening and using force to restrain an officer of the Local Lodge from properly discharging the duties of his office. The trial committee found him "guilty as charged,” and the Local Lodge sustained the finding and voted his expulsion for an indefinite period. Internal union review of this action, instituted by Hardeman, modified neither the verdict nor the penalty. Five years later, Hardeman brought this suit alleging that petitioner violated § 101 (a) (5) by denying him a full and fair hearing in the union disciplinary proceedings.

I

We consider first the union’s claim that the subject matter of this lawsuit is, in the first instance, within the exclusive competence of the National Labor Relations Board. The union argues that the gravamen of Harde-man’s complaint — which did not seek reinstatement, but only damages for wrongful expulsion, consisting of loss of income, loss of pension and insurance rights, mental anguish and punitive damages — is discrimination against him in job referrals; that any such conduct on the part of the union is at the very least arguably an unfair labor practice under §§8 (b)(1)(A) and 8 (b)(2) of the National Labor Relations Act, 61 Stat. 141, as amended, 29 U. S. C. §§ 158 (b)(1)(A), 158 (b)(2); and that in such circumstances, “the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of . . . interference with national policy is to be averted.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959); see Local 100, Journeymen v. Borden, 373 U. S. 690 (1963).

We think the union’s argument is misdirected. Harde-man’s complaint alleged that his expulsion was unlawful under §101 (a)(5), and sought compensation for the consequences of the claimed wrongful expulsion. The critical issue presented by Hardeman’s complaint was whether the union disciplinary proceedings had denied him a full and fair hearing within the meaning of § 101 (a) (5) (C) . Unless he could establish this claim, Harde-man would be out of court. We hold that this claim was not within the exclusive competence of the National Labor Relations Board.

“ ‘The doctrine of primary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.’ United States v. Western Pac. R. Co., 352 U. S. 59, 63-64. The doctrine is based on the principle ‘that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over,’ Far East Conference v. United States, 342 U. S. 570, 574, and ‘requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme,’ United States v. Philadelphia Nat. Bank, 374 U. S. 321, 353.” Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 684-685 (1965) (opinion of White, J., announcing judgment).

Those factors suggesting that resort must be had to the administrative process are absent from the present case. The fairness of an internal union disciplinary proceeding is hardly a question beyond “the conventional experience of judges,” nor can it be said to raise issues “within the special competence” of the NLRB. See NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 181, 193-194 (1967). As we noted in that case, the 86th Congress which enacted § 101 (a) (5) was “plainly of the view” that the protections embodied therein were new material in the body of federal labor law. 388 U. S., at 194. And that same Congress explicitly referred claims under § 101 (a)(5), not to the NLRB, but to the federal district courts. This is made explicit in the opening sentence of § 102: “Any person whose rights secured by the provisions of this title have been infringed by any violation of this titlA may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.” Of course, “[t]he purpose of Congress is the ultimate touchstone.” Retail Clerks Local 1625 v. Schermerhorn, 375 U. S. 96, 103 (1963). And in § 102 Congress has clearly indicated a purpose to refer claims regarding violation of § 101 (a) (5) to the district courts.

The union argues that Hardeman’s suit should nevertheless have been dismissed because he did not seek an injunction restoring him to membership, and because he did seek damages for loss of employment said to be the consequence of his expulsion from the union. Taken together, these factors are said to shift the primary focus of the action from a review of Hardeman’s expulsion to a review of alleged union discrimination against him in job referrals. Since this is a matter normally within the exclusive competence of the NLRB, see Local 100, Journeymen v. Borden, 373 U. S., at 695-696, the union argues that Hardeman’s suit was beyond the competence of the district court.

The argument has no merit. To begin with, the language of § 102 does not appear to make the availability of damages turn upon whether an injunction is requested as well. If anything, § 102 contemplates that damages will be the usual, and injunctions the extraordinary form of relief. Requiring that injunctive relief be sought as a precondition to damages would have little effect other than to force plaintiffs, as a matter of course, to add a few words to their complaints seeking an undesired injunction. We see no reason to import into § 102 so trivial a requirement.

