SAMUELS v. MACKELL

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Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 580, George Samuels and others against Mackell, District Attorney and others.

Fred Fernandez, appellant against Thomas J. Mackell, District Attorney, Number 813.

Mr. Victor Rabinowitz: May it please the Court.

Chief Justice Earl Warren: Mr. Rabinowitz.

Mr. Victor Rabinowitz: This is in appeal from a judgment of the three-judge statutory court sitting in the Southern District of New York denying two plaintiffs an injunction and declaratory judgment against the District Attorney of Queens County.

The plaintiffs sought an injunction and declaratory judgment to enjoin their prosecution under the New York criminal anarchy statute.

The facts, the relevant facts I think can be very briefly stated.

On June 21, 1967, the 11 plaintiffs here were indicted together with a number of others, on charges of advocacy of criminal anarchy conspiracy to commit the crime of advocacy of criminal anarchy.

Two of them were also charged with permitting there premises to be used for an assemblage of anarchists.

The indictment was considerably broader than this in that it had 48 counts of which only five come -- five are before the Court on this application.

The other 43 counts all related to specific crimes, most of them to the possession of guns.

Contrary to the law of the State of New York, I think there's also a charge one of the counts relates to a conspiracy to commit the crime of arson.

This case, the indictment here invoked the New York criminal anarchy statute of 1902, which was first applied in the period after the First World War of the early 20's in the Gitlow case.

And was not applied again until 1964 when it was applied by New York State in the case of People against Epton.

This resurrection of a moribund statute in the Epton case and the mass indictment in this case which followed 36 days after, the Court of Appeals decision in Epton poses a threat, we think, to the radical political activity of our time and raises memories of the 20's and the prosecutions of those errors which clearly seem to us to be inconsistent with modern constitutional doctrine.

The plaintiffs brought this action and rely largely on the general authority of this Court in cases such as Dombrowski and cases which have followed it, and so far as declaratory judgment is concerned, in Zwickler against Koota.

Justice Hugo L. Black: Do you think the narrowing construction that the Court gave the statute to Epton meets the constitutional problem?

Mr. Victor Rabinowitz: No, sir.

We argue, of course we'll come to that in a moment, it's a major part of this case.

The -- we argue that the statute both on its face and as construed in Gitlow is both vague and overbroad and it is clearly unconstitutional, and I don't think there's any argument about that.

The Court of Appeals of New York held as this Court has held on a number of occasions that the Gitlow case is no longer law.

In Keyishian in this Court discussed this very statute at some length and held that it was clearly unconstitutional.

However, the defendant argues that the New York Court of Appeals in Epton, by means of narrowing construction corrected the defect.

And this view was accepted by the three-judge court.

The New York Court of Appeals in its opinion narrowing the construction said that, “Well, we think now that the legislative intent of 1902 was to write a constitutional statute.”

And of course the constitutional doctrine has changed a good deal since that time, and so we will now say that the legislature in 1902 intended to conform to existing constitutional standards.

And the three-judge court echoed this somewhat ever epigrammatically saying, “If the 1902 legislature had known it could not have all it wanted, it would have wanted all it could have.”

And on the basis of this, it held the construction, the narrowing construction of the Gitlow statute constitutional.

Now, there are two primary questions raised on this face of the case.

The first is whether that narrowing construction in Epton is binding on the plaintiffs in this case at all.

The overt acts charged in this indictment all took place before the narrowing construction.

As I say the indictment here was only 36 days after the decision of the court in the Epton case.

So that none of the plaintiffs in this case had any notice at all of the narrowing construction that the Court of Appeals of New York was going to, which obviously I couldn't tell, which later the Court of Appeals of New York was going to read it to the statute.

And we submit that the plaintiffs can no more be charged with clairvoyance.

If I may echo what this Court suggest a couple of weeks ago in Shuttlesworth, can no more be charged with clairvoyance as to the plastic surgery that the Court of Appeals were deployed to the Gitlow statute then Shuttlesworth could be charged with knowing what the Supreme Court of Alabama was ultimately going to decide in the ordinance under consideration in that case.

Justice Abe Fortas: Are you coming back to the jurisdictional question that Dombrowski point?

Mr. Victor Rabinowitz: Does Your Honor mean the question of the injunction, the propriety of an injunction, the Cameron against Johnson problem?

Justice Abe Fortas: I'm talking about the point discussed by in Judge Friendly's opinion and the question whether Dombrowski author -- Dombrowski or any other decision of this Court in fact authorizes a maintenance of this action?

Mr. Victor Rabinowitz: Well, --

Justice Abe Fortas: I just want to -- I just invite you to discuss it if you see fit.

Mr. Victor Rabinowitz: Yes, sir.

Now, I certainly shall, Your Honor.

Now, we -- we feel that the, as I say the act -- overt act here were charged after were -- the narrowing construction was not the law of the State of New York, assuming that the New York Court of Appeals had the right to do this at all.

It certainly was not the law of the State of New York but till after the Epton decision and we do not believe that the narrowing construction or that the defendants can be held or the plaintiffs in this case can be held liable for that.

Furthermore, even in the Epton case the Court of Appeals reconstrued only subdivision 1 of the criminal anarchy law left subdivision 3 and 4 untouched so that -- as to those statutes, those sections of the statutes were true -- which are specifically alleged in the indictment in this case were not construed at all.

Now, I submit that the doctrine that a statute which is clearly unconstitutional and which everyone admits is unconstitutional can be reconstrued by a court -- by the highest court of the state is really a most dangerous doctrine.

It means that any state can always resurrect the statute which has been declared unconstitutional by this Court, and without any notice to the persons within the state make a silent statute, an invisible statute, a dead statute again come to life.

This is much more extreme than the situation in Shuttlesworth because in that case the unconstitutional doctrine was -- the unconstitutional interpretation was pronounced by the Commissioner of Public Safety, and Mr. Justice Harlan pointed out that that was not too reliable an interpretation.

Here we have an interpretation by the Court of Appeals.

An interpretation which is clearly unconstitutional in Gitlow and --

Justice Potter Stewart: I don't quite understand you, Mr. Rabinowitz, maybe I misread Gitlow, I haven't read that opinion recently.

Mr. Victor Rabinowitz: In the --

Justice Potter Stewart: I thought the statute's constitutionality was upheld in the Gitlow case?

Mr. Victor Rabinowitz: It was upheld in Gitlow.

Justice Potter Stewart: So how can you say that everybody agrees that this is an unconstitutional statute?

Mr. Victor Rabinowitz: Well, I think --

Justice Potter Stewart: But the only time it's come to this Court has been upheld.

Mr. Victor Rabinowitz: Well, Your Honor let me -- when I say everybody has agreed that may not be true.

This Court in Keyishian said it was unconstitutional.

The New York Court said the Gitlow statute as interpreted in Gitlow as read by Gitlow with the Gitlow gloss on the statute was an improper unconstitutional statute.

This Court said so in Keyishian.

The New York Court of Appeals said so in Epton.

The Queens County Court said so in this case.

So everyone agrees.

Justice Potter Stewart: Except for the Supreme Court of the United States?

Mr. Victor Rabinowitz: No, because I think that the Supreme Court of the United States in the Keyishian case said that the Gitlow -- that discussed this specific statute.

Justice Potter Stewart: Well, that was that statute that was before the Court of the Gitlow case?

Mr. Victor Rabinowitz: Yes, sir.

Discussed the statute that was before the Court in the Gitlow case and said that it was an -- it said in rather strong language I think.

It said that this statute is clearly impermissible under current constitutional standards and it discussed subdivision 3 which is one of the sections here and said that under the statute as interpreted by Gitlow, a man walking down a campus with a copy of Karl Marx's doctrine in his hand might be violating the law.

I believe that was the example used by the Court in the Keyishian case.

So it will not be argued here today that the Gitlow interpretation is any longer a valid interpretation under the doctrine, even if Dennis for that matter because even Dennis in that opinion suggested that the Gitlow case was really doubtful, and that in many standards inconsistent with, as I say a larger range of cases, the Scales case, the (Inaudible) case, and the whole range of constitutional decisions in the last 10 years of this Court.

So that I think that the situation is very similar to the Shuttlesworth case.

There, there was and I'm paraphrasing the decision of the court, but I think it's the same paraphrase that Mr. Justice Harlan used.

This Court held that where a statute is interpreted in an unconstitutional fashion by the Commissioner of Public Safety that Mr. Shuttlesworth had the right to treat that statute as void and could not be charged with clairvoyance that the Court would later hold that the Commissioner of Public Safety was wrong.

Now here, we have not the Chief of Police holding -- giving the statute an unconstitutional interpretation, but the New York Court of Appeals giving what is today an unconstitutional interpretation.

Although, obviously, at the time of the Gitlow decision that ipso facto was unconstitutional interpretation because the Court so said so.

Justice Potter Stewart: Of course the point in the Shuttlesworth was a little different as you know.

It involved the fact that the licensing authority could not be charged with clairvoyance.

If the licensing authority thought that he had absolutely unbridled discretion in the question of whether or not to grant a license for a parade.

It wasn't the so much the petitioner's clairvoyance.

At least that's the way I understood the opinion.

I did write it, you know.

Mr. Victor Rabinowitz: I know you did write it, Your Honor.

And if that's the way you interpreted it, I -- obviously that's what it must mean.

I -- the language is it would have taken extraordinary clairvoyance for anyone to perceive that this language meant what the Supreme Court of Alabama was destined to find that it meant four years later.

Justice Potter Stewart: Right.

Mr. Victor Rabinowitz: And I misread it if that's what Your Honor meant.

Now, we feel that the Epton laws on the statute still leaves it unconstitutional, and this comes to Your Honor's and Mr. Justice Harlan's question.

There is still no clear guidance as to what may or may not be done under the statute.

And one of the most serious defects in the Court of Appeals interpretation in the Epton case relates to the clear and present danger or rather unsatisfactory test under the best of circumstances.

But at least in the Dennis case, in applying the clear and present danger test, the Court clearly said that there must be a clear and present danger of an overthrow of the Government of the United States.

In the Epton case, the Court found it quite sufficient that there was a finding of clear and present danger to commit a riot.

Now, if the all that the clear and present danger test means in the eyes of the New York Court of Appeals, and if that is the cause placed on the statute now, is that the crime of sedition requires only that there be a clear and present danger of this order which is a far cry from the overthrow of the Government of the United States, or even the overthrow of the Government of New York, then I submit that we still have a statute that is unconstitutional even under the Epton decision.

Now, in Dombrowski, this Court held that it will not abstain in a case such as this -- such as was presented in Dombrowski, where the policy reasons were operated against in one of the elements in the policy considerations, or among the elements in the policy considerations in Dombrowski, which motivated the Court in deciding against the doctrine of abstention, was that this was a First Amendment situation.

That it did involve a statute which to refer again to those words which have perhaps been a little overused, it did have a chilling effect on those who, I can't help it Mr. Justice Stewart, everybody says that.

It did have a chilling effect on the operation of people who are engaged in political activity and that the statute was of such a nature that it would require repeated applications.

That the exact meaning of the statute would have to be hammered out in repeated prosecutions over a long period of time in the state courts if the doctrine of abstention was followed.

Justice Abe Fortas: Well, is it your position that anytime people are prosecuted or indicted and under indictment in a state on account of a conduct that lies within the broad First Amendment area.

That is to say any kind of protest activity that a three-judge federal court has jurisdiction to consider the issuance of a declaratory judgment under Dombrowski?

Mr. Victor Rabinowitz: Well has authority to issue -- to consider the application for an injunction under Dombrowski and I would say Mrs. Piel will argue this a little more fully of a declaratory judgment if (Voice Overlap).

Justice Abe Fortas: Well, all you have to show then is that the people have been indicted by state and that the indictment relates to conduct within the broad area of speech.

Mr. Victor Rabinowitz: Oh!

No, sir, I would say you also have to show that the statute is unconstitutional.

Justice Abe Fortas: No, that's to get relief.

I'm talking about jurisdiction.

Is that what Dombrowski means to you?

Mr. Victor Rabinowitz: I think that that's probably a broader reading of Dombrowski then.

Justice Abe Fortas: So what are the exceptions of the qualifications?

Mr. Victor Rabinowitz: Well, I would say that where the state is prosecuting, and I may be getting back to the same point, Your Honor, let me try to spell it out.

Where the state is prosecuting in a First Amendment area, and where the circumstances are such as to cast a poll inhibit the free exercise of First Amendment rights guaranteed by the First Amendment and the Fourteenth that in that kind of a situation, the federal court has jurisdiction to determine whether the statute is a constitutional statute and whether it should under all of the standards that are set forth under one hand in Dombrowski, on the other hand in Douglas against Jeannette whether it should or should not abstain.

Justice Abe Fortas: Now, could you suggest to me a First Amendment situation which would not fall within that category?

Mr. Victor Rabinowitz: Well, I'm not sure for example that an obscenity case would fall within that category.

I don't believe that the chilling effect of a vague obscenity statute would be the kind of thing that would cast a poll on political activity within the meaning of the Dombrowski case.

Justice Abe Fortas: Is that to be a political activity?

Mr. Victor Rabinowitz: I would say it has to be -- it has to be certainly First Amendment activity.

And I would say when we're -- considering that we're talking about casting a poll on the carrying on of activities, I would say it probably has to be political activity.

At least I would have difficulty in extending it to an obscenity case.

Justice Abe Fortas: Why is that?

Is that because the chilling for example of artistic expression or literally expression is less important?

Mr. Victor Rabinowitz: I would say it is less serious in terms of --

Justice Abe Fortas: Then that would make the difference.

Mr. Victor Rabinowitz: -- the eminence of the importance of political activity, yes, sir.

I don't think it matters a great deal that it may be my personal view on the matter.

I don't think it matters a great deal if you have to wait a couple of years to find out whether you can show a movie or publish a book.

I do think it matters a great deal to wait a few years to find out whether you can join an organization or distribute a leaflet.

To engage in a political campaign and do the other -- carry on the other activities similar in nature.

Now, I would like to point out that in this situation, the state was amply protected by other laws.

That is thereof, as I say 43 counts and incidentally, two of the defendants were charged and still since been convicted of the crime of conspiracy to murder.

So that the state has weapons at its disposal; the gun statutes, the arson statutes, the murder statutes and all these other things to take care of a situation such as this and there doesn't seem to be any requirement in order to protect the interest of the state, while it must impose on top of this a sedition statute phrased in the very broad and general terms of the New York statute.

Now, there are other points which I think I'll set forth in the brief, and I'm sharing my time here with counsel in the consolidated case.

There is of course the supersession point discussed in the Nelson which is I think adequately brief than which is involved in the next case Harris against Younger as well as in this one.

And finally there is the argument or the problem of the effect of Section 42 U.S. Code 1983 on 28 U.S. Code 2283, that is the question of whether the Civil Rights Act is an exception to the provision of the judiciary code with respect to granting injunctions.

That issue has been before this Court.

It's been argued by this Court so many times that I really don't think it necessary to do it again.

It was presented in Cameron against Johnson.

I think it's adequately brief that I rest on that.

Justice Potter Stewart: Did Judge Friendly rely on that, I forgot if he ever got to it?

Mr. Victor Rabinowitz: No, I don't think he ever got to it.

Justice Potter Stewart: I --

Mr. Victor Rabinowitz: He found the statute constitutional, and under these circumstances, following what this Court did in Cameron against Johnson, it really wasn't necessary.

Justice Potter Stewart: He didn't mention that then?

Mr. Victor Rabinowitz: I don't believe he mentioned that at all.

Justice Potter Stewart: That's right, thank you.

Argument of Eleanor Jackson Piel

Ms Eleanor Jackson Piel: If it please the Court.

My client is one of the 15 persons indicted in this case.

And he has somewhat of a unique position, because although there are 48 counts to the indictment, he is charged with four counts -- three counts of the substantive anarchy.

One, of the conspiracy to commit anarchy, and one count which by itself does not seem very serious but is conspiracy to commit arson in the third degree.

Now, this will become significant in terms of my argument, although it may not be as significant as to the other appellants in this case.

Justice Potter Stewart: You say there's one count of conspiracy?

Ms Eleanor Jackson Piel: To commit arson in the third degree.

Justice Potter Stewart: No, by the one before that.

Conspiracy I think you said to commit anarchy?

Ms Eleanor Jackson Piel: To commit anarchy, yes.

There are four --

Justice Potter Stewart: I didn't know that anarchy was something you could commit.

I thought that was a state of existence.

Ms Eleanor Jackson Piel: Well, I've had such a long association with anarchy.

I finally decided that perhaps committing is the term to be used.

Justice Potter Stewart: What is -- which count are you -- do you remember the number of the --

Ms Eleanor Jackson Piel: Five.

Justice Potter Stewart: Number five, right.

Ms Eleanor Jackson Piel: Five is the -- no, four is the conspiracy to commit anarchy and fifth one is arson.

And interestingly enough, you will note there are -- that the overt acts that the -- that all through the anarchy counts, you find the dissemination of ideas by word, by distributing pamphlets.

You find assemblage.

You find that kind of thing all the way through.

But I want to get back to what we claim -- what I claim in this appeal.

This is a two -- a double barreled attack not only on the anarchy statutes but also on the grand jury statutes in the State of New York.

And they go together very well here, because you have black people, Negroes accused of political crimes and they are indicted by a predominantly white middle-class grand jury which is chosen by statutorily set of subjective standards.

Now, I want to go back a little bit to the history with regard to this anarchy statute and what happened to it.

It was passed as you know in 1902, and it came to glory as it were in 1920 when in February Mr. Gitlow was convicted of anarchy.

Even though as you all recall, he was a socialist.

It went through the New York Court of Appeals in 1922 when that court gave a ringing opinion saying that the state had a right to protect not only itself but the Government of the United States from subversion.

It was approved by this Court in 1925 in an opinion which specifically excluded the concept of clear and present danger, and that was clarified by a dissent of Homes and Brandeis.

And then that statute was never invoked in the State of New York again until the summer of 1964 when William Epton was indicted by a grand jury in August by the same white middle-class set up under the same statutes that we are challenging here.

And then there's something that has not been argued in any of the briefs.

In fact, I really just came across it.

That in 1945 after Epton had been indicted the legislature of the State of New York met and amended the anarchy law, left out force with regard to the overthrow, simplified it a great deal, and also said that the anarchy had to only be directed against the State of New York, and in the practice commentary of the framers of the legislation, Mr. Danzer and Mr. McQuillan.

They say this section substantially restates one phase of the former penal laws principle criminal anarchy provisions.

And then it goes on to say that they've changed the law because of Pennsylvania against Nelson.

In other words, the legislature decided that supersedure had taken place and that the legislature had a right to legislate about state sedition but not about national sedition.

And then the little note maker says concededly an offense of limited utility.

Alright, now this happened in 1965 but this law was only going to be effective on September 1, 1967.

So we aren't really dealing with this law except Judge Friendly did talk about it in his opinion saying that even if -- that we shouldn't be worried about this particular action because these defendants were -- could be -- there was a constitutional statute now that they could be charged against -- it could be charged against them.

But I say that it's quite unusual that you have a -- the legislature amending the statute and then the highest court of the state, as it did in Epton in May of 1967, coming down with the decision saying that the statute which had been amended by the legislature was constitutional before it was amended, even though the legislature didn't think it was amended.

And I think that there is again a case of first impression before this Court with regard to the power of a court to keep reinterpreting legislative enactments.

Justice Abe Fortas: As purely a state law question isn't it?

Ms Eleanor Jackson Piel: I think it kindly -- it finally reaches and I'm thinking of what Mr. Jackson said this morning that perhaps this due process is not wound up with fairness.

But I would think that at a certain point a legislature would not have the -- it seems to be a legislature would not have the right to do two things.

Or it would not have the right, constitutionally because it wouldn't be due process to read the plain meaning of language out of what the statute said.

I think that would be due process.

We know in the decisions of this Court, Winters being a leading one and at being very well established, that the gloss that a state legislature puts on a statute is to be reexamined by this Court by standards of whether or not the gloss is constitutional.

And I think there is another aspect of due process --

Justice Byron R. White: By the way, do you challenge here in your -- the constitutionality of the gloss that the Court did to --

Ms Eleanor Jackson Piel: Of the what?

Justice Byron R. White: Of the gloss that the Court did put on the statute in Epton?

Ms Eleanor Jackson Piel: I certainly do.

And I will very briefly tell you why.

The gloss that the Court put on the Epton statute misses in one respect which is already been mentioned, and that is that it doesn't give fair warning to those persons before -- who committed acts before that the Court told them what the statute says.

Justice Byron R. White: Well how --

Ms Eleanor Jackson Piel: And --

Justice Byron R. White: -- about people today though?

Ms Eleanor Jackson Piel: Alright, as to people today, it seems to me that it misses an important aspect that this Court said Dennis meant when it spoke in Yates.

It said that the -- that one of the aspects of the clear and present danger of the overthrow of the Government or the force and violence had to involve a group or a person joining a group which was of sufficient strength to actually accomplish the end.

And that was never mentioned by the Court in Epton.

Justice Byron R. White: Do you raise that question up here the constitutionality of the statute as narrowed in Epton?

Ms Eleanor Jackson Piel: I don't know whether I did it adequately, but I certainly am raising it here.

And then there is another --

Justice Byron R. White: Well you didn't argue it in your brief, did you?

Ms Eleanor Jackson Piel: I didn't argue it just that way.

Justice Byron R. White: Well, in any way?

Ms Eleanor Jackson Piel: Yes, I said that this case was distinguished from Dennis.

I also don't think -- I think there are different principles applying to a federal statute having to do with overthrow of the Government and a state statute.

And furthermore, I think that something that Mr. Justice Warren said very clearly in the Nelson case, and that was with it the Smith Act and the whole area of the internal security legislation has proscribed the states from legislating in that area.

That doesn't mean they can't have laws saying that people can't go out and get guns together.

But they can't talk about overthrow of the Government of the state.

And actually, that's what the legislature of the State of New York thought to a degree, not completely because they thought -- they didn't think it that a person could talk about overthrow of the Government of the United States.

Justice Byron R. White: But in any event, I gather the constitutionality of the narrowed statute is raised squarely in the other case also, in the cases just been argued.

Ms Eleanor Jackson Piel: Well, yes, we're actually saying that the Supreme Court or the Court of Appeals of the State of New York can not read all this new language into a statute it has once interpreted 40 years ago in order to make a prosecution hold against a number of black people who have politically unpopular ideas.

And I want to bring the Court's attention to what the District Attorney said it was necessary to charge the defendants here with the crime of anarchy along with the other 42 counts of gun possession because the District Attorney had to show the element of intent, and what does he say in the various press releases which are part of the papers in this case?

