Dombrowski v. Pfister

Mr. Justice Harlan,

whom Mr. Justice Clark joins,

dissenting.

The basic holding in this case marks a significant departure from a wise procedural principle designed to spare our federal system from premature federal judicial interference with state statutes or proceedings challenged on federal constitutional grounds. This decision abolishes the doctrine of federal judicial abstention in all suits attacking state criminal statutes for vagueness on First-Fourteenth Amendment grounds. As one who considers that it is a prime responsibility of this Court to maintain federal-state court relationships in good working order, I cannot subscribe to a holding which displays such insensitivity to the legitimate demands of those relationships under our federal system. I see no such incompatibility between the abstention doctrine and the full vindication of constitutionally protected rights as the Court finds to exist in cases of this kind.

In practical effect the Court’s decision means that a State may no longer carry on prosecutions under statutes challengeable for vagueness on “First Amendment” grounds without the prior approval of the federal courts. For if such a statute can be so questioned (and few, at least colorably, cannot) then a state prosecution, if insti *499 tuted after the commencement of a federal action, 1 must be halted until the prosecuting authorities obtain in some other state proceeding a narrowing construction, which in turn would presumably be subject to further monitoring by the federal courts before the state prosecution would be allowed to proceed.

For me such a paralyzing of state criminal processes cannot be justified by any of the considerations which the Court’s opinion advances in its support. High as the premium placed on First Amendment rights may be, I do not think that the Federal Constitution prevents a State from testing their availability through the medium of criminal proceedings, subject of course to this Court’s ultimate review.

Underlying the Court’s major premise that criminal enforcement of an overly broad statute affecting rights of speech and association is in itself a deterrent to the free exercise thereof seems to be the unarticulated assumption that state courts will not be as prone as federal courts to vindicate constitutional rights promptly and effectively. Such an assumption should not be indulged in the absence of a showing that such is apt to be so in a given case. No showing of that kind has been made. On the contrary, the Louisiana courts in this very case have already refused to uphold the seizure of appellants’ books. Ante, pp. 487-488. We should not assume that those courts would not be equally diligent in construing the statutes here in question in accordance with the relevant decisions of this Court. 2

*500 The Court suggests that “a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination.” Ante, p. 486. But the possibility of such an impairment is not obviated by traveling the federal route approved here. Even in the federal courts the progress of litigation is not always as swift as one would like to see it. It is true, of course, that appellants would have to show in the state case that the conduct charged falls outside the scope of a criminal statute construed within constitutional limits, whereas in this case they need not allege the particular conduct which they deem to be protected. But the argument that these state prosecutions do not afford an appropriate vehicle for testing appellants’ claims respecting freedom of speech and association hardly sits well with the Smith Act cases in which First Amendment claims were at the very core of the federal prosecutions. See Dennis v. United States, 341 U. S. 494 ; Yates v. United States, 354 U. S. 298 ; Scales v. United States, 367 U. S. 203 .

Baggett v. Bullitt, 377 U. S. 360 , in which the Court last Term struck down a Washington state statute virtually identical to this one, should not be dispositive of this case. Baggett was decided in the context of what amounted to an academic loyalty oath, applicable to college professors with respect to some of whom (those not having tenure) there was at least grave doubt whether a state remedy was available to review the constitutionality of their dismissal by reason of refusal to take the required oath. I would not extend the doctrine of that case to thwart the normal processes of state criminal law enforcement. 3

*501 Had this statute been a federal enactment and had this Court been willing to pass upon its validity in a declaratory judgment or injunction action, I can hardly believe that it would have stricken the statute without first exposing it to the process of narrowing construction in an effort to save as much of it as possible. See, e. g., Dennis v. United States, supra, at 502. Yet here the Court has not only made no effort to give this state statute a narrowing construction, but has also declined to give the Louisiana courts an opportunity to do so with respect to the acts charged in the pending prosecutions against these appellants. See Fox v. Washington, 236 U. S. 273 ; Poulos v. New Hampshire, 345 U. S. 395 . The statute thus pro tanto goes to its doom without either state or federal court interpretation, and despite the room which the statute clearly leaves for a narrowing constitutional construction. See Dennis, Yates, and Scales, supra. This seems to me to be heavy-handed treatment of the first order.

What the Court decides suffers from a further infirmity. Interwoven with the vagueness doctrine is a question of standing. In a criminal prosecution a defendant could not avoid a constitutional application of this statute to his own conduct simply by showing that if applied to others whose conduct was protected it would be unconstitutional. 4 To follow that practice in a federal court which *502 is asked to enjoin a state criminal prosecution would, however, in effect require that the parties try the criminal case in advance in the federal forum, see Cleary v. Bolger, 371 U. S. 392 ; Stefanelli v. Minard, 342 U. S. 117, 123-124 , a procedure certainly seriously disruptive of the orderly processes of the state proceedings. The Court seems to recognize that persons whose conduct would be included under even the narrowest reading of the statutes — what might be called “hard-core” conduct — could have been constitutionally prosecuted under the statutes invalidated today, without being able to assert a vagueness defense. Ante, n. 7; pp. 491-492. Thus, if persons were conspiring to stage a forcible coup d’etat in a State, they could hardly claim in a criminal trial that a statute such as this was vague as applied to them. For all we know, appellants’ conduct in fact would fall within even the narrowest reading of the Louisiana Subversive Activities and Communist Control Law, but since appellants were able to reach a federal court before the State instituted criminal proceedings against them, they are now immunized with a federal vaccination from state prosecution. To make standing and criminality turn on which party wins the race to the forum of its own choice is to repudiate the “considerations of federalism” (ante, p. 484) to which the Court pays lip service.

While I consider that abstention was called for, I think the District Court erred in dismissing the action. It should have retained jurisdiction for the purpose of affording appellants appropriate relief in the event that the state prosecution did not go forward in a prompt and bona fide manner. See Harrison v. NAACP, 360 U. S. 167 .

If the state criminal prosecution were instituted first, a federal court could not enjoin the state action. 28 U. S. C. § 2283 (1958 ed.).

Moreover, it is not unlikely that the Louisiana courts would construe these statutes so as to obviate the problems of vagueness noted by the Court in Baggett v. Bullitt, 377 U. S. 360 , with regard to a similar Washington statute. Compare Douglas v. City of Jeannette, 319 U. S. 157 , and Murdock v. Pennsylvania, 319 U. S. 105 , ante, p. 485.

In this case appellants are pursuing a consistent course of conduct, and the only question is whether the Louisiana statutes apply *501 to such conduct. Thus, this case comes within the “bulk of abstention cases in this Court . . . [where] the unsettled issue of state law principally concerned the applicability of the challenged statute to a certain person or a defined course of conduct, whose resolution in a particular manner would eliminate the constitutional issue and terminate the litigation.” Baggett v. Bullitt, supra, at 376-377 . The present case is indistinguishable from Harrison v. NAACP, 360 U. S. 167 , and Albertson v. Millard, 345 U. S. 242 , as explained in Baggett, supra, at 376, n. 13 .

See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 , 96-104 (1960).