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decided: April 26, 1965.



Warren, Douglas, Clark, Harlan, Brennan, White, Goldberg; Black took no part in the consideration or decision of this case; Stewart took no part in the decision of this case.

Author: Brennan

[ 380 U.S. Page 481]

 MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellants filed a complaint in the District Court for the Eastern District of Louisiana, invoking the Civil

[ 380 U.S. Page 482]

     Rights Act, Rev. Stat. § 1979, 42 U. S. C. § 1983 (1958 ed.), and seeking declaratory relief and an injunction restraining appellees -- the Governor, police and law enforcement officers, and the Chairman of the Legislative Joint Committee on Un-American Activities in Louisiana -- from prosecuting or threatening to prosecute appellants for alleged violations of the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law.*fn1 Appellant Southern Conference Educational Fund, Inc. (SCEF), is active in fostering civil rights for Negroes in Louisiana and other States of the South. Appellant Dombrowski is its Executive Director; intervenor Smith, its Treasurer; and intervenor Waltzer, Smith's law partner and an attorney for SCEF. The complaint alleges that the statutes on their face violate the First and Fourteenth Amendment guarantees securing freedom of expression, because overbreadth makes them susceptible of sweeping and improper application abridging those rights. Supported by affidavits and a written offer of proof, the complaint further alleges that the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.

A three-judge district court, convened pursuant to 28 U. S. C. § 2281 (1958 ed.), dismissed the complaint, one judge dissenting, "for failure to state a claim upon which relief can be granted." 227 F.Supp. 556, 564. The majority

[ 380 U.S. Page 483]

     were of the view that the allegations, conceded to raise serious constitutional issues, did not present a case of threatened irreparable injury to federal rights which warranted cutting short the normal adjudication of constitutional defenses in the course of state criminal prosecutions; rather, the majority held, this was an appropriate case for abstention, since a possible narrowing construction by the state courts would avoid unnecessary decision of constitutional questions. In accordance with this view the court withdrew its initial determination that the statutes were not unconstitutional on their face. 227 F.Supp., at 562-563. Postponement of consideration of the federal issues until state prosecution and possible review here of adverse state determination was thought to be especially appropriate since the statutes concerned the State's "basic right of self-preservation" and the threatened prosecution was "imbued . . . with an aura of sedition or treason or acts designed to substitute a different form of local government by other than lawful means . . ."; federal court interference with enforcement of such statutes "truly . . . would be a massive emasculation of the last vestige of the dignity of sovereignty." 227 F.Supp., at 559, 560. We noted probable jurisdiction in order to resolve a seeming conflict with our later decision in Baggett v. Bullitt, 377 U.S. 360, and to settle important questions concerning federal injunctions against state criminal prosecutions threatening constitutionally protected expression. 377 U.S. 976. We reverse.


In Ex parte Young, 209 U.S. 123, the fountainhead of federal injunctions against state prosecutions, the Court characterized the power and its proper exercise in broad terms: it would be justified where state officers ". . . threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties

[ 380 U.S. Page 484]

     affected an unconstitutional act, violating the Federal Constitution . . . ." 209 U.S., at 156. Since that decision, however, considerations of federalism have tempered the exercise of equitable power,*fn2 for the Court has recognized that federal interference with a State's good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application

[ 380 U.S. Page 485]

     of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings. In Douglas v. City of Jeannette, 319 U.S. 157, for example, the Court upheld a district court's refusal to enjoin application of a city ordinance to religious solicitation, even though the ordinance was that very day held unconstitutional as so applied on review of a criminal conviction under it. Murdock v. Pennsylvania, 319 U.S. 105. Since injunctive relief looks to the future, and it was not alleged that Pennsylvania courts and prosecutors would fail to respect the Murdock ruling, the Court found nothing to justify an injunction. And in a variety of other contexts the Court has found no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a criminal prosecution.*fn3 In such cases it does not appear that the plaintiffs "have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court." Douglas v. City of Jeannette, supra, at 164.

But the allegations in this complaint depict a situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights.

[ 380 U.S. Page 486]

     They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.

A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. California, 361 U.S. 147. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, at 379. For "the threat of sanctions may deter . . . almost as potently as the actual application of sanctions. . . ." NAACP v. Button, 371 U.S. 415, 433. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression -- of transcendent value to all society, and not merely to those exercising their rights -- might be the loser. Cf. Garrison v. Louisiana, 379 U.S. 64, 74-75. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. Alabama, 310 U.S. 88, 97-98; NAACP v. Button, supra, at 432-433; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517; United States v. Raines, 362 U.S. 17, 21-22. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of

[ 380 U.S. Page 487]

     the ". . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." NAACP v. Button, supra, at 433. If the rule were otherwise, the contours of regulation would have to be hammered out case by case -- and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. Cf. Ex parte Young, supra, at 147-148. By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v. Button, supra, at 432-433; cf. Baggett v. Bullitt, supra, at 378-379; Bush v. Orleans School Board, 194 F.Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U.S. 907; Gremillion v. United States, 368 U.S. 11.

Appellants' allegations and offers of proof outline the chilling effect on free expression of prosecutions initiated and threatened in this case. Early in October 1963 appellant Dombrowski and intervenors Smith and Waltzer were arrested by Louisiana state and local police and charged with violations of the two statutes. Their offices were ...

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