Nor are our prior cases authority for such a result. We have repeatedly held, of course, that state law may not regulate conduct either protected or prohibited by the National Labor Relations Act. Local 100, Journeymen v. Borden, supra; San Diego Building Trades Council v. Garmon, 359 U. S., at 244; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 480-481 (1955); Garner v. Teamsters Union, 346 U. S. 485, 490-491 (1953). Where it has not been clear whether particular conduct is protected, prohibited, or left to state regulation by that Act, we have likewise required courts to stay their hand, for “courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.” Building Trades Council v. Garmon, supra, at 244-245. Nor may courts intervene in such matters even to apply the National Labor Relations Act, except by the normal mechanism of review of actions of the NLRB. For recognizing that “[a] multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law,” Garner v. Teamsters Union, supra, at 490-491, Congress confided to the NLRB the primary power of interpretation and application of the Act. See Guss v. Utah Labor Relations Board, 353 U. S. 1 (1957).

The present case, however, implicates none of the principles discussed above. There is no attempt, in this lawsuit, to apply state law to matters pre-empted by federal authority. Nor is there an attempt to apply federal law of general application, which is limited in the particular circumstances by the National Labor Relations Act. Nor is there an attempt to have the District Court enforce the provisions of the National Labor Relations Act itself, without guidance from the NLRB. As we have said, the critical question in this action is whether Hardeman was afforded the rights guaranteed him by § 101 (a) (5) of the LMRDA. If he was denied them, Congress has said that he is entitled to damages for the consequences of that denial. Since these questions are irrelevant to the legality of conduct under the National Labor Relations Act, there is no danger of conflicting interpretation of its provisions. And since the law applied is federal law explicitly made applicable to such circumstances by Congress, there is no danger that state law may come in through the back door to regulate conduct that has been removed by Congress from state control. Accordingly, this action was within the competence of the District Court.

II

Two charges were brought against Hardeman in the union disciplinary proceedings. He was charged with violation of Art. XIII, § 1, of the Subordinate Lodge Constitution, which forbids attempting to create dissension or working against the interest and harmony of the union, and carries a penalty of expulsion. He was also charged with violation of Art. XII, § 1, of the Subordinate Lodge By-Laws, which forbids the threat or use of force against any officer of the union in order to prevent him from properly discharging the duties of his office; violation may be punished “as warranted by the offense.” Hardeman’s conviction on both charges was upheld in internal union procedures for review.

The trial judge instructed the jury that “whether or not he [respondent] was rightfully or wrongfully discharged or expelled is a pure question of law for me to determine.” He assumed, but did not decide, that the transcript of the union disciplinary hearing contained evidence adequate to support conviction of violating Art. XII. He held, however, that there was no evidence at all in the transcript of the union disciplinary proceedings to support the charge of violating Art. XIII. This holding appears to have been based on the Fifth Circuit’s decision in Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968). There the Court of Appeals for the Fifth Circuit had reasoned that “penal provisions in union constitutions must be strictly construed,” and that as so construed Art. XIII was directed only to “threats to the union as an organization and to the effective carrying out of the union’s aims,” not to merely personal altercations. 388 F. 2d, at 199. Since the union tribunal had returned only a general verdict, and since one of the charges was thought to be supported by no evidence whatsoever, the trial judge held that Harde-man had been deprived of the full and fair hearing guaranteed by § 101 (a) (5) . The Court of Appeals affirmed, simply citing Braswell. 420 F. 2d 485 (CA5 1969).

We find nothing in either the language or the legislative history of § 101 (a)(5) that could justify such a substitution of judicial for union authority to interpret the union’s regulations in order to determine the scope of offenses warranting discipline of union members. Section 101 (a)(5) began life as a floor amendment to S. 1555, the Kennedy-Ervin Bill, in the 86th Congress. As proposed by Senator McClellan, and as adopted by the Senate on April 22, 1959, the amendment would have forbidden discipline of union members “except for breach of a published written rule of [the union].”. 105 Cong. Rec. 6476, 6492-6493. But this language did not long survive. Two days later, a substitute amendment was offered by Senator Kuchel, who explained that further study of the McClellan amendment had raised “some rather vexing questions.” Id., at 6720. The Kuchel substitute, adopted the following day, deleted the requirement that charges be based upon a previously published, written union rule; it transformed Senator McClellan’s amendment, in relevant part, into the present language of § 101 (a)(5). Id., at 6720, 6727. As so amended, S. 1555 passed the Senate on April 25. Id., at 6745. Identical language was adopted by the House, id., at 15884, 15891, and appears in the statute as finally enacted.

