The opinion
IRVING R. KAUFMAN,
Circuit
Judge (concurring in opinion of Judge ZAVATT):
In light of Judge Rosling’s dissent, I feel that it is necessary for me to state briefly my understanding of the majority opinion so that its meaning is not lost. The majority lays down no broad rule of federal abstention in cases where freedom of expression is threatened, but rather follows those principles enunciated by the Supreme Court in the Dombrowski case. The Court there recognized that “federal interference with a State’s good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework. * * * [T]he mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings.” The facts presented in the appeal before us offer a vivid contrast to those alleged in Dombrowski. The illegal raids and threats of prosecution made by Louisiana officials in Dom-browski, resembled only too closely those tactics employed by totalitarian regimes dedicated to suppressing freedom of expression. In light of the oppressive circumstances presented in that case, the Supreme Court could well infer that “the State’s criminal prosecution will not assure adequate vindication of constitutional rights.”
But, such inference cannot be reasonably drawn in the case now before us. Zwickler does not charge that New York state officials have harassed him, or even that he has been threatened with prosecution. Rather he fears that the District Attorney will again, in good faith, prosecute him — a fear that should be somewhat alleviated by the fact that Zwick-ler’s conviction was unanimously reversed by the New York courts in 1965. And, there is no basis for inferring that New York’s criminal processes, if invoked, will not assure Zwickler adequate vindication of his constitutional rights. Moreover, Zwickler’s exercise of what he believes to be his rights, need not be “chilled.” He need not wait for state officials to act before he can challenge the constitutionality of § 781-b. Rather he may take the initiative and institute a declaratory judgment action in the New York courts; and, in addition he may seek expedition of his case if there is any threat of prosecution — though such a threat seems unreal in light of Zwickler’s previous successful encounter with the statute. The-Supreme Court’s decision in Baggett v. Bullitt did not, as Judge Rosling suggests, reject for all time resort to the state’s declaratory judgment procedures. Rather, the Court found that “In these circumstances [presented in Baggett] it is difficult to see how an abstract construction of the challenged terms * * * in a declaratory judgment action could eliminate the vagueness of these terms. It is fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, could bring the oath within the bounds of permissible constitutional certainty.” 377 U.S. 378 , 84 S.Ct. 1326 . (Emphasis added.) The facts presented in the case before us differ radically. I see no reason to believe that'“extensive adjudications” would be required were *994 Zwickler to challenge § 781-b in a declaratory judgment act. And the State courts can adjudicate, as rapidly as the Federal courts, Zwickler’s simple contention that the statute is unconstitutional because it is overbroad.
In light of all of these factors, the case now before us does not present those special circumstances found in Dombrowski and Baggett, Rather, the facts in this case clearly indicate that our discretion will be exercised in the wisest manner if, as is consistent with our federal framework, we permit the courts of the state to deal first with the question raised by Zwickler.