holding that declaratory relief is improper when a prosecution involving the challenged state statute is pending in state court at the time the federal suit is initiated, and the same principles that govern the propriety of federal injunctions of State criminal proceedings govern the issuance of federal declaratory judgments in connection with such proceedings
How later courts described this case
- holding that declaratory relief is improper when a prosecution involving the challenged state statute is pending in state court at the time the federal suit is initiated, and the same principles that govern the propriety of federal injunctions of State criminal proceedings govern the issuance of federal declaratory judgments in connection with such proceedings
- holding that the Younger doctrine requires dismissal of claims for both injunctive and declaratory relief because “the basic policy against federal interference with pending state [proceedings] will be frustrated as much by a declaratory judgment as it would be by an injunction”
- holding that “ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the longstanding policy limiting injunctions was designed to avoid”
- explaining that when “the practical effect of the two forms of relief will be virtually identical,” the “propriety of declaratory and injunc-tive relief should be judged by essentially the same standards”
Written by the judges who cited it.
The opinion
Mr. Justice Douglas,
concurring.
The same New York statutes on anarchy that were sustained in Gitlow v. New York, 268 U. S. 652 , are involved in these cases. It was in that case that Mr. Justice Holmes, with whom Mr. Justice Brandéis concurred, said in dissent:
“It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
In Gitlow the only overt acts were advocacy of overthrow and publication of the writings that contained the advocacy. Id., at 655 . Gitlow and its progeny, including Whitney v. California, 274 U. S. 357 , went into the discard with our decision in Brandenburg v. Ohio, *75 395 U. S. 444 . In that case the indictment charged advocating terrorism “by word of mouth” as a method of political reform and assembly for the purpose of such advocacy. We held that neither advocacy nor assembly in order to advocate political action may be made punishable.
Brandenburg , however, is of no help to these appellants. For while some of the counts embrace only advocacy or acts which fall within its penumbra, still others are in the field of activities far removed from the protection of the First Amendment. There is a question concerning some of the overt acts — whether, as I asked in my dissent in Epton v. New York, 390 U. S. 29, 30 , a constitutionally protected right such as speech or assembly may be used as an overt act in furtherance of a conspiracy. But other overt acts relate to the acquisition of weapons, gunpowder, and the like, and the storing of gasoline to start fires. Persuasion by such means plainly has no First Amendment protection.
It therefore cannot be said that the cases against Samuels and Fernandez are palpably unconstitutional. It is for the state courts by sifting out the chaff from the charges through motions to strike, instructions to the jury, and other procedural devices to preserve such First Amendment rights as may be involved here. Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of “advocacy.”