The Congress understood that Senator Kuchel’s amendment was intended to make substantive changes in Senator McClellan’s proposal. Senator Kennedy had specifically objected to the McClellan amendment because

“In the case of . . . the . . . official who bribed a judge, unless there were a specific prohibition against bribery of judicial officers written into the constitution of the union, then no union could take disciplinary action against [an] officer or member guilty of bribery.
“It seems to me that we can trust union officers to run their affairs better than that.” Id., at 6491.

Senator Kuchel described his substitute as merely providing “the usual reasonable constitutional basis” for union disciplinary proceedings: union members were to have “constitutionally reasonable notice and a reasonable hearing.” Id., at 6720. After the Kuchel amendment passed the Senate, Senator Goldwater explained it to the House Committee on Labor and Education as follows:

“[T]he bill of rights in the Senate bill requires that the union member be served with written specific charges prior to any disciplinary proceedings but it does not require that these charges, to be valid, must be based on activity that the union had proscribed prior to the union member having engaged in such activity.” Labor-Management Reform Legislation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 4, p. 1595 (1959).

And Senator McClellan’s testimony was to the same effect. Id., pt. 5, pp. 2235-2236, 2251, 2285.

We think that this is sufficient to indicate that § 101 (a)(5) was not intended to authorize courts to determine the scope of offenses for which a union may discipline its members. And if a union may discipline its members for offenses not proscribed by written rules at all, it is surely a futile exercise for a court to construe the written rules in order to determine whether particular conduct falls within or without their scope.

Of course, § 101 (a) (5) (A) requires that a member subject to discipline be “served with written specific charges.” These charges must be, in Senator McClellan’s words, “specific enough to inform the accused member of the offense that he has allegedly committed.” Where, as here, the union’s charges make reference to specific written provisions, § 101 (a) (5) (A) obviously empowers the federal courts to examine those provisions and determine whether the union member had been misled or otherwise prejudiced in the presentation of his defense. But it gives courts no warrant to scrutinize the union regulations in order to determine whether particular conduct may be punished at all.

Respondent does not suggest, and we cannot discern, any possibility of prejudice in the present case. Although the notice of charges with which he was served does not appear as such in the record, the transcript of the union hearing indicates that the notice did not confine itself to a mere statement or citation of the written regulations that Hardeman was said to have violated: the notice appears to have contained a detailed statement of the facts relating to the fight that formed the basis for the disciplinary action. Section 101 (a)(5) requires no more.

Ill

There remains only the question whether the evidence in the union disciplinary proceeding was sufficient to support the finding of guilt. Section 101 (a)(5)(C) of the LMRDA guarantees union members a “full and fair” disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. This is the proper standard of judicial review. We have repeatedly held that conviction on charges unsupported by any evidence is a denial of due process, Thompson v. Louisville, 362 U. S. 199, 206 (1960); Schware v. Board of Bar Examiners, 353 U. S. 232, 246-247 (1957); Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106 (1927); Tisi v. Tod, 264 U. S. 131, 133-134 (1924); and we feel that § 101 (a) (5) (C) may fairly be said to import a similar requirement into union disciplinary proceedings. Senator Kuchel, who first introduced the provision, characterized it on the Senate floor as requiring the “usual reasonable constitutional basis” for disciplinary action, 105 Cong. Rec. 6720, and any lesser standard would make useless § 101 (a)(5)(A)’s requirement of written, specific charges. A stricter standard, on the other hand, would be inconsistent with the apparent congressional intent to allow unions to govern their own affairs, and would require courts to judge the credibility of witnesses on the basis of what would be at best a cold record.

Applying this standard to the present case, we think there is no question that the charges were adequately supported. Respondent was charged with having attacked Wise without warning, and with continuing to beat him for some time. Wise so testified at the disciplinary hearing, and his testimony was fully corroborated by one other witness to the altercation. Even Hardeman, although he claimed he was thereafter held and beaten, admitted having struck the first blow. On such a record there is no question but that the charges were supported by "some evidence.”