These are -- this is what the District Attorney in this prosecution thinks the defendants were doing “RAM, which was dedicated to the overthrow of the capitalist system in the United States by violence if necessary.”

Mackell said the arrested RAM members are followers of Chinese premier Mao Tse-Tung and are associated with another Negro organization called Black Americans Unite or Perish.

Their intent was to spur Negro militancy across the nation, police said, following recent ghetto rioting in Atlanta, Tampa, Dayton, Cincinnati, and Waltz.

I submit that this statute here is being used in a way similar to what a commentator once said about the using self-incrimination evidence that it's a part of laziness.

It's far easier to sit in the shade and rub red pepper in some poor devil's eyes, than to go out in the sun collecting evidence.

Justice John M. Harlan: Could you take a minute just to say what these people were charged with specifically?

Ms Eleanor Jackson Piel: Well, my client was charged with the first count was disseminating -- was talking about the overthrow of the Government of the State of New York with -- by force and violence.

The second count was writing pamphlets dedicated towards the same thing with the use of guns -- and the use of guns.

The third count was assembly for that purpose.

And then the fourth count was -- is conspiracy to do that with a number of overt acts 9 out of 14, I believe having to do with again the dissemination of leaflets, pamphlets, meetings, speech.

So that in so far as the anarchy aspect of the case is concerned, it has to do with the dissemination of ideas which are unpopular now.

I do not think that this Court can shut its eyes to the fact that the anarchy statute has not been used in New York for anything other, in the 60's and not before that since not the 20's, then to try to proscribe the conduct of black people in expressing ideas which are unpopular.

And we are faced with the situation where the Court is acting like a super legislature going along with the District Attorney so that it's more than the punishment fitting the crime, but it's the courts in a sort of after arranged approval of the conduct of the prosecution approving a crime to fit the so-called bad conduct.

Now, there has been a great deal of discussion in this Court about hard core conduct as distinguished from other kind of conduct under the free speech cases.

And Judge Friendly, in the court below said that these defendants don't have a prayer in his court, because their conduct was hard core conduct.

Now, I don't think you can talk about hard core conduct where you have a challenge to a statute that is vague.

And this Court held 160 and 160 as fatally vague in the Keyishian case.

Now, you might have hard core conduct in a situation where the statute is overbroad where you say that certain things are enumerated which are bad and other things are mentioned which are of -- which don't -- which are too vague or too broad and should not be upheld.

But here there is nothing that these defendants did with regard to the anarchy counts that it seems to me is not protected by the First Amendment.

Justice Potter Stewart: Well, these -- these statutes I gather from you and from Mr. Rabinowitz were directly an issue in the Keyishian case, were they?

Ms Eleanor Jackson Piel: They were part --

Justice Potter Stewart: Do you know I did not join that opinion, and I --

Ms Eleanor Jackson Piel: Yes, yes.

Justice Potter Stewart: -- I didn't --

Ms Eleanor Jackson Piel: Yes, in fact it was not -- there weren't a lot of you together on that one.

Justice Potter Stewart: Some of us didn't, but where these statutes directly at issue in the Keyishian case?

Ms Eleanor Jackson Piel: Well, I don't know what -- I can't answer that because I don't know what you mean by directly.

Justice Potter Stewart: Well --

Ms Eleanor Jackson Piel: They came -- it was the definition of sedition was framed by 160 and 161, and sedition was in the Education Act.

Sedition was the word used in the Education Act.

Justice Potter Stewart: I see that --

Ms Eleanor Jackson Piel: And --

Justice Potter Stewart: -- supposedly incorporated this by reference.

Ms Eleanor Jackson Piel: That's right, that's right.

So that when you read it, it sounds as though this Court is squarely saying that the language as a whole is too vague.

And therefore, I don't -- I think that the whole concept of hard core cannot be thought of, because hard core has to refer to a situation where a statute is partly constitutional.

It applies to some kind of conduct that the legislature would have a right to proscribe.

Justice Abe Fortas: May I ask you what the present status of the prosecution is?

Has it been stayed in any of this?

Ms Eleanor Jackson Piel: It has, pending this decision.

Justice Abe Fortas: Do you have anything further to say with respect to the jurisdictional point, the Dombrowski point?

Ms Eleanor Jackson Piel: Well, I believe you called it hard medicine or something to that --

Justice Abe Fortas: I'd --

Ms Eleanor Jackson Piel: -- to that effect in the dissent in Cameron.

Justice Abe Fortas: Yes.

Ms Eleanor Jackson Piel: I was quite impressed with the intention given to it to the issue by the ALI, where a number of jurist have gotten together and they have come up with the use of the injunctive or injunctive remedy in a situation where the First Amendment is involved, and --

Justice Abe Fortas: You would -- you would then make no restriction as to the use of the injunction and declaratory remedy in any First Amendment prosecution.

Ms Eleanor Jackson Piel: I don't think I have to say I would if any.

I'm talking about this case, and I think that this case is appropriately a case where the remedy should issue.

Justice Abe Fortas: Well let's suppose, I know it's not the fact, but let us suppose for the moment that your client as well as some of the others here had been indicted among other things for the unlawful possession of weapons.

And their defense is that they possess some sounds of weapons in order to protect their First Amendment rights.

Now, do you think, and let's suppose that you wanted to test whether that statue is unconstitutional being too broad or what not?

Would declaratory judgment or injunctive remedy be available to you?

Ms Eleanor Jackson Piel: Well, I think that raises another problem which was not raised here, and that is perhaps a hearing to determine what the facts are and the court below might --

Justice Abe Fortas: Well, let's assume that everybody agrees that these people did posses themselves of rifles and pistols and in violation of the state statute, and that they did so because they thought that was necessary in order to protect their First Amendment rights.

Do you believe that the District Court would be proceeding properly to entertain an action for declaratory judgment or injunction, assuming that these people had been indicted under that statute?

Ms Eleanor Jackson Piel: Well, without answering your question, I would say that it differs from the one here, because there we are assuming that there is a valid state statue and that this prosecution that the defense of the defendant is that it was a First Amendment defense.

Justice Abe Fortas: Well, assume -- assume that it's an invalid state statute, assume that --

Ms Eleanor Jackson Piel: Well, that is the rub in this case.

Justice Abe Fortas: -- it's too broad or what not, assume that.

Ms Eleanor Jackson Piel: Well, if it is too broad as this anarchy statute and couldn't be applied at all, then I think it would be a very appropriate basis for a remedy.

Justice Abe Fortas: In other words -- well that's what I was getting at.

In other words, as I understand your position, declaratory judgment and suit for injunction in a federal court lie with respect to any state statute and any indictment provided that the defense -- provided that it is asserted or that the defense is that the activity involved is within the broad First Amendment area?

That's your position.

Ms Eleanor Jackson Piel: I don't -- I don't want to be the author of that position.

It seems to me that one may narrow the issue down quite a bit.

We have some interesting other factors in this case.

We have the highest court of a state having given a clearly erroneous unconstitutional in my opinion.

Justice Abe Fortas: Alright.

Ms Eleanor Jackson Piel: Interpretation of the statute, it might be that the federal court would want to abstain until the state had an opportunity to take action.

That might be a consideration.

Justice Abe Fortas: But as I -- as I understand it, one of the points that Judge Friendly made below is that you ought to wait until there is some judgment in the criminal action, and then prosecute the accused.

Ms Eleanor Jackson Piel: Well may I tell you why I think -- why I very personally would not like to wait?

This --

Justice Abe Fortas: I can imagine.

Ms Eleanor Jackson Piel: Well, I'm not sure that you can, because there is a precise reason.

My client Fred Fernandez could very easily go to trial tomorrow as William Epton did on the anarchy charges and this arson in the third degree.

The judge could what Judge Marko which he did in Epton, very conscious that your -- that these nine gentlemen were here, and give a concurrent sentence on the arson charge, in this case of one year, which Your Honors would say that since there is a valid state statute which supports the conviction.

We will abstain even though Mr. Justice Stewart thought it came properly before you, you might like to reconsider the validity of the anarchy statutes of the State of New York.

Justice Abe Fortas: Well, I'm interested that you're sure of that, and we would abstain the cause of the concurrent sentence rule.

Ms Eleanor Jackson Piel: Well, you've done it once before.

I don't -- of course that isn't necessarily a precedent.

Justice William J. Brennan: Do I understand your view of the case is present for a reversal on the constitutionality of the statute?

In other words upon declaratory judgment contrary to that was reached by the –- of constitutionality which was reached by the three-judge court.

Ms Eleanor Jackson Piel: Yes, and I --

Justice William J. Brennan: I don't need -- I noticed that Mr. Rabinowitz's brief also asks that we decree that the petitioners there are entitled to enjoin the prosecution, but that you do not?

Ms Eleanor Jackson Piel: Well, I've said --

Justice William J. Brennan: For reason for the --

Ms Eleanor Jackson Piel: I've said in the footnote that I don't believe an injunction is necessary that if this Court were to declare the anarchy statute unconstitutional, I can imagine --

Justice William J. Brennan: Like they did at -- that the New York courts would respect that declaration and not attack the prosecution?

Ms Eleanor Jackson Piel: Right.

Justice William J. Brennan: I wondered whether it was why Mr. Rabinowitz's brief --

Ms Eleanor Jackson Piel: Well --

Justice William J. Brennan: -- doesn't seem to be quite as confident as you suppose.

Ms Eleanor Jackson Piel: No, I just seem to me that I should ask for what I thought --

Justice William J. Brennan: You can get?

Ms Eleanor Jackson Piel: -- was in order and an injunction does present some pretty naughty problems, and Your Honors have not yet faced that in here.

Justice William J. Brennan: Well, I -- I suppose Zwickler and Koota suggested that those are two different things.

You may be entitled to a declaratory judgment but not from an injunction.

Ms Eleanor Jackson Piel: That's -- that's correct.

I just want to close with --

Justice William J. Brennan: And of course you had -- well so you that you had a declaratory judgment here now.

Ms Eleanor Jackson Piel: Well I've had a declaratory judgment the wrong way.

Justice William J. Brennan: Yes, of constitutionality --

Ms Eleanor Jackson Piel: The wrong way.

Justice William J. Brennan: -- of constitutionality and what all you're really asking for us is that we reverse that declaration and hold with you on that issue, isn't it?

Ms Eleanor Jackson Piel: That's correct.

It seems to me that we've got a sedition law just like the ones we had back in the 18th century.

And James Madison said that they were monsters who will -- whose parents could never get over them.

Chief Justice Earl Warren: Mr. Ludwig.

Argument of Frederick J. Ludwig

Mr. Frederick J. Ludwig: Mr. Chief Justice, and may it please the Court.

This indictment is aimed not at the discussion or dissemination of ideas on anarchy, communism or what have you.

But on the accumulation of an arsenal of weapons and ammunition and gasoline and black powder to overthrow or paralyze, overthrow for a week, a month however so long local government installations.

What is the evidence in this case on this unusual review in the high court?

The evidence, the real evidence in this case consists of 6,524 rounds of ammunition, plus 32 boxes of ammunition, plus six cans of ammunition, enough ammunition with a good marksman to kill 9,000 people.

This ammunition was seized pursuant to an arrest warrant plus a search warrant after the indictment of the appellants in this case.

In addition, we have 43 guns similarly seized pursuant to an arrest warrant after the indictment of these appellants, plus a search warrant particularly describing what was to be seized.

These weapons --

Justice Potter Stewart: And how did that evidence get into this case?

I thought this was an --

Mr. Frederick J. Ludwig: This is part --

-- action for an injunction and a declaratory judgment in the federal court?

Justice Potter Stewart: Yes, this is part of this case -- the real evidence in this case.

Mr. Frederick J. Ludwig: This evidence had been seized already.

We've had --

Justice Potter Stewart: Is that in the record?

Mr. Frederick J. Ludwig: We can't -- we have -- it's in the grand jury minutes from page 1 to 45, and if Your Honor wishes, I'll hand them up for the consideration of this Court alone.

I'm not permitted to publish them in the record and give opposing counsel grand jury minutes.

It's customary in our high court of our state to hand up grand jury minutes to the high court alone and let them consider whether or not there was sufficient evidence or for a grand jury to hold someone in contempt without giving the other side the entire investigation.

Justice Potter Stewart: I thought Mr. Ludwig this case was decided basically on the plea on a complaint to which was attached a copy of indictment and then on an answer?

Mr. Frederick J. Ludwig: Well, it might --

Justice Potter Stewart: That there was no evidence as such and it is there'd be no real evidence.

Mr. Frederick J. Ludwig: Except that Your Honor, the indictment talks in the first four counts about and 19 overt acts specified in count five about discussions.

And I thought it might be material resolving a question of what constitutes free speech to have some inklings about the nature of this discussion.

And for that reason, I still offer if the Court wants to peruse them whatever value they may have, the grand jury minutes consisting of page 1 to 151 given on -- testimony given on June 20, 1967 and on June -- on January 15, 1968 for the superseding indictment relating to these weapons in describing them by serial number and color and so forth, pages 1 to 145.

I happen to have with me a certified copy.

If the Court would --

Justice Abe Fortas: The State of New York has statutes on unlawful possession of firearms and ammunition, I suppose?

Mr. Frederick J. Ludwig: Your Honor, I happen to be the draftsman of those 10 consecutive sections of the penal law which were revised in 1963 and were continued without any change when the entire penal law was revised in 1965 to take effect September 1, 1967.

Justice Abe Fortas: Yes, so were these people indicted under those sections?

Mr. Frederick J. Ludwig: Yes, they were indicted under --

Justice Abe Fortas: But they were also indicted for the advocacy of something, were they anarchy or overthrowing the government and they were indicted for some of the overt acts charged to them, or holding meetings to discuss that and so on, is that right?

Mr. Frederick J. Ludwig: Yes, Your Honor.

Now, this is something that neither counsel appears to understand because they have not read the Weapons Law.

Section 1897 is the heart of the Weapons Law.

It's been continued in the new penal law.

This law, a derivation of the old Sullivan law makes it criminal without proof of anything more if you possess a handgun, that's a gun, a pistol, a revolver, an automatic, four counts in the indictment deal with handguns.

Justice Abe Fortas: Is that true in the case of both these appellants?

Of all of these appellants, is it true in Fernandez's case?

Mr. Frederick J. Ludwig: No.

Justice Abe Fortas: I gathered from counsel that she said her client was not involved in that.

Mr. Frederick J. Ludwig: No, she is not.

It is not true, Your Honor.

The other remaining 37 counts of the 41 that deal with weapons, deal with shoulder guns, rifles, shotguns, and carbines.

Now, it is not criminal in New York to possess one of these guns unless you can prove intent to use the same unlawfully against others.

Obviously, there are many hunters and other people that want rifles.

The usual criminal prosecution for possession of a rifle or a shotgun or a carbine, the intent is to rob somebody, to assault him or possibly to rape some woman.

In this case, there is no such intent.

The intent is merely to overthrow the local (Inaudible) -- the local government.

Now, the way this prosecution came about because of the statements made by counsel might be of interest of this Court.

A large investment in time and money, and not simply sitting under a shady tree rubbing red pepper into the eyes of someone else was expended by the police.

Several undercover detectives were assigned over a period of almost two years and they joined and infiltrate this organization.

One of them got into the higher councils of the organization, became a vice-president of it was in on all of the discussion.

This man by the way showed remarkable courage because in November of 1966, it was stated to him by the leader of the organization that they knew someone of their members was an agent, an enemy agent or law enforcement agent.

In any event from what the police told the District Attorney, this infiltration started in October 1965.

In April of 1967, the police first came to the District Attorney.

And this is what they told us, they told us about these discussions.

They told us what these discussions concern; how to make a bomb, whether you use a wine bottle with thin glass containing gasoline, or a soft drink bottle with thicker glass.

When you use one, when you use the other, how you make it.

The problem of the fuse which is difficult to get, how can you hand make a fuse?

One fuse is a pack of cigarettes; pardon me, based lighted cigarette on a pack of matches on top of the Molotov cocktail, the gasoline.

Another one is to get a rubber tube, fill it with black powder and insert one end into the Molotov cocktail and light the other.

Still another one, when you pour gasoline into the streets and you don't want to burn yourself, use a flare gun not a match because you would go up to the flames.

How do you -- how do you manufacture a bazooka, which we used in World War II in the Korean War as an anti-attack gun?

Well, you use a shotgun and a Molotov cocktail and of how you can combine the both.

How you use gasoline in the streets to prevent police response?

How you pour gasoline to communications manholes into the publicly owned and operated subways to burn down two lumber yards, to burn down a tire factory, and how you similarly use oil?

How you disable responding public vehicle -- of local government?

By slashing tires, by putting sugar in gas tanks, by sniper fire -- 22 caliber sniper fire aimed at the windshield.

How you disable electric power and how you differentiate high-tension telephone wires from high-tension electrical wires?

How --

Justice John M. Harlan: Just a matter of evidence, when were these indictment returned?

Mr. Frederick J. Ludwig: On June 20, 1967, the original indictment was returned.

After one day of testimony before the grand jury by these undercover police agents, the warrants for the arrest of these appellants, particularly the same day.

Justice John M. Harlan: Well that would all of it two years now, is that it?

Mr. Frederick J. Ludwig: That is correct.

Justice John M. Harlan: Beyond anything the date now?

Mr. Frederick J. Ludwig: That is correct.

I wanted merely to go to the --

Chief Justice Earl Warren: May I ask why spend the two years without prosecuting them for all these offenses you talked about?

Mr. Frederick J. Ludwig: Your Honor, it's because of so many motions that have been made in this case.

Never before in the 70-year history of our county, which is the fifth largest in the United States have so many motions been made in the single case.

We have weighed the papers on a scale.

They've weighed 20 pounds all total.

Everybody made a motion and joined in someone else's motion.

And we did however, based on the testimony given pages 1 to 151 these grand jury minutes which the Court may or may not accept if it wishes.

We returned another indictment, conspiracy to murder two civil rights leaders Whitney Young and Roy Wilkins.

We tried that indictment and convicted before a jury two of the appellants here, Harris and Ferguson.

And that conviction is pending on appeal.

Justice John M. Harlan: How long have you been in the federal courts?

Mr. Frederick J. Ludwig: Since March 12, 1968, when application was first made by the appellants to get a three-judge panel.

And the decision of the three-judge panel came down in June of 1968, and then application is made for this Court's review.

Justice Abe Fortas: May I ask you whether that's the federal court proceedings that have held us up, or is it this error -- would the proceedings have been delayed in any event?

Mr. Frederick J. Ludwig: The delay from June 20, 1967 to March 12, 1968 has no connection with the federal court.

From March 12, 1968 until today March -- April 1, 1969 is purely federal delay.

Justice Abe Fortas: Why is that?

No injunction status.

Mr. Frederick J. Ludwig: No, the District Attorney -- one of the assistant district attorneys agreed that they await the outcome of proceedings.

And if this Court did not note probable jurisdiction it would've gone to trial the next day in the state court.

Justice Abe Fortas: I see.

So it's not because of a stay issued by the District Court over by this Court?

Mr. Frederick J. Ludwig: No, no Your Honor.

Now, I'd like to say briefly that that's what's involved in this case.

It's not advocacy of ideas or opinions.

It's advocacy of minute detailed action.

I want to add one or two more types of actions here besides the assassination.

There are other personal types of instruction that I have never seen in any curriculum in my life.

I have never known there was a cause in mayhem for example.

How you use the blunt end of a hatchet against a policeman and disable him by hitting him on the base of the spine.

I never heard of aikido, a Japanese combination of karate and judo, which operates on the principle of hitting you at a joint so as to break the distal ends of the bone.

This is some of the instruction that went on during this two-year period that these people were being observed.

Then, interestingly enough and this is finally what caused the grand jury to act in Queens District Attorney to submit it.

They had a test run on June 16, this indictment, this matter was presented to the grand jury on June 20.

A test run involving two of these appellants when they went out in a car and tried out these tactics, firing shots at stall windows in South Shoemaker in Queens.

Now, under these circumstances, we thought it best after plans had been formulated, a timetable made as these minutes will disclose to the Court, weapons had been accumulated and distributed and they were ready to go that now if the heart and catastrophe was to be prevented, action had to be taken.

Now, I wanted briefly make the point that under subdivision 9 of Section 1897, you must prove intent if it's a shoulder gun.

And the intent that the District Attorney intends to urge in this case is the intent to overthrow local government.

Not to rob anybody, not to assault any passersby, not to you do what 999 out of a thousand rifled cases that we prosecute involved, but the rather unusual intent, this magnificent protest gesture of overthrowing the local establishment.

Justice Hugo L. Black: Is that a crime in New York?

You made a crime in that language?

Mr. Frederick J. Ludwig: No, it merely says anyone who possesses a dangerous weapon, and weapon is defined as rifle and shotgun.

Firearm is different, that's a handgun.

Anyone who possesses a rifle or shotgun in effect with the intent to use the same unlawfully against another is guilty of misdemeanor.

Now, we could not --

Justice Hugo L. Black: Is it a crime to have it with intent to overthrow the government?

Mr. Frederick J. Ludwig: We maintain it is, yes.

We maintain it is.

Justice Hugo L. Black: In that language?

Mr. Frederick J. Ludwig: No, not in that language, Your Honor.

Justice Hugo L. Black: Well, what then?

Mr. Frederick J. Ludwig: It says merely with intent to use the same unlawfully.

Justice Hugo L. Black: To use the same unlawfully?

Mr. Frederick J. Ludwig: Unlawfully.

Justice Hugo L. Black: Well, what law would it bother?

Mr. Frederick J. Ludwig: The law that we --

Justice Hugo L. Black: You say unlawful, now which one is that statute?

Mr. Frederick J. Ludwig: Section 1897 subdivision 9 of the former penal law.

Justice Hugo L. Black: What does it say?

Mr. Frederick J. Ludwig: It says anyone who has in his possession a dangerous weapon with intent to use the same unlawfully against another.

Justice Hugo L. Black: But I'm talking about beyond that, whereas anything it said that would be unlawful?

Mr. Frederick J. Ludwig: Yes.

In a criminal anarchy statutes of the former penal law Section 116.

Justice Hugo L. Black: And what does it say?

Mr. Frederick J. Ludwig: It says that a person who advocates the overthrow of government by force or violence or unlawful means is guilty of criminal anarchy.

Justice Hugo L. Black: A question of advocate?

Mr. Frederick J. Ludwig: That's right.

And that is where the unlawful intent of a possession of these weapons would come in 37 of the 41 counts that deal with weapons in this indictment.

Now with respect to --

Justice Thurgood Marshall: Mr. Ludwig, if they've got these rifles and they're going to overthrow the government, is it an assumption they'd shoot somebody, wouldn't it?

