The opinion
DISSENTING OPINION
ROSLING, District Judge.
This dissent is only from so much of the majority’s holding that the basic, but residual, question of constitutionality of Penal Law § 781-b should be passed back to the state courts for adjudication while we abstain. The question of constitutionality, however, is necessarily reached if the dissent correctly holds that we must not abstain. That the provision is unconstitutional for overbreadth the Attorney Genera] in his brief substantially acknowledges by citing the legislative history of the most recent (1962) amendment of the provision as basis for a judicial, possibly, a case by case, narrowing of the law to a constitutional dimension. What he proposes is that the courts by decisional law do what the New York State legislature did by amendment after the state Court of Appeals had stricken down in People v. Mishkin, 17 A.D.2d 243 , 234 N.Y.S.2d 342 (1st Dept.1962), aff’d 15 N.Y.2d 671 , 255 N.Y.S.2d 881 , 204 N.E.2d 209 (1964), the overbroad Section 330, subd. 2 of the General Business Law.
The statute construed in Mishkin contained a self-identification requirement which swept within its scope all publications without distinguishing between that which by reason of its content had forfeited the protection the First Amendment affords, and other matter not thus disentitled. The post-Mishkin amendment, still untested by the courts, expressly restricts its compelled self-identification to what, hopefully, has forfeited constitutional protection as hard core pornography. Mishkin in turn rests on Talley v. State of California, 362 U.S. 60 , 80 S.Ct. 536 , 4 L.Ed.2d 559 , which held that a city ordinance (Los Angeles) barring distribution of any handbill in any place under any circumstances unless the provenance thereof was noted thereon was unconstitutional as abridging freedom of speech and press secured against such invasion by the First and Fourteenth Amendments. I do not find in the Talley holding any express or sharply implied qualification of the principle announced that would permit a judicial pruning of a statute thus overbroad in the First Amendment area, so that what remains may be rendered viable.
New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), admonishes those in the public eye that constitutional immunity extends to the writers of all that is written in criticism of their public action, even though falsely written, absent a showing of actual malice.
Mills v. State of Alabama, 384 U.S. 214 , 86 S.Ct. 1434 , 16 L.Ed.2d 484 , denies to the state authority to censor by penalizing writings made so close to an election, that no time is available for answer. That the voters may be misled by such ex parte and unexposed slanders is at once apparent. But, according to Mills, the policing of the truth to insure that the voter makes a choice uninfluenced by belated falsehood or distortion is not a function of government. Nor does it become the function of government to do so upon a showing that public officials are aided by private persons, however honorable and honorably motivated. Cf. Bantam Books v. Sullivan, 372 U.S. 58 , 83 S.Ct. 631 , 9 L.Ed.2d 584 (1963). Nor should we by abstention fail to declare, if precedent has thus determined, unconstitutional a law so patently overbroad.
Baggett v. Bullitt, 377 U.S. 360 , 84 S.Ct. 1316, 1323 , 12 L.Ed.2d 377 (1964), comments (p. 373) that “[w]ell-intention *995 ed prosecutors and judicial safeguards do not neutralize the vice of a vague law.” Justice White, writing for the court, rejected abstention as inappropriate, for “[i]t is fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, would bring the oath [penalties for nonjuring teachers was involved] within the bounds of constitutional certainty. Abstention does pot require this.” [Id. at p. 378, 84 S.Ct. at p. 1326]
Rejected too, by Baggett was resort to a state tribunal for a declaratory judgment on the issue of constitutionality, a suggestion advanced by the majority here. The slow, particularistic process of litigation in state forums and its cost are noted further by Justice White as '“inhibit [ing] the exercise of First Amendment freedoms.” [id. at pp. 378, 379, 84 S.Ct. at p. 1326]
Dombrowski v Pfister, 380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965), an action brought under the Civil Rights Act, Rev.Statute § 1979, 42 U.S.C. § 1983 (1958 ed.) is discussed at length and passim by the majority of this panel, and is read by them, although not expressly so stated in the opinion, as authorizing the retention of jurisdiction only upon a showing of a context of threats, violence and disorders which by harassment discourages those petitioning this court for relief, from attempting to vindicate their constitutional rights through proceedings in the state courts. Dombrowski strongly and expressly upheld the Baggett principles [id. 491, 85 S.Ct. 1123 ], yet Baggett involved no claims of acts of violence or of indignities visited upon the nonjuring teachers who pressed their suit in the federal forum.
The majority here, it would appear, have read into the principles for which Dombrowski stands, the accidental and adventitious environment of violence, and assigned to it a role integral to the ratio decidendi. Dombrowski, however, does not justify such gloss.