Reversed.

Mr. Justice White,

concurring.

The Court accurately states the holdings in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), and like cases. But since the case before us “implicates none of the principles,” ante, at 240, announced in those cases, neither is their continuing validity in their full sweep reaffirmed by today’s opinion. On this basis, I join the Court’s opinion.

I add an additional note. As the Court says, Harde-man’s conviction on both charges against him was upheld. Expulsion was warranted on either count. The principle of Stromberg v. California, 283 U. S. 359 (1931), has no application in this situation. Turner v. United States, 396 U. S. 398, 420 (1970); Barenblatt v. United States, 360 U. S. 109, 115 (1959); Claassen v. United States, 142 U. S. 140, 146-147 (1891); see also cases cited in Street v. New York, 394 U. S. 576, 613 n. 2 (1969) (White, J., dissenting).

Mr. Justice Douglas,

dissenting.

Section 102 of the Landrum-Griffin Act, 73 Stat. 523, 29 U. S. C. § 412, gives a member of a union the right of civil redress in a federal district court against his union for infringement of his rights secured by the Act at the same time § 103, 29 U. S. C. § 413, reserves to members any remedies they may have “under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws” of their unions. Moreover, § 101 (a)(5), 29 U. S. C. §411 (a)(5), provides that, except for nonpayment of dues, no member of a labor organization may be expelled or disciplined until there has been notice and a fair hearing.

The latter right is not exclusive, for as noted the Act gives members remedies for infringement of rights under the Act or under the constitution and bylaws of the union.

In the present case respondent went to one Wise, in charge of referral of men to jobs through the union hiring hall, and during the discussion which followed there was an altercation in which respondent hit Wise. For that assault respondent was fined in a criminal court. Thereupon Wise filed charges against respondent for violations of one provision of the union’s bylaws and one provision of the union’s constitution.

At a hearing before a committee of the local lodge which Hardeman attended it was determined that respondent was “guilty as charged.” That determination was approved by the membership of the local which voted to suspend him from membership “indefinitely.”

Respondent appealed to the International Union, petitioner here. Acting through its president and its international executive council it denied the appeal.

Thereafter respondent sued International for consequential and punitive damages. The case was tried by a jury which returned a verdict of $152,150 and the Court of Appeals affirmed. 420 F. 2d 485.

There was evidence that there was a grudge between Wise and respondent, out of which the fist fight occurred. And there was evidence that the force or violence was an attempt to coerce Wise “to prevent him from properly discharging the duties of his office” within a rational meaning of the bylaws of the union. And the District Court so charged the jury. But, as the District Court ruled, there was no evidence that respondent endeavored “to create dissension among the members” or to work against the “interest and harmony” of the union within the meaning of Art. XIII of the constitution.

I agree that a court does not sit in review of a union as it does of an administrative agency. But by reason of §101 (a) (5) judicial oversight is much more than procedural; it provides in subsection (C) for “a full and fair hearing.” Even if every conceivable procedural guarantee is provided, a hearing is not “fair” when all substantive rights are stripped away to reach a preordained result. If there is to be a “fair hearing” there must, I submit, be some evidence directed to the charges to support the conclusion.

Membership in a union may be the key to livelihood itself. Without membership, the member may be cast into the outer darkness, so far as employment is concerned. Just as this Court concluded Congress did not authorize exclusive bargaining agents to make invidious discriminations, Steele v. Louisville & Nashville R. Co., 323 U. S. 192, it is unthinkable to me that Congress in designing § 101 (a) (5) gave unions the authority to expel members for such reasons as they chose. For courts to lend their hand to such oppressive practices is to put the judicial imprimatur on the union’s utter disregard of due process to reach its own ends.

In Boilermakers v. Braswell, arising out of the same incident, the Court of Appeals followed that reasoning. 388 F. 2d 193, 199. It said:

“[T]he act charged to Braswell was a blow struck in anger, and nothing more. However reprehensible this act may be, it did not constitute a violation of the provisions in the charges. Article XIII, Section 1 of the constitution on its face is directed at threats to the union as an organization and to the effective carrying out of the union’s aims. Braswell’s fist was not such a threat.”

