The opinion
FAIRCHILD, Circuit Judge.
I concur with Judge Gordon in the disposition of the case. I agree with much that he has ably stated, but I reach the result by a somewhat different path.
I express no final view upon any of the constitutional claims asserted by plaintiffs. They will be free to raise them anew in defense of the state court actions, without prejudice by reason of decision here. I go only so far as to conclude that sec. 947.01, Wis.Stats., is not, in the light of any decision of the Supreme Court of the United States, so clearly unconstitutional under the first and fourteenth amendments as to make it appropriate for this federal court so to *137 declare notwithstanding the opportunity of plaintiffs to litigate the same issue in actions already before the state court when this action was begun.
In my view an act of Congress, 28 U.S.C. § 2283 , even when read' together with 42 U.S.C. § 1983 , forbids this court from staying the state court actions, and impliedly, at least admonishes us, if it does not prohibit us from superseding, in effect, the state court resolution of these federal issues by issuing a declaratory judgment. 1
Sec. 2283 provides:
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
There is no act of Congress which specifically authorizes stay of state court proceedings in an action of this type. If any authorization can be found, it must be read out of 42 U.S.C.A. § 1983 , as follows:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
■ In considering whether see. 1983 authorizes an injunction against state court proceedings, I would distinguish between a state court proceeding which will serve to adjudicate reasonably debatable legal issues, as well as issues of fact, and a state court proceeding which, because of the patent invalidity of the statute involved or some other demonstrated reason, would be merely an instrument in a program of abuse by state officers of federal constitutional rights.
Where there appear to be debatable constitutional issues, I do not think that a plaintiff’s claim before the federal court that a judgment against him on those issues in state court will violate his federal rights is enough to cause the federal court to decide the claim. It should be presumed, unless clearly shown to the contrary, that the state court will deal as carefully with federal rights as would we.
Plaintiffs’ principal foundation for their attack on the state disorderly conduct statute is the doctrine of “over-breadth.” This doctrine, as I understand it, applies specially in the area of freedoms protected by the first amendment. It permits a person who has done things the state could properly have forbidden to attack the statute on the ground that its terms not only include his conduct, but include conduct protected' by the first and fourteenth amendments.
The heart of the argument here is-that a demonstration in support of a point of view is protected, even though the point of view is so abhorrent to-onlookers that the onlookers may riot, and that this statute may be construed to apply to a protected demonstration ■under circumstances where that result is produced. It seems to me, on the other hand, that it is at least arguable that the statute is not concerned with the substance of any idea which may be-expressed or advocated by conduct nor with the tendency of such expression or advocacy to provoke a disorderly reac-. tion by bystanders who are offended, except in the limited fields of indecent or profane conduct. 2
-And I know of no decision of the United States Supreme Court which de *138 termines, upon the overbreadth rationale, that a substantially identical statute is wholly invalid.
The American Law Institute is preparing a Study of the Division of Jurisdiction Between State and Federal Courts, and formulating provisions on that subject for possible inclusion in the Judicial Code. Proposed sec. 1372 3 is an attempt at restatement of existing sec. 2283 as interpreted by the courts. It would prohibit an injunction to stay proceedings in a state court, except in seven enumerated types of cases. Exception (7) would permit an injunction, if otherwise warranted, where “the injunction is to restrain a criminal prosecution that should not be permitted to continue either because the statute or other law that is the basis of the prosecution plainly cannot constitutionally be applied to the party seeking the injunction or because the prosecution is so plainly discriminatory against one who has engaged in conduct privileged under the Constitution or laws of the United States as to amount to a denial of the equal protection of the laws.”
A reporter’s note indicates: “Exception (7) goes beyond present law to permit an injunction in certain civil rights cases where the very existence of a state prosecution may have a chilling effect on others who wish to exercise rights guaranteed by the Constitution of the United States. * * *”
A portion of the reporter’s commentary 4 hereinafter quoted, exactly expresses the caution which I ■ feel must be observed even if the provisions of 42 U.S.C. § 1983 be deemed to open up a civil rights exception to present 28 U.S.C. § 2283 .
“ * * * The exception covers two classes of cases. The first is those in which the prosecution must ultimately fail because it is plain that the statute or other law that is the basis of the prosecution cannot constitutionally be applied to the party seeking the injunction. This covers both statutes plainly invalid on their face and statutes that are generally valid but that cannot be applied to the defendant in the criminal proceeding because his conduct is plainly privileged under federal law. The word ‘plainly’ is of importance. An injunction should not issue unless the constitutional question involved has been authoritatively determined with regard either to the particular statute in question or one that is indistinguishable from it.”
. See Great Lakes Dredge & Dock Co. v. Huffman (1943), 319 U.S. 293, 299 , 63 S.Ct. 1070 , 87 L.Ed. 1407 , and H. J. Heinz Co. v. Owens (9th Cir. 1951), 189 F.2d 505, 509 , cert. den. 342 U.S. 905 , 72 S.Ct. 294 , 96 L.Ed. 677 .
. If material, examination of the appellants’ briefs in State v. Givens (1965), 28 Wis.2d 109 , 135 N.W.2d 780 , discloses that the doctrine of overbreadth, as distinguished from vagueness-as-lack-of-notice, was not presented to the court.
. P. 31-32 of Tentative Draft No. 5 of the Study.
. P. 184 of Tentative Draft No. 5 of the Study.