Mr. Frederick J. Ludwig: I don't know because in this test run that I've made reference to Judge Marshall, they didn't shoot --

Justice Thurgood Marshall: I'm not interested in any test run.

I'm not interested in anything but the indictment in this case and the pleadings in this case.

Couldn't you have indicted them for the possession of the carbines for the purpose of harming somebody, period?

Mr. Frederick J. Ludwig: If we could prove whom they wanted to harm, not people generally.

But if I could prove that he was going to shoot his brother-in-law or that he intended to take two druggists in the corner then, yes.

Justice Thurgood Marshall: What you're really doing using the criminal syndicalism statute to enforce the possession statute?

Mr. Frederick J. Ludwig: Yes, Your Honor, yes.

Justice Thurgood Marshall: Well, certainly the criminal syndicalism statute wasn't intended for that in any time, right?

Mr. Frederick J. Ludwig: Yes.

Well, Your Honor, the intention of the draftsman of the weapons statute in 1963 --

Justice Thurgood Marshall: That's what I'm saying.

You said you drafted it.

Mr. Frederick J. Ludwig: I was only the draftsman, a committee of draftsmen.

Justice Thurgood Marshall: Did you have that in mind?

Mr. Frederick J. Ludwig: Yes, because we thought that --

Justice Thurgood Marshall: You have in mind combined it with the criminal syndicalism of the statute?

Mr. Frederick J. Ludwig: Not particularly the criminal --

Justice Thurgood Marshall: You mean not at all, is that true?

Mr. Frederick J. Ludwig: -- syndicalism statute Your Honor, but any thing defined in the penal law is unlawful was what was meant by the word unlawful in subdivision 9 of former 1897 of the penal law.

Justice Thurgood Marshall: You meant what you said was --

Mr. Frederick J. Ludwig: And that included criminal anarchy.

Justice Thurgood Marshall: I thought maybe you might have meant you said a minute ago that it was specifically the end of some specific course.

Mr. Frederick J. Ludwig: Oh no!

No Your Honor, no.

It was just one of the provisions of the former penal law that were included when these weapon statute were redrafted in 1963.

That was in --

Justice Thurgood Marshall: Well, my only point is that what you need to prove the case is one thing, and what you put in the indictment is another.

And you admit that the only way to convict these people for the possession of these guns is by the criminal syndicalism statute, is that your position?

Mr. Frederick J. Ludwig: Yes, Your Honor, in 37 counts not four of the other weapons counts, 37, yes Your Honor.

Argument of Weinstein

Mr. Weinstein: As the two courts below said, they're not really separate taxes, they're merged into one.

The use taxes in so much as a matter of raising revenue by itself, but it's a complement in a means of enforcing the sales tax.

And I would suggest that this is double taxation when a sale -- serviceman buys a car in one state and is charged a sales tax and he goes to the other -- another state where he is then charged a use tax, which use tax would not have been imposed if he had originally bought the car in the second state and paid a sales tax.

Justice John M. Harlan: Would there be use tax imposed in this transaction in the commerce to the interstate by the man or?

Mr. Weinstein: In one of two situations.

If as Commander Foster tried to do, the serviceman seeks to register his car in his home state, generally the home state will seek to impose a tax.

The other thing which comes to the potential of double taxation which is also within the purposes of this statute is that ultimately, we would -- I'd assume the serviceman is going home.

And when he goes home he brings back his property with him whatever he's acquired.

And at that time, he is going to be subjected to a use tax on this property.

And this is the point in time when double taxation is almost certain.

I suggest really in terms of potential for double taxation, this ought to be compared to the structure of the ad valorem taxation.

Ad valorem taxation isn't going to be doubly imposed anymore frequently than the use tax or in sales tax structures.

It would really depend on the accident of a man being switched from jurisdiction to jurisdiction within one year being in one state on its ad valorem tax day, and then in another state later in the year or earlier on its ad valorem tax day.

Justice William J. Brennan: Mr. Weinstein, do I understand that the basic thrust of your argument is that since Congress has said that possession shall be treated as in the case of the serviceman's personal property his possession in his home state that there is not that possession, which is the incident upon which the sales tax in Connecticut terms?

Mr. Weinstein: That's right.

Justice William J. Brennan: This Court to tell -- that's the basic thrust of your argument.

Mr. Weinstein: That's right.

Sales tax --

Justice William J. Brennan: But double taxation and all the rest of it is really quite irrelevant.

If you're right about that, if Congress has said, “No, you have to treat his personal property as if it were in Texas, his domiciliary state.”

Whatever Texas may do is Texas business as to sales taxes.

But in any event, Connecticut can't impose a sales tax because there's no possession of the car in Connecticut.

Mr. Weinstein: That is our position.

I think that the other side argues that the phrase, the initial phrase of the statute for the purposes of taxation in respect to personal property means only ad valorem taxation in respect personal property.

It doesn't catch any other tax.

And I see that my --

Justice Abe Fortas: Well, what's the part of the statute on which you rely, go back to page 2 of your brief, because as I read that it says, “Such person shall not be deemed to have lost a residence or domicile in his state solely by reason of being absent there from the compliance of military orders, or to have acquired a residence or domicile in the other state.”

Now, is somewhere in that part of the statute, do you find this Court for your position?

Mr. Weinstein: In speaking of personal property, Justice Fortas, I think there are two potential bases for imposing a tax, and they're dealt within two separate sentences here.

One is a tax that proceeds on residence or domicile on taxes personal property.

Justice Abe Fortas: Now, that's not applicable here, would you agree?

Mr. Weinstein: No.

Justice Abe Fortas: Now, what's the other one?

Mr. Weinstein: No, and that is the first sentence Justice Fortas.

Justice Abe Fortas: Yes.

Mr. Weinstein: Now, the sentence that begins on the top of page 3 in the middle of the first line which again begins for the purposes of taxation in respect of, it doesn't say person now, but personal property, income or gross income.

First, it defines the --

Justice Abe Fortas: Of any such person.

Mr. Weinstein: Of any such person.

Now --

Justice Abe Fortas: Which indicates property, personal property owned by the person, doesn't it?

Mr. Weinstein: Yes, and that would be I think a reference to the “any person” in the first sentence perhaps modified, and I suppose modified by the language -- person being absent there from, from his home state in compliance with military or naval orders in the first sentence.

And then as you go one in this sentence, first it describes a source of income and says military pay shall not be deemed to be from within the home state.

And then for present purposes, the language is personal property shall not be deemed to be located or present in or to have a situs for taxation in such state territory possession or political division or district.

Justice Abe Fortas: Well, just reading that plainly in a common place manner, it does seem to support the state's position rather than yours, doesn't it?

In other words, you have -- your position has to depend upon doing a little magic with the words, doesn't it in taking what you deem to be the sense of the provision rather than its specific language?

Mr. Weinstein: I think that that -- whether that is so depends on how the sales and use tax statutes work.

Now, use tax statutes are applied only when property is within and used within the --

Justice Abe Fortas: No, but the use tax in this sense, as I understand it is a sales -- it's a part of the sales tax in the sense that it is a complimentary to the sales tax for the purpose of trying to plug what would otherwise be an obvious hole under the sales tax.

Mr. Weinstein: Yes, but the sales tax --

Justice Abe Fortas: Isn't that the kind of use tax we're talking about here?

Mr. Weinstein: Yes, but the sales tax also depends on physical presence of the property in the taxing jurisdiction.

Under the Connecticut statute and while the language is different in other states, the effect is the same.

The tax is imposed only when there is a sale and when physical possession is taken in the taxing jurisdiction.

Justice John M. Harlan: What is the legal instance of this tax?

Mr. Weinstein: This is the same kind of tax that was before the Court last term in the Massachusetts Bank case and it's a vendee tax.

The legal incidence is on the buyer.

The seller is given an action in debt to collect -- and is directed to pass the tax on to the buyer.

And it's clearly a vendee tax.

Justice Potter Stewart: But the seller is directly liable to the state to return this --

Mr. Weinstein: The seller is liable to the state.

The buyer is liable to the seller.

And it's the same structure as this Court labeled a vendee tax last term.

Justice Potter Stewart: The tax purports at least to be imposed upon the transaction, isn't it rather than on the property?

It's upon the transaction --

Mr. Weinstein: Well --

Justice Potter Stewart: -- the sale measured by the value of the property sold.

Mr. Weinstein: It's imposed on the sale of tangible personal property.

So that it purports to be on the sale, but it's not just the sale alone.

There must be tangible personal property.

And the word sale and selling are defined in the statute, in the Connecticut statute in words that are quoted in pages 28 and 29 of the brief here.

And it says mean and include any transfer of title, exchange or barter and so forth.Now, transfer of title under the general rule of the Uniform Commercial Code which applies in Connecticut and I think almost all states by now is the title is transferred when the seller's responsibility is asked to delivery or complete it, so that this definition of sale incorporates a concept of a transfer of physical possession so that you can't view the sale tax as simply being on some abstract privilege of selling.

Justice Abe Fortas: Well no, not necessarily.

That is to say you couldn't have a transaction in Connecticut, I've had some in which there's no transfer of physical possession what the sales tax is collecting.

Mr. Weinstein: Well, if there is no transfer of possession, if the property is supposed to stay a word as this brings in to play a different part of the Uniform Commercial Code which would transfer title at that earlier time.

But I think where we're talking here about movable chattels, boats, cars, appliances, things of that sort, there are things that contemplate transfer.

Justice Abe Fortas: But which we're mostly talking about here I suppose is food and drink.

Mr. Weinstein: Food and drink under the stipulation, I think would -- the stipulation says that everyday purchases are made in the post-exchange or commissary.

And those under the Buck Act which is I think Section 107 of Title 4 are explicitly exempt from sales and use tax.

Justice Abe Fortas: I understand that, but how about is it stipulated here -- I noticed it stipulated at, at least I think I remember it's stipulated that no attempt would be made that there is no opposition to the collection of the sales tax with respect to groceries bought in a grocery store in New London for example by a soldier.

What about that?

Mr. Weinstein: I didn't understand that to be in the stipulation.

I just understood that that --

Justice Abe Fortas: Well, is it the Government's position that when a soldier goes into a store in New London to buy a pack of cigarettes that he's exempt from the sales tax?

Mr. Weinstein: Well, if I can avoid the cigarette tax which is different state --

Justice Abe Fortas: No, I'm talking about the sales tax on --

Mr. Weinstein: I'll take the sales tax on it.

Justice Abe Fortas: -- on a pack of cigarettes.

Mr. Weinstein: Such say a tube of toothpaste which --

Justice Abe Fortas: Alright.

Mr. Weinstein: I think the position on this side of the case would be that the exemption applies simply because there is no way of parsing neither Section 514 or the Connecticut tax to apply to only to say big ticket items and not to small purchase.

Justice Abe Fortas: That's what I thought and in short that your position is that the sales tax ought not to be collected on the purchase of toothpaste by a soldier from the store?

Mr. Weinstein: Yes, I think the impact.

I'm saying that that's the thrust of the legislative judgment in this statute.

The function of the stipulation I think is to show that that kind of impact is not likely to exist because purchases of this kind are not made in stores that are generally subject to that type of -- to the state tax but are made in official installations where the tax doesn't apply.

Justice Potter Stewart: I think I remember in the -- in your opposing counsel's brief that Connecticut imposes a sales tax on the rental of motel rooms, is that correct?

Mr. Weinstein: Yes, I think whether that would fall under Section 514.

Justice Potter Stewart: It hardly would fall under the language would it?

Mr. Weinstein: I'd like to start by saying I don't think that's in this case.

At least it has --

Justice Potter Stewart: But it does I think -- I think counsel for the state makes that point to emphasize his position that the tax is imposed upon the transaction and that rather than being a tax on property.

Mr. Weinstein: Well, I think I've struggle with the problem of how do you characterize the right to occupy a motel or hotel room for a night.

And under Section 514 the problem comes down to whether you can characterize this right as an intangible personal property.

If it is, it would be exempt.

I suspect it isn't.

It seems to more in the nature of a real property interest which would not be caught.

But whether that comes under Section 514 is a rather different problem than these admittedly tangible items which have physical location that do move around, where a hotel room doesn't and certainly seem to be the type of objects that Section 514 was intended to deal with.

Now, there are other points that I think are adequately covered in part 1 of the brief which is the discussion of the Buck Act, the supposed administrative problems and the constitutional attack which I think this Court put to rest in the case of Dameron against Brodhead some years ago.

Justice William J. Brennan: Before you establish this, I shall ask you one more question about the matter we've been discussing at the outset of your argument?

I've looked at this Arlington case, apparently this is the rationale of the Government standing to bring this suit.

I'm quoting from it, “Here we find that the interest of the national government in the proper implementation of its policies and programs involving the national defense is such as divest in it the non-statutory right to maintain this action.”

Under these circumstances, the incapacity of the individual plaintiff to maintain his action is immaterial since he may find shelter under the Government's umbrella.

Now my question is, I gather the policies and programs of the United States when this action was brought were on the side of the servicemen, and that would be the justification.

And the defense in issue of the right of the Government to maintain the suit had been raised.

But now here we come to -- when you come to this Court, apparently the Government's policies and programs have changed.

Does that have a bearing on whether or not we have a case of controversy before us?

Mr. Weinstein: I would think that the existence of the controversy -- again I would like to go back to the confession situation, because in the confession situation the Government is clearly saying now, we don't think now that in a criminal case this man could've been prosecuted or should've been prosecuted in this way.

Justice William J. Brennan: No but it seems to me Mr. Weinstein by the time it gets here, if there's a change in policies and programs, why isn't this moot?

Why don't we just vacate it and direct all down the line to hold action be dismissed as moot?

The Government now no longer insists that it's enforcing its policies and programs in the state.

Mr. Weinstein: The very least there is here is a controversy between the servicemen and the state, which --

Justice William J. Brennan: I know, but they can't be in the federal court.

The individuals were dismissed here are just as they were dismissed in this Arlington County action.

And we have the same situation here that we have on Arlington County namely the only party before us as plaintiff is the United States.

And its standing to be here depends on whether or not it's seeking by being here to enforce its policies and programs, and now it's not.

Mr. Weinstein: The difficulty I have is in distinguishing between this case as I said and I guess I'm not adding anything new to what I've said in any instance of confession of error.

I think that the -- what you're saying would lead to the route that if there is a confession of error that would moot the controversy, certainly if the confession went to the propriety of the charge say that was brought as opposed to some --

Justice William J. Brennan: No, I'm not seeking to.

I don't think this is -- as I see it now, I don't think it's any issue of confession of error at all.

It's a simple question of the right of the United States to maintain an action, which is not brought as it comes to us to enforce its policies and programs in the interest of national defense.

It may have started out that way, but that's not as it's presented to us.

Justice Byron R. White: And the servicemen have no right to be in the trial court.

Justice William J. Brennan: Be here in total.

Justice Byron R. White: Or to be here at all.

You agree with that, don't you?

Mr. Weinstein: If this were the District Court or Court of Appeals after last Wednesday, I'd have to agree with that because I think it was last Wednesday that decided the case.

And I don't think it was a prediction of that outcome that --

Justice William J. Brennan: You don't know why they dismissed that navy commander in the Arlington case, did you?

Mr. Weinstein: Well he was just -- you mean why did he not appeal?

Justice William J. Brennan: No, he was dismissed out of the action.

The only -- when this got before the Court of Appeals as I read that opinion, and they said only the United States can be here if the United States can be here.

Mr. Weinstein: He was this -- are you taking about the Arlington County case?

Justice William J. Brennan: Yes.

Mr. Weinstein: I'm sorry I was confused.

Justice William J. Brennan: No, the Arlington County case, I'm sorry.

Mr. Weinstein: I'm not certain about it, but I assume its reason similar to this case where one man would not ordinarily have $10,000.00 jurisdiction alone.

Justice William J. Brennan: Yes, $121.00 you see.

Mr. Weinstein: Yes, but if I can just try once more on this analogy.

Suppose a criminal charge is brought and the claim of the defendant is that this charge is barred by the Constitution and this is the matter in which the case is litigated.

And in this Court there is a confession of error to it a statement that it is then the position of the United States that this charge is indeed unconstitutional.

Now, I --

Justice Byron R. White: But there's no question in that case that you're about extend the statute to give you the authority to do what you're doing in this statute as a matter between the state and the servicemen and the criminal case between the United States and the defendant.

Mr. Weinstein: I would think --

Justice Byron R. White: And just because the United States says that this -- that they're confession of error doesn't necessarily mean that the Court has to accept, or that there isn't any case of controversy in this situation.

Mr. Weinstein: Perhaps this would -- it seems to me that the United States which clearly has a function as a guardian for certain purposes of servicemen, in that capacity would have a capacity that is different and distinct from its position as its general position as sovereign.

Justice Byron R. White: Is that your separate rationale from the Arlington County?

Mr. Weinstein: Yes, but I think it is part of that because the servicemen's interest --

Justice William J. Brennan: Well, may I put it this way Mr. Weinstein, I suppose the position of the United States when this suit brought in the District Court was that which is now presented to us by the Solicitor General and that were to appear.

Under Arlington County, could not the District Court have had to dismiss the action?

Mr. Weinstein: I think that you -- it's hard to know what would have done.

For example, it would be entirely possible for the Department of Justice to appear on behalf of the other side of the case.

Now perhaps then it would have been brought in a state court rather than the federal court.

Now, I think -- I would suggest the District Court and Court of Appeals jurisdiction has to be viewed in terms of what the situation was at that time.

This Court is --- would have jurisdiction certainly of this case and it came up through the state system, and if you were to argue that the case or controversy has disappeared as between the United States, I think in terms of this Court's jurisdiction, it still has to be considered in terms of the existence a capacity on the United States to appear as the representative, as the guardian of the servicemen.

Justice William J. Brennan: Which is only to say that the issue is the standing of the United States to maintain this suit in the federal court?

Mr. Weinstein: But that an issue which would depend on something that developed after the decision in the District Court and Court of Appeals.

Chief Justice Earl Warren: Mr. Weinstein, I don't think we'd have any problem in this case if what you're arguing to is, was the position or is the position of the United States Government that this is an adversary suit between the United States and the State of Connecticut and we come into this Court?

And we don't have an adversary proceeding at all.

We have no argument at all on the part of the United States in this Court as to what it believes the public interest is or the rights of these veterans.

We have a contrary view that is the opposite of what the Government says officially.

And we close this case without any argument at all from the Government as to why it agrees with the State of Connecticut in this particular matter.

Isn't that a strange situation?

Mr. Weinstein: Well as I -- it is -- as I said it is uncommon.

As I said earlier, I do not think it is unprecedented.

And it occurs to me now that there is a case that I might have cited that would be somewhat better for this purpose than the Kornhauser case, and perhaps I should've cited it first.

And I think this is Burnet against Northern Trust Company.

Again a tax case, I believe from the 1930's and I -- it may be in 283 United States reports, I'm not certain.

But this is a situation where the brief had one half prepared -- one part prepared by the revenue, by the Treasury Department and the other half by the Department of Justice.

And the Treasury appeared to present its case, although the controversy is as much there between the Government and the taxpayer.

Chief Justice Earl Warren: But here is a different situation.

That's two agencies of the Government.

But here all we have here as I see it is that the Government, the official position of the Government is that the statute of the state is constitutional.

And this is an internal fight in the department and the Solicitor General having taken the official position for the Government does not appear, and those in his employ come here and argue the opposite way from the way he comes out, and will after that any argument at all on the part of the United States.

Mr. Weinstein: I suppose the case would be -- had been closer to the Northern Trust if this case had been brought in the name of the Secretary of Defense as the Northern Trust case was brought against the Collector of Internal Revenue.

Chief Justice Earl Warren: That might be different, but we've had that with the ICC.

We've had the Solicitor General on one side and the ICC on the other.

We've had it with the Selective Service recently.

We've had it with a number of them.

But we haven't had it because of an internal difference of opinion in the Department of Justice where the deputies of the Solicitor General prevail over the Attorney General and although -- or over the Solicitor General, and now although he states his opinion in general terms, the deputy comes in here and argues against that position.

Mr. Weinstein: I did not in -- I hope I didn't characterize my function in that way.

I tried to put it in terms of the being assigned to come here for an adversarial presentation.

Chief Justice Earl Warren: Well, did you argued to us the official position of the Government?

Mr. Weinstein: No, I cannot say I did.

Chief Justice Earl Warren: No, well then you hardly have given us a balance view with this situation.

Well, I no intent to barge in, I just -- it bewilders me and bothers me as to whether we have had an adversary proceeding here.

Mr. Weinstein: Well, I think I'll cite what I can offer on this Mr. Chief Justice.

Chief Justice Earl Warren: Yes, well I think we have on this, very well.

Mr. Ahern did you have anything further?

Argument of Ahern

Mr. Ahern: I have nothing further to add Mr. Chief Justice.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript: 

Argument of Victor Rabinowitz

Chief Justice Warren E. Burger: We'll hear argument in number seven and number nine, Samuels against Mackell and Fernandez against Mackell.

Mr. Rabinowitz, you may proceed whenever you're ready.

Mr. Victor Rabinowitz: May it please the Court.

This case like the others on the calendar this week was here for the third time and like the other cases, it involves a common question concerning the propriety of a federal injunction, on some cases, a declaratory judgment against a pending state criminal prosecution.

I am going to address myself initially and perhaps exclusively to that problem.

The companion problem of a constitutionality of the state law has been briefed, it's been argued twice and in the time of available to me, I may not get to it.

Nor will I restate the facts, except to call to the attention of the Court two things -- two items which I think are of considerable importance.

In the first place, there is no abstention problem at all, in this case.

The state Court in the Epton case has passed upon the statute, has given an up-to-date reading of the statue and we therefore must assume that the state court will apply the same reading to this case.

There is no -- nothing to abstain for.

We have already gone through the procedure of getting a state court interpretation of the statute and I do not understand that either the attorney general or the district attorney argues that we should abstain.

The second point that I would like to make is that this is a multi-count indictment.

In addition to several counts of the indictment, which are under attack here, there are a large other, number of other counts, some 15 or 20 of them which alleged substantive crimes and conspiracy to commit substantive crimes, crimes of arson, of riot, of the possession of guns, of the possession of explosives, conspiracy to commit arson.

All of those are in the indictment and in our opinion give the state all of the protection that it needs.

On each of the previous arguments, a question has been raised by the bench as to why these cases have not proceeded in view of the fact that there was no injunction issued by the three-judge court.

And it has been explained to the court that they have not proceeded because an assistant district attorney entered into a stipulation.

This is the explanation given by the district attorney.

An assistant district attorney entered into a stipulation in which he agreed that he would not proceed with the prosecution here until this case had been finally determined because then, no one thought it would take so long to finally determine it.