As stated by a student in this area: “[H]ow can there be a ‘full and fair hearing’ when it results in a verdict which mocks the evidence?” Of course, the reviewing court does not give a hearing de novo; nor does it review the merits of the dispute. But it does sit to check intemperate use of union power; and if it is to discharge its duties, it must conclude that there is some evidence to sustain the charge. This is the view of the Second, Third, and Fifth Circuits, Vars v. Boilermakers, 320 F. 2d 576; Kelsey v. Philadelphia Local No. 8, 419 F. 2d 491; Boilermakers v. Braswell, 388 F. 2d 193, and I would adopt it as the controlling legal principle.

Violation of Art. XIII of the constitution carries with it automatic expulsion. Violation of the bylaws would carry punishment “as warranted by the offense,” which, I assume, would justify expulsion. For respondent to use force against Wise who was in charge of referral of men to jobs through the union hiring hall may well have been an attempt “to prevent him from properly discharging the duties of his office” within the meaning of Art. XII. But how an isolated fist fight could “create dissension” among union members or work against the union's interests in the other ways described in Art. XIII remains a mystery.

The finding of the union was the general one “guilty as charged.” Under which provision — constitution or bylaw — it suspended him indefinitely is not made clear. Perhaps it was under only one or perhaps under both provisions.

In that posture the case is in the category of Stromberg v. California, 283 U. S. 359, where a conviction might have been valid under one charge but would have been invalid under the other; but the verdict being a general one, it was impossible to tell under which he was convicted. It is as much a denial of due process to sustain a conviction merely because a verdict of guilty might have been rendered on a valid ground as it is to send an accused to prison following conviction of a charge on which he was never tried. Cole v. Arkansas, 333 U. S. 196, 201. It was in that tradition that the District Court charged the jury:

“Now, that is all they charged him with were those two sections and there is nothing in this record that would justify a finding of guilty under those sections. All of it is about the fight.
“I am telling you, as a matter of law, that under the proof, the finding which resulted in his being expelled, cannot legally stand and therefore he was wrongfully expelled.” (Emphasis added.)

Since the finding of “guilty as charged” had that infirmity, it could not stand; and the jury was justified in assessing damages for an unlawful expulsion.

       Section 102 of the Act, 73 Stat. 523, 29 U. S. C. § 412, provides:
      “Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.”

       The affirmance was on the basis of Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968).

       Article XIII, § 1, of the Subordinate Lodge Constitution then in force provided:
      “Any member who endeavors to create dissension among the members; or who works against the interest and harmony of the International Brotherhood or of any District or Subordinate Lodge; who advocates or encourages a division of the funds, or the dissolution of any District or Subordinate Lodge, or the separation of any District or Subordinate Lodge from the International Brotherhood; who supports or becomes a member of any dual or subversive organization which shall be hostile to the International Brotherhood or to any of its Subordinate Lodges, or which is antagonistic to the principles and purposes of the International Brotherhood, shall upon conviction thereof be punished by expulsion from the International Brotherhood.”

       Article XII, § 1, of the Subordinate Lodge By-Laws then in force provided that: “It shall be a violation of these By-Laws for any member through the use of force or violence or the threat of the use of force or violence to restrain, coerce or intimidate, or attempt to restrain, coerce or intimidate any official of this International Brotherhood or Subordinate Lodge to prevent or attempt to prevent him from properly discharging the duties of his office.” Violators of Art. XII are to “be punished as warranted by the offense.”

       Hardeman’s complaint did not claim that the charges were insufficiently specific, or that he did not have adequate time to prepare his defense in the union proceedings.

       See Boilermakers v. Braswell, 388 F. 2d, at 195-197. Accord, Rekant v. Shochtay-Gasos Local 446, 320 F. 2d 271, 273-275 (CA3 1963); Parks v. Electrical Workers, 314 F. 2d 886, 922-923 (CA4 1963); Addison v. Machinists, 300 F. 2d 863 (CA9 1962); Machinists v. King, 335 F. 2d 340, 346-347 (CA9 1964).