Thus Dombrowski, at p. 486, 85 S.Ct. at p. 1121 “we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.”
And, quoting NAACP v. Button, 371 U.S. 415 at p. 433 , 83 S.Ct. 328 , 9 L.Ed.2d 405 , it approves the statement in that opinion which speaks of the “danger of tolerating, in the area of First Amendment freedoms, the .existence of a penal statute susceptible of sweeping and improper application.” [id. 380 U.S. 487 , 85 S.Ct. 1121 ]
Dombrowski decries delay in “vindication of freedom of expression await [ing] the outcome of protracted litigation”, and even more forcefully rejects the contention “that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of prosecution, unaffected by the prospect of its success or failure.” [id. at p. 487, 85 S.Ct. at p. 1121 ]
But, most significantly, Dombrowski distinguishes its own context from that of Douglas v. City of Jeannette, 319 U.S. 157 , 63 S.Ct. 877 , 87 L.Ed. 1324 (1944), in which there was no atmosphere of state violence or breakdown of the judicial process, the distinction being on grounds which make clear that although the presence of violence and other disruptive circumstances may dictate retention, their absence does not, conversely, dictate abstention.
Dombrowski declares [380 U.S. pp. 489-490, 85 S.Ct. p. 1122]: “We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face or as applied for the purpose of discouraging activities.” [Emphasis supplied] Only the second of the alternatives cited contemplates violence as of material relevance. The first alternative, instanced by our proceeding, needs only a statute void on its face as the pivotal condition for retention of a First Amendment suit where chilling is a natural consequence *996 of our abstention. See excerpt from Baggett, supra p. 994 .
Finally, and in my view conclusive upon us as obliging us to retain, is the statement in Dombrowski which declares the sequence of the Federal and State procedures when the statute is thus over-broad on its face.
“The State must, if it is to invoke the statutes after injunctive relief has been sought, assume the burden of obtaining a permissible narrow construction in a noncriminal proceeding before it may seek modification of the injunction to permit future prosecutions. * * * Our view of the proper operation of the vagueness doctrine does not preclude district courts from modifying injunctions to permit prosecutions in light of subsequent state court interpretation clarifying the application of the statute to particular conduct.” ( 380 U.S. at 491-492 , 85 S.Ct. at 1123 ) [Emphasis supplied]
The Dombrowski principle is summed up in forthright language (p. 494, 85 S.Ct. p. 1125) taking note of life’s realities and the fact that not all men are willing to accept martyrdom. It reads:
“So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression.”
Once the thesis is accepted that § 781-b is invalid, at least for overbreadth, in its indiscriminate application to both the constitutionally protected writing which, though anonymous, may be circulated withut penalty, and that which by reason of malicious falsehood must certify its origin or be in violation, the question arises as to the one who shall so assess the contents and at what stage this shall be done. For answer § 781-b must be read in association with Executive Law, McKinney’s ConsoLLaws, c. 18, § 69. That provision at the same time authorizes as it obligates, the Attorney General to investigate crimes against the Elective franchise. The sifting process which he, through his deputies, engages in, to implement § 781-b in its judicially narrowed dimension, may with all good heart be intended only for the culpable. Its chill will, nevertheless, be felt in a prior restraint by those whose writings, though not self-identified, may be emitted freely, and should be, not only without penalty, but equally without fear of penalty. Chilling that freedom is impermissible censorship. See People v. Clampitt, 34 Misc.2d 766 , 222 N.Y.S.2d 23 ; North End Democratic Club v. Attorney General, 31 Misc.2d 1000 , 222 N.Y.S.2d 9 ; People v. Zwickler (Crim.Ct., N.Y.City, Kings Co., Feb. 10, 1965, unreported) “[j]udgment of conviction unanimously reversed on the facts,” (Sup.Ct., App.T., 2d Dept., April 23, 1965, unreported), aff’d without opinion 16 N.Y.2d 1069 , 266 N.Y.S.2d 140 , 213 N.E.2d 467 (1965).
Justice Black in Talley at p. 539 of 80 S.Ct. cites as significant Hallam’s Constitutional History of England and the Letters of Junius. The organ tones of Milton two centuries earlier in Areo-pagitica identify the wellsprings at which these authors surely drank.
“For who knows not,” the mighty advocate asked, “that Truth is strong next to the Almighty?” and gave his own answer. “She needs no policies, no stratagems, nor licensings to make her victorious; those are the shifts and the de-fences that error uses against her power.”
I would grant the plaintiff’s motion declaring § 781-b unconstitutional as in violation of the First and Fourteenth Amendments to the Constitution of the United States and enjoining its enforcement.