I would like to point and I might say that ethics on the part of the district attorney to relieve itself of that stipulation have thus far been unsuccessful although he has made efforts in the federal district court.

I might say that that stipulation has nothing to do with the substantive crimes here.

If the district attorney had wished to proceed on the substantive crimes, they could have been tried and the appeals concluded and probably the sentence is served if they had been found guilty before we had gotten to this point.

I think that it might be appropriate to just say a few words of history here, not at the moment the history of 1983, but the history of the power of the federal court to enjoin state criminal proceedings.

That is not an invention of Dombrowski.

For 75 years, at least the federal courts -- 75 years prior to Dombrowski, the federal courts enjoined the threatened enforcement of state unconstitutional laws.

This was not a doctrine that was born in 1965.

I don't know when it started.

But in 1897 in Smyth against Ames, the United States District Court enjoined the prosecution of a state criminal law.

In Ex parte Young1 of course, the same thing happened.

In Truax against Raich in 1950, Chief Justice, then Justice Hughes said, “While the Court of equity has no jurisdiction --”

Chief Justice Warren E. Burger: Counsel --

Mr. Victor Rabinowitz: Excuse me.

Chief Justice Warren E. Burger: No, you can't cover the microphone.

Mr. Victor Rabinowitz: Oh!

I am sorry.

“While the Court of equity generally speaking has no jurisdiction over the prosecution of crimes on misdemeanors, equitable jurisdiction exist to restrain criminal prosecutions under unconstitutional enactments, when the prevention of such prosecutions is essential to the safeguarding of the rights of property in the absence of inadequate remedy at law.”

And in Terrace against Thompson in 1923, this Court repeating in effect that language when on to say that the plaintiff's “are not obliged” to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of their rights.

Then came Douglas against Jeannette, I suggest that Douglas against Jeannette was a support and it happened primarily because on the same day as we all know, the Court issued -- this Court issued its declaratory judgment in the Murdock case holding the same statute unconstitutional and it appeared that in injunction under those circumstances would be unnecessary.

But the fact was that as of Douglas against Jeannette, we find this Court giving much more protection to property rights than it gave to First Amendment rights despite the contrary history of this Court through the famous footnote 4 in the Carolene Products and Thomas against Collins and that whole line of cases still consistently applied by this Court which has pointed to the fragile nature of First Amendment rights, which has pointed to the fact that they need more protection, quicker protection than property rights and which in fact has given that protection.

Except that somehow in this area between Douglas and Jeannette and Dombrowski, this rule was not observed in this specific problem of securing an injunction.

Then Dombrowski came along and I submit, it put Douglas against Jeannette in its proper place and I am not now referring to the abstention aspects of the Dombrowski case because as I say there is no abstention issues in this case but I am referring to the availability of injunctive relief to stop the enforcement of a state criminal prosecution.

In the period prior to Dombrowski while this problem of an injunction remedy was being worked out, a parallel development in terms of the substantive law was being developed which culminated in Baggett against Bullitt and it might be said that a combination of the old doctrine of Ex parte Young and the substantive rule of Baggett against Bullitt produced the Dombrowski decision.

And as I read Dombrowski, the court would have been unanimous on this case and that there is no abstention problem and as I read the dissent in the Dombrowski case, it is based exclusively on abstention.

The Dombrowski rule has turned out to be a very powerful weapon in protecting civil liberties and First Amendment Rights.

And it is ever so much more important now and has been for the past 15-20 years, that is the problem of first -- protection of First Amendment rights much more important than it ever was in the Fifth and the last five or six years in which the Dombrowski remedy has been available.

The technique, the remedial device provided by Dombrowski has been of an estimable value in protecting First Amendment rights, which always in our country need and have continued and will probably continue to need full protection.

The issue here relates to the application of the doctrine, I think the Doctrine of Ex parte Young and the Doctrine of Dombrowski to pending criminal prosecutions as distinguished from criminal prosecutions that are not pending but are merely threatened.

Now in substantive terms, the distinction seems quite illogical.

The injury to the plaintiff is exactly the same.

The interference in a substantive sense with state processes is exactly the same.

It is often impossible for an individual to foresee a criminal prosecution.

And I think the remarks by Mr. Reed in the case that was just argued make it difficult for a potential defendant who has not yet been arrested to establish standing and if he has already been arrested, he is faced with the problem that we are all faced with here today.

Last week, I argued a case in the Court of Appeals in the Second Circuit in which I argued in allege violation of the New York State flag statute.

I argued that man whose neighbors had been arrested and who had seen the rest surround him on all sides throughout New York State for a specific violation of the flag statute should be and who had a flag like that and wish to fly it should be entitled to an injunction.

And the Attorney General of the State of New York came in and said, “It's too early.

He hasn't been arrested yet.”

So that we have a situation in which either you are too early or too late.

Either you have no standing or you are barred by 2283.

Now of course there are cases where as a result of some sort of a peculiar procedure of situation as in Dombrowski itself that happens to be a moment in between the threat of prosecution and the actual arrest.

But that does not happen in the normal case and it's really the extraordinary case in which it does happen.

And so we have the thing that all of us don't like, namely the race to the courthouse door to see who can get in there first, whether we can come before the state prosecution or after the state prosecution and it seems to me that this results in a totally unsatisfactory situation.

Thank you.

[Lunch Recess]

Chief Justice Warren E. Burger: Mr. Rabinowitz.

Mr. Victor Rabinowitz: I recalled at lunch where I had intended to say in connection with that line of cases of Smyth against Ames and Ex parte Young and so forth, that I must point out in all candid that in some of those cases and perhaps all of them.

The Court did point out that it was not a pending proceeding and that under the provisions of 2283, they could not have enjoined a pending state proceeding.

So there is of course that difference.

I think that that difference does not apply here and that brings us to the next point on why not extend Ex parte Young and Dombrowski to pending criminal cases.

Unknown Speaker: Isn't this a pending proceeding, Mr. Rabinowitz?

Mr. Victor Rabinowitz: Yes, this is a pending proceeding.

Oh!

Yes.

It presents that issue very squarely.

Chief Justice Warren E. Burger: I do not recall the evidence or what the record shows on this but what essentially was the evidence on which the indictment was obtained?

Mr. Victor Rabinowitz: Well, my associate, my friend, Mr. Ludwig will tell us that.

Chief Justice Warren E. Burger: Just in a nutshell so get a --

Mr. Victor Rabinowitz: I don't of course know what the evidence was.

All I know was that there was an indictment.

I wasn't present at the grand jury and what evidence was produced before the grand jury I don't know nor except anything in the record.

Chief Justice Warren E. Burger: Well, if he's going to tell us then --

Mr. Victor Rabinowitz: And I think he has the other two times.

I suppose he will this time also.

Unknown Speaker: There was an indictment and there was a good deal of publicity at the time.

Mr. Victor Rabinowitz: Oh!

There was a great deal of publicity at the time.

Yes.

Now when we get to the question of the extension of this doctrine to pending criminal cases, we're confronted of course with this question of 2283.

I might say that the District Court in this case jumped right over the threshold.

They did not give any consideration to what we have referred to at the threshold problem they got right into the constitutionality of statute, felt that the statute was constitutional and thus avoided any necessity of considering this problem at all.

2283 of course presents a problem which we think is met by the fact that we argue that Section 1983 of the Civil Rights Law of 1870 or 71 specifically intended to provide an additional exception to 2283.

And the statute itself makes no distinction between pending cases and cases which are not yet pending and it seems hardly, likely that the Congress of 1871 was tremendously concerned over the problem of the federal government stepping in and interfering with state procedures.

As a matter of fact that legislative history of that Act which has been discussed in a number of Law Review articles which are cited in my brief Syracuse Law Review and Pennsylvania Law Review and elsewhere.

I can't go into it now.

Of course, it seems to us makes it clear that what Congress was addressing itself to is the very specific problem of abuses by state court as well as by other state agencies and the suggestion that Congress intended to permit injunctions to be applied before state prosecution occurs rather than after state prosecution occurs.

There is certainly no way as suggested in the legislative history at all.

And I would like to point out and Mr. Justice Marshall mentioned this at the last document that in the series of laws that were passed after the civil war, Congress provided for another example of stepping in and gave the federal courts an opportunity to step into a state court proceeding right in the middle of a trial, not merely after an indictment but right in the middle of a trial in the removal situation and gave the federal courts under some circumstances which may be limited but nevertheless, they do exist.

Circumstances in which state court could -- federal court could come in or at least a defendant in the criminal case could remove to the federal court thus stopping a criminal trial right smack in the middle of it, a position that we don't have to go through so far as this case is concerned.

Now, of course as I say I cannot at this time and there'd be no point in oral argument anyhow in reviewing the legislative history of the Acts of 1870 and 1871.

There is an article by Professor Amsterdam in the University of Pennsylvania Law Review, one in the Syracuse Law Review and perhaps others which do discus the congressional debates at considerable length and come to the conclusion that 1983 was intended to provide and to carve out another exception to 2283.

So we believe and all I can do refer to that legislative history that there is no bar in 2283 to the relief that we are requesting here.

I would be blind and I suppose deaf also if I did -- were not aware of the fact that there is a grave concern that the position which I am advocating here might lend itself to a great deal of abuse.

That at the drop of a hat, defendants in either anticipated or pending criminal court cases will go plunging into the federal courts at the drop of a hat and will seek and secure injunctions which will tie up state court proceedings.

I suppose that any doctrine that any court can apply under some circumstances is subject to what might be called abuse.

Lawyers representing defendants are ingenious, they are imaginative, many of them and they do think up or try to think up devices to protect their clients as vigorously and as well as they can and I have no doubt that any kind of a procedural device will give rise to certain cases where some people will say that the procedural devices are being abused and I think that is what the courts are for.

The courts are there to prevent such abuse if it be an abuse from taking place.

And I am not -- well I was going to say, I'm not very much concerned but it isn't my job to be concerned.

I don't -- I suggest that courts need not be excessively concerned over this problem.

By hypothesis, these cases come before three-judge courts and as was pointed out by I think Mr. Reed in the argument before, the three-judge court includes a court of the -- judge of the Court of Appeals and the possibility that injunctions will be scattered far and wide on trivial pretext, I think is a relatively minor one.

Furthermore, I do think that much of the problem can be solved by a proper hammering out or proper abstention rules which will see to it that lawyers do not come into the federal courts prematurely and that the possibility of flooding the federal criminal courts every time somebody is arrested for disorderly conduct charged under statute that somebody claims is unconstitutional.

Again, it can be prevented by as I say proper abstention rules and proper use of discretion by the three-judge court.

Unknown Speaker: Do you have in mind the statistics as to the increase in three-judge federal District Court cases over the last very few years?

Mr. Victor Rabinowitz: No, I do not.

I have heard that there has been a substantial increase though.

I really don't know what the statistics are.

I do know the --

Unknown Speaker: The administrative office of the United States Courts would presume the answers.

Mr. Victor Rabinowitz: I'm sure would have that and I really don't know whether there has been an increase or what the increase has been.

Chief Justice Warren E. Burger: Well, for whatever bearing it may have, it has been an enormous increase.

Mr. Victor Rabinowitz: Well as I say, I have the impression that there has been an increase in the number of three judge courts and how many of them are attributable to this kind of case, I also don't know and I have never made such an analysis and I don't know what the answer to that is.

As I say, I think that there are ways of handling that other than by throwing out the baby and that the rule of the Dombrowski case judiciously applied to pending criminal cases would have a great -- a statutory effect in the protection of First Amendment rights.

I am not suggesting that this be extended to all kinds of cases and I don't think anybody has suggested that, but we do have and have always recognized an exception in the area of First Amendment rights and I do think that the retreat and I would call it a retreat in this situation would be disadvantageous to a protection of those rights.

I might point out that their relegation the plaintiffs to the state court of remedies in this case would really be serious because --

Unknown Speaker: It is -- that's a little bit of inaccurate wording isn't it?

We are relegating plaintiffs to the state court remedies.

Your plaintiffs have been brought before state courts as defendants in criminal cases.

Mr. Victor Rabinowitz: Well, --

Unknown Speaker: This isn't a matter of relegating a plaintiff to one court or another as a plaintiff.

Mr. Victor Rabinowitz: Well, that maybe true.

Perhaps, let me say it that shutting off the remedy that we are appealing for or applying for in this situation may very well mean that there will never be an adjudication of the New York State criminal anarchy statute for the reason that I know the Court is familiar with and that Your Honor discussed in the Epton cases because there are along series of substantive crimes.

And if the defendant's are to be -- will be found guilty of any of the substantive crimes and they may be, then we may be confronted this time and the next time and the next time and the next time with repetitions of the Epton situation in which this Court refuses to grant certiorari because there is an independent state ground justifying the sentence with the result that the statute may remain on the books as an in terrorem device for a long period of time and that seems to us partly unjustified given the nature of the statute and if as we contend the statute is unconstitutional.

And I might say that it is rather difficult for me to imagine how a plaintiff could come into court and seek relief under this statute prior to indictment.

It seems to me and would be in the most unusual situation if a plaintiff came in and said, “I am intending to engage in conduct which may violate the state criminal anarchy law and I want an adjudication of which will violate the state from criminal anarchy law and I want an adjudication because the law is unconstitutional.”

I would say that that remedy which is open and perhaps some kind of situations would not be open to the plaintiffs in this case.

Chief Justice Warren E. Burger: Mrs. Piel.

Argument of Eleanor Jackson Piel

Ms Eleanor Jackson Piel: Mr. Chief Justice, if it please the Court.

My client in this case is Fred Fernandez.

Mr. Rabinowitz was speaking on behalf of 10 of the defendants, 10 out of 15 and I have one of the 15.

I say this because the particular circumstances of my defendant and the plaintiff in this case, I think point up some of the problems in this case.

My client is charged with three counts, the first three counts in a 48-count indictment with anarchy.

The substantive charge of anarchy and it goes down the statute.

The first charge is speaking anarchy.

The second charge is printing anarchy.

And the third count is assembling with anarchist.

The fourth count is a sort of a jumble, it is a lesser count, it's a conspiracy count and it includes over at having to do with each of the first three.

Now the last time I was before Your Honors, I outlined what I believe to be the compelling reasons why this was an appropriate case for federal intervention.

I have never felt that it was necessary to gain relief in this case that the court grant an injunction against the state proceeding.

I have always thought that a declaratory judgment would be sufficient.

However, I naturally would not be against Your Honor taking injunctive relief if Your Honors felt that the situation merited.

Although, there are a number of allegations in the complaint which had to do with the unfairness of the prosecution, there are -- that is appended to my brief.

The publicity that was issued which I think has to do with the very unfair prosecution and I don't know whether Your Honors would rule on that without a hearing and I think that would delay matters further.

Unknown Speaker: You of course asked for an injunction in the brief?

Ms Eleanor Jackson Piel: Yes.

Oh!

Yes.

I asked for an injunction and perhaps it was timidity when I started checking through the law as to some of the difficulties involved in getting an injunction that I retreated to the declaratory judgment.

Unknown Speaker: Had you asked only for a declaratory judgment --

Ms Eleanor Jackson Piel: I wouldn't be here.

Unknown Speaker: There would not have been a three-judge court, would there?

Ms Eleanor Jackson Piel: Right.

No.

I think the minute --

Unknown Speaker: Then there wouldn't have been an appeal to the Court of Appeals.

Ms Eleanor Jackson Piel: That is correct and I believe that injunctive relief is appropriate and I believe that had my allegations been listened to, I should have had a hearing before that three-judge court as to those allegations, as to the unfairness of the proceeding.

And I understand you can have an injunction for a facially unconstitutional statute but you also can have an injunction at least under the language in Dombrowski where the fact shows that the prosecution has been unfair.

And I say that it is both that in this case.

Unknown Speaker: I thought you are now saying that you really perhaps shouldn't have asked for an injunction at all.

That's pretty hard for a judge --

Ms Eleanor Jackson Piel: No.

No, I am only saying that I would be pleased with one which is different with the declaratory judgment.

Unknown Speaker: Well that is pretty long, far along the path if you'd really be pleased.

Ms Eleanor Jackson Piel: I think that the state court would respect it.

Now if the state court did not respect that declaratory judgment, I wouldn't want to be in a position where I couldn't come back.

But I do believe in the Committee of the relationship between federal and state and I believe that a state court would respect that injunction.

Now coming back to which -- to a point that I believe is jugular and it has to do with the question asked me by Justice White at the first argument and I don't know that I answered it very well.

That had to do with -- in this case, we have the anarchy statute of the State of New York passed as you all know in 1902, interpreted by the Highest Court of the State of New York in 1922 that interpretation was affirmed by this Court in 1925, and then nothing was done about that statute until William Epton was charged with it in 1964.

The legislature went back to work on it deciding that since it was going to be used, they ought to make it constitutional and they tried to make it fit Pennsylvania against Nelson.

The legislature I am talking about in 1965.

But meanwhile, the prosecution of Epton went forward and the Court of appeals interpreted the statute as though the legislature had done nothing or as though the statute were written as though as though the legislature later rewrote it.

Now the question of Justice White was, was the statute or is the statute constitutional with the new gloss of the Court of Appeals?

I said that it was not and I've argued that in my brief but I want to read to you what that state court said because I think within this language, one can see the gross unconstitutionality of the new interpretation.

You will recall that the state court said, “Of course we were wrong in 1925, looked at in 1967.

So we are going to reinterpret the statute,” which this Court and we interpreted some years ago.

And we are going to interpret it consistent with constitutional requirements.

What are these constitutional requirements?

I am now reading which must now be read into our criminal anarchy statute to preserve its constitutionality.

It is clear that proscription of mere advocacy of the violent overthrow of the Government would be an unconstitutional infringement upon free speech.

The advocacy of the overthrow of the Government by force and violence must in accompanied by intent to accomplish the overthrow and there must be a clear and present danger that the advocated overthrow may be attempted or accomplished.

Now that almost sounds constitutional.

But then, and mind you were talking about and this crucial to my argument.

We are talking about the overthrow of the Government of the State of New York.

We are not talking about the United States Government.

So now the court goes on having made that statement, there is no doubt this is applying the law to the facts.

There is no doubt that Epton intended to inflame the already intense passions of the troubled people of Harlem and to incite them to greater violence.

Furthermore, defendant's exhortations calling for organized resistance to the police and the destruction of the state in the setting of Harlem during the week of July 18th formed a sufficient basis for the trial court and jury to conclude that his words and actions created a clear and present danger that the riots then rocking Harlem would be intensified or if they see subsided rekindled.

Now I submit that the gloss that the Court of Appeals put on the anarchy statute was gloss on a riot state and was not on an anarchy statute and because the evil that the legislature has a right to proscribe would be the overthrow of the Government of the State of New York if you follow their logic.

Now I say that Court of Appeals made this error for a historical reason because there can be no illegal act of the overthrow of state government.

There can't be ever since 1789 when the Constitution was ratified.

And I want to go back in the history to remind, Your Honors of the fact that there was once a rebellion against the state government before the Constitution was ratified and during the period that the articles of confederation kept our country together.

And that rebellion was called Shay's Rebellion and it came about when the soldiers came back from the revolutionary war and they found that creditors were making things very difficult, they were in debt and they did not like it and the next thing, there was a rebellion and it was lead by a man by the name of Daniel Shay and it was put down by a General Benjamin Lincoln who had to be paid for efforts from the coffers of the State of Massachusetts because there was no federal government.

And it was Shay's Rebellion, the last rebellion against the state government that gave the impetus to the Constitution of the United States.

And so it is that Hamilton writing in 1787 in the minutes of the proceedings of the constitutional convention said, “How are all these evils to be avoided?”

And these evils of course are the evils of the Shays' Rebellion.

Only by a complete sovereignty in the general government, the general power must swallow up the state powers.

Otherwise, it will be swallowed by them.

Two sovereignties -- I should have learned.

Two sovereignties can not co-exist within the same limit.

Now General Washington also had occasion to comment on this problem and in a letter written in 1787, the same year that Hamilton was writing, he said, “You will long ere this have heard of the insurrection in the State of Massachusetts.”

These disorders are evident marks of defective government.

Indeed, the thinking part of the country, of the people of this country are now so well satisfied of this fact that most of the legislatures have appointed and the rest, it is said will appoint delegates to meet at Philadelphia on the second Monday in May next in a general convention of the states to revise and correct the defects of the federal system.

And then it was Thomas Jefferson who wrote in a letter to Madison the same year.

The late rebellion in Massachusetts has given more alarm than I think it should have done.

Calculate that one rebellion in 13 states in the course of 11 years, is but one for each state in a century and a half.

No country should be so long without one.

Nor will any degree of power in the hands of government prevent insurrection.

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular and what no just government shall refuse or rest or let rest on influence.

Now, why I am reading these quotations?

Because of course you can not have the overthrow of a state government and so that whole law itself is an absurdity.

There was argument in the case of Pennsylvania against Nelson which we have urged in out briefs with regard to unconstitutionality of this law, which underlines with the coming of the Smith Act, the supersedure of the sedition field by the federal government.

But I think a better argument than the argument made by this Court there is the fact that you really can not have -- the overthrow of a state government because the minute that government is threatened with its overthrow, it is a matter of federal concern.

Now you can have acts, you can have acts proscribed which disturb the public peace which you can proscribe them to be of a greater degree if they impinge upon the state house or if -- it seems to me that you can describe crimes in many ways, having to do with the imagination of the legislatures and of the prosecutors to meet the situation.

But that it is a travesty to go back to a law such as the anarchy statute of 1902 and to believe that by putting a gloss on it, taking out the general government and pretending that it isn't there that you really talking about the Government of the State of New York, you can make that law constitutional.

Now the Bill of Rights aspect what Jefferson had to say also brings me back to the first amendment and to the importance of the first amendment in the considerations in this case.

My client is being charged with three felony counts of anarchy and one misdemeanor count of anarchy and one count of ars -- conspiracy to commit arson in the third degree which in New York is a misdemeanor.

Now you will hear from Mr. Ludwig if, that is if he says what he has said on other occasions before you, why you have asked him, “Do you need this anarchy counts in an indictment which has serious gun possession charges and one arson count, conspiracy to commit arson in the third degree?”

And he will tell you as he did in his briefs that the anarchy is necessary to prove the illegal intent of the defendants.

Now following that logic as to my client, my client in order to prove his intent for one count of conspiracy in the third degree to commit arson which is a misdemeanor is being charged with three felony counts.

It seems to me that the tail is wagging the dog or there is something disproportionate about the state of affairs.

I have as I said outlined to you before the reasons I believe this is a most compelling case.

It involves the First Amendment in the sense of it being the public business.

In the complaint against my defendant, he is charged with disseminating pamphlets and their titles are mentioned in the indictment.

Those titles are total resistance.

This is in writing.

This is something that has been written called Total Resistance in Writing, Community Self Defense, and the Struggle for Black State Power in the United States.

Now, every charge in anarchy, except the first one mentions specifically the fact that he is supporting and disseminating these documents.

Now certainly a statute or a law which would permit someone being criminally prosecuted for the dissemination of these pamphlets is overbroad, and it goes to the heart of his rights under the First Amendment.

Chief Justice Warren E. Burger: Is he charged with any other overt acts besides distributing pamphlets?

Ms Eleanor Jackson Piel: Yes, there are other overt acts having to do with suggesting violent activities.

Well, let's see.

Act obtained and possessed in the County of Queens at indeterminate amount of gun powder for making explosive.

He is charge and as to any kind of -- those are overt acts of course.

I do not know whether my defendant --

Chief Justice Warren E. Burger: You are not arguing that that's a First Amendment.

The question is it a possession of dynamite in large quantities?

Ms Eleanor Jackson Piel: No, but I believe that a law that would proscribe the possession of dynamite in large quantities would be perfectly constitutional.

But a law that includes in its ambit, the distribution of leaflets it seems to me is not.

And we have a time in the period of our country when dissent in raising its voice and when people are dissatisfied and when the black people are dissatisfied and when they are --

Chief Justice Warren E. Burger: If this case goes to trial Mrs. Piel, he might be found -- there might be a dismissal of the charges relating to the distribution of pamphlets and papers, but conceivably a guilty verdict could come if the jury was satisfied on the possession of dynamite and guns and the other things.

Ms Eleanor Jackson Piel: But maybe the jury would be affected in his judgment as to what -- whether it might be a fact issue on the dynamite and guns and maybe the jury would be affected by hearing what his thoughts are with regard to community self-defense.

Chief Justice Warren E. Burger: You are asking to try to decide that kind of an issue before the case ever goes to trial in the state court, aren't you?

Ms Eleanor Jackson Piel: Well only because my client is being charged with advocating the doctrine of the overthrow of the Government of the State of New York and I am saying that that kind of a charge against my client is inappropriate and is prejudicial and further more invades a very, very basic right under the first amendment.

And that when the things are jumbled up and put together, it may well be that the prejudice of the anarchy charge will lead to a conviction on the other charges.

The other charge, its arson in the third degree is the only other charge my client is charged with.

I think that this case has an overwhelming compulsion and I urge, Your Honors to read the four points that I made in a very brief, brief which I have just filed with the Court having to do with the peculiar situation as to why relief is requested here and I also wish to urge upon you that if I can not get all I want, meaning I want in injunction as Judge Friendly paraphrased a description of the legislature in 19 -- the legislature passing the anarchy law in 1902, I want all I can get.

Thank you.

Chief Justice Warren E. Burger: Mrs. Piel.

Mr. Ludwig.

Argument of Frederick J. Ludwig

Mr. Frederick J. Ludwig: Mr. Chief Justice, may it please the Court.

This proceeding in the state court, State of New York, County of Queens, Queens is one of 62 counties in New York State, its part of New York City, has a population of about five -- two million.

It's the fifth largest county in the United States.

It began so far as I know with an investigation by the police of the City of New York in October of 1965 that was two years -- a year and several months before we were in office in the District Attorney of Queens County.

It stemmed from activity of the FLQ, a Quebec Revolutionary Organization which attempted to blowup the Statue of Liberty and resulted in three convictions.

For some reason, the police continued their investigation with this group in Queens and this investigation went into the Black Brother Improvement Society.

Several undercover men from New York City police were assigned.

One of them became a member, a member of the board of directors, vice-president and was in on all high conspiracies.

Nobody came to the district attorney from the police until April of 1967, and at that time they indicated how things had progressed.

They have progressed beyond the mere advocacy, the naked advocacy of overthrowing of local establishment.

They had reached the point where they had accumulated weapons, cans of gasoline, cans of oil, black powder to explode, blueprints, and had designated areas that were to be blown up.

They had even devised a timetable, they had engaged in training programs for the use of these things.

Even then, the District Attorney did not move until they held a dry run that wasn't so dry because four shots were fired in the Jamaica Section of Queens on June 16, 1967.

Furthermore, they had now formulated and made definite a second conspiracy that involved only three people, Ferguson, Harris, and this undercover policeman and this conspiracy was to kill two moderate civil rights leaders, Whitney Young and Roy Wilkins, they had gone quite far, they had already acquired the weapons, they had devised the plan, they had cased Roy Wilkins house who unfortunately lived in a sort of cul-de-sac about a mile from the courthouse in Queens.

Now we then proceeded and presented this case to a grand jury.

Chief Justice Warren E. Burger: Well what you have told us now is that --

Mr. Frederick J. Ludwig: This --

Chief Justice Warren E. Burger: Are you telling us that that was presented to the grand jury?

Mr. Frederick J. Ludwig: This was presented to the grand jury on June 20, 1967 and we have nothing in the record on these facts.

This Court is forced to rely on my say-so and that's because of this anticipatory nature of reveal with one exception.

We presented the matter to the grand jury and it was no special grand jury.

It was an ordinary grand jury.

I just happened to be sitting that day on June 20th and they returned two indictments.

And I'll dispose of one of those indictments because this Court has already done so on June 29th of this year.

And that was the indictment of Ferguson and Harris who are two of the appellants here.

Ferguson and Harris were charged with conspiracy to commit murder in the first degree against Whitney Young and Roy Wilkins.

They were brought to trial on a superseded indictment that was returned in February of 1968 on this judge before a judge and jury.

They were convicted in June of 1968.

They went through two appellate courts and unanimously 12 appellate judges in New York, 5 from the appellate division and 7 from the Court of Appeals found there was proof and sufficient proof all the way through, beyond a unreasonable doubt there were some dissents over whether a continuance shouldn't have been granted in that trial.

They applied for certiorari to this Court and there you did have trial record to review and this Court denied certiorari on June 29th.

There is just this minor appendix.

Justice Holly continued these two on bail until this Court dispose off their application for review.

They have not surrendered since June 29th.

They have been indicted for jumping bail in the first degree.

They may be in Algeria right now.

And yet we have counsel here asking this Court to review an equitable determination below when two of the persons they represent in a single petition are coming in to say the least with unclean hands.

The questions now before this Court, is not an accusation by the District Attorney Mackell or the Attorney General of the State of New York.

The Attorney General of the State of New York had nothing.

Whatever they do with this case, Mr. Mackell did not present it to the grand jury.

What they are complaining about is an indictment by a grand jury in New York and that grand jury consisted of 22 persons on June 20 of 1967.

It was the same grand jury that superseded its first indictment on June 15, 1968.

Now what does an indictment mean in New York?

In New York, an indictment means that you must -- the New York State Constitution, Article I, Section 6 has the identical words of its opening clause of the Fifth Amendment of the Federal Constitution that “Nobody is going to stand trial except on indictment or presentment of a Grand Jury”.

But the New York legislature has been much stricter about that requirement than has Congress or the federal rules of criminal procedure.

The New York legislature says that no indictment can be amended and that even if a person when he is first arrested comes in and pleads guilty his plea is a nullity because he can not plead to a felony unless he has been indicted and accused by a grand jury.

Moreover, his lawyer cannot come in and say, “We'll waive the indictment.

Let's plead out to something else.”

Not permitted in New York and I don't have this in my brief, I just make the brief reference to People ex rel.

Wachowicz against Martin, 293 N.Y. 361.

This is the procedure in New York.

Now what quantum of proof is required before a grand jury in New York?

We have Costello against the United States, a case decided by this Court 10, 12 years ago where they said a grand jury -- a federal grand jury can indict on hearsay, pure 100% hearsay.

The testimony of an accountant in an income tax rebate investigation, 100% hearsay that's a sufficient indictment in the federal court.

By statute, Section 249 of our code of criminal procedure provides that the grand jury can receive none but legal evidence.

Section 251 of the same code says that the grand jury cannot indict unless the evidence before it if unexplained or uncontradicted would be sufficient to warrant a trial jury to convict.

Finally, Section 389 of the same code by statute proscribes the standard of proof for a trial jury and it provides that the defendant is presumed to be innocent and if there is any reasonable doubt about whether he is guilt is satisfactory shown, he is entitled to an acquittal.

Those are the standards that apply to the grand jury.

Beyond that, 22 people on the grand jury found this proof beyond unreasonable doubt in coming down with this 48-count indictment.

Now beyond that, you are entitled to judicial review with the trial court level about what the grand jury does.

And here apparently, the legislature has been very liberal in conferring upon one Supreme Court, State Supreme Court justice enormous power over the grand jury.

In Section 671, it says that regardless of whether the defendant makes a motion or not, if the judge thinks in furtherance of justice this indictment should be set aside.

He has the power to do it.

Now these applications had been made under the superseded indictment and they have been denied by several judges on the state court level.

Now that's how far this case has proceeded in the state courts.

This case was in the state courts from June 20, 1967 until March 12, 1968 when application was made to the three-judge court.

Now it has been in the federal courts for 979 days counting today, 979 days.

Now there are two facets to this case and I think they stand from Ex parte Young and Justice Brennan's opinion in Dombrowski and as Dombrowski laid down.

First of all, this is anticipatory federal relief, expediting federal relief. Judge Brennan, I think says, if you have a statute that's overbroad or vague on its face or if there is bad faith in applying a statute that might otherwise be valid on either of those grounds in Dombrowski.

Justice Brennan said the federal courts may grant anticipatory relief as they did in Ex parte Young on a question of economic due process.

Later Justice Brennan in Cameron 2 in 1968 seemed to say that Dombrowski rested primarily on the second of those two horns and he said that I think -- and he referred to the facts in Dombrowski, where there had been arrest where there had been raids, where had been seizure of materials under some communist control act, and these has all been quashed by the state courts in Louisiana.

And not withstanding that, the state legislative committee under Pfister and other people continued the investigation and that was the sign of bad faith so far as state action was concerned.

Now in this case, I don't think you can come in on the first of the two grounds in Dombrowski for several reasons.

First of all in Epton, which was decided on May 16, 1967, this indictment, June 20, 1967, a month and five days later.

Epton qualified narrowing the construction of the old criminal anarchy statute in New York that had been upheld by the way in Gitlow against New York.

There had been a prior prosecution on writ 1922.

In upholding it, they said, “First of all, the mere advocacy of criminal anarchy is out.”

The Court of Appeals said.

Second, they said, “You not only have to advocate the overthrow of Government but you have to have an impact to overthrow the Government that must accompany that advocacy.”

And third, they said, “There has to be clear and present danger.”

Everywhere in this indictment that we talked about, those first four counts, criminal anarchy, everywhere we talked about that in this indictment, we shrink it down to the very narrowest possible dimensions.

We identified the general targets as the State of New York or the political subdivisions of the state or the executive officials of the state.

We identified particular targets in there as publicly-owned and operated transportation facilities in the City of New York and publicly and streets, manholes of the City of New York with plans, detailed blueprints to pour gasoline had already been made and we identified the means.

Every time we allege these things in this pleading before the Court, we identified the means as force and violence to wit the use of bombs, shotguns, rifles, gasoline, gunpowder, etcetera, all the way through.

Consequently, I don't see how when this Court considered People against Epton, I believe in January of 1968, both appeal and certiorari and this Court denied review of People against Epton.

Justice Douglas if I can remember, I have to remember back in writing a rather lucid dissent.

His only objection if I can recall was to what the trial judge did in the Epton case.

He said the trial judge had submitted a great many overt acts to the jury and some of those overt acts were in the area of protected speech, if I recall Justice Douglas's dissent from the denial of certiorari.

So the Epton case has already been narrowly -- the Epton case has narrowly construed the statute.

Now, you asked, well, what about the bad faith in this case?

We did not accuse anybody in this case.

None of the 15 defendants were accused by the district, neither were they accused by this grand jury.

And if there is any bad faith, the bad faith lies on the part of that cross-section of the community, those 22 persons.

But there is no bad faith in this case.

Any question about publicity has been reviewed fully by the state courts bellow with lengthy opinions written.

One of them is appended in my brief by one of the justices on the state court.

And besides, if the only complaint is about some publicity, remedies lie for change of venue with the time of trial not by anticipatory federal relief.

We are asked why we have to have these four counts relating to criminal anarchy, three substantive criminal anarchy, and one on the conspiracy to commit criminal anarchy, which is a misdemeanor.

And I have previously told the Court on two occasions that the Weapons Law of New York differentiates between handguns and shoulder guns.

For handguns, mere possession is alone enough.

For shoulder guns, you must prove both possession and intent to use unlawful guns to another.

37 of 41 of the counts of these 48 count indictment deal with that.

There's a second reason and a very important reason.

And this reason goes back to a unanimous opinion of this Court written by Justice Black, Cole against Arkansas where he said, that you have to give notice in advance a track of anything you intend to prove at that trial.

We would necessarily have to bring in this conspiracy to overthrow local government in the trial for the possession of 37 of the 41 weapons in this case.

If you remember in Cole against Arkansas, the defendant was charged under one section of a state statute.

That was the accusation.

He was tried and not convicted on that but the Highest Court of Arkansas affirmed this conviction another section of the statute.

They found there was sufficient evidence and this Court objected and the opening words of the quote that I have in mind from Justice Black was that there is nothing more fundamental to due process of law and this goes back to (Inaudible), then that person who is entitled to be accused in advance.

We had a case in Queens about a year ago where three murders occurred.

It was a division of spoils of a robbery that was committed on July 1, 1968.

On July 4, 1968, these three murders among the thieves had occurred and there were indictments for murders, but no indictment for robbery.

And in the course of trying this case, it would have been necessary to refer to the fact that the defendant was one of the participants in this robbery and that there was a dispute over the spoils.

The gasoline station owner claimed that $11,000.00 have been taken from his safe.

The man -- the bad man among the robbers had only $6,000.00.

So, that lead to the murder of three of the robbers.

But because it was necessary to refer to that robbery and to the participation of these persons in it, an indictment was filed for robbery and during the course of the trial, many references were made to the robbery but defense counsel could not stand up and scream that they had never been accused of a robbery.

Nobody had ever accused them of robbery and that is the reason we have to have these other counts in the indictment.

We do not concede as Mr. Rabinowitz supposes that the doctrine of abstention ought not to be applied here.

We do not concede that at all.

We think our position is completely consistent with Dombrowski, with Ex parte Young and no grounds have been out why there should be no abstention in this case.

The major point we would like to make is that the statute that's alleged to be unconstitutional in New York as part of the comprehensive reorganization of our penal law in New York was repealed on July 20, 1965.

That repealed to take effect on September 1, 1967.

That's the criminal anarchy statute we are talking about.

So its future chilling effect has stopped and ceased on September 1, 1967.

It had to be applied to these defendants because the conduct we allege to be criminal on their part occurred between October 1965 and June 20, 1967, sometime before September 1, 1967.

So the future emanations so far as potential offenders of this law are concerned, it no longer exist and have not existed and did not exist at the time the application was made for the federal court on March 12, 1968.

There had been no more criminal anarchy statute that's complained about enforced in effect in New York.

So the potential harm, the chilling effect that might emanate from this statute ceased long before in the application was made for federal relief in this case.

I should like to point out that apart from abstention, we have of course 2283 and this is the historic of Act 1793 that Congress enacted as an amendment to the fundamental judiciary law of 7089.

And the three words in 1983 of Title 42 “suit in equity” do not really constitute and can not arguably be made as a question of statutory interpretation and exception to the expressly authorized by Congress.

That's what Congress required in 1948 when they re-codified 2283.

They want an expressly authorized exception.

Now I have kept notes for many years and what I think or expressly authorized exceptions to 2283.

This would be the second title.

The first title is the Doctrine of Abstention.

Even if you get by abstention, this case unlike Dombrowski involves a pending proceeding in the state court that was pending from June 20, 1967 until March 12, 1968.

Here are the kinds of exceptions that I think this Court has allowed has expressly authorized.

Where you have in the statute an authorization to state any state court proceeding.

You have that in the Habeas Corpus Act and you have that in the Interpleader Act of 1926.

It says that the District Court Congress says gives them the power to state any state court proceeding or any federal court proceeding, both in the Habeas Corpus Act and the Interpleader Act of 1926.

Another formula is a provision that they can state any court proceeding but without reference the state court and that appears in the Bankruptcy Act and the Frazier-Lemke Act, Farm-Mortgage Act.

Thirdly, -- third says that all proceedings shall cease.

This appears in the old Shipowners' Liability Act of 1851.

A fourth proceeding is that the state court shall proceed no further and that appears in the federal removal statute.

I would like to add two more.

These four, I have motioned in my brief.

I would like to add two more that my research has turned up since.

I have worked on the brief and that is the Federal Civil Rights Act of 1964 has a prohibition with respect to use of public accommodations.

It has a prohibition to punish or attempt to punish any person from exercising any right or privilege secured by that public accommodation Civil Rights Act of 1964.

And it couples this with authorization for injunctive relief to see that this is carried out.

Now that is what I mean expressly authorized by Congress.

That appears in the Civil Rights Act of 1964, Title 42 of the United States Code, Section 2000 (a) subdivision 2 (c) and (a) subdivision 3 (a).

And the Fifth Circuit in Dilworth against Riner, 343 F. 2d 226 has sustained that as an authorized exception.

Finally, you have an exception that's also, I think ought to be added and even half dozen.

You have an exception in the right to vote act when the federal government moves into the federal district court and asked for an injunction against state officials or state proceedings that interfere with a person's right to vote.

This comes from 48 United States Code 1971 (c).

Those I think are what we mean by expressly authorized exceptions.

Now the American Law Institute is not Congress but they have been studying this question of division of jurisdiction between state and federal courts.

And it has been represented to this Court that they are in favor of the Dombrowski type of intervention at the District Court level.

But I find that the American Law Institute reading that draft on Sections 1371 and 1372 do not favor, do not feel that Dombrowski authorizes this injunctions and quite the contrary in their have proposed Section 1371 (c).

They go back to Ashwander against the TVA and all of those cases that support abstention of the federal district court.

Finally, on this point of the Bar of Section 2283, we might look at what Congress has said in other situations so far as anticipatory relief is concerned in the federal courts vis-à-vis state court proceedings.

The power of a federal district court to abort, to prevent the natural fruition, the natural development of a state court proceeding.

One, we have the removal statute and this Court has been very strict on removal statute, most recent determination in City of Greenwood against Peacock.

They indicate how strict they are before you can remove a case that's already in the federal court.

That removal would be under 1443 subdivision 1.

On the other hand, this Court has been willing to allow removal where in it is very clear that the basis is strictly and solely one of color, not general civil rights but color and this Court carefully pointed that out in Rachel against Georgia in Volume 384 in 1966.

So we do not have the power to abort any state proceedings from the removal act.

One of two different remedies that this Court has in addition to the injunction and declaratory judgment asked here.

Next is the question of habeas corpus, there is you examine that very carefully, you would find that habeas corpus is permitted only -- the exhaustion of state remedies requirement in the statute which appears in Section 2254 of Title 28 appears only explicitly by the wording of Congress to apply to post-conviction, post-state conviction for a remedy.

But this Court many years ago in Ex parte Royal in 1886 extended it to pre-conviction and this Court has never interfered with that interpretation on the restriction of federal habeas corpus to get relief for defendant in the toils of the state criminal process.

Finally, this Court itself is a constitutional tribunal but its jurisdiction over appellate matters is fixed by Congress under Article 3 of the Constitution.

And if you examine the requirements in this Court in order to review state determinations, one thing above everything else stands up and that is that the state court, the state judgment must be a final judgment.

This Court has used this terms.

The statute provides that in Section 1257.

It must be the final word of a final court.

Otherwise, this Court has no power to interfere with anything a state tribunal does below.

And this is a constitutional tribunal, the federal district courts are creatures of Congress that Congress tomorrow could abolish the federal district courts without any need of constitutional amendment.

Under those circumstances, I would suggest that this Court called upon as they are to make an exception for Section 2283 in the light of the existence of all our federal statute and also and especially because of the delay that will attend state criminal proceedings as is evidence by this case, 979 days till today this case has been in the federal court.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Ludwig.

Mrs. Marcus.

Argument of Maria L. Marcus

Ms Maria L. Marcus: Mr. Chief Justice, and may I please the Court.

This Court recently had occasion to examine and analyze Section 2283, the anti-injunction statute in Atlanta Coast Line Railroad versus Brotherhood of Locomotive Engineers.

And although this Court was dealing there with the necessary and effectuation of jurisdiction clause rather than a authorized statutory exception clause, the courts general comments on the statute are very pertinent to the case here today.

This Court said that 2283 is not merely a rule of committee.

It is a biding rule on the power of the federal courts and that even if general equitable principles as interventions are satisfied which are clearly not in this case, the federal courts may not intervene in a pending case unless one of the statutory exceptions is involved.

And Mr. Justice Black further commented that these statutory exceptions should not be enlarged by loose construction.

It has already been shown that Section 1983 can not be an expressly authorized exception to 2283.

In fact, not only is there nothing in the statute that so indicate, but the Section creates no substantive rights, it merely refers to rights already granted by other statutes and by the Constitution.

Thus, it is clear that suits under 1983 can not result in injunctions against state Court proceedings.

Now appellant Fernandez argues that declaratory judgment may still issue.

There is an irony in this argument because what it really means is that if a state official is conscientious and he wishes to abide by a federal court declaration, then a state a state proceeding will be disrupted, a statutory scheme nullified.

However, if a state official is not conscientious, he may continue with the state proceeding through the usual appellate review and finally to this Court.

Now this kind of penalty can not possibly have been a congressional intent in enacting 2383.

Quite the contrary, its intent was very clearly to prevent this kind of disruption of state court proceedings.

Now appellant -- one of the appellants stated that it is illogical to distinguish between pending proceedings and future proceedings.

But this is precisely what Congress did in enacting the anti-junction law.

It made that distinction because it wanted to avoid disruption of proceedings already commenced.

This morning, it was suggested by Counsel Warren that once a court had jurisdiction, it could issue a declaratory judgment and if that were not obeyed, an injunction could issue to effectuate the judgment.

In other words, what he was suggesting was that a two step procedure could be used instead of one step.

Now this obviously would make unnecessary the list of exceptions in 2283 and in fact it would make a joke of 2283 because it would merely mean that you could accomplish in two steps what the statute on its face says you may not accomplish in one step.

It should be pointed out that state courts have both the power and the duty to rule upon federal constitutional issues in the same way as a federal court.

And if a statute is overbroad, state courts have the same power to strike it down to prevent any chilling effect on First Amendment rights.