       See n. 3, supra.

       See n. 4, supra.

       388 F. 2d, at 198, quoting Allen v. Theatrical Employees, 338 F. 2d 309, 316 (CA5 1964).

       This reasoning was noted but not specifically endorsed in Braswell, 388 F. 2d, at 198.

       State law, in many circumstances, may go further. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (1960). But Congress, which preserved state law remedies by § 103 of the LMRDA, 29 U. S. C. § 413, was well aware that even the broad language of Senator McClellan’s original proposal was more limited in scope than much state law. See 105 Cong. Rec. 6481-6489.

       Labor-Management Reform Legislation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 5, p. 2285 (1959).

       See tr. of union disciplinary hearing 26-28, 76.

        Vars v. Boilermakers, 320 F. 2d 576 (CA2 1963); Rosen v. Painters, 198 F. Supp. 46 (SDNY 1961), appeal dismissed, 326 F. 2d 400 (CA2 1964); Lewis v. American Federation of State Employees, 407 F. 2d 1185 (CA3 1969); Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968); Burke v. Boilermakers, 417 F. 2d 1063 (CA9 1969), affirming 302 F. Supp. 1345 (ND Cal. 1967).

       Although a transcript was made of the union proceedings in the present case, we have no reason to believe that this is a universal practice,

       Section 102 provides:
      “Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.” (Emphasis added.)

       Section 101 (a)(5) provides:
      “No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.”

       Article XII of the bylaws provides:
      “In addition to the offenses and penalties set out in the applicable provisions of the International and Subordinate Lodge Constitution, the following offenses and penalties shall be observed in this Subordinate Lodge, and any member who violates same shall, if found guilty after proper hearing as provided herein, be punished as warranted by the offense.
      “(1) It shall be a violation of these By-Laws for any member through the use of force or violence or the threat of the use of force or violence to restrain, coerce or intimidate, or attempt to restrain, coerce or intimidate any official of this International Brotherhood or Subordinate Lodge to prevent or attempt to prevent him from properly discharging the duties of his office.”

       Article XIII, § 1, of the constitution provides:
      “Any member who endeavors to create dissension among the members; or who works against the interest and harmony of the International Brotherhood or of any District or Subordinate Lodge; who advocates or encourages a division of the funds, or the dissolution of any District or Subordinate Lodge, or the separation of any District or Subordinate Lodge from the International Brotherhood; who supports or becomes a member of any dual or subversive organization which shall be hostile to the International Brotherhood or to any of its Subordinate Lodges, or which is antagonistic to the principles and purposes of the International Brotherhood, shall upon conviction thereof be punished by expulsion from the International Brotherhood.”

       See n. 3, supra.

       See n. 4, supra.

       Hardeman testified at trial that following the loss of his union card he was unable to work in the boilermaker’s trade beyond one job lasting five days.

       Christensen, Union Discipline Under Federal Law: Institutional Dilemmas in an Industrial Democracy, 43 N. Y. U. L. Rev. 227, 251.

       The Court of Appeals affirmed- summarily on the basis of Boilermakers v. Braswell, 388 F. 2d 193, a case arising out of the same factual situation, as Braswell also assaulted Wise at the time respondent assaulted him. In Braswell, the Court of Appeals found that the blow was “struck in anger, and nothing more.” Hence it held that Braswell’s fist was not used as an effort to create dissension among members within the meaning of Art. XIII of the constitution. By its summary affirmance in the present case it presumably reached the same conclusion in the present case.

       It is urged that since respondent’s complaint arose out of his effort to obtain employment, his relief may be sought only from the National Labor Relations Board. See San Diego Building Trades Council v. Garmon, 359 U. S. 236; Local 100, Journeymen v. Borden, 373 U. S. 690; Local 207 v. Perko, 373 U. S. 701. The argument is that the expulsion of respondent was “arguably” an unfair labor practice and that exclusive jurisdiction therefore was with the Board. But Garmon prevents conflicts between federal and state policy. If there is a conflict in the present case, it is between two federal agencies; and Congress has declared in § 102 of the Landrum-Griffln Act that the federal courts, not the Board, are to have the primary role.