There would be no reason therefore to deprive the state courts of jurisdiction over such pending proceedings and absolutely no basis for any a priori assumption that such state courts would be less willing or less able to protect rights originating in the Constitution.

Congress has provided in the federal removal statute for the narrow class of cases in which such judicial protection can not be expected.

Now the cases at Bar furthermore, would be unlikely candidates for the articulation of any new rule respecting declaratory intervention since they did not involve any raise to the courthouse door.

There was obviously no evidence of any bad faith prosecution and no effect upon First Amendment rights.

Counsel for appellants has said that there is no abstention problem here.

As Mr. Justice Stewart earlier pointed out, this Court has differentiated non-intervention from abstention and for this reason in Zwickler versus Koota said that it gave continuing validity to the principle of non-intervention.

There is a difference between a plaintiff having his choice of forum and a defendant in a state proceeding when the tide is turned against him wishing to come in to the federal court to disrupt that proceeding.

Now counsel for appellant Samuels in his brief suggest on the merits of his case that the clear and present danger test which this Court approved in Dennis be overruled.

He hasn't suggested any substitute test and apparently it's position that speech can not create the kind of danger which the state has a right to prevent no matter what the context or circumstances of that speech is.

But this Court has repeatedly noted using the example of the man shutting fire in a crowded theater that something which is pure speech can create a physical danger.

And so the question is the circumstances and the context of that speech.

Now counsel for appellant Fernandez referred to pamphlets and writings.

But even looking at these writings, they are far from abstract intellectual discussion of doctrine, but instead they sent it around organizing youth for acts of violence, how to put together gun powder and other materials for the making of bombs and proficiency in terror tactics.

These were the writings that were involved.

Another point was made that the kind of riots which you saw described in the Epton case do not constitute overthrow of the Government.

I think this is very unrealistic and naive theory because there are many ways to overthrow Government and only one of them is a replacement of one group of government officials by another group of government officials.

That is one kind of overthrow.

But another kind of overthrow very clearly is the paralysis of a government system and in New York City for example, the cutting off of electrical power, the sabotage of transportation lines, attacks on the police make it impossible for the Government to render essential government services.

And this is as much an overthrow as is the replacement of particular people, and in fact it also creates a kind of chaos which prevents government from operating effectively.

Appellants also claim that the statute at issue will have a deterrent effect upon the advocacy of unpopular ideas, but analysis indicate there can be no such deterrents in this case.

Prosecutions under both the old and the new statutes which are called the criminal anarchy statute here must be governed by the rules set down in Epton and that decision made it very clear that mere abstract advocacy of doctrine is outside the ambit of the statute.

And therefore, outside the ambit of any prosecution both this one and future prosecutions Therefore, the only ground whose rights might be affected -- might not be affected by the Epton decision would be a hypothetical group which was deterred before the Epton decision.

However, this group can not be prosecuted for their activities because the prosecution places the advocation of unpopular ideas and such the mere advocation of unpopular ideas outside the statutes ambit.

And therefore this hypothetical group can not be prosecuted and for that matter can not even be identified.

And this kind of controversy with an unidentified group of these type which can not be prosecuted obviously presents no live grievance under this Courts decision in Golden versus Zwickler.

So, that we have here a pending prosecution and obviously no possible effect upon appellant's First Amendment rights.

Thank you.

Chief Justice Warren E. Burger: Thank you Mrs. Marcus.

Mrs. Piel, you have three minutes left.

Rebuttal of Eleanor Jackson Piel

Ms Eleanor Jackson Piel: Thank you.

I'm not sure I will take all my time.

I do wish to disabuse the Court of a thought which came across my mind as I sat down and that was the -- I sought the enjoining of the entire prosecution in this case.

It is true that when I commenced, I challenged the grand jury statutes of the State of New York, which of course were right to prevail would have invalidated the entire prosecution.

Setting up the challenge to the grand jury statutes although we maintain they were unconstitutional because that challenge did not meet the test of the First Amendment.

I would prove that position and I do not feel that the entire prosecution should be invalidated.

In fact, and I wish to underline it, the only challenge in the plaintiff and appellant Fernandez' case is to the anarchy statutes of the State of New York.

Now this prosecution with regard to arson in the third degree in so far as these pleadings are concerned is perfectly appropriate and should proceed.

Thank you.

Chief Justice Warren E. Burger: Thank you Mrs. Piel.

Thank you.

The case is submitted.

Print this transcript Transcript: 

Argument of Victor Rabinowitz

Chief Justice Warren E. Burger: We'll hear arguments Number 11, Samuels against Mackell and Fernandez against Mackell.

Mr. Victor Rabinowitz: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. Rabinowitz.

Mr. Victor Rabinowitz: -- and may it please the Court.

This is an appeal from a judgment of a three-judge court sitting on the Southern District of New York denying to the plaintiffs an injunction and declaratory judgment against the district attorney of Queens County and the Attorney General for the State of New York.

The plaintiffs seek to enjoin their prosecution under the New York State Criminal Anarchy Statute.

The eleven defendants and five others -- the eleven plaintiffs, excuse me, and five others were indicted on charges of (1) advocacy of criminal anarchy, (2) conspiracy to commit advocacy of criminal anarchy and in the case of one of the plaintiffs permitting his premises to be used for assemblages of anarchists.

The indictment contained altogether 48 counts of which only six are under consideration here.

The other 42 counts related to offenses such the illegal possession of guns and the illegal possession of explosives and weapons and the conspiracy to commit arsony -- arson and the -- a whole series of other conventional crimes.

We are concerned here and we attack here only that much of the indictment as relates to the New York criminal anarchy law.

Now, that law as this Court will recall was passed in 1902 and was applied once in 1921 in the Gitlow case.

Was not used again until 1964 when it was used to convict Mr. Epton.

The indictment was handed down here a month after the New York Court of Appeals decision in Epton.

And it raised fears in the minds of not only the plaintiffs but many others who are entrusted in civil liberties issues of a widespread use of state sedition statutes which had long been considered nor bound but which had effectively stifled radical thought in the 20's and like the Federal Act in the 50's.

In addition to the possession of guns and the conspiracy to commit arson and the other as -- but I prefer to as conventional crimes, two of the plaintiffs in this case were charged in a simultaneous indictment with conspiracy to commit murder.

They were convicted in that case as pending here on a writ of certiorari.

I mention this merely to indicate that to stress the point, to emphasize the point that there on the books of New York of course many statutes including those that are charged in this case to protect public order and to take care of people who collect guns in order to seek to overthrow the government or for any other purpose.

There are three principal points raised by the appellants here.

The first is that the New York criminal anarchy law on its face and as applied in this case violates the First and Fourteenth Amendments of the Constitution both with respect to freedom of press, speech and assembly and also with respect to due process of law.

Second, that the New York statute with respect to the selection of grand jurors has a monetary or had at that time a monetary qualification before he serves as a grand juror and that therefore the grand jury which indicted these defendants was illegally convened and finally that the Federal Government through the Smith Act has preempted the field of sedition including sedition against the state.

I shall argue only the first of these points here today and I'm not abandoning the other points.

I think they're good.

Or we're relying on them but they have been briefed and I know that those issues are not central to the concern of the Court here today and I shall just rely on my brief.

We are limited as the Court, this of course with the -- by time limitations and I would prefer to use that time to address myself to the subject which I know concerns the Court most.

The first aspect, however, the New York criminal anarchy law and its unconstitutionality is of course a critical matter.

And this aspect of the case has also in its turn I think three aspects.

The first is whether Section 1983 of the Civil Rights Act of 1871 is an exception to 2283 of the judicial -- judiciary code and I think that that issue must be met head on.

The second is assuming that we can meet that -- cross that threshold, whether the Court should nevertheless abstain and I think that issue has to be met head on.

And finally, we get I hope to the merits of the case namely whether the Act on its face and as applied in this situation is unconstitutional.

Now, the first question of the interrelation of 1983 of the Act of 1871 and the Section 2283 of the Act of 1789 I guess it is, is a matter which of course has been discussed almost endlessly.

It's hard to think of any question within the general area of procedural rights in a -- in the federal -- with respect to federal jurisdiction over criminal cases that has caused quite as much judicial and law review discussion in the last two or three years.

The issue was faced by the three-judge court in Cameron against Jackson.

It was argued in brief in that case in this Court but this Court never reached the problem and sent it back to the District Court for decision on the merits.

We have collected the cases or tried to collect the cases that are not completely up-to-date in footnote 11, page 24 of our brief on re-argument.

Since then other cases have been called to our attention including Sheridan against Garrison and Machesky against Bizzell both in the Fifth Circuit.

There have been extensive law review articles on the subject, 21 wrote this law review, an unsigned article and an article in 113 University of Pennsylvania Law Review signed I think by Professor Amsterdam.

Whatever I say here is -- I fear going to be an echo of those law review articles and those court decisions which have decided this case in my favor.

It is our contention that Section 1983 of the Civil Rights Act of 1871 was intended by Congress as an exception to 2283 of the judiciary code.

Mr. Mackell in his brief points out that 2283 was enacted at a time in our history when the rights of the states were of primary concern.

That is quite true but 1983 was passed at a time in our history when Congress was primarily concerned with protecting the individual from injustices which they feared would be perpetrated upon them by the state courts as a result of the antagonisms, the tensions, the problems that had arisen out of the Civil War.

It was passed by the reconstruction congresses and to say that those congresses did not intend to interfere with.

Yes, to interfere with state prosecution in certain kinds of cases runs directly contrary to the legislative history of that statute.

It has been argued by the appellants here, by the appellees here and by persons in other cases that our interpretation of 1983 will impede the state courts in the normal operation of the criminal laws.

It will and that is exactly what was intended by Section 1983 of the Civil Rights Law.

And the legislative history makes it clear, not in all cases but in certain kinds of cases, cases coming within Section 1983 that it was the intent of Congress to protect persons whose rights were being interfered with by state officials including state courts to protect them by giving them resort to a federal court.

And I cannot see how it is possible to read the legislative history all of which is set forth in the Watkins Law Review Article at a considerable length.

And some of which is referred to also by Professor Amsterdam in his University of Pennsylvania Law Review Article, I do not see how and I could quote Professor Amsterdam, “It is impossible to read the debates without concluding that the federal legislatures were intensely aware of the hostility and antiunion” meaning, northern not trade union, “prejudice of the southern state courts and the use of state court proceedings to harass those whom the union had an obligation to protect.”

That is the law that we are talking about today.

It's Section 1983 of the Civil Rights Act of 1871.

And to say that Congress intended that a person who is being improperly prosecuted, who is being harassed, whose rights are being taken away from him by a state official may not apply to a federal court for assistance under Section 1983 is to fly in the face of the direct intent of Congress in passing that law.

Justice Thurgood Marshall: Didn't Professor Amsterdam also said that was the reason for the removal of the statute?

Mr. Victor Rabinowitz: I think he did say that was the reason for the removal of statute.

Justice Thurgood Marshall: What?

Do you think they are -- you have two chances to get into federal court?

Mr. Victor Rabinowitz: Well, this Court has held that --

Justice Thurgood Marshall: Well, not done by what Congress made?

Mr. Victor Rabinowitz: Well, it may be that they were giving them two chances to get into the federal court, yes.

I think that Congress was much concerned with giving as much protection as possible to the persons to whom -- whose problems it was addressing itself in these statutes.

Justice Thurgood Marshall: Well, that would leave it up to the choice if the person involved as to whether he wanted removal or whether he wanted an injunction?

Mr. Victor Rabinowitz: Yes sir, I think that would be true.

Justice Thurgood Marshall: And if he had removal, it would just involve that one case?

Mr. Victor Rabinowitz: If it had removal, it would just involve that one case.

If he had injunction, it might just involve that one case.

There is no particular reason to believe that every injunction --

Justice Thurgood Marshall: I can see a considerable reason between enjoining the prosecution willy-nilly and saying that we will try it at a different court.

One is, the man goes free.

Mr. Victor Rabinowitz: That is true, there is a difference.

There are other differences also.

There is the fact for example that under the --

Justice Thurgood Marshall: But in this type of case if you win in the federal court the Government can -- the state cannot try the man?

Mr. Victor Rabinowitz: That is true but this kind -- that kind of case would be available, that is a 1983 case, would be available to a plaintiff only in a case where he could come within the four corners of the Act, namely that his constitutional rights were being interfered with by state officers acting under color of law.

And that he would have to come within that kind of a case.

And if he came within that kind of a case, the federal -- the Congress intended to give --

Justice Thurgood Marshall: I think 1983 says a little more than that because I would assume that every arrest is -- by an officer acting under state law, I would assume.

Mr. Victor Rabinowitz: Well, no, obviously every act, every arrest is certainly under color of a state law.

But the statute refers to a person who --

Justice Thurgood Marshall: He denied his federal rights (Voice Overlap) --

Mr. Victor Rabinowitz: Who is denied his --

Justice Thurgood Marshall: -- Constitution of the United States.

Mr. Victor Rabinowitz: And deprived of any rights, privileges, or immunity secured by the Constitution and laws of the United States.

Justice Thurgood Marshall: I thought this was it.

Mr. Victor Rabinowitz: And it is in that kind of a case not in a robbery case, not in a blackmail case to refer to some of the situations that have been referred to here in this morning.

But only in the case where a person has been deprived of his rights secured by the Constitution and laws of the United States.

Justice Potter Stewart: That could be.

That could be by a robbery indictment or a blackmail indictment, I mean, you could simply allege that I was exercising my right of free speech on the street corner and as a result of which this policeman came up and arrested me for blackmail or for robbery.

Mr. Victor Rabinowitz: I assume that in order to secure an injunction from a federal court you would have to show more than a mere allegation.

You would have to present the situation in which either the statute involved was on its face unconstitutional because it deprived the petitioner or of a plaintiff in that situation of rights, privileges and immunity secured to him by the Constitution of the United States or some other action to come within the statute.

A mere allegation that I am being arrested for blackmail and this is a violation of my constitutional rights is not sufficient to come within the statute and I assume that any Federal District Court confronted by this problem will so hold.

Justice Potter Stewart: I don't really see why.

I mean that could be very true.

It could be an abuse of the black -- criminal laws against blackmail in the particular jurisdiction.

A policeman might just get in a habit or any time he saw somebody making a speech on street corner to walk up to him and arrest him for blackmail.

Mr. Victor Rabinowitz: If that is what happens and I think he may be entitled to federal protection.

Justice Potter Stewart: So it's not -- it does -- it can come within this statute in your (Voice Overlap) --

Mr. Victor Rabinowitz: It may very well and --

Justice Potter Stewart: -- cannot?

Mr. Victor Rabinowitz: -- and I think it quite possible that in a setting of 1871, it may be that many offenses would normally have come within the purview of Congress which today we would not normally think as coming within the statute.

But I submit that that it seems is what Congress intended and if it's too broad a jurisdiction then the remedy is a remedy to Congress.

Justice Byron R. White: What about the -- what about an ordinary criminal prosecution, narcotics or anything else and the defendant comes to federal court saying that the pending prosecution against me rest on evidences that within constitutional search and seizure.

Mr. Victor Rabinowitz: I believe that this Court has held that -- I don't know if it's this Court or other federal court, have held that that is not within seven -- within 1983.

Justice Byron R. White: Well, I know but how about -- what about your position?

Mr. Victor Rabinowitz: Well, I suppose a different argument could've been made.

We are not confronted with that case but I think that --

Justice Byron R. White: Well, I know, but why wouldn't it be included in your argument?

The way you presented it, seems to me it would squarely fall under your argument.

Mr. Victor Rabinowitz: Well, perhaps it would.

Chief Justice Warren E. Burger: It's a denial of a federal right, isn't it?

Mr. Victor Rabinowitz: It -- perhaps it would, perhaps it would.

It doesn't shock me Your Honor.

Justice Potter Stewart: No, no, I just wondered if --

Mr. Victor Rabinowitz: Perhaps it would.

Justice Potter Stewart: I wondered if your argument -- how you would react to --

Mr. Victor Rabinowitz: Perhaps it might come to that point.

Chief Justice Warren E. Burger: That would mean that virtually -- well, the very large percentage of criminal prosecutions would be subject to a three-judge court scrutiny before they could get in to the --

Mr. Victor Rabinowitz: If --

Chief Justice Warren E. Burger: -- regular stream.

Mr. Victor Rabinowitz: If the Court felt that it was prepared to extend the statute to cover that kind of situation, now it may very well be and as I say, I believe that the courts have held that mere matters of evidence do not rise to the height required by the statute.

We are not concerned in our case with a mere matter of evidence.

We are concerned with the application of the statute which I submit is unconstitutional.

And it may be that on the outer reaches of the problem, there will be questions raised but we're not at the outer reaches at the moment.

We are right at the center.

Now --

Justice Byron R. White: What's been the division on the circuits on this point?

Mr. Victor Rabinowitz: Well, the circuits have not only divided but within the circuits, there have been divisions.

And where there have been in many situations where there have been decisions as for example in the Fourth Circuit.

I believe the Fourth Circuit has held that 1983 is not an exception to 2283 but there is a very strong dissent by Chief Judge Sobeloff in -- I think its Baines against Danville.

In several cases in the Fifth Circuit, the same conclusion is reached but again there have been dissents by Judges Reeves and Wisdom so that -- although the court -- in the Third Circuit in I think Cooper against Hutchison, the decision is the other way.

There are two very recent Fifth Circuit --

Justice Byron R. White: We held that -- it held that was within the exception.

Mr. Victor Rabinowitz: It held that 20 -- 1983 was an exception to 2283.

There are two recent decisions in the Fifth Circuit.

One, a decision by Judge Thornberry and the other, a decision by Judge Bell, which holds that Section 1983 is an exception to 2283; both of them unanimous -- unanimous decisions, and have -- and has -- he has held that those -- those -- that -- those two courts have held that 2283 is not a jurisdictional statute at all.

But the 2283 is a discretionary statute and that it is I suppose equivalent to the co-question of abstention.

And I must get on if I may Your Honors, I know this is critical to the dissent, but on the question of abstention leaving the statute aside because I would assume that the general rules of Jeannette against -- Douglas against Jeannette and so forth might cause a court to hold that it is going to abstain even if it has jurisdiction under 2283.

It still may abstain and I raise the question as to whether abstention has any justification at all in this case.

Incidentally, the right of a court to abstain this, Mr. Justice White is perhaps the answer to your question that where there are merely matters of evidence involved that the federal court out of considerations of comity and all of the considerations in Douglas against Jeannette will decide that it will abstain.

In this case, there is no reason for abstention at all.

We know as a matter of fact because it has decided it -- the matter in the Epton case what the state court is going to decide with respect to this case.

We know what its interpretation of the law will be.

There is no reason to wait to find out.

This is exactly the situation in the Allegheny against Mashuda case except that the complicating circumstances which led to the dissent in that case are present here.

This is the situation in Koota against Zwickler.

This is a situation where a state law is clear, not on its face, of course, it's very unclear on its face but it is clear because there has been a limiting construction.

We contend a limiting construcion and unconstitutional application.

It has given that limiting instruction and unconstitutional application in the Epton case.

Epton in effect has been running interference for us.

He has cleared away the ambiguities in the statute and there is no reason for further abstention by this Court because nothing will be gained by abstention.

We know what the New York Court of Appeals is going to hold and what it is going to hold is that it has amended the Gitlow statute so that it now has a limiting construction.

Justice William J. Brennan: What do we do with Epton, Mr. Rabinowitz?

Mr. Victor Rabinowitz: Epton was --

Justice William J. Brennan: Came here I know but --

Mr. Victor Rabinowitz: Yes, certiorari was denied because there was an independent state ground for the decision.

There had been concurrent sentences exactly the same thing, not only can but almost certainly will happen here so that we will be confronted once again with the situation where this Court may not accept certiorari because there is an independent state ground for the sentence and we will be faced with the possibility of still further conspiracy, criminal anarchy prosecutions in New York and as long as it is paired with the conventional state crime, we can never a juris -- a decision from this Court as to the constitutionality of the state sedition law.

Now, my time is about up, I just would like to mention one thing and there are others mentioned in the brief but let me just get to this one thing because I think it's decisive on the question of constitutionality and that is what I have referred to as the amendment of the Gitlow statute by the state court.

The state court at the very opening of its decision said, “We are thus presented with the statute which is unconstitutional as interpreted”, and they then go ahead to reinterpret.

Now, the difficulty with that when we pointed that out to the three-judge court, the three-judge court said, “Oh, well this is a matter for the state to decide if they want to give their Court of Appeals the right to amend the law, that's their business.

It's not a federal question.”

But it is a federal question because if the legislature had made this amendment, we would have an ex post facto situation here.

What -- because the court amended the statute we have to ex post facto situation because this law was amended, reinterpreted, whatever you want to call it, by the state legislature after the acts complained of in this indictment.

This incidentally is the subject of the dissent, the very strong dissent by Judge Burke in our Court of Appeals in which he pointed out that there was no notice to the defendant that this statute was going to be reinterpreted.

The defendant if e had consulted any lawyer in New York would have told and there was no valid criminal anarchy law in New York because Gitlow was so clearly unconstitutional.

And no one could have had the clairvoyance to have seen that the New York Court of Appeals was going to amend the law.

Justice John M. Harlan: Apart from the ex post facto against you, you would think that the reinterpretation of the whole statute is satisfied as constitutional requirement?

Mr. Victor Rabinowitz: I think not, Your Honor.

Justice John M. Harlan: You think not.

Mr. Victor Rabinowitz: No.

I have discussed the matter in my brief and I just don't have the time to discuss it.

Justice John M. Harlan: Yes.

Chief Justice Warren E. Burger: Mrs. Piel.

Argument of Eleanor Jackson Piel

Ms Eleanor Jackson Piel: Mr. Chief Justice, if it please the Court.

My client in this case is Fred Fernandez.

He is one of the 15 subject to the indictment.

And I want to commence my argument sort of taking going on from Mr. Rabinowitz's argument, on the theory that the issue of 2283 and 1983 I think can well be answered as Mr. Rabinowitz answered it.

But I'm not sure that that's an adequate answer because after one says, “Yes, there is the power to enjoin.”

It's obviously not a principle which is promotive of peace in the states to have the federal courts interfering whenever there is a claim of unfairness below.

And so I have called over some of the opinions of this Court and some of the writings of the American Law Institute with regard to their consideration of this subject and it seems to me that we can set up four reasons or four considerations which all obtained in this case which would persuade a court not to abstain from a decision with regard to a constitutional issue.

The general premise being that a federal court will abstain and permit a state court to decide the issues of constitutionality where they are raised.

Now, the first consideration has to do with the First Amendment.

And generally speaking this Court has been more sensitive to issues of First Amendment particularly when they arise in the states and for a number of reasons, in order to create the uniformity of law in the United States and in order to protect the First Amendment which sometimes in the heat of whatever -- of the battle below state jurisdictions are not as sensitive to the issues.

Now that -- I'm going to mention this four factors and then go back over them.

The second one ties in to the First Amendment and it has to do with -- when the issue involving the First Amendment has to do with the public business and I'm referring to the language used by Mr. Justice White when -- in the Red Lion case when he referred to the kind of -- the kind of public business that Alexander Meiklejohn talks about when he's talking about the FirstAmendment, talking about the right of people, to hear arguments, and the right of people to speak.

And when in you're in the area of sedition, you are in the area of the public business because you're talking about Government and some people's ideas about what's wrong with it.

Then the third factor has to do with -- and it's a very important question and that is can the constitutional issue even though it involves the First Amendment, even though it involves the public business, can it be solved by the state route?

Is the issue something that the state court has not yet had an opportunity to rule on?

Perhaps there is even an independent state ground as in the recent case that had to do with Alaskan fishing rights.

Your -- this Court abstained.

Mr. Justice Douglas wrote the opinion.

This Court abstained because there might even have been a decision there based upon the Alaska Constitution.

So, that even though they were important issues, it's not appropriate for this Court to interfere.

Then there's a fourth ground which is that the prosecution itself is unfair and discriminatory.

And perhaps a law which is not ordinarily invoked against the defendant is used.

And that is a fourth basis.

And that fourth basis was mentioned in the AL, the American Law Institute series of reasons given when they decide it.

Of course, they are not the Supreme Court but there are number of judges sitting on it.

They decided that 1983 or there is an exception or there should be an exception in the law to the absolute caveat against the federal court issuing an injunction against the state court prosecution.

Justice John M. Harlan: I thought that would be written then and constituted?

Ms Eleanor Jackson Piel: Well, it hasn't been with regard to the Banking Act.

I believe that there is a whole line of opinion that shows that -- well, as to other instances where it's not written in.

Certainly the way 1983 is phrased which gives a litigant a right to relief equitable or otherwise would suggest the -- it is an expressed exception.

Now, in all of these considerations, I think we started out with the fact that we are talking about equity.

So if any of these considerations do not obtain or are not persuasive, then it is something that should be perhaps sent back to the state court.

But in -- Mr. Justice Marshall mentioned removal as though that might be an adequate remedy.

May I say that's a very narrow remedy and although originally it may have been intended to overlap 1983, I think today a litigant would have a pretty hard time using it in one of these cases.

As a matter of fact --

Justice Thurgood Marshall: I didn't say it was an alternate.

I wanted to know whether it was or not.

Ms Eleanor Jackson Piel: It's written that way.

May I say it's written that way but not interpreted.

Now, with regard to these consider --

Justice Thurgood Marshall: But our considerations a little changed -- was on --

Ms Eleanor Jackson Piel: I'm sorry.

Justice Thurgood Marshall: Aren't conditions change since when 1983 was adopted and today?

Ms Eleanor Jackson Piel: They are changed but I think in some ways there are challenges --

Justice Thurgood Marshall: I mean for example in this case, there's a possibility that these people will be tried before a Negro judge and only Negro judge.

Ms Eleanor Jackson Piel: Not in Queens.

Justice Thurgood Marshall: It's not possible?

Ms Eleanor Jackson Piel: Oh, I wouldn't say that, Your Honor.

I couldn't say that.

But I don't think -- I don't want to make this an ad hominem argument, I think there are as compelling reasons today to be interested in the First Amendment and into -- in the considerations of fairness and the four considerations I mentioned as there were during the Civil War period.

So, or -- and the -- and its aftermath.

Now, with regard to this application to the instant case, question was asked, was the Court of Appeals' opinion in Epton the narrowing interpretation -- is that narrowing interpretation constitutional?

And I submit that its not for the reason that the highest court of the State of New York in trying to read in to the -- to 160 and 161 and presumably if that obtains, it would also be read into the new statute which supersedes 160 and 161 which had already been passed but which was not yet effective at the time the highest court of New York interpreted the statute.

That highest court left out of its language, language which appears in Brandenburg, which has to do with the requirement for the validity of a sedition statute that the danger of overthrow or of lawless action be immanent.

Now, that has been left out of the interpretation of the Epton's of -- in Epton and is left out of the statute -- the statute's interpretation and it also is missing from the indictment.

If you will read the indictment in this case, you will read that there is no -- there are no consideration of clear and present danger in the indictment and all you have is the allegation that these defendants with regard to the anarchy counts advocated the overthrow of the Government by force and violence with intent that it take place but not any allegation as to the likelihood of it taking place or any allegation and this is another consideration which comes out of Yates and Dennis and Brandenburg.

That the -- Brandenburg, not so much, that they -- that the group doing the advocacy of the overthrow of the Government be of sufficient size and strenth to actually present such a threat.

Now, Epton did one more thing although the court said in Epton, that's the Court of Appeals, that clear and present danger has to be read into the statute when it implied that doctrine to the -- to Epton.

What it really said was that the clear and present danger did not have to be clear in present danger of the overthrow of the Government of the United States.

All it had to be was clear and present danger that the riots then rocking Harlem continued.

And I submit that that's the meaning of Epton and looked at that way.

The State of New York has an unconstitutional statute which it is trying to apply to these defendants.

Now, when I speak of the public business, I think it's very important that you know how this case fits into the public business, the -- what the -- we do allege in our complaint that this is a harassing action against these defendants.

And in the harassing we mentioned and it's attached to the appelant's brief and also filed with the court.

We attach a number of newspaper stories, all of which were released by the district attorney at the time that these people were indicted and it's very clear from the language used in these press releases that the direction of this -- of the action is against the thoughts of these defendants.

Now, quoting the district attorney on page 67 here in the press releases that appeared in the press, he said that Stokely Carmichael, a leading black power advocate had connections with RAM, that's the Revolutionary Action Movement which was dedicated to the overthrow of the capitalist system in the U.S. by violence if necessary.

Now, parenthetically this is supposedly an anarchy or the attempt to overthrow the State of New York yet all of these press releases have to do with the overthrow of the Government of the United States.

Again, I read, Mackell said the arrested RAM members are followers of Chinese Premier Mao Tse Tung and are associated with another Negro organization called Black Americans Unite or Perish headed by Robert Williams.

And again, their intent was to spur Negro militancy across the nation, police said.

Following recent ghetto rioting in Atlanta, Tampa, Dayton, Cincinnati and Watts, and then finally, I think this really caps the First Amendment public business aspect of my argument.

In discussing the defendants, Mackell said that Fernandez who headed -- that's my client who headed a group of approximately 20 youths between the ages of fifth -- 16 to 21 may well have tried to influence them with revolutionary action movement philosophy and finally, Queens' District Attorney Thomas J. Mackell said that the 16 arrested on bearing charges were members of RAM, an anarchist group which federal authorities say is pro-communist China and pro-Cuba.

That wasn't the final one, I wanted to -- sorry, a bit of accumulativeness here.

The police investigation into this matter dates back two years, Mackell declared.

I have had Assistant District Attorney Thomas DeMakos of Jackson Heights on the case ever since we were informed about it.

He and Lieutenant James Murphy of my squad had been working together on it.

DeMakos had to do a tremendous amount of reading and had to digest hundreds of thousands of words before we felt we were ready to proceed.

Now this, I say, goes to the heart of the First Amendment.

This is an accusation against these defendants with regard to the anarchy charge that is squarely -- that is squarely violative of First Amendment considerations.

Now, we cannot solve this case by the state rule because when it gets up to the State Court of Appeals, the State Court of Appeals is bound by its own decision.

And there's another problem, by the time this case is tried there are as you have heard 48 counts in this indictment.

Only five of which involve my client.

Only four of which involve anarchy and the fifth involves conspiracy to commit arson in the third degree.

Now, by the time the jury has heard all of the -- all of the testimony with regard to anarchy, I predict that my client will be convicted of arson in the third degree.

This is of course a distinction from Dombrowski where the contention was made that the char -- criminal charges were brought against the defendants with no possibility of their being a conviction.

In this case, we say there is a strong possibility of a conviction and that the anarchy charges served to prejudice the case as a trial before the jury.

And in fact it is argued by the district attorney in his brief that he needs the anarchy charges in order to supply the factor of intent as to the illegal gun charges which he brings not against my client who is a casualty perhaps of the entire adventure but to attach intent to the gun charges against the other defendants.

Now, the other aspect of what can happen is what exactly what did happen in Epton.

In Epton there was a conspiracy to riot charge that was attached to the anarchy charges.

And when he was convicted, the judge gave him a sentence which was concurrent with -- and it -- which covered the conspiracy to riot charge and was one year and therefore it never appeared what part the anarchy charges which I can assure you played a great part in the trial.

It was never clear nor was it ever capable of being properly reviewed.

So you have a record where it will be impossible in this case for the defendants here, plaintiffs in the action in the federal court to secure a fair trial or absolution by the state method.

You have as I have indicated a discriminatory prosecution by a statute and I do think that it's important for the court to consider this.

This is not a robbery statute, a -- that is invoked how many times throughout the United States today.

This is not a burglary statute, this is a sedition statute and it's used in New York -- has only been three times at least in our recorded history.

It's been used in Gitlow in 1920 and it was revived 6 -- 44 year late -- 44 years later in Epton.

And it was only upon the heels of the Court of Appeals' opinion in Epton which came down May 16th, 1967 that these indictments were brought in -- were brought against these 16 or 15 defendants.

So it's clearly the -- a discriminatory prosecution.

Now, it seems to me that this is -- if there is -- is ever a case for the kind of relief which is available for federal intervention, this is it.

There is a further argument that was made and I want to make it because I think it dramatizes the validity of the relief requested and that has to do with the grand jury point.

Since this case was argued, this Court has come down with two decisions which suggested that the 250 property limitation might well be invalid but another -- in another decision you've said that the subjective standards which we claim here might be administered fairly so that the statute on its face would only be a little bit unconstitutional, when I say a little bit, advisedly.

I think that against the standards that I have just set up, the Strauss standards, that it's a challenge to a statute on the basis of the First Amendment, the grand jury statute wouldn't make that.

That it's the public business.

I don't think it would quite do that.

That it can't be solved by the state route.

Well, a year ago when I was before you, I told you it couldn't be solved by the state route be -- and I cited a lot of cases in my brief showing that the state had not considered this issue.

But on the 22nd of April of this year, Chestnut against the People of the State of New York was argued in the Court of Appeals.

And these issues were presented to the Court of Appeals not as to Queens County, as to New York County.

But accordingly we can say that as to the grand jury issue that is something which perhaps can be solved by the state route.

But I'm going to make a suggestion here as to that.

Justice Byron R. White: That's under submission now to the Court of Appeals?

Ms Eleanor Jackson Piel: Yes, yes, I'm --

Justice Byron R. White: Undecided?

Ms Eleanor Jackson Piel: Undecided, it was only argued on the 22nd of April.

Of course that case may come here to before we are through.

But I'm suggesting that one does not dismiss such a case out of hand but one can well send it back to the District Court with these instructions to await the decision of the New York court.

There is one problem and that's another argument I think in support of not abstaining here and that is the right of a defendant in a criminal case and a plaintiff in an action such as this to finally get some kind of relief from the Court.

In other words, these actions pending over a long period of time do not result injustice to all.

I will reserve any time I have for rebuttal.

Justice John M. Harlan: Well, I guess it isn't probably collateral but what happens with this one?

Ms Eleanor Jackson Piel: Well, this case may come before Your Honors one day.

Justice John M. Harlan: By the end of the --

Ms Eleanor Jackson Piel: He's out on $25,000.00 bail pending another kind of relief which I did not mention.

There -- that's habeas corpus in the federal court and the habeas corpus action is awaiting the action of the Supreme -- of the Court of Appeals of the State of New York in the Chestnut case because that's the same grand jury which indicted him and also the action of this Court in this case.

Chief Justice Warren E. Burger: I think you have consumed all your time, Mrs. Piel.

Ms Eleanor Jackson Piel: Thank you.

Argument of Frederick J. Ludwig

Mr. Frederick J. Ludwig: May it please the Court.

Chief Justice Warren E. Burger: Mr. Ludwig.

Mr. Frederick J. Ludwig: My name is Ludwig, I'm the Chief Assistant District Attorney of Queens.

This is the second time this case is being argued.

The first time on April 1st, you Mr. Chief Justice and Justice Douglas weren't on the bench.

I just like to say at the outset that the question of publicity in this case was brought to the attention of one of our best Supreme Court justices, Justice Shapiro in Queens and he in an exhaustive opinion which is appended to my brief went into all facets of the question and his conclusion was that by no stretch of the imagination could the District Attorney in this case be accused of issuing any inaccurate, unfair prejudicial statements regarding this matter and that any statement the District Attorney ever made or I ever made in connection with this case was proper, justified and something the public had right to know.

Many of the quotations that were read by Mrs. Piel are not quotations of the District Attorney but of some newspaper reporter writing the story without quotations marks and I think in all candor this Court ought to know that.

Now, the defendant in this case is the District Attorney of Queens, actually the defendant should be a grand jury of 22 people in Queens who saw fit to accuse these defendants.

The District Attorney did not accuse them.

They were accused by the grand jury.

The District Attorney knew nothing of this investigation while it was going on for a year and a half or two years until approximately a month before the matter was produ -- presented to the grand jury.

The evidence in this case was obtained by a -- an undercover police office who had infiltrated this group, became a part of it, in fact was a vice president of it and who gained enough information about what was happening to enable -- to present this case to the grand jury.

Now, this indictment is a -- one that involves 15 defendants, 11 of them are appellants in this case.

The other four did not appeal.

The indictment contains 48 counts and deals with five crimes.

It's a superseding inictment.

The first indictment was found on June 20th, 1967, the case was presented on June 20th, the foreman handed up the indictment that night.

It was a one day presentation in great confidence and secrecy before the grand jury.

The foreman handed it up on June 20th in -- and the defendants were arrested pursuant to arrest warrants and these weapons and arms and arsenal were seized pursuant to search warrants signed by a Supreme Court justice particularly describing what was to be seized the following morning, June 21st.

Now, two indictments were handed up by this grand jury as a result of the testimony and their testimony consists of a 151 pages and I offered it to the Court on two occasions, the first time I argued here a year ago and no action was taken.

These minutes of the grand jury unlike Harris against Younger, the California and it cannot be printed in records and are not printed customarily in our state appellate courts, the judges asked the District Attorney to hand up a copy of the minutes because we have a very strict rule on indictments on the state court.

The rule is that there must be proof beyond the reasonable doubt in the grand jury minutes that the defendants are guilty if unexplained.

Other than the federal courts and elsewhere you don't need that quantum of proof and we also have another --

Justice Potter Stewart: Is that true throughout the State of New York?

Mr. Frederick J. Ludwig: That is true sir.

Justice Potter Stewart: That before a grand jury can bring an indictment, there has to be proof beyond a reasonable doubt at least prima -- at least unexplained.

Mr. Frederick J. Ludwig: Unexplained and further than that in People against Jackson and People against Pittsburgh, our State Court of Appeals has imposed another rule on us that if you have the proof beyond a reasonable doubt at the time of trial but you didn't have it at the time of the accusation before the grand jury then that's sufficient to justify reversal as a matter of law, Pittsburg and Jackson.

So --

Chief Justice Warren E. Burger: Are these extraordinary?

Mr. Frederick J. Ludwig: Yes.

So, that is why --

Justice John M. Harlan: Is that a statute or is that your court rule?

Mr. Frederick J. Ludwig: Many of our -- many motions are made attacking our indictments on the insufficiency of the evidence before the grand jury and I regret to report that they are dismissed because the judge reads the minutes and says, “I don't think you've made a case up.”

Justice Potter Stewart: Well, now aren't a good many prosecutions in your state initiated by way of information?

Mr. Frederick J. Ludwig: None on the felony level.

The state --

Justice Potter Stewart: None of the (Voice Overlap) --

Mr. Frederick J. Ludwig: -- constitution requires for a felony indictment by a grand jury can even be waived by a defendant.

Justice Potter Stewart: Cannot be --

Mr. Frederick J. Ludwig: Non-waivable by a defendant.

Got to be accused by a cross (Voice Overlap) --

Justice Potter Stewart: I mean, misdemeanors not information.

Mr. Frederick J. Ludwig: Yes.

Chief Justice Warren E. Burger: I didn't quite get clearly in your response to Justice Harlan's question, is this by virtue a statute or by virtue of a decision --

Mr. Frederick J. Ludwig: No, by decision --

Chief Justice Warren E. Burger: -- of the Court of Appeals?

Mr. Frederick J. Ludwig: -- of the State Court of Appeals interpreting the Constitution of the state that requires indictment by the grand jury and also a provision of the Code of Criminal Procedure of the State of New York that requires sufficient proof to convict at trial if unexplained.

That's the words of the statute.

Now, I would like to go into these minutes are here if the Court will accept them, I'll hand them to the marshall.

Chief Justice Warren E. Burger: Well, let me ask you a further question -- on that if I may, is --

Mr. Frederick J. Ludwig: Yes.

Chief Justice Warren E. Burger: does that mean any more than what Justice Stewart suggested that they must make a prima facie case to the grand jury of the same kind of a case that would carry it to the jury if the defense put in no evidence?

Mr. Frederick J. Ludwig: Yes, Your Honor, otherwise it will be reversed.

Chief Justice Warren E. Burger: And that's by decision of the Court of Appeals in your --

Mr. Frederick J. Ludwig: That's the highest court of the state in two cases, People against Jackson and People against Pittsburg.

Chief Justice Warren E. Burger: Does the New York constitution fix the quantum of proof?

Mr. Frederick J. Ludwig: It does not, Your Honor.

It merely is done by the legislature of New York in the current Code of Criminal Procedure.

But it has been there for many years.

Chief Justice Warren E. Burger: Thank you.

Mr. Frederick J. Ludwig: Now, in this indictment, we have a -- we could've had a 131 indictments here if we were proceeding strictly according to the common law which required a single crime and a single defendant for each indictment.

But again, our Code of Criminal Procedure and those sections are set forth at page 8 and 9 of my brief on re-argument and also the original briefs, allows us to combine defendants and charges in one indictment provided we separately number each crime in account.

And that provision appears in Section 279 of the Code of Criminal Procedure and the reason I make mention of it is this at this stage, because we have combined here, in one indictment, the indictment now before the Court, 15 defendants and 48 counts.

We could've had 111 different indictments and then moved to consolidate them on the grounds that would come in issues.

The test for putting these counts in one indictment is there are four different circumstances in 279.

The one of the four that we selected is where the crimes charged are connected together and are part of a common scheme or plan.

Now, by a motion before the appellate court, you can sever this indictment. But before the trial court, these indictments could be severed.

Now, these things then are by law, by the lore of pleading in criminal matters of our state interrelated charges.

I want to also say that in these 48 counts, the first four of them deal with criminal anarchy and charged all the defendants with the commission of that crime.

But the first three deals with criminal anarchy and the fourth is conspiracy to commit criminal action.

Now, the others -- the other counts in the indictment have nothing to do with criminal anarchy but are there because they're interrelated with the ultimate purpose of this indictment.

Count five is a conspiracy to commit arson in the third degree.

It does not -- that count is not charged against everybody.

Many of the defendants are not charged with that missed case.

Count six permitting -- the count seven dealing with -- countsix and seven deal with permitting premises, misdemeanor, permitting premises to be used for anarchy.

The remaining counts, 41 and all deal with weapons.

Now, this may be a little but abstruse but it's important to make this one point that four of these 41 counts that deal with weapons, deal with handguns and thirty seven deal with shoulder guns.

Under the weapons law of New York which I told this Court, I am the author of -- last time, mere possession of a hand gun in four of these 41 counts is all the prosecution has to establish to convict of a crime but for shoulder guns, rifles, shotguns, carbines, you need proof of intent to use unlawfully against another.

And there's a good reason for that.

A lot of people have rifles to hunt animals, but pistols and revolvers and automatic weapons normally are used only to hunt other human beings.

The only proof of intent to use unlawfully against another we have for this indictment and the only evidence that was before the grand jury at the time the case was presented was the intent to paralyze and overthrow local government.

Consequently, when counsel says that you can -- you can't when irreparable injury is done, grave and immediate because of the possibility of concurrent sentences in this case.

That is not so and I will demonstrate why its not because there are first of all four defendants in this case who are not charged with possession of weapon, I amend that there were five who are not charged with possession of weapons, Harriet Knoll, Raymond Smith, Fernandez, Ms. West, and Stan -- Max Stanford.

Those five are not charged with any possession of weapons in this indictment, it isn't because they didn't posses weapons but because when these search warrants were executed, they were not found in possession of the weapons.

Therefore, these five people, of these five people three of them are charged with no anarchy crimes at all.

So in these five cases that are charged, pardon me, with no non-anarchy crimes.

So in these -- three of these five cases, we have persons who could be convicted only of anarchy connected crimes and not of any correlative crimes and the doctrine of concurrent sentences would not apply.

I -- if I am not mistaken, if I -- as I read Benton against Maryland, this Court last term abandoned the concurrent sentence doctrine anyway so that the reason for this position of Epton no longer holds.

But many can -- in any case we have three persons that could be convicted solely of this anarchy connected crimes under this indictment and would have full opportunity to bring the question of the validity of the New York statute before this Court.

By the way the New York statute that we're talking about has then repealed by Section -- by action of the legislature on July 20th, 1965, that's five years, almost five years ago.

The repeal was to take effect on September 1st, 1967.

This was in connection with an entire revision of the New York penal law.

Now, and a new anarchy section was substituted on July 20th, 1965.

Now, so far as this indictment is concerned, it was handed down we say originally in -- on June 20th, 1967.

The Court of Appeals -- the Epton case began in July of 1964.

Epton was tried in June of 1965 and convicted.

The -- he didn't get through with the first intermediate appellate court until December of 1966.

And the highest court of the state came down with their decision in Epton on May 16th, 1967, one month and four days before the grand jury indicted the persons in this case.

Now, it is true that some of the acts for which these people are accused took place prior to the announcement of the decision in Epton.

But there is one other unusual feature of our weapons law in New York and that is the amnesty features.

And under the amnesty feature, any person at that time if they had read Epton, when it come down on May 16th and were following the law as closely as counsel seems to suppose they would come into a police station during the month of June, today they can come in during any month and hand over these guns with amnesty and immunity given by the legislature.

That is Section 1900, subdivision (a) (1) of the former New York penal law enforced in effect at the time this indictment came down.

This is a defense of recantation and amnesty given by New York.

So if these people were being guided by what the highest court of this -- of the state said on May 16th, they could have recant it, turned in thereof with impunity.

And believe me there would be no indictment in this case if all we had is what appears in the appendix in Harris against Younger namely statements or pamphlets or speeches or abstract advocacy of the doctrine of anarchy.

What we're concerned with was in this case, the amassing of an arsenal for the purpose of paralyzing and overthrowing government.

Now, this Court in its most recent pronouncement on the question of free speech, Brandenburg at the last term on June 9th say that you may punish a person for advocacy, for words provided it's accompanied by inciting and producing lawless action and there is probable cause that that lawless action would occur.

Now, the minutes of the grand jury which are here before this Court show that they assembled 9000 rounds of ammunition.

They assembled cans of gasoline, cans of oil, intending to burn the subways, the power plant, the lumber yards, the tire factories, public communications facilities in Queens County and they had a detailed blue print and a timetable for the execution of this plan.

The speech involved in this case, the advocacy only the -- is the mortise and tenon, the cement, the binding quality to put these acts for overthrow together.

As a matter of fact on 16th, there was a dry run in which these weapons were used against some stores in the Jamaica section of Queens, the testimony before the grand jury so revealed.

And it's set forth in my brief.

Bazookas --

Justice John M. Harlan: What's happened -- the District Court or the federal court refused to enjoin this prosecution and you brought them to trial?

Mr. Frederick J. Ludwig: We did not yet bring them to trial out of deference to this Court, Your Honor.

Justice John M. Harlan: Why not?

Mr. Frederick J. Ludwig: We wanted to give this tribunal a chance also for the trial -- for the guidance of the trial judge.

May I say this, --

Justice Potter Stewart: It's been in -- there's been no stay issued by (Voice Overlap) --

Mr. Frederick J. Ludwig: No stay has ever been issued for --

Justice Potter Stewart: Or that it was --

Mr. Frederick J. Ludwig: -- but it was agreed that if there is a question, let the federal tribunals dispose of it.

We have in a second indictment convicted two of these appellants in this case, Ferguson and Harris.

They were convicted of conspiring to murder Whitney Young and Roy Wilkins.

They had other people on the list as well but they were the first two.

They had a trial before a jury.

The intermediate appellate court, five judges found unanimously that there was sufficient evidence to convict but three judge -- two judges dissented of the five on the grounds that because Senator Robert Kennedy whose name was also on the list to be killed was mentioned at a time when he was lying between life and death that a new trial should be granted or the judge should've granted a continuance.

The highest court of our state, seven judges found identically, unanimously that there was sufficient evidence to convict them of conspiracy to commit murder in the first degree and -- but they also agreed, three of them agreed that maybe the trial judge should've granted a continuance of that -- on the count of the circumstance of the assassination of President Kennedy.

I'd like to say this in connection with the question of the Section 2291 -- the 2283.

For 177 years, we've had that statute on the books.

March 2nd, 1793 and never once has this Court in anyway said that a lower court, that's a creature of Congress, must not observe that statute.

For 99 years since 1781, we had the provisions of Section 1983, the so-called Civil Rights Act which gives a person a cause of action, an action at law, a suit and equity or other problem, means of redress if any rights, privileges or immunities guaranteed to him by the Constitution of the United States are taken away from him under color of state law, never in 99 years has this Court ever held that that constitutes the word, the three words suit in equity constitutes and exception to 1983.

Now, recently this Court has taken up this question, they took it up in Dombrowski against Pfister ad very carefully Justice Brennan in writing that opinion observe the restrictions of the Act of 1793.

And Justice Harlan in his first footnote in his dissenting opinion also called the attention of the Court that if there had been an action pending at the time of application to the federal court then of course this Court could not reverse any -- could not just authorize intervention below.

Again it came up in several other cases, Cameron against Johnson is a good illustration from Mississippi, came up from Mississippi and were sent back by this Court to the District Court in the Southern District of Mississippi to have them determine whether 2283 was a bar and the District Court of Mississippi, three-judge District Court came back and said yes, we think the suit is barred by 2283 and this Court affirmed.

But there was a footnote by Justice Douglas where he said, “Well, we don't have to decide the question of 2283.”

But still this Court did affirm the determination of the District Court of Mississippi.

Again in Brooks against Briley from Tennessee, same thing, District Court there, three-judge District Court said, “You can't get by here with 2283.”

Can't get by -- “No, can you get by on the companion declaratory judgment.”

A case came up to the Supreme Court affirmed.

This are all very recent cases all involving 1983 as an exception to 2283.

Again in Zwickler against Boll coming from Wisconsin, same result, this Court's affirming, the District Court's denying.

So the most recent authority in this Court is that 2283 is hurdle.

Now you have two hurdles to surmount before we can get to the question of free speech.

You have two hurdles to surmount.

One, you got to get by this historic barrier of Congress since 1793, you've got to surmount that hurdle before you can go anywhere else.

The 26 words that were put in amending the parent statute, the Judiciary Act of 1789, 26 words have to be observed.

Now, this Court has repeatedly said in 1941, they said in the Natuzzi case, we must be scrupulous, must be scrupulous about the bound -- the meets and bounds that Congress sets for courts of their own creation, must be scrupulous.

Then in 1948, when Congress codified three exceptions, in 1951, this Court revisited once again the statute of 1793 and at that time they said, you got to go by those three exceptions of Congress and you can't go any further.

Now, there's another consideration involved here, it interrupted and stayed in the federal prosecution.

And that is that this tribunal which is a constitutional tribunal, is not a circuit court or a (Audio Static) Constitution yet Congress in fixing which they have the power to do in Article 3, Section 2, the appellate jurisdiction of this Court carefully requires that there'd be a final judgment of a state tribunal and a decision by the highest court in which a decision can be had before state action may be reviewed by this, a constitutional tribunal.

How can we then say that this Court is going by statutory interpretation, this isn't a constitutional question, if to lower federal courts, a power it does not even arrogate to its self?

Why Congress has the power unless this Court wants to overrule Ex parte McCarthy.

Congress has the power to take this case right away from this Court now by taking away appellate jurisdiction over any questions, let's say of denial of injunctions by three-judge courts below.

Unless we overrule Ex parte McCarthy which involves free speech, which involve free speech that would be the result.

Now, I believe as far as speech is concerned --

Justice Thurgood Marshall: Would you agree that in order for Congress to do that, they'd have to repeal 1983?

Mr. Frederick J. Ludwig: To take away jurisdiction from this Court, Your Honor?

Justice Thurgood Marshall: Yes.

Mr. Frederick J. Ludwig: It would be a --

Justice Thurgood Marshall: Since the (Voice Overlap) --

Mr. Frederick J. Ludwig: It would be -- I don't advocate it by any means, I'm not advocating that the appellate jurisdiction of this constitutional court ever be tampered with Congress but I see --

Justice Thurgood Marshall: (Voice Overlap) at law --

Mr. Frederick J. Ludwig: -- this Court has sustained in the past.

Justice Thurgood Marshall: At law or in equity, a pretty precise, I don't think you can get much broader.

Mr. Frederick J. Ludwig: Yes.

Well, I'd say that this suit in equity in 1983 is just those words, there were three phrases, action at lawsuit and equity or rather a proper proceeding for redress.

Justice Thurgood Marshall: Well, let's not get involved in the other.

Mr. Frederick J. Ludwig: Yes, but the cases which this Court says are exceptions where the federal court can enjoin are there are a quite a number.

In 1851, a ship owner who deposits a money equal to the debt can relieve a lien against this ship.

In 1875, a bankruptcy exception was allowed namely that all proceedings in state as well as federal courts will be stayed.

Several other exceptions have been allowed by Congress to the state.

They allow it in connection with the Frazier-Lemke Farm Mortgage Act during the depression in 1930's.

The state collection proceeding.

They have allowed it in the famous habeas of our immemorial habeas corpus act, Federal Habeas Corpus Act, they can stop all proceedings in a state court.

They allow it and the Interpleader Act.

But in all of these cases as this Court said in Amalgamated Clothing Workers against Richman in 1951 after the amendment, in all of these cases, the language that Congress used is pretty explicit.

It doesn't have to refer to 1983 by number.

But it has to be pretty explicit and stay -- say that proceedings may be stayed either in a state court or in any court or it may say that all proceedings shall cease wherever they are.

They use a collocation of words quite different than merely a suit in equity.

Now a suit in equity can be brought for a lot of things as Your Honors well knows, a bill quia timet, an action for recession of a contract, a lot of suits in equity can be brought without resorting to a stay or an injunction.

Injunction isn't the only type of equitable remedy.

Second, a suit in equity can be brought in a state court and the state court could grant a stay without running into the federal court.

And third and this is important, the suit in equity can be brought even to stay, a threatened procedure proceeding in the state court.

And in that respect, our case, this is the most restrictive interpretation, the most limiting interpretation on 19 -- on 2283, Ex parte Young of course tells us that the -- the memorial -- the memorable congressional statute requires that the proceeding be in a state court and if it is not in a state court then of course its possible to get an injunction against a threatened prosecution.

Now, this Court has seven related cases involving injunctions by three -- either denial or granting of injunctions by the three-judge District Courts below.

The first case, Number 4, Harris against Younger, in that case the court -- the three-judge court did grant an injunction and one of the three applicants for the injunction, Harris, had an indictment pending against him.

There you have a question of a clear cut violation of the provisions of 2283 in connection with the other two applicants, Broslawsky, Dan and Hirsch, nobody indicted them.

And our interpretation of 2283 is that so far as enjoining the District Attorney if Los Angeles County from commencing a prosecution against Professor Broslawsky or the labor union leaders, Dan and Hirsch, that 2283 doesn't effect because there was no proceeding in a state court.

Boyle against Landry as I understand it, there was no pending case in the state court so I'm question -- I question whether 2283 has any application there.

In our case we had indictments, this indictment pending in a state court for 265 days with 58, 59, 60 motions made before application was made to the federal tribunal.

Next case after this gone --

Justice John M. Harlan: When will these indictments return?

Mr. Frederick J. Ludwig: These indictments were returned on June 20th, 1967 Your Honor.

That's -- and application was made -- the first indictments --

Justice John M. Harlan: Well, (Voice Overlap) --

Mr. Frederick J. Ludwig: -- the superseding indictment January 20th, 1968, March 12th, 1968, application first made for the first time to a Federal District Court.

Justice John M. Harlan: What was the date of the three-judge court decision?

Mr. Frederick J. Ludwig: About June, I don't have the exact date at the moment, June 1968, Your Honor, June 1968.

This case was ordered, reargued that may account for it.

The next case Gunn against University Committee is not yet argued yet.

Again, there you had no pending prosecution because the state tribunal had dismissed it.

Dyson against Bachelor (ph) --

Justice Hugo L. Black: You explained to Justice Harlan awhile ago but I didn't quite understand you.

How long ago was that judgment rendered?

Mr. Frederick J. Ludwig: About June of 1968 and this case --

Justice Hugo L. Black: And there was no injunction?

Mr. Frederick J. Ludwig: No, injunction was denied.

Justice Hugo L. Black: You explain that I think why the state hadn't prosecuted it, I didn't get it?

Mr. Frederick J. Ludwig: I -- we did prosecute two of these men and --

Justice Hugo L. Black: Why didn't you prosecute them all?

Mr. Frederick J. Ludwig: The reason is that they -- it was agreed that the gist -- well, to be very honest, an Assistant District Attorney in our office agreed with other side without my knowing about it and without District Attorney Mackell who is here in Court knowing about it.

That he would await the outcome of the decision from this tribunal.

That's why.

Justice Potter Stewart: And the prosecution of the two was on -- were on -- it was (Voice Overlap) --

Mr. Frederick J. Ludwig: When it had --

Justice Potter Stewart: -- the charges?

Mr. Frederick J. Ludwig: -- and was --

Justice Potter Stewart: Different charges?

Mr. Frederick J. Ludwig: On the conspiracy to commit murder in a separate -- the second, the separate indictment.

Justice Potter Stewart: Right.

Mr. Frederick J. Ludwig: And they were convicted in June, the month that --

Justice Potter Stewart: Right.

Mr. Frederick J. Ludwig: -- that Senator Kennedy was assassinated.

Justice Hugo L. Black: What are the charges against the others?

Mr. Frederick J. Ludwig: Conspiracy to commit murder.

They're also involved in this --

Justice Hugo L. Black: Conspiracy to commit murder in the --

Mr. Frederick J. Ludwig: Of two named persons.

Justice Hugo L. Black: And there has been no injunction and yet the state has held it up without any prosecution, is that right?

Chief Justice Warren E. Burger: I think your -- counsel, you have responded to the wrong question.

Would you state again which were the ones which -- on which the prosecution proceeded and which were the prosecutions which were postponed?

Mr. Frederick J. Ludwig: We had two indictments based on the same grand jury managed Mr. Chief Justice.

One was the present indictment involving the 15 defendants.

The other was against two defendants who are also included in these 15.

The second indictment was to conspiracy to commit murder in the first degree.

Chief Justice Warren E. Burger: And you proceeded with both?

Mr. Frederick J. Ludwig: We proceeded and tried them because no application was made to a federal tribunal.

They were convicted and they -- that case is now pending in this Court for certiorari under 1668 miscellaneous.

It's on your docket.

Justice Hugo L. Black: What were the other charges?

Mr. Frederick J. Ludwig: The charges in the first indictment where the possession of these weapons and 41 of its 48 counts conspiracy to commit arson in one of the 48 counts --

Justice Hugo L. Black: How many weapons were there?

Mr. Frederick J. Ludwig: There were 41 separate weapons.

Justice Hugo L. Black: 41 weapons.

Mr. Frederick J. Ludwig: That's right.

Justice Hugo L. Black: They were charged with having them in contrary to the law?

Mr. Frederick J. Ludwig: Yes, Your Honor.

Under the law of the State of New York.

Chief Justice Warren E. Burger: For how many people?

Mr. Frederick J. Ludwig: For 10 of the 15 appellants in this case.

Justice Hugo L. Black: I do not fully understand why they were not prosecuted.

Mr. Frederick J. Ludwig: I can't in one indictment proceed against you under certain counts and let the rest hang in advance.

I can't sever it.

Our state courts will --

Justice Hugo L. Black: Why would you have to separate them?

Mr. Frederick J. Ludwig: Because they'll regard that as double jeopardy, they'll say jeopardy attaches if you go ahead with one count in an indictment and dispose of it by conviction, you can never prosecute for the others.

Justice Hugo L. Black: Well, you could've gotten more indictments, couldn't you, if that's your trouble?

Mr. Frederick J. Ludwig: We did not anticipate at the time this indictment was returned that there will be any resort to the federal court.

This is a supers --

Justice Hugo L. Black: But there has been a resource and you don't think it was illegal.

Mr. Frederick J. Ludwig: I wouldn't want to amend -- to put this case in before a grand jury again while it's pending in a federal tribunal.

I think that would be a little unfair.

Justice Hugo L. Black: But why?

Mr. Frederick J. Ludwig: Because I think it would frustrate --

Justice Hugo L. Black: Those were serious crimes that they are guilty?

Mr. Frederick J. Ludwig: They are, there's no question about it but -- may I add also but I do not want to prejudice any of these appellants.

Some of these appellants in matters did -- not connected with criminal anarchy, are under pending indictments in our county alone.

So we have a rope around them.

I may add this too if I may that this type of interruption of a state criminal proceeding does not give the state the opportunity to refine the charges in the indictment.

Now, in the most re -- Brandenburg case, this Court pointed out that there was no refinement of the charge in that case either by the trial judge or by the highest court of the State of Ohio.

In our case there are many more stages of refinement that this proceeding has interrupted.

For example, at page 89 of the appendix to my brief, Section 295, I think it is (g) of the code of criminal procedure, says mandatorily in the form of the indictment that we used which is a short form indictment, mandatorily the District Attorney shall deliver a bill of particulars to the defendant provided he applies to the judge for one.

The first stage of refinement is that we would have to particularize what we rely on to convict this defendant and we must do so mandatorily.

It's not in the discretion of a judge, state court judge to deny a bill of particulars.

Second, at the trial of this case, the trial judge will have to give instructions to the jury.

At that time he can clearly state and incorporate anything that has been laid down by this Court in Brandenburg and by the highest court of our state in Epton.

Third, the highest court of the state will reveal this conviction and we're reminded in -- that 1947 case coming from New York County against New York, the opinion by Justice Reed, the name, it forgets me, I worked on the case myself.

That if the highest court of a state amends a statute by construing it then those words of the highest court of the state must be taken to be part of the state statute itself.

Thank you.

Justice Hugo L. Black: May I add just one thing Your Honor, one of my assistants, I have no reason to know why a greater privilege to use force is allowed when political dissent is involved then for example in self-defense or defense of another or defense of your habitation.

Mr. Frederick J. Ludwig: Just because you're attempting to overthrow the Government, it seems to me does not give you a broader privilege to use force than if you're committing an ordinary crime of robbery.

Now, as between robbery and criminal anarchy, there is this distinction, if a robber sets out and succeeds in getting the loot, taking it from a crime, he is not home free because he may later be apprehended and put in jail.

But if an anarchist overthrows the local government, sets out to do it and succeeds, then he is home free.

There's an epigram from Sir John Harington in the 17th Century, it's just two lines, he says, “Treason doth never succeed.

What's the reason?

For if treason succeed, none dare call it treason.”

In other words, the person who succeeds in overthrowing the Government has bought themselves amnesty and immunity.

Chief Justice Warren E. Burger: Mrs. Marcus.

Argument of Maria L. Marcus

Ms Maria L. Marcus: Mr. Chief Justice and may it please the Court.

Counsel for appellant Samuels in his brief has asked that the clear and present danger test which this Court approved in Dennis be overruled.

He has not suggested any substitute test.

It is apparently his position that advocating the overthrow of the Government must always be a form of protected speech regardless of its intent, regardless of the context, regardless of the circumstances.

This interpretation of the First Amendment is erroneous because it totally ignores the physical danger that can be created by a speech.

As in an analogous situation of a man shouting fire in a crowded theater, we must look to the intent and possible consequences of speech in order to determine whether it is within the protected area.

In the case at bar, the entire fabric of the answered question was the intent to use force to immobilize state and local authority.

Aside from the non-speech elements which have already been described, the act of speech were very far from intellectual discussion of doctrine but instead sent it around, organizing youth for acts of violence in Queens County, how to use pipes and gunpowder for the making of bombs and proficiency in terror tactics.

Without the anarchy statute, only the weapons counts not requiring intent and the arson counts would proceed and the indictment would have to be dismissed against approximately ten defendants even though there actions created a clear and present danger.

It is not difficult to apply the clear and present danger test and the required showing of incitement to action to these charges.

There are reasonable grounds to believe that the threat to the state's functioning was immanent and about to commence.

This Court made clear in Dennis that even where an attempt to overthrow the Government is likely to fall short of complete achievement, it presents a sufficient evil for the state to prevent.

The Court said and I quote, “The damage with such attempts create both physically and politically to a nationmakes it impossible to measure the validity in terms of the probability of success.”

These words are particularly significant in the light of the indictment here.

In New York City, the cutting off of electrical power by sabotage combined with arson in subway and transportation lines would not only paralyze the central governmental services but would create the kind of chaos which would prevent the state from organizing and governing effectively.

New York has a right to prevent advocacy which is one step before the explosion.

Counsel for appellant Fernandez pointed out that the clear and present danger test and the requirement of the incitement is not cons -- contained on the face of the statute but this Court made clear in Dennis that it does not have to be in high clear view in the statute but that it is a test of judicial applicability that it can be read in and the New York Court of Appeals has already done so.

Appellants claim that the statute at issue will have a deterrent effect upon activities such as advocacy of unpopular ideas.

And I also indicate that there can be no such deterrence in this case.

Prosecutions under both the old and the new statutes must be governed by Epton's requirements.

This interpretation places mere advocacy outside the ambit of the statute thus the only group whose rights might not be affected by the Epton decision would be a hypothetical group who are deterred be -- by the statute prior to May 1967 but who cannot be prosecuted for any of their activities as the present law forbids penalizing advocacy which creates no clear and present danger.

Thus this hypothetical group cannot even be identified and if they were deterred it was by a statute which is no longer in existence.

The hypothetical rights of this hypothetical group most certainly do not present any actual controversy and under this Court's rationale in Golden versus Zwickler, decision rendered on such facts would be advisory and therefore inappropriate.

Appellants say that they were not given notice that their conduct was included in the statute.

The statute was made narrower by the Epton interpretation therefore there'd be no question, the statute as written provided warning of its applicability to the conduct here involved.

Furthermore, the hardcore activities at issue here as the court below pointed on at the very center of the statute's circumference.

As indicated by this Court on the procedural issue, Congress has constitutional power to provide that all federal issues be tried in the federal courts, that all be tried in the state courts or that the jurisdiction of such issues be shared.

Congress is constitutionally free to establish the conditions under which civil or criminal proceedings involving federal issues may be removed from one court to another.

While the right to free speech and the right to due process are conferred by the Constitution, the question of proper forum is statutory.

Section 2283 has plainly precluded injunctive relief in the pending prosecution.

Counsel for appellant Fernandez argues that declaratory relief would not violate the statute and will forward essentially the same remedy.

However, the rendering of such relief would frustrate the purposes of Section 2283 and destroy the principles of comity between state and federal courts.

And that in inevitable disruption of state prosecutions would occur.

State courts have the same duty and power to rule upon federal constitutional issues in the same way as the federal courts and in most cases where a prosecution is already pending, less delay would adhere in resolving the issues in the state courts.

If a statute is overbroad, the state courts have the same power as the federal courts to strike it down, to prevent any chilling effect upon First Amendment rights.

I think the federal removal statute which was referred to earlier by Mr. Justice Marshall provides evidence of congressional intent to keep cases in the state courts where there are pending prosecutions already commenced.

The removal statute allows determination of state proceedings only in very narrow circumstances and this provides congressional guidance on the issue of declaratory judgment.

As the clear and present test is one of judicial applicability as this Court found in Dennis versus United States, the application of this statute to appellants can only be determined upon a full record in the state courts.

The need for such a record supplies a further ground for non-intervention in this case.

Chief Justice Warren E. Burger: Thank you Mrs. Marcus.

I think your time is fully used, Mr. Rabinowitz.

Thank you for your submissions.

The case is submitted.

Rebuttal of Victor Rabinowitz

Mr. Victor Rabinowitz: May it please the Court, if the Court would relieve the District Attorney of Queens of the stipulation that was entered in too long ago about delaying this prosecution pending disposition by this Court, we will immediately prosecute them tomorrow morning.

Chief Justice Warren E. Burger: Well, I think that at the moment at least we have no power to get into that question.

Mr. Victor Rabinowitz: Thank you, Your Honor.

Chief Justice Warren E. Burger: We've heard what you've had to say about it.

